After a long wait of nine years, former Supervisor of Elections Judy Benoit has been vindicated by high court judge Justice Raulston Glasgow in a case she brought against Governor General Dame Cecile La Grenade following her unceremonious dismissal from the post in 2013.
In a 39-page judgement handed down earlier in the month, Justice Glasgow chided Dame Cecile for the manner in which she fired Benoit without giving her an opportunity to respond to complaints made against her performance on the job.
One of the complaints came from former Congress Labour Minister Glynis Roberts who was expelled from the party and eventually gave support to its main rival for State power, the New National Party (NNP) of Dr Keith Mitchell.
The crackdown on Benoit came after she voiced objection to the manner in which Prime Minister Keith Mitchell was seeking to impose a new structure on the Parliamentary Elections Office.
The female Supervisor was summoned before Dame Cecile who appointed her to the post and given a verbal tirade.
Justice Glasgow commented on what he described as “uncontroverted evidence” provided by Benoit that the island’s first female head of state handed her a written document outlining the termination of her services as Supervisor of Elections after informing her of the nature of the complaints against her and the reasons for the termination.
“This act, in my view, further compounds the unreasonableness of the decision, in that it suggests that the Governor-General had already taken the decision to remove Ms. Benoit as Supervisor of Elections and had previously prepared the termination letter without first giving Ms. Benoit an opportunity to address the charges against her. This suggests to me that the meeting was in essence a formal communication of the decision to terminate her position as Supervisor of Elections,” he said.
“The principles of fairness dictated that Ms. Benoit ought to have been afforded a reasonable opportunity to address those complaints or allegations prior to the decision being taken to remove (her) as Supervisor of Elections. It is for this reason that I find the Governor-General’s decision to be in breach of the rules of natural justice. I find that the decision taken by the Governor-General on 30th September 2013 to terminate Ms. Benoit’s appointment as Supervisor of Elections was unlawful, null and void.
Within minutes of Glasgow’s decision reaching the public domain, one local said on Social Media, “Seems like justice has been finally served” and another commented, “This is a win for democracy.”
Benoit retained attorney-at-law Ruggles Ferguson of Ciboney Chambers to represent her in the matter while Dame Cecile was defended by the then Solicitor General, Trinidadian Karen Reid-Ballantyne who is no longer in the job.
As a public service, THE NEW TODAY has decided to publish the Justice Raulston Glasgow judgement:
(2) if the answer to question (1) is yes, was the Governor General enjoined on the facts of this case, in any event, to give Ms. Benoit a hearing before removing her from her functions as Supervisor of Elections? Or as Mr. Ferguson puts it, on the facts of this case, the Governor General was duty bound to permit Ms. Benoit to defend herself before removing her from the functions of Supervisor of Elections.
Was the Governor General empowered to remove Ms. Benoit from her functions as Supervisor of Elections without cause?
As | have indicated above, Ms. Benoit did not pursue this issue at the trial and on closing submissions. In fact, on filing for permission to file these proceedings, Ms. Benoit stated in her submissions filed then that her “… case is not premised upon the office of Supervisor of Elections being a tenured office.”
I believe that this was the correct approach. As the learned Solicitor General stated the resolution of this issue turns on the nature of the office in question; the manner in which persons are appointed to the office; and the manner in which they are removed therefrom.
The defendants argue that the post is not a post in the public service “…but a collection of functions that are to be performed by whichever public officer the Governor General may designate from time to time”. This statement may be putting the case too high.
When one looks at section 35, there is no specific declaration that the office of Supervisor of Elections is a public office within the public service. See the distinction for instance with the office of Clerks to the Houses of Parliament (section 36 of the Constitution); Permanent Secretaries (section 67 of the Constitution); Director of Public Prosecution (section 70 of the Constitution).
In contradistinction, the defendants say that the office of Supervisor of Elections is a mere collection of functions assigned to whichever public officer the Governor General sees fit in her own deliberate judgment. While I agree that section 35 does not declare the office to be a public office, I do not believe that it is a mere collection of functions to be performed by whichever public officer the Governor General sees fit.
Section 35(3) speaks of the “duties of the office of Supervisor of Elections…” So it is not debatable that the Constitution itself speaks of an office of Supervisor of Elections.
