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“Embarrassing to the Office of the Governor General”

Judy Benoit (L) – has been vindicated by the high court; Dame Cecile La Grenade (R) – was left embarrassed by the high court ruling

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:

CLAIM NO. GDAHCV2022/0196

IN THE MATTER OF AN APPLICATION BY JUDY BENOIT FOR LEAVE TO APPLY FOR JUDICIAL REVIEW OF THE DECISION OF HER EXCELLENCY THE GOVERNOR GENERAL DAME CECILE LA GRENADE TO DISMISS HER AS SUPERVISOR OF ELECTIONS

JUDGMENT – GLASGOW,J:

Ms. Judy Benoit, (Ms. Benoit) is a retired public officer. In September 2009, she was appointed to serve as Grenada’s Supervisor of Elections. Four years later on 30th September 2013, the Governor-General, Her Excellency Dame Cecile La Grenade made a decision to end Ms. Benoit’s services as Supervisor of Elections. Ms. Benoit has filed these proceedings alleging that she was unlawfully removed as Supervisor of Elections.

Background and Ms. Benoit’s case
Mrs. Reid Ballantyne, learned Solicitor General has helpfully set out in her written submissions filed on 31st May 2022, a quite fulsome background to this present debate. I will adopt this factual matrix, as far as relevant.

The facts reveal that –

(1) Benoit was appointed as Supervisor of Elections on 30th September 2009;

(2) Sometime in the year 2010 or 2011 Ms. Benoit was made aware that the Government wished to implement what was referred to as the E Government for Regional Integration Project (EGRIP). Ms. Benoit is said to have become aware of EGRIP through the Parliamentary Elections Office (PEO) which was exploring the possibility of commencing a new voter registration system. The system contemplated, among other things, the issuance of a single identification card;

(3) There were some difficulties standing in the way of the implementation of aspects of EGRIP including compliance with the requirements of the Representation of the People’s Act (the Act). Ms. Benoit, as Supervisor of Elections, could not await the implementation of EGRIP. In 2012, Ms. Benoit set up a new system for the registration of voters which system was computerised and provided for the issuance of voter identification cards;

(4) In 2012 also, Ms Benoit was contacted by Ms. Alice Bain, country based specialist for EGRIP. Ms. Bain requested that Ms Benoit implement EGRIP through the PEO. Ms. Benoit objected to Ms. Bain’s request on the grounds that she did not wish to breach the laws of Grenada or take any steps that could potentially compromise the integrity or security of the electoral system. Ms. Bain advised Ms. Benoit that Government was contemplating alternative arrangements for the implementation of EGRIP;

(5) Elections were held on 19th February 2013. The Organisation of American States (OAS) in its post elections report lauded the new registration system;

(6) In May 2013, Ms. Bain asked to meet with Ms. Benoit with a view to Ms. Benoit facilitating the implementation of EGRIP at 4 PEOs. Ms. Benoit requested that the meeting be held with Ms. Bain, the then Minister responsible for ICT and other relevant persons. At a meeting held on 4th July 2013, Ms. Benoit agreed to assist by permitting EGRIP’s implementation at 4 PEOs, the possibility of assistance from the staff at the PEOs and other related matters;

(7) A promised meeting with the Minister responsible for ICT on 20th August 2013 did not take place. However, Ms Benoit held discussions on that very day with Mr. Eric Nurse, Director of ICT where they discussed the relevant provisions of the Act and the Constitution, Ms. Benoit’s concerns about the electoral process and her ideas on the use of other venues for the implementation of EGRIP.

(8) On 28th August 2013, Ms. Benoit received the following memorandum issued under hand of then Permanent Secretary (PS) Lana McPhail –

(i.) “Please be advised that Cabinet at its Meeting on 29th July 2013 approved the use of the following centres for registration into the MPID System and Issuance of Cards:-

        • John’s Parliamentary Elections Office
        • Patrick’s East/West Parliamentary Elections Office
        • Andrew’s Southeast Parliamentary Elections Office
        • David’s Parliamentary Elections Office
        • Mark’s Parliamentary Elections Office
        • Carriacou Parliamentary Elections Office
        • George’s Parliamentary Elections Office
        • George’s Health Centre

(i). Cabinet also directed that the staff of the Electoral offices work with the MPID System for registration and issuance of cards.

(ii). Further, Cabinet also authorised the installation of internet services at all the sites. Please note that the Ministry has instructed LIME to undertake the installation as a matter of urgency.

(iii). The Ministry shall be grateful if your staff is advised accordingly”.

By way of explanation, EGRIP was a brainchild of the sub regional grouping, the Organisation of Eastern Caribbean States (OECS).

EGRIP was funded by the World Bank. MPID, referenced in the PS’ memorandum to Ms. Benoit was crafted as part of Grenada’s effort to implement EGRIP and largely entailed a national identification system where citizens would be issued with “a unique identification number and a national identification card.”

