Former Cabinet Secretary and current Head of the Public Service Commission (PSC), Beryl Isaac was taken to task in a ruling from a high court judge in a case brought by a former Acting Permanent Secretary, Veronica Charles who was reverted to her lower post in the service after she made allegations of “ghost payments” in the ministry of Social Services headed by Delma Thomas.
Female high court judge Agnes Actie found that Isaac issued instructions to Charles that she was not entitled to do.
The judge said: “The decisions of Ms Beryl Isaac, the then Secretary to the Cabinet to: (1) discuss with the Claimant about her performance as an acting Permanent Secretary in the Ministry of Social Development; (2) inform, direct and/or advise the Claimant that her acting appointment as Permanent Secretary in the Ministry of Social Development will be terminated and she will be reverted to her substantive post of Director in the Ministry of Social Development; (3) direct the Claimant to proceed on administrative leave on 29th October 2019; (4) request that the Claimant prepare a handover brief for her successor as Permanent Secretary; and (5) direct the Claimant to report for duty to the post of Institutional Strengthening Specialist in the Ministry of Climate Resilience, The Environment, Forestry, Fisheries and Disaster Management from 11th November 2019 were, in each instance, ultra vires and contrary to sections 84(1) and 85(2) of the Constitution of Grenada and therefore unconstitutional, null and void, and of no effect in law”.
Charles was represented in the case by former Finance Minister Nazim Burke who is a co-founder of the law firm Lex Fidelis.
Following is part III of Justice Actie judgement:-
[17] Counsel for the second defendant, Mr. Adebayo Olowu, in his written submissions filed on 30th December 2020 in relation to the action by Governor-General to terminate the acting appointment submits that Ms. Charles’ argument is without merit. Mr. Olowu submits that Ms. Charles’ appointment was an acting position given that position for the post of Permanent Secretary in the Ministry of Social Development was vacant. Ms. Charles’ acting appointment was to continue until further notice. He submits that section 85 of the Constitution has a proviso that no person may be appointed to hold the post of Permanent Secretary, where the Prime Minister has indicated his objection.
[18] Given the language of the above section, Mr. Olowu submits that the appointment to the substantive post of Permanent Secretary must have the approval of the Prime Minister.
Therefore, Mr. Olowu submits that whilst an acting Permanent Secretary cannot be removed without proper recommendations and the approval of the Governor-General, a public officer is only appointed to act as a Permanent Secretary with the non-objection of the Prime Minister. In like manner any future substantive appointment would also require the Prime Minister’s non objection.
Further, Mr. Olowu submits that given the constitutional mandate given to the Prime Minster, it must be construed to mean that in relation to an acting appointment, the Prime Minister continues to have that power to determine whether he will object to that person continuing in the acting appointment.
[19] 1n response to those submissions, Counsel for the claimant, Mr. V. Nazim Burke, concedes the point that no public servant may be appointed to hold the post of Permanent Secretary where the Prime Minister has indicated his objection. However, he submits that the exercise of such privilege conferred on the Prime Minister is not intended to be irrational, unreasonable, highhanded or arbitrary. Mr. Burke argues that the Prime Minister’s actions are subject to the rules of natural justice and the constitutional duty of fairness. This required Ms. Charles to be informed of the decision and the reason for the decision.
[20] 1t is the evidence of Ms. Charles that she was informed by the Cabinet Secretary that a decision had been taken to terminate her acting appointment as Permanent Secretary because of decisions she made concerning the supplemental budget of the Ministry and an allegation surrounding her enquiry about the building of a house in the Prime Minister’s constituency. It is also the evidence of Ms. Jeremiah that on 4th November 2019, the Commission received the recommendation from the Cabinet Secretary to terminate Ms. Charles’ acting appointment, revert her to the substantive post, inter alia.
[21] Section 85 of the Constitution provides:
(1) This section applies to the offices of Secretary to the Cabinet, permanent secretary, head of a department of government and deputy head of a department of government.
(2) Subject to the provisions of section 91 of this Constitution, the power to appoint persons to hold or to act in offices to which this section applies (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 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. (Bold Emphasis mine)
[22]A fair reading of the above section indicates that the power to appoint certain persons, including acting appointments in the position of Permanent Secretary and the power to remove vests with Governor-General acting in accordance with the advice of the Public Service Commission who is required to consult with the Prime Minister.
[23] The case law on reasonableness is trite as stated in Associated Provincial Pictures House Ltd. v Wednesbury Corporation\ where Lord Green opined that a court is entitled to investigate a decision of an authority if it considered matters which it ought not to or neglected to consider matters which it ought to or whether it exceeded its powers conferred on it by Parliament.
[24] The evidence before this court is that the Public Service Commission received a recommendation from the Cabinet Secretary, who communicated the decision of the Executive concerning the recommendation for the termination of Ms. Charles’ acting appointment as Permanent Secretary.