I am of the view that in spite of the cogent and forceful arguments of the defendants, the answer to the question under this part of the discussion lies in whether, as was succinctly stated by her Ladyship Cenac-Phulgence J in Darius-Clarke in respect of the office of ambassador, the Supervisor of Elections is a public officer subject to all the constitutional protections accorded public officers against dismissal at pleasure?
Ms. Benoit alludes to this distinction when she submitted that her “… case is not premised upon the office of Supervisor of Elections being a tenured office.” So was Ms Benoit or the person serving as Supervisor of Elections serving as a public officer to whom the safeguard against dismissal against dismissal at pleasure is afforded?
Section III of the Constitution defines public office as:-
“Public office ” means any office of emolument in the public service;
Public office” means a person holding or acting in any public office;
The public service “means, subject to the provisions of this section, the service of the Crown in a civil capacity in respect of the government of Grenada”
Cases such as Yaw offer helpful guidance in arriving whether an office is a public office in the public service. As was said in that case:- “And so it could, with truth, be said that whilst every public officer may be a public servant, no: every public servant is necessarily a public officer. In the same way, although every public officer may be in the public service, not everyone in the public service is the holder of a public office.”
And further:- “In determining whether a ‘public office’ has been constituted for these purposes it is necessary to question: (1) whether there is an ‘office’ established with sufficient degree of permanence and continuity and which exists apart from the holder; if there is, (2) whether an appointment has been made to that office in accordance with art 96(1); if it has, (3) whether it is an office of emolument; and, if it is, (4) whether it is an office which involves service with the Government in a civil capacity.”
The defendants have argued that the office of Supervisor of Elections is not an office of emoluments. As Luckhoo C pointed out in Yaw, the question whether a public office is created is a mixed question of fact and law. The defendants have not developed or pursued the contention that the office of Supervisor of Elections is not an office of emoluments by presenting evidence to support it.
However, there is one feature that is apparent to me on this case from the factors set out in Yaw and it is that where an appointment is made to the office of Supervisor of Elections, it is not done by the PSC in accordance with section 84 of the Constitution.
The framers of the Constitution dictated that the appointment to the office of Supervisor of Elections is to be made not by the PSC but by the Governor General in his or her own deliberate judgment. It is not done on the advice of, or in consultation with any other person or entity.
More significantly, even though the person who is eventually appointed to the office of Supervisor of Elections holds other office as a public officer who, in all likelihood, may have been appointed by the PSC or with the involvement of the PSC, that entity has no part in the appointment to the office of Supervisor of Elections.
This distinction is critical. For one thing, taking the factors set out in Yaw as a guide, one can surmise that the fact there is no appointment by the PSC in this case that the holder of the office of Supervisor of Elections is not a public officer in the strict sense. Even more significant to this discourse is the fact that it is by now clear that holders of public offices to which appointments are made by the PSC are clothe with safeguards against dismissal at pleasure.
Section 84 of the constitution reads:- “84.-(1) Subject to the provisions of section 91 of this Constitution, the power to appoint persons to hold or act in offices in the public service (including the power to confirm appointments), the power to exercise disciplinary control over persons holding or acting in such offices and the power to remove such persons from office and the power to grant leave shall vest in the Public Service Commission.”
With respect to provisions ii the Trinidad and Tobago constitution similar to Grenada’s section 84(1), the Privy Council in Endell Thomas v The Attorney General opined on the autonomy of the commissions tasked with appointing and removing public officers from office that –
“The whole purpose: of chapter VIII of the Constitution which bears the rubric “The Public Service” is to insulate members of the civil service, the teaching service and the police service in Trinidad and Tobago from political influence exercised directly upon them by the government of the day. The means adopted for doing this was to vest in autonomous commissions, to the exclusion of any other person or authority, power to make appointments to the relevant service, promotions and transfers within the service and power to remove and exercise disciplinary control over members of the service.
These autonomous commissions, although public authorities, are excluded by section 105 (4) (c) from forming part of ‘the service of the Crown. Subject to the approval of the Prime Minister they may delegate any of their powers to any of their members or to a person holding some public office (limited in the case of the Police Service Commission to an officer of the police force); but the right to delegate, though its exercise requires the approval of the Prime Minister, is theirs alone and any power so delegated is exercised under the control of the commission and on its behalf and not on behalf of the Crown or of any other person or authority.”