Ms. Benoit responded to the PS by way of memorandum dated 30th August 2013 wherein she informed the PS that moving forward with EGRIP in accordance with the advice of Cabinet was premature and raised a number of questions in respect of how the PEO and its staff would be involved in the exercise having regard to the legislative role of the office.

Ms. Benoit was summoned to a meeting with the Governor General on 30th September 2013. At that meeting, Ms. Benoit alleges that the Governor-General informed her that she was summoned to address complaints made against her in her capacity as Supervisor of Elections.

Ms. Benoit alleges that the Governor-General stated: “Miss Benoit, I called you as head of the Electoral Office to hold a discussion with you because I had two complaints.” With respect to the complaints, Ms. Benoit further alleges at paragraphs 13-15 of her first affidavit that the Governor-General said:

(i). “One has to do with Mrs. Glynis Roberts and a mail she was to receive and did not receive. The other one has to do with ….the EGRIP project. It is an OECS project and we have the money for it from the World Bank and if we don’t do it soon we are going to lose the money. So I am dismissing you with immediate effect.”

Ms. Benoit contends at paragraph 20 of her affidavit that she was unjustifiably dismissed and that the Governor-General acted unreasonably, irrationally and against the principles of natural justice.

At paragraph 22 of the affidavit she explains that “when called to the hereinbefore meeting with Her Excellency I was not informed of the nature and purpose of the same. I was never informed in advance of any allegation made against me so as to give me an update and reasonable opportunity to respond.”

Ms. Benoit seeks the following relief:

(1) A declaration that the decision of the Governor-General to dismiss Ms. Benoit by way of        letter dated 30th September 2013 was in all circumstances, unreasonable, irrational, procedurally improper and in breach of the principles of natural justice;

(2) A declaration that the decision of the Governor-General to summarily dismiss Ms. Benoit be and is hereby quashed; and

(3) Costs.

Defendants’ case

The defendants filed a defence and affidavits in opposition to Ms. Benoit’s claim which state that –

(1) the PEO is a creature of statute and department of government;

(2) The PEO has its own budgetary vote and is staffed by public officers and persons on contract;

(3) It is a normal function of Cabinet to identify the PEO, as a department of government, to assist with the rollout of the MPID and to be provided with internet access to do so;

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(4) Cabinet’s decision of 29th July 2013 approved the use of the PEO and its staff to assist with the rollout of MPID and requested the Ministry to hold discussions with the PEO for use of the constituency offices to facilitate MPID registration and the issuance of voter identification cards

(5) Following Ms. Benoit’s objections to the use of the PEOs for this purpose and discussions with her and other stakeholders, alternative locations were identified and ultimately utilised;

(6) The Constitution grants the Governor General the power, in her own deliberate judgment, to determine which public officer should be designated to perform functions of Supervisor of Elections;

(7) The Governor General acted reasonably and rationally in exercise of that power to determine that Ms. Benoit should cease to perform the functions of Supervisor of Elections;

(8) The OAS post elections report outlined a number of complaints regarding the use of party symbols. In particular, four of the political parties contesting the 2013 elections complained that they were unable to use their advertised party symbols on the election ballot paper. These parties were assigned random symbols mere days before the February 2013 elections despite having received prior approval of the use of their symbols from the PEO. The PEO failed to have those approved symbols gazetted in accordance with the law;

(9) In fact, Ms. Benoit sent correspondence to the Governor General on 11th February 2013 mere days before the elections asking for the symbols to be gazetted;

(10) In addition the Governor General received correspondence from one political party, the National United Front (NUF), wherein that party outlined complaints about Ms. Benoit forcing the party to change its symbol.

The NUF complained that it only acceded the forced change in order to avoid jeopardising the elections process.

Ms. Benoit filed a reply to the defence and refuted the several contentions of the defendants. Of particular significance to this discourse is Ms. Benoit’s reply that she did not actually see the contents of the Cabinet’s decision referenced above until this claim was filed. She was only aware of the contents of PS McPhail’s memorandum recited above.

The arguments

Ms. Benoit’s arguments

Before embarking on a recital of the arguments, it may assist this discourse to recite the terms of section 35 of the Constitution –

“35.-(1) There shall be a Supervisor of Elections whose duty it shall be to exercise general supervision over the registration of voters in elections of the members of the House of Representatives arc over the conduct of such elections.

(2) The functions of the office of Supervisor of Elections shall be exercised by the person holding or acting in such public office as may for the time being be designated in that behalf by the Governor-General acting in his own deliberate judgment.

(4) A person shall not enter upon the duties of the office of Supervisor of Elections until he has taken and subscribed the oath of allegiance and the oath of office.

(5) For the purposes of the exercise of his functions under subsection (1) of this section, the Supervisor of Elections may give such directions as he considers necessary or expedient to any registering officer; presiding officer or returning officer relating to the exercise by that officer of his functions under any law regulating the registration of voters or the conduct of elections, and any officer to whom directions are given under this subsection shall comply with those directions.

