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“Embarrassing to the Office of the Governor General” – Part IV

The Electoral Office – located in Tanteen Terrace, St George’s

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:

His Lordship Webster JA made the distinction for instance with Endell Thomas, Fraser, Innis and Bain-Thomas where his Lordship observed that “Mr. Fraser and Ms. Innis, and Mr. Endell Thomas, held positions that had security of tenure by virtue of their appointment by the commissions, and they could only be dismissed on the advice of or by the relevant commission and with cause” and that these cases “involve public servants who were appointed on the recommendation of a commission and enjoyed security of tenure and insulation from the political influence.”

In terms of dismissal at pleasure therefore, the consensus from the case law seems to be that there is a distinction between (1) officers appointed by a commission including those persons appointed by other functionaries on the advice or in consultation with the commission(s); and (2) those who are not thus appointed. It would seem that those falling into the first category are protected from removal from office in the sense stated in Thomas.

In Darius-Clarke, his Lordship Webster elucidated that:-

“[44] The effect of the decision in Endell Thomas on the doctrine of dismissal at pleasure is clear, police officers and other public servants cannot be dismissed at pleasure and the state must show reasonable cause for the dismissal. Academic writers in the Caribbean undoubtedly agree with this position but have not gone as far as to say that Endell Thomas has completely abolished the doctrine of dismissal at pleasure. Dr. Anthony left the issue open and opined that issues relating to the retention of the doctrine are for public policy and appropriately belong in the political or administrative sphere.”

“[45] The doctrine was applied by the Court of Appeal of Trinidad and Tobago in 1976 in Attorney General of Trinidad and Tobago v Richard Toby and by the Court of Appeal of Guyana in 1974 in Yaw. These decisions have not been overruled although Dr. Anthony has expressed doubt whether Toby was correctly decided. The Court’s attention was not drawn to any recent cases where the doctrine was applied.”

“[47] Endell Thomas made great strides in abolishing the doctrine of dismissal at pleasure but the case did not go as far as to abolish the doctrine in the case of ambassadors; who are not appointed or dismissed in consultation with anybody or person, and the Governor General must act on the advice tendered to him by the Prime Minister. Mrs. Clarke’s dismissal did not breach the provisions of 87(2) of the Constitution nor any of her natural justice rights.”

As Luckhoo C in Yaw opined, it remains to determine whether as a matter of mixed law and fact, Ms. Benoit’s case falls into the class of appointee’s to public offices whose tenure is secured from dismissal at pleasure. I do not agree that the holder of the office of Supervisor of Elections is afforded such security.

As correctly pointed out by the learned Solicitor General, the appointment is done by the Governor-General acting in her own deliberate judgment. It is not done by a commission or on the advice of or in consultation with a commission or more properly the PSC in this case.

We have already seen from Thomas and the learning in other cases applying that case, that security of tenure or dismissal for cause is specifically afforded to those persons appointed by a commission or on the advice or in consultation with the commission(s).

Ms. Benoit’s instrument of appointment reads:- “…In exercise of the powers vested in me by Section 35 of the Constitution of Grenada and acting in my own deliberate judgment I hereby designate the person holding the public office of Health Promotion Officer, Ministry of Health, namely JUDY BENOIT, to exercise the function of the office of Supervisor of Elections. ..”

In all the circumstances the conclusion must be that a person holding the office of Supervisor of Elections and in this case, Ms. Benoit, is not holding the office in the capacity of or any capacity as a public officer clothed with the protection against dismissal at pleasure. Ms. Benoit was therefore subject to be removed from ‘the office of Supervisor of Elections at the pleasure of the Governor General.

Was the Governor-Genera 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?

Mr. Ferguson for Ms. Benoit argues that even though the law provides that Ms. Benoit could be removed from the office of Supervisor of Elections without cause, fairness suggests that since specific allegations were made against her, she should have been afforded a hearing before removing her from office.

