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Judge rules against ASP Joseph

ASP Senneth Joseph – will have to consider his next move

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:

JUDGMENT
[1] ACTIE, J.: This is an application for judicial review by the claimant, Mr. Senneth Martin Joseph (Mr. Joseph), Assistant Superintendent in the Royal Grenada Police Force (RGPF) against the Public Service Commission (the Commission),for declarations challenging the Commission’s failure or inactions to promote him between 2013 and 2018 and for violations of the Constitution under sections 8(8) and 89(2) of the Constitution.

Background
[2] Mr. Joseph was granted leave to apply for judicial review and on 29th January 2020 filed a fixed date claim seeking the following reliefs against the Commission:

(1) A declaration that the decision of the Commission to consistently and consecutively pass him over for promotion between 2013 and 2018 without any or any adequate reasons given to him for so doing was improperly motivated, unfair, irrational and in breach of his legitimate expectation.

(2) A declaration that the decision of the Commission to consistently and consecutively pass him over for promotion between 2013 and 2018 without first giving him an indication as to why he is being passed over for promotion and an opportunity to make representation and or be heard in that regard is in breach of natural justice and his constitutional rights to due process and protection of the Law under section 8(8) of the Constitution and is therefore unconstitutional.

(3) A declaration that the Commission has abdicated its responsibility under section 89(2) of the Constitution and regulation 19 of the Commission’s Regulations 1969 SRO No. 27 of 1969 also Chapter 128A of the Continuous Revised Edition of the Laws of Grenada by following the dictates of the RGPF promotion committee, the Prime Minster and or some other body or committee in the Ministry of National Security other than itself in coming to the decision on his eligibility for promotion over the past six (6) years between 2013 and 2018.

(4) An order of mandamus directed to the Commission requiring it to properly exercise its power or duty under section 89(2) of the Constitution and regulation 19 of the Commission’s Regulations to properly consider his eligibility for promotion definitively to the rank of Superintendent within the RGPF together with all remuneration and perquisites attendant to that office with effect from 1st January 2019.

(5) Damages (including vindicatory damages) awarded the State of Grenada for breaches of his constitutional rights.

(6) Interest, costs and such further or other order as this Honourable Court seems just.

[3] On the day of trial Counsel for Mr. Joseph, Mr. V. Nazim Burke, disclosed to the court that he no longer desired to pursue the issue of legitimate expectation. The court admonishes counsel to discourage such practice as it amounts to an abuse of process and an ambush to the other party who had filed full submissions with authorities on the point.

Claimant’s evidence
[4] Mr. Joseph contends that:

(1) He is a member of the Royal Grenada Police Force (RGPF) and has been a member since 10th June 1985, as a Constable. As of the date of his affidavit he was an acting Assistant Superintendent.

(2) He held various positions in the RGPF from Financial Intelligence Unit (FIU) to the Criminal Investigation Department (CID) and, then back to FIU as the Head or acting Director until 2013.

(3) In 2013, he was transferred to the Criminal Investigation Department. He was ordered to hand over the FIU files to the CID together with the keys. He avers that he was informed by Assistant Commissioner of Police Trevor Modeste that the instructions for his removal came from the Prime Minister and Minister of National Security, Dr. Rt. Hon. Keith Mitchell. He avers that he complied with those orders.

(4) Between the years 2013 and 2018, he was passed over for promotion by the Commission without any adequate reasons been given to him.

(5) On 22nd July 2016, he submitted an application for promotion to the rank of ASP. He states that he hand delivered the application together with this CV to ASP Prince who copied it to then Chief Personnel Officer of the Commission. He states that ASP Prince indicated to him that the application was delivered personally to Deputy Commissioner of Police, Franklyn Redhead, who is the Chairman of the promotion committee.

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(6) On or about 13th December 2016, he was informed by senior officers that several persons, who were junior to him were promoted. He felt sidelined, overlooked, and discriminated against. He wrote a letter to the Commissioner of Police (COP)which was copied to the Commission seeking reasons why he was excluded.

(7) Further, he wrote a letter of enquiry dated 21st December 2016 to the COP and copied it to the Chairman of the Commission seeking an explanation as to why he was excluded or overlooked for promotion while others were appointed. The COP replied by letter dated 6th January 2017 indicating that his application was considered by the Selections Committee, along with others, and was not successful.

