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Judge rules against ASP Joseph – Part III

ASP Senneth Joseph – will appeal the ruling

Assistant Superintendent of Police (ASP) Senneth Joseph might be weighing his options after a high court judge ruled against him in a matter involving the Public Service Commission (PSC).

Joseph, the former head of the Financial Intelligence Unit (FIU), brought the case after he was overlooked for promotion on more than one occasion within the Royal Grenada Police Force (RGPF).

When Prime Minister Dr. Keith Mitchell returned to power after the 2013 general election, one of his first acts was to give instructions for ASP Joseph to hand over all keys to the FIU office.

Under ASP Joseph’s command the unit was known to be spearheading investigation into alleged wrongdoing by current Minister of Finance, Gregory Bowen in the oil and gas agreement with the Russian company known as Global Petroleum Group (GPG).

The FIU is known to have had in its possession a document in which the Russians had raised concerns about a payment of just over EC$1 million allegedly linked to Bowen, the Deputy Political Leader of the ruling New National Party (NNP).

In the case filed before high court, Justice Agnes Actie ruled that ASP Joseph did not make out a successful challenge against the inactions or decisions of the Commission in relation to his promotion or eligibility for promotion.

Moreover, she said the senior police officer “has not specifically pleaded, asserted or proved any pecuniary loss or damage” but merely asserts that the PSC “violated his constitutional rights, and its actions were improperly motivated, unfair and unconstitutional, among other things.

“The court is of the view that Mr. Joseph is not entitled to any reliefs or declarations sought, including an order of mandamus and damages, including vindicatory damages as claimed.

“Mr Joseph has not found any basis for inferring that the Commission had been improperly influenced or had abdicated its independent decision-making function in the appointment process.

“The only criticism made was of the implied suggestion that the Prime Minister might have brought his political influence to bear in statements made. However, this was not substantiated with any palpable evidence that the commission was influenced by those statements”.

As a public service, THE NEW TODAY reproduces the Senneth Joseph case which could have implications for other public officers with respect to the actions of the PSC that is currently headed by former Cabinet Secretary, Beryl Isaac:

Eligibility for promotion to rank of Superintendent of Police
[23] The court notes that Mr Joseph is a well-qualified Police officer with LLB (Hons) from Wolverhampton University and LLM in law of Finance, specializing in Money Laundering, Corruption, Insider Trading and Fraud Manipulation. It is of much amazement given Mr. Joseph’s extensive experience and postgraduate qualifications in law enforcement, that he is currently at that level of rank in the RGPF. However, it is not for the court to assume the powers of the Commission on an application for judicial review. The Commission is best suited to consider and appoint suitable public officers to fill various vacancies within the RGPF.

[24] The court on a judicial review application is only tasked with determining whether the decision-making process by the public body was followed properly and lawfully10. In the circumstances of this case, the Commission was obliged to consider other factors under Regulation 19 and not simply Mr. Joseph’s seniority.

10 Associated Provincial Picture Houses Ltd. v Wednesbury Corporation

[25] Applying the principles espoused by the Privy Council in Ramoutar, the court is of the view that the Commission did not act outside the scope of its power and duties as per the Constitution and its Regulations. Accordingly, Mr. Joseph’s arguments that he was consecutively passed over by the Commission for promotion from 2013 to 2018 lack merit and must fail. Having so ruled, there is no need to consider:(1) whether the Commission’s inactions or failures in promoting him to higher ranks were improperly motivated, unfair and irrational; and (2) whether the Commission was obliged to give him reasons for being passed over for promotion.

Whether the Commission abdicated its responsibility
[26] Section 89(2)of the Constitution provides as follows:

“(2) Subject to the provisions of section 91 of this Constitution, the power to appoint persons to hold or act in offices in the Police Force below the rank of Chief of Police but above the rank of Sergeant (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 Public Service Commission.” (Emphasis supplied)

[27] The Commission is also empowered to publish Regulations for the discharge of its function. Regulation 15 provides for the appointment of Selection Boards to assist in the selection of candidates for appointment to public offices. The commission when considering any report of a selection may in its discretion, summon for interview any of the candidates recommended by such Board.