Mrs. Reid Ballantyne disagrees. The learned Solicitor General argues that an employer can summarily dismiss an employee for cause in cases of gross misconduct. Mrs. Reid Ballantyne submits that the facts of this case suggest gross misconduct by Ms. Benoit that justifies summary dismissal.

I think that the authorities indicate the converse of the defendants’ position. In their submission: the defendants argue that, even if Ms. Benoit had a right to a hearing based on the complaints against her, the authorities have held that the right to be heard does not require any specific type of hearing. In other words, the rules of natural justice are adaptive based on the specific circumstance.

Counsel relies on the House of Lords decision in Lloyd v McMahon to support her submissions, where Lord Bridge stated:

“My Lords, the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when anybody, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates.

In particular, it is well-established that when a statute has conferred on anybody the power to make decisions affecting individuals the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment it of fairness.”

The above authority seems to suggest that with respect to natural justice, the requirements of fairness are based on the nature of the decision-maker, the kind of decision it has to make and the statutory framework under which it operates.

The decision in McMahon is not an authority for saying that the right to a hearing is dispensed with in cases where there is a specific allegation of misconduct and there is no specified procedure for a hearing before dismissal.

On the contrary, the authorities seem to be clear as to what is required where a decision to terminate the services of an office holder is based on a specific allegation.

Webster JA in Darius-Clarke noted that:- “The duty to act fairly would have arisen if the decision to terminate Mrs. Clarke’s appointment was based on a specific allegation made against her. In that situation, she would have been entitled to respond to the allegation. On the facts, there was no evidence of the advice given by the Prime Minister to the Deputy Governor General. In the absence of evidence of allegations against Mrs. Clarke in the termination process the principle of fairness did not apply to her and there was no requirement that she be heard before her termination. Ministry of Foreign Affairs & Prime Minister Patrick Manning v Feroza Ramjohn and Ganga Persad Kissoon.”

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In essence, his Lordship recognises that while the Prime Minister in that case had the right to advise the Governor-Genera to revoke Mrs. Darius Clarke’s appointment as ambassador without cause, the duty to act with fairness may have dictated that the Governor General permitted her an opportunity to be heard where a specific allegation was made or where the decision was taken based on a complaint.

In support of this Darius-Clarke relied on the decision of the Privy Council in Ministry of Foreign Affairs et al v Feroza Ramjohnet al. Webster JA summarised the facts of the Feroza Ramjohn case and stated:

“The Board found that the veto power allowed the Prime Minister to object to an appointment on general grounds without advance notice to the affected person, but where there is an allegation against the affected person that is considered in the decision making process the person should, as a matter of fairness, be given an opportunity to be heard.

The evidence in the case was that the Prime Minister considered a letter from the Minister of Agriculture about Mr. Kissoon. Mr. Kissoon was not given an opportunity to respond to the contents of the letter and the Board found in his favour on the facts applying the fairness principle.”

Additionally, I refer to the defendants’ extraction from Hosford v Minister for Social Protection, where the court at paragraph 19 stated that:

“The Applicant accepts that he was and remains liable to transfer at the sole discretion of the Respondent. It could not realistically be suggested that every decision to reassign a civil servant to different duties engages the full panoply of Constitutional and Convention rights and that the party thereby affected must be afforded fair procedures including for example the right to make submissions or be given reasons. That would be evidently absurd.

There is clearly a range of decisions in the context of employment that may be taken which are merely administrative or managerial in nature and do not give rise to such rights or which are amenable to judicial review. The position may be different where the decision complained of is disciplinary in nature and involves the imposition of a penalty or perhaps dismissal. On occasion, a civil servant may not like being transferred from one role to another but that is an incident of the job and not a matter for judicial review. It is debatable whether there is any public law element arising in such circumstances.”

The Hosford case, in my view, recognises that while a public servant is liable to be transferred or reassigned within the public service at the sole discretion of the respondent, the position may be different where the decision to transfer is based on a complaint or is as a result of the imposition of penalty.

