Constitutionality Review

Contested Provision

It is set forth in the contested provision that where probationary civil servants are found to have displayed any behaviour or act incompatible with public service during their probationary period, they may be dismissed from public service upon the proposal of their disciplinary superior and with the approval of the competent authority.  

Grounds for the Request for Annulment

It was maintained in brief that the contested provision was unconstitutional, as it failed to clearly specify which behaviours and acts are incompatible with public service, despite envisaging the severe consequence of dismissal from public service, and provided no concrete criteria for determination of such conduct, thereby resulting in arbitrary interpretation and practices.

The Court’s Assessment

Disciplinary penalties are administrative sanctions intended to ensure the proper functioning of public services, which are imposed in the event of any breach of duties/responsibilities. It cannot be denied that compliance with disciplinary rules by civil servants, and the development of such professional conduct during the probationary period, is essential for the proper functioning of public services. In this regard, the legislator enjoys a certain margin of appreciation in envisaging more severe disciplinary sanctions for probationary civil servants than for permanent ones.

The contested provision imposes a restriction on the right to remain in public service, safeguarded under Article 70 of the Constitution, attaching legal consequences to certain behaviours and acts of probationary civil servants. In this regard, Article 13 of the Constitution, which sets out the regime governing restrictions on fundamental rights and freedoms, must be taken into consideration. Pursuant to this provision, restrictions on the right to remain in public service must, as a primary requirement, be prescribed by law. The mere formal existence of a law restricting fundamental rights does not suffice; such provisions must also be sufficiently precise, accessible, and foreseeable so as to avoid any risk of arbitrariness.

A provision of law must be formulated in a manner that enables those concerned to foresee, with a sufficient degree of clarity and certainty, which behaviours and acts constitute a disciplinary offence and the sanction attached thereto, as required by the principle of legality. In this regard, it is apparent that the contested provision lacks a sufficiently clear framework as to the behaviours and acts incompatible with public service which would lead to dismissal, thereby precluding an objective assessment and giving rise to arbitrary practices. In other words, it has been observed that the nature and scope of the disciplinary misconduct giving rise to dismissal from public service, as well as the manner in which such conduct may be committed, are not clearly and precisely defined in the provision, so as to leave no room for arbitrariness. Therefore, the contested provision does not allow individuals, within the legal framework, to foresee with sufficient clarity and precision the specific behaviours and acts that would result in dismissal from public service.

Accordingly, the Court has found that the provision restricting the right to remain in public service is not sufficiently precise and foreseeable and fails to provide adequate safeguards against arbitrariness, thereby being incompatible with the requirement that fundamental rights and freedoms be restricted by law. 

Consequently, the contested provision has been found unconstitutional and therefore annulled.