In light of the above authority in Wednesbury, it is evident that for Ms. Charles to criticise the exercise of the Governor-General’s discretion to terminate her acting appointment, she must lead facts or evidence to impugn the advice tendered to Her Excellency by the Public Service Commission thereby rendering the Governor-General’s decision unreasonable, arbitrary or irrational.
[25] Ms. Charles has not led any evidence that the Commission followed the dictates of any person or third party when it advised the Governor-General to terminate the acting appointment. The mere fact that the Executive, through the Cabinet Secretary, made that recommendation to the Public Service Commission, without more, is insufficient to criticise or impugn the decision of the Governor-General. Ms. Charles has not pleaded, asserted or led any evidence that the Governor-General took into account irrelevant considerations or refused, failed or neglected to consider matters which she ought to. Moreover, there is no evidence or allegation that the Governor-General exceeded the powers conferred on her by the Constitution. Accordingly, the court is of the view that there is no basis to impugn the exercise of the Governor-General’s discretion to terminate the acting appointment of Ms. Charles as Permanent Secretary and revert her to the substantive post of Director of Social Development within the Ministry of Social Development.
Whether the Public Service Commission denied Ms. Charles an opportunity to be heard prior to its actions and decisions in breach of natural justice and right to due process of law under section 8(8) of the Constitution.
[26] Mr. Burke states that Section 8(8) of the Constitution provides that where proceedings for the determination of the existence or extent of a civil right are instituted by any person before any court or the other authority, the case shall be given a fair hearing, before an independent and 1 [1948] 1 KB 223 at pages 233-234 15 impartial tribunal within a reasonable time. Counsel submits that this section encapsulates the right to protection of the law. Mr. Burke relies on the Privy Council case of Sam Maharaj v Prime Minister2. Mr. Burke submits that Ms. Charles was denied the right to natural justice in that she was passed over for promotion and denied the opportunity to make representation and/or be heard. Further, he submits that the above actions were a breach of the principles of natural justice and breach of Ms. Charles’ constitutional right to due process and protection of the law as guaranteed by section 8(8) of the Constitution.
[27] Conversely, Counsel for the Public Service Commission, Ms. Karen Samuel, submits that Section 8(8) of the Constitution has not been triggered. She further submits that Ms. Charles has not brought proceedings for determination of the existence or extent of a civil right concerning the allegation that she was entitled to be promoted in respect of which the Public Service Commission might be deemed a tribunal for the purposes of section 8(8).
[28] The court agrees with Ms. Samuel’s submission that the invocation of Section 8(8) of the Constitution is not germane or applicable to the circumstances of this case as the Public Service Commission is not a body or tribunal which is given a mandate to determine civil rights. However, the court is of the view that the rules of natural justice and fairness are pertinent to the circumstances of this case. In relation to fairness, the House of Lords in the case of Doody v Secretary of State for the Home Department and other appeals3 provides useful guidance. Lord Mustill stated:
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 an administrative system within which the decision is taken.
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 view 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 answer4. (Bold emphasis mine)
[29] It is uncontroverted that the decisions of the Public Service Commission were made without giving Ms. Charles an opportunity to be heard and to make representations in response.
Allegations of insubordination and dereliction of duty as charged by the Cabinet Secretary as one of the main reasons for the recommendation to terminate Ms. Charles’ acting appointment, are serious allegations to level against a senior and experienced public servant. Fairness dictated that Ms. Charles, at the very least, must have been given an audience with the Public Service Commission to address those concerns and allegations against her performance and duties. The evidence before this court is that Ms. Charles vehemently denies those allegations and sought to adduce evidence to aid her defence. She ought to have been afforded such an opportunity to adduce such evidence before those decisions were taken.
[30] The learning from former Chief Justice Sir Dennis Byron in Corporal Philbert Bertrand v The Secretary, Pscs, is applicable in the circumstances where he states:
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. (Bold emphasis mine)
[31] Applying the learning from former Chief Justice Byron, the court is of the view that in light of the serious nature of the allegations against Ms. Charles the decisions taken by the Public Service Commission to: 1) advise Her Excellency, the Governor-General of the request for the termination of the Claimant’s acting appointment as Permanent Secretary in the Ministry of Social Development, Housing & Community Empowerment with effect from 31st October 2019; 2) approve the reversion for Ms. Charles to her substantive post of Director of Social Development; 3) grant administrative leave; 4) and to appoint Ms. Charles to the new post of Institutional strengthening Specialist in the Ministry of Climate Resilience, The Environment, Forestry, Fisheries and Disaster Management without first giving her an opportunity to be heard and make representations, was a breach of the principles of natural justice and fairness.
Whether the Public Service Commission abdicated its duty or authority under sections 83 (12) and 84(1) of the Constitution and was following the dictates of some other person or body when it decided to grant administrative leave to Ms. Charles and transferred her to a new post.
Click here to read the final part.