[28] In Ramoutar, 11 the Privy Council held that “Prison officers are public officers whose appointment and promotion are the responsibility of the Public Services Commission, an independent body established under the Constitution. The Commission is empowered to publish Regulations for the discharge of its functions. ”Similarly, in Grenada, the Commission under section 89(2) of the Constitution of Grenada is given the power to appoint police officers below the rank of Chief of Police, but above the rank of Sergeant.

[29] The Court of the Appeal in the recent decision in Elmoalis Ltd. opined that: “the necessary starting point to determining whether the allegations of improper delegation or abdication of the Evaluation Committee’s decision-making power have been made out, is to construe the terms of the statute to determine whether what was done in a case, was contemplated by the statute”12

Appointment of Selections Committee
[30] The Commission, pursuant to Regulation 15, established a selection board for the RGPF, which selects and/or recommends candidates for promotions. This is a lawful exercise of the discretion that is given to the Commission. However, the selections board of the RGPF is not responsible for the actual promotion of officers as that responsibility lies with the Public Service Commission.

[31] Mr. Joseph indicated in his affidavit evidence that the Deputy Commissioner of Police is the head of the Selections Board In the absence of a clear procedure for selecting officers, the Deputy Commissioner, as one of the leaders in the RGPF, is certainly able to make recommendations as to which officer is best suited to be recommended for promotion to fill a vacancy.

[32] The Commission’s Regulations are not clear as to what criteria or procedure the Selections Committee is obliged to consider when selecting officers for promotion, however, in the absence of clear procedure and criteria the Selections Board is entitled to determine its own procedure and criteria. The recent learning from Elmoalis Ltd.13, gives much guidance where the court opined:

“It is also recognised that where astatute is not prescriptive of the specific manner in which an administrative body is to operate, it is usually within the remit of that body to determine its own procedure, of course, in accordance with the broader overarching principles of law attendant on decision making by public officials. This is borne out by the decision of the English Court of Appeal in Selvarajan v Race Relations Board where it was held at page 19 that, in the absence of an express statutory prescription, aadministrative body is the ‘master of its own procedure’14.” (Emphasis supplied)

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[33] The Selections Board is entitled by law to make recommendations to the Commission. Mr. Joseph’s application for promotion was considered by the Selections Board by letter dated 6th January 2017 the Commissioner of Police indicated to Mr. Joseph that he was not a successful candidate for recommendation.

[34] On the facts there is no abdication of responsibility by the Commission as the power to appoint a public officer still rests with the Commission even after recommendations are made by the Selections Board. In order for Mr. Joseph to say that this process was flawed, he must lead evidence to show that the Commission did not properly exercise its discretion when it failed to consider him for promotion to the senior ranks.Mr. Joseph has not shown any evidence that would impugn the selection process by the Selections Board.

[35] In light of the above, I do not see how Mr. Joseph can maintain that a failure or inaction by the Selections Board to recommend him for promotion, after its deliberation, can amount to him being passed over by the Commission. As stated earlier, the purpose of the Selections Board is to select and recommend officers for promotion. In essence, its goal is to shortlist persons for recommendation to the Commission.

[36] The Commission is entitled to rely on the recommendation of the Selections Board if it so chooses under Regulation 15. In any event, even if Mr. Joseph was recommended for promotion by the Selections Board or the Chief of Police as a Head of Department, the final decision still rests with the Commission pursuant to section 89(2) of the Constitution.Therefore, Mr. Joseph’s argument on this issue must fail as there was no such abdication of the Commission’s duty or power on the facts of this case. Further, there is no evidence of any breach of the Regulations nor the Constitution in relation to the Commission’s failure or inaction not to promote Mr. Joseph.