(8) By RGPF Circular No. 4 of 2017 dated 19th January 2017, it was confirmed that a number of officers who were junior to him were appointed by the Commission. He says that the Commission promoted officers who were less qualified and junior to him. He states that the promotions were not based on any objective criteria as outlined in the Police Act and the PSC Regulations on the eligibility of an officer for promotion.

(9) Based on what transpired in 2013 with regard to his promotion to the rank of ASP, he is of the view that he was being discriminated against. He says the Commission acted unfairly, irrationally and in breach of natural justice and his constitutional rights under section 8(8) of the Constitution. Further, he avers that the Commission abdicated its authority pursuant to section 89(2) of the Constitution and regulation 19 of the PSC regulations in failing to come to a decision on his eligibility for promotion.

10) He states that he has been subject to political victimization by the Prime Minister, Dr. Rt. Hon. Keith Mitchell and the leadership of the New National Party.

(11) By letter dated 31st January 2019 and received on or about 18th February 2019, he was informed by the Commission of his appointment to act as ASP within the RGPF with effect from 1st January 2019.

(12) He believes that he was consistently and consecutively passed over for promotion without any or any adequate reasons being given for so doing. He is of the view that the Commission was improperly motivated, unfair, irrational and in breach of natural justice and his legitimate expectation that he, as a police officer, would be given an equal opportunity for career advancement.

(13) On or about January 2019, three officers within the RGPF moved from the rank of ASP to Superintendent of Police (“SUP”)leaving vacancies of at least seven positions within the said rank. By letter dated 4th April 2019, his counsel wrote to the Commission outlining his complaints and requesting the Commission to give due consideration to his definitive appointment to the rank of SUP. However, to date, he has not received any substantive communication apart from an acknowledgment of service.

Defendant’s evidence
[5] On 2nd June 2020,Mrs. Naomi Jeremiah, the Chief Personnel Officer (acting)of the Commission filed an affidavit in opposition to the claim and contends that:

(1) Between the years 2013 and 2018, the Commission made those appointments within the RGPF in accordance with regulations Part III.

(2) Seniority is only one of many grounds set out by the Regulations as the basis for promotion and is only given priority where there are two or more officers on equal footing and the work is of a routine nature.

(3) Mr. Joseph has failed to show that he is superior in education, training, and/or specialist qualification to the other officer she says were appointed ahead of him. He fails to demonstrate that no consideration was given to this eligibility for promotion.

(4) Mr. Joseph was not determined by the Commission to be the most suitable candidate at the material dates when consideration was made for promotions for available vacancies. It is the Commission who made the decision to promote Mr. Joseph when it did and not the Chief of Police or some other person.

(5) The Commission is entitled to appoint selections boards to assist in the selection of candidates for appointment to public offices. The composition and form of reporting are in the discretion oft he Commission. The Commission also states that it is within its discretion whether the candidates are to be interviewed by the board. The Commission also has a discretion to require a Permanent Secretary to make recommendations for filling vacancies nd also to state reasons why officers are being passed over. The Commission did not receive any report or recommendation from the Prime Minster in relation to Mr. Joseph.

(6) Mr. Joseph cannot dictate that he be given a definitive appointment. Mr. Joseph’s acting appointment states that it was in the first instance. An acting appointment of one year cannot be taken as creating any expectation that Mr. Joseph would be confirmed to the post. Mr. Joseph was substantially appointed to the post of ASP on 18th May 2020with effect from 1st January 2019.The Commission is not bound by recommendations for promotion whether by the Chief of Police or the Permanent Secretary.

(7) None of Mr. Joseph’s rights have been infringed and he is not entitled to any reliefs. In any event, Mr. Joseph has not demonstrated that he has ever made an application for promotion to the Commission directly or indirectly. Further, Mr. Joseph has not demonstrated that he was superior in every particular required by the Regulations for consideration by the Commission. His complaint is mainly based on seniority and self-development.

Issues
[6] The main issues in this case concern whether Mr. Joseph was consecutively passed over for promotion between the years 2013 and 2018 and whether he is eligible for definitive promotion to the rank of Superintendent of Police. The issues can be determined under three points, namely:

(1) Whether the Public Service Commission properly exercised its power or duty under Section 89(2) of the Constitution and Regulation 19 of the Public Service Commission Regulations when it failed to promote Mr. Joseph during the years 2013 to 2018.

(2) Whether the Commission abdicated its responsibility.

(3) 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

TO BE CONTINUED

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