There is a long line of cases on decisions being taken by public bodies without affording the affected person an opportunity to address the charges or complaints against them, such as the Council of Civil Service Unions v Minister of Civil Service which formulated the term “procedural impropriety” that is grounded on principles of fairness and the rules of natural justice.

Further, the words of Byron CJ in Corporal Philbert Bertrand v The Secretary, PSC, are apt in the circumstances, where his Lordship summarised the rules of natural justice:-

“However, it seems clear from this case that three essential elements of the rule require restatement. One is the duty to disclose the information on which judgment is likely to be based in order to give an opportunity to controvert, correct and comment on it. Another is the necessity to give particulars of the charges on which judgment will be based. The third is the elementary and obvious imperative that judgment should not be reached until the parties have had an opportunity to be heard.”

With respect to the issue of fairness, the House of Lords in the case of Doody v Secretary of State for the Home Department and other appeals, Lord Mustill stated at page 106 of the judgment that:

“What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive the following.

(1) Where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances.

(2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type.

(3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects.

(4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken.

(5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a views to producing a favourable result, or after it is taken, with a view to procuring its modification, or both.

(6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.”

The above authorities reveal that where public authorities like the Governor General are conferred with administrative powers, those powers must be exercised in accordance with principles of fairness.

In particular, the power to remove a person from office where there are complaints or allegations against the affected person enjoins the decision-maker to afford that person with an opportunity to be heard before the decision is taken to remove them from office.

It would further appear from the authorities that where the Governor General is exercising the powers given to her by the constitution, the courts will not normally investigate the exercise of those functions except where there is a patent breach of the law or as put in one case, where there is a “manifest, glaring and capricious exercise…” of those powers.

I would venture to say that a removal from office by the Governor General that violates the principles of fairness would justify a departure from the rule that the court will not normally interrogate the exercise of the powers granted to the Governor General by the Constitution.

In this case, the defendants do not deny or contradict Ms. Benoit’s allegations that the Governor-General grounded the decision to remove her from the office of Supervisor of Elections with immediate effect based on the complaints received. Notwithstanding, the defendants at paragraph 3(g) of their defence plead, simpliciter, that those facts, even if accepted, do not render the Governor General’s decision irrational or unreasonable.

I disagree with the defendants’ posture on those facts and I am of the view that their position cannot be maintained in light of the above stated authorities. For one thing, it is clear from the Governor-General’s communication to Ms. Benoit that the reasons for her termination were based on complaints with respect to her performance in the office of Supervisor of Elections.

The first complaint was with respect of a complaint from one Glynis Roberts and the other complaint concerned the implementation of the MPID under the EGRIP project.

Further, Ms. Benoit’s uncontroverted evidence is that the Governor-General 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.

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.

Relief
I have stated above that at trial, Mr. Ferguson indicated that Ms. Benoit abandons her entire claim against the Attorney-General for declarations, damages and costs in respect of the actions of the Cabinet. I do not think that Ms. Benoit acted unreasonably in bringing that claim and in accordance with CPR 56.13(6) I make no order as to costs of the claim against the Attorney-General.

However, Ms. Benoit is successful in her claim against the Governor General and is entitled to costs in that claim assessed in the sum of $5000.00.

Conclusion
It is hereby ordered that:

(1) The application for judicial review filed by Judy Benoit (Ms. Benoit) on 18th December, 2013 against the first defendant is granted.

(2) The decision of the Governor-General to terminate Ms. Benoit’s appointment as Supervisor of Elections with effect from 1st October 2013 was in breach of natural justice, principles of fairness and was unlawful, null and void.

(3) The claim against the second defendant, the Attorney-General, in respect of the actions of the Cabinet is dismissed with no order as costs.

(4) Ms. Benoit is granted costs in the sum of $5000.00 in respect of her claim against the First Defendant.

Raulston L.A.Glasgow
High Court Judge

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