The autonomy of the commissions ensures, among other things, that public officers, who fall under the purview of the commissions, are not removed from office at the pleasure of the appointer.
Thomas v AG instructs that:-
“In their Lordships’ view there are overwhelming reasons why “remove” in the context of “to remove and exercise disciplinary control over” police officers in section 99 (1) and in the corresponding sections relating to the other public services must be understood as meaning “remove for reasonable cause” of which the commission is constituted the sole judge, and not as embracing any power to remove at the commission’s whim.
To construe it otherwise would frustrate the whole constitutional purpose of chapter VIII of the Constitution which their Lordships have described. It would also conflict with one of the human rights recognised and entrenched by section 1 (d) of the Constitution, viz. “the right of the individual to equality of treatment from any public authority in the exercise of any functions.” Dismissal of individual members of a public service at whim is the negation of equality of treatment.”
The dicta in Thomas can therefore be said to apply to all public officers who are appointed to public offices by the commission. The concept of dismissal at pleasure does not apply in those cases and the holders thereof must be removed for cause.
See for instance, Fraser, Innis and Bain-Thomas. Is the proscription against dismissal at pleasure applicable in other instances of appointments to public offices under the constitution? This question was confronted by the High Court and Court of Appeal in Darius-Clarke. In that case, the claimant was appointed to the office of ambassador by the Governor General acting on the advice of the Prime Minister in accordance with section 87(2) of the Saint Lucia Constitution which reads:-
“87.- (1) This section applies to the offices of Secretary to the Cabinet, permanent secretary, head of a department of government, deputy head of a department of government, any office for the time being designated by the Public Service Commission as an office of a chief professional adviser to a department of government and any office for the time being designated by the Commission, after consultation with the Prime Minister, as an office the holders of which are required to reside outside Saint Lucia for the proper discharge of their functions or as an office in Saint Lucia whose functions relate to external affairs.
The power to appoint person to hold or to act in offices to which this section applies (including the power to confirm appointments) and, subject to the provisions of section 96 of this Constitution the power to exercise disciplinary control over persons holding or acting in such offices and the power to remove such persons from office shall vest in the Governor-General, acting in accordance with the advice of the Public Service Commission:
Provided that-
(a) the power to appoint a person to hold or act in an office of permanent secretary on transfer from another such office carrying the same salary shall vest in the Governor-General, acting in accordance with the advice of the Prime Minister;
(b) before the Public Service Commission tenders advice to the Governor-General with respect to the appointment of any person to hold an office to which this section applies (other than an appointment to an office of permanent secretary on transfer from another such office carrying the same salary) it shall consult with the Prime Minister and if the Prime Minister signifies his objection to the appointment of any person to the office, the Commission shall not advise the Governor-General to appoint that person:
(c) in relation to any office of Ambassador, High Commissioner or other principal representative of Saint Lucia in any other country or accredited to any international organisation the Governor-General shall act in accordance with the advice of the Prime Minister, who shall, before tendering any such advice in respect of any person who holds any public office to which appointments are made by the Governor-General on the advice of or after consultation with some other person or authority, consult that person or authority.
References in this section to a department of government shall not include the office of the Governor-General, the department of the Attorney-General, the department of the Director of Public Prosecutions, the department of the Director of Audit, the department of the Parliamentary Commissioner, the department of the Chief Elections Officer or the Police Force.”
In interpreting section 87(2)(c) of the Saint Lucia Constitution it is apparent that the section permits the Governor General to make appointments to the office of ambassador on the advice of the Prime Minister. However in cases where the Prime Minister seeks to tender his or her advice in respect of a person who holds an office to which appointment had been made by the Governor General on the advice of or in consultation with any other person or entity, the Prime Minister is required to consult with that other person or entity.
Both the High Court and Court of Appeal in Darius Clarke explained that in the instance where the Prime Minister was required to consult with or seek the advice of a commission, the ambassador was clothed with the safeguards against dismissal at pleasure and could only be removed for cause.
Mrs. Darius Clarke had not held any public office at the time of her appointment far less a public office to which she was appointed by a commission or on the advice of or in consultation with a commission. As such the Governor General could have removed her from office at pleasure.
(TO BE CONTINUED)