Allegations against Prime Minister
[37] Mr. Joseph also alleges that the Prime Minister stated during a speech in Parliament that he would never promote Mr. Joseph while he is Prime Minister. Mr Joseph also asserts that in 2013 instructions came from the Prime Minister for Mr. Joseph to hand over the keys and files to the FIU and to proceed to the CID. The court notes from Mr. Joseph’s evidence that he complied with those orders and never challenged the decision. In the court’s view, the proper recourse was to have challenged the decision at the time made in 2013, this belated challenge is nugatory. Apart from the above bald assertions there is no other evidence to corroborate Mr Joseph’s assertions that the Commission was directed by the Prime Minister, or the Commission followed the dictates of the Prime Minister when arriving at any decision not to promote him or at the very least consider his application for promotion. Mr. Joseph’s assertion that the Commission received instructions from the Prime Minister or followed his instructions is unsubstantiated by evidence.

Whether the Public Service Commission’s inaction or failure to promote Mr. Joseph between 2013 and 2018 without first giving him an opportunity to be heard breached the principles of natural justice and contravenes section 8(8) of the Constitution.

[38] Mr. Burke submits that the right to protection of the law is enshrined in section 8(8) of the Constitution. He submits that the Privy Council in Sam Maharaj v Prime Minister gave a wide interpretation to protection of the law to afford every citizen adequate safe guard against irrationality, unreasonableness, unfairness and arbitrary exercise of power. He states that Mr. Joseph was not given an opportunity to be heard on him being passed over for promotion. He asserts that the Commission having failed to give Mr. Joseph an opportunity to be heard breached Mr. Joseph’s right to protection of the law and natural justice.

[39] Ms. Samuel submits that the Commission is not in breach of any principle of natural justice and Mr. Joseph’s rights under section 8(8) of the Constitution of Grenada. Further, she submits that Mr. Joseph does not have any locus standing to approach the court on the ground of breach of constitutional rights.

[40] Regulation 15provides that the Commission when considering any report of a selection may in its discretion, summon for interview any of the candidates recommended by such Board. On the facts before the case the Commission was not under any obligation to provide Mr. Joseph with an opportunity to be heard before deliberating on its decision. Given the circumstances of this case, affording Mr. Joseph an opportunity to be heard on his eligibility for promotion would not have been necessary as he was not facing any disciplinary action nor was there any negative reports or comments about him by his superiors.

[41] It would be an onerous task for the Commission, given its volume of work and extensive duties, to provide each public officer with an audience to make representations before its deliberation on whether or not to permanently appoint him or her. This would certainly infringe on the constitutional duty placed on the Commission to make appointments at its discretion and to carry out its business without interference and delay.

[42] Therefore, even if Mr. Joseph was given an opportunity to be heard on his application for promotion, the power whether or not to appoint him still rests with the Commission after due consideration of the relevant criteria in Regulation 19. The Commission would not be bound by his representations in person nor recommendations made to it by the Permanent Secretary in the Ministry of National Security or Head of Department, such as the Commissioner of Police. In light of the above, Mr. Joseph has not established any breach of the principles of natural justice or contravention of section 8(8) of the Constitution.

Whether Mr. Joseph is entitled to any relief
[43] Taking all in the round, I am of the view that the facts of this case do not disclose any “procedural impropriety” as formulated by Lord Diplock in Council of Civil Service Unions v Minister of Civil Service16 that would require the court’s intervention or review.

[44] Mr. Joseph has not made out a successful challenge against the inactions or decisions of the Commission in relation to his promotion or eligibility for promotion. Moreover, Mr. Joseph has not specifically pleaded, asserted or proved any pecuniary loss or damage. He merely asserts that the Commission violated his constitutional rights, and its actions were improperly motivated, unfair and unconstitutional, among other things. The court is of the view that Mr. Joseph is not entitled to any reliefs or declarations sought, including an order of mandamus and damages, including vindicatory damages as claimed.

Conclusion
[45] Mr Joseph has not found any basis for inferring that the Commission had been improperly influenced or had abdicated its independent decision-making function in the appointment process. The only criticism made was of the implied suggestion that the Prime Minister might have brought his political influence to bear in statements made. However, this was not substantiated with any palpable evidence that the commission was influenced by those statements.

[46] For reasons advanced above, I order that Mr. Joseph’s application for judicial review is refused and there shall be no order as to costs.

Agnes Actie
High Court Judge
By the Court
Registrar