(6) The Supervisor of Elections may, whenever he considers it necessary or expedient so to do, report to the House of Representatives on the exercise of his functions under the foregoing provisions of this section; he shall submit every such report to the Minister for the time being responsible for matters relating to the election of members of the House of Representatives and that Minister shall, not later than seven days after the House first meets after he has received the report, lay it before the House.

(6) In the exercise of his functions under the foregoing provisions of this section, the Supervisor of Elections shall not be subject to the direction or control of any other person or authority.

(7) The Supervisor of Elections shall exercise such other functions in relation to elections (whether to the House of Representatives or to local government authorities) as may be prescribed by or under any law enacted by Parliament.

General Provisions’

At paragraph 17 of written submissions filed on the 29th July 2022, after the trial, counsel for Ms. Benoit, Mr. Ruggles Ferguson, noted Ms. Benoit’s acceptance of the law that, in the context of this case, the Governor General had the authority to relieve Ms. Benoit of her duties as Supervisor of Elections without cause and without giving her notice.

For reasons which will emerge later in this discourse, I am of the view that this is a correct concession from Ms. Benoit on the law. However, Ms. Benoit argues that because a number of specific charges were presented as the basis for her removal from office, the principles of fairness enjoined the Governor General to afford her an opportunity to answer those allegations made against her before removing her from office.

Counsel present the following cases to support Ms. Benoit’s contention that the Governor General was duty bound to give her a hearing before relieving her of her duties —

(1) Permanent Secretary, Ministry of Foreign Affairs and Prime Minister Patrick   Manning v Feroza Ramjohn et al;

(2) Elizabeth Darius-Clarke v The Attorney General of Saint Lucia:

(3) Frazer v The Attorney General of Saint Lucia;

(4) R v London Borough of Camden ex parte Simon Paddock;

[10] Counsel notes that in Feroza Ramjohn, the Prime Minister sought to revoke an appointment of Ms. Ramjohn to a diplomatic post after receiving complaints of allegedly serious misconduct by the appointee. The Prime Minster revoked the appointment without giving the appointee an opportunity to refute the charges. The Privy Council ruled that the Prime Minister unfairly exercised his power to revoke the appointment without giving the appointee an opportunity to be heard on the allegations of impropriety.

[11]  With respect to Elizabeth Darius-Clarke, Mr. Ferguson states that the issue centered on the Claimant’s appointment as ambassador. In that case the ambassador was a political appointee who was not a public officer at the time of her appointment. Counsel submits that both the High Court and Court of Appeal ruled that since she was not a public officer at the time of her appointment as ambassador, she was not afforded the constitutional safeguards extended to public officers and as such she could be removed from office without cause.

Counsel however highlights the parts of the High Court’s ruling that staled “I am of the considered opinion that such exercise of the powers in section 87 would still be subject to the rules of fairness, so that where a person is being removed from office for a specific reason or where a specific allegation of misconduct is levelled at such an individual, that the rules of fairness would dictate that that individual be given the right to make representations in relation to the allegation before a decision is made’’.

With respect to the Fraser case, counsel notes that in Fraser, the magistrate was removed from Office by virtue of contractual terms on the grounds of alleged incompetence which specified that he could be dismissed on 3 months’ notice or in lieu of notice, on payment of one month’s salary.

In that case, the Privy Council ruled that where there were specific allegations of misconduct, the provisions of section 91 of the Saint Lucia Constitution would have to be engaged before the contractual term for termination could be enforced. In that context, the constitutional safeguards would have afforded Mr. Fraser with a hearing of the allegations made against him before his removal from office.

Counsel submits that the rulings in Fraser and Ramjohn establish the legal principle that “where a public authority decides to take a decision or course of action adverse to a person based on specific adverse allegations the affected person must be provided with an adequate opportunity to defend himself or herself before a decision is made even if there is an alternative means of achieving the same adverse outcome where no cause existed.”

With respect to R v Camden, counsel notes that in that case, the claimants were blacklisted from applying for temporary licences at a marketplace operated by the defendant. The blacklisting decision followed the defendant’s consideration of a “detailed investigatory report’ outlining a case against the claimants. It was found that the defendants were obliged to allow the claimants an opportunity to “defend themselves” before the defendants made a decision based on the investigatory report.

Applying the foregoing authorities to the facts of this case, counsel argues that once the Governor General made the decision to relieve Ms. Benoit of the functions of Supervisor of Elections based on the complaints made against her, it was incumbent on the Governor General to provide with Ms. Benoit with an opportunity to “defend herself before arriving at a decision.”

Counsel further posits that “[I]It mattered not that it was open to the First Defendant to achieve the same result (removal of the Claimant from the post of Supervisor of Elections) without relying on the complaints or providing her with notice.”

Counsel concludes that even if it could be said that the Governor General did not have the duty to afford Ms. Benoit with a hearing, once the Governor General called Ms. Benoit to her office and put the complaints to her, fairness dictated that the Governor General should have allowed Ms. Benoit “an opportunity to defend herself before a decision was made.”

The fact that this was not done, counsel says that Ms. Benoit’s rights were infringed and that she is entitled to the relief that she seeks.

(To be continued)

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