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Oleg wins $60,000 from Grenada – Part III

Attorney Dylan Charles – also represented Oleg Firer

A controversial figure who was given a diplomatic appointment under the Keith Mitchell-led New National Party (NNP) administration is EC$60,000.00 richer based on a high court ruling in his favour in St George’s.

Oleg Firer was denied entry into Grenada by the Congress government of Prime Minister Dickon Mitchell, prompting him to institute legal proceedings against the nearly two-year old administration.

An attorney for the ex-diplomat argued that he was never informed about the allegations made during the NNP rule of Dr. Keith Mitchel that resulted in the revocation of his ambassadorial appointment.

In his ruling in the case, high court judge Justice Glasgow said:-

*Mr. Firer’s claims for constitutional relief on the grounds that he was at the material time a citizen of Grenada are refused.

I have however found that Mr. Firer’s common law right to procedural fairness was breached in that he was not informed of the specific allegations against him which influenced his recall as ambassador prior to his recall and given an opportunity to respond to those allegations.

It is therefore ordered as follows:

(1) The prayers for declarations in the originating motion on the grounds that Mr. Firer was at all times a citizen of Grenada are all refused;

(2) It is declared that the decision to recall Mr. Firer as ambassador of Grenada without informing him of the specific allegations of impropriety against him and allowing him an opportunity to make representations prior to his recall breached his right to procedural fairness;

(3) Mr. Firer is awarded the sum of $50, 000.00 as damages for the breach of his right to be informed of the specific allegations of impropriety against him and allowing him an opportunity to make representations prior to his recall;

(4) No order is made for exemplary and/or aggravated damages; and

(5) Prescribed costs are payable to Mr. Firer in the sum of $10,000.00.

As a public service, THE NEW TODAY reproduces in full the Justice Raulston Glasgow ruling on the Oleg Firer case:-

LEGAL ANALYSIS & DISCUSSION

WHETHER MR FIRER’S DIPLOMATIC STATUS WAS REVOKED PRIOR TO 22ND FEBRUARY, 2023?

[47] Counsel for Mr. Firer submits that Mr. Firer’s diplomatic status had not been validly revoked. This was based on the non-compliance with section 3 of the Diplomatic Privileges Act, as counsel claims that the Minister was required to issue a notice to the world and to Mr. Firer personally that his privileges were revoked. According to counsel for Mr. Firer, this is the common practice in Grenada, and a copy of the Government Gazette dated 22nd September, 2023 was exhibited as an example of this practice. By virtue of this failing, counsel advances that Mr. Firer remained entitled to his privileges and status as ambassador, and therefore remained in service to the Government of Grenada.

[48] The OAG presents the contrary position, indicating that Mr. Firer was in fact recalled as set out in Mrs. McLeish – Hutchinson’s evidence. Mrs. McLeish – Hutchinson further submits that the Diplomatic Privileges and Immunities Act was inapplicable, as that Act compares privileges and immunities granted to the representatives of Grenada by foreign countries. The OAG observes that section 3 of the Diplomatic Privileges and Immunities Act gives the Minister a discretionary power to determine whether to publish in the Gazette, but this was not necessary in Mr. Firer’s case, as the state does not grant immunity to its own diplomats, but to diplomats of other countries.

[49] Section 3 of the Diplomatic Privileges and Immunities Act is headed ‘Withdrawal of Privileges and Immunities’ and it provides:

“If it appears to the Minister that the privileges and immunities accorded to a mission of Grenada in any State, or to persons connected with that mission, are less than those conferred by this Act on the mission of that State, the Minister may, by Order published in the Gazette withdraw such of the privileges and immunities so conferred from the mission of that State or from such person connected with it as appears to the Minister to be proper.”

[50] With respect to counsel for Mr. Firer, this section speaks to reciprocal treatment of diplomats. The section addresses the case where, as it says, diplomats in the service of Grenada in a foreign state are accorded lesser treatment than that accorded by Grenada to diplomats of that foreign state. In such a case, the Minister of Foreign Affairs, may by order published in the Official Gazette, withdraw the privileges and immunities accorded to diplomats of that state in Grenada. Those are not the facts of this case.

[51] The question of whether Mr. Firer was recalled as ambassador still remains. The relevant evidence in this context is the Cabinet Conclusion dated 28th February, 2022 and signed by the Secretary to the Cabinet. In this Cabinet Conclusion, the Government of Grenada made the determination to recall Mr. Firer’s diplomatic appointments with effect from 21st February, 2022. From this evidence, it is clear that Mr. Firer’s diplomatic appointments were in fact recalled by the executive arm of the Government of Grenada in February, 2022.

[52] I pause here to note that the date of this document is of particular importance to this discourse. The last general election in Grenada was held in June 2022. Mr. Firer was first appointed at ambassador under the government in power prior to those June 2022 elections. As Mrs. McLeish – Hutchinson rightly pointed out, Mr. Firer was recalled under that administration and not the current administration. Mr. Firer is therefore also incorrect in his contention that his removal was due to discrimination based on political affiliation with the previous administration, since he was removed from office by the same political administration which had in fact also appointed him.

IF MR. FIRER HAD IN FACT BEEN RECALLED AS AMBASSADOR PRIOR TO 22ND FEBRUARY, 2023, WHETHER THE STATE WAS OBLIGATED TO INFORM MR. FIRER OF HIS RECALL?
[53] As determined in the preceding issue, I find that Mr. Firer had been recalled as ambassador by the Government of Grenada as early as 15th February, 2022. On this issue, counsel for Mr. Firer indicates that there was the duty to notify Mr. Firer of his recall. Mr. Firer says that the Minister failed to show any evidence that he had received the notice of recall in accordance with section 3 of the Diplomatic Privileges and Immunities Act. I have above stated that counsel for Mr. Firer’s reliance on section 3 is misplaced but the question of whether there was a duty to properly notify Mr. Firer remains.

[54] The OAG concedes that the Government of Grenada had the duty to notify Mr. Firer of his recall, but Mrs. McLeish – Hutchinson counters that Mr. Firer was in fact informed through letters sent directly to Mr. Firer, and conversations which she held with him. Mr. Firer asks the court to find that he only received one letter notifying him of his recall, and further submits that the defendants have failed to prove or show to the court any proof of service that he was properly notified.

[55] The court was provided with a letter dated 9th May, 2022 issued from the Ministry of Foreign Affairs, International Business and Caricom Affairs under the hand of Mrs. Roxie McLeish – Hutchinson, which was addressed to Mr. Firer. The subject line of the letter read: “Re: Recall from the post of Ambassador of Grenada to the Russia Federation”. This letter indicates that Mr. Firer’s post as ambassador of Grenada to the Russian Federation was being recalled effectively on 9th May, 2022, and thanked Mr. Firer for his service and dedication during his tenure as ambassador. Note Verbales addressed to various embassies were also produced dated 12th May, 2022, which explained that Mr. Firer’s appointment as ambassador to Russia ended on 9th May, 2022.

[56] The court was also provided with a letter dated 29th May, 2022 issued from the Ministry of Foreign Affairs, International Business and Caricom Affairs under the hand of the Permanent Secretary, Mrs. Roxie McLeish – Hutchinson, which was also addressed to Mr. Firer. The subject line of the letter of 29th May, 2022 read: “Recall from the post of Non-resident Ambassador to Serbia, Czech Republic, Hungary, Bulgaria, Kazakhstan, Albania and Monaco.” This letter indicates that Mr. Firer was being recalled as non – resident ambassador, as the Ministry was conducting a review of non – resident accreditations. Mr. Firer was again thanked for his service and dedication during his tenure as non – resident ambassador.

[57] It is the 2nd letter of 29th May, 2022 which Mr. Firer claims that he never received, having acknowledged on his evidence receipt of the 9th May, 2022 letter. In rebuttal, Mrs. McLeish – Hutchinson referred to WhatsApp conversations where she sent the letters to Mr. Firer. The court was only presented with screenshots of the WhatsApp conversations between Mr. Firer and Mrs. McLeish – Hutchinson to support the notification of his recall. Neither counsel objected to my consideration of these exhibits.

[58] What these exhibits showed is that Mrs. McLeish – Hutchinson did in fact send the letter of 9th May, 2022 to Mr. Firer on 10th May, 2022. Mr. Firer did not respond to this message. The exhibits further showed that on 16th May, 2022, Mrs. McLeish – Hutchinson requested a virtual meeting with Mr. Firer, to which he promptly responded, agreeing to so meet. Mrs. McLeish – Hutchinson also indicates in her affidavit filed on 4th March, 2023 that she held several virtual consultations with Mr. Firer in February, 2022, where she informed him of Cabinet’s decision to recall him as non – resident ambassador, prior to sending the May, 2022 letters.

[59] Mrs. McLeish – Hutchinson states that she also sent WhatsApp messages to Mr. Firer in July and September, 2022 regarding the recall. The court was provided with screenshots of these conversations with no objections from counsel. From these exhibits, the court is able to glean that Mr. Firer indicated to Mrs. McLeish – Hutchinson that he had not received the correspondence of 29th May, 2022. However, in subsequent messages to Mrs. McLeish – Hutchinson, Mr. Firer referenced the recall notes and queried who he ought to be handing over the affairs of the embassy to. I therefore disbelieve Mr. Firer’s evidence that he was not notified of his recall as ambassador as early as 10th May, 2022.

[60] Even if I accept that Mr. Firer did not receive the letter of 29th May, 2022, which I do not accept, the letter of 9th May, 2022, which he acknowledges receiving, was clear that his diplomatic postings were at an end. I therefore find that Mr. Firer was notified of his recall. In passing, I also wish to pause and caution public officials that in exercising their public duties, they ought to do so scrupulously and prudently according to best practices. While the court is cognizant of the digital age in which we live, important matters such as recall of diplomatic appointments should as a best practice be properly served. If electronic communication is engaged in this regard, it should at least, be dispatched from an official government issued email address, at the highest. The practice of WhatsApp correspondences on such important matters, though perhaps a more speedy form of communication, should be avoided unless absolutely necessary.

IF MR. FIRER WAS NOTIFIED OF HIS RECALL, WAS THE STATE REQUIRED TO GIVE MR. FIRER AN OPPORTUNITY TO MAKE REPRESENTATIONS PRIOR TO HIS RECALL?
[61] Mr. Firer in his own evidence highlights the fact that he was aware that his appointment as ambassador was political23. Both counsel properly concede that persons under such political appointments have no general right to be given an opportunity to make representations prior to their recall. The law highlights that persons appointed on purely political considerations, such as ambassadors and diplomats, hold these positions at the pleasure of the Government, and can therefore be dismissed at any time. This is in contradistinction to other public officers who are provided protection under the constitution and statute, and are therefore not dismissible at the pleasure of the State.

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[62] This reasoning was confirmed in Endell Thomas v The Attorney General, where Lord Diplock in discussing the concept of dismissal at pleasure stated:

“To speak of the right of the Crown to dismiss its servants at pleasure is to use a lawyer’s metaphor to cloak a political reality. “At pleasure” means that the Crown servant may lawfully be dismissed summarily without there being any need for the existence of some reasonable cause for doing so… dismissal at pleasure would make it possible to operate what in the United States at one time became known as the “spoils” system upon a change of government, and would even enable a Government, composed of the leaders of the political party that happened to be in power, to dismiss all members of the public service who were not members of the ruling party and not prepared to treat the proper performance of their public duties as subordinate to the furtherance of that party’s political aims.”

Lord Diplock then explained:

“The whole purpose of Chapter VIII of the Constitution which bears the rubric ‘The Public Service’ is to insulate members of the civil service, the teaching service and the police service … from political influence exercised directly upon them by the Government of the day. The means adopted for doing this was to vest in autonomous commissions, to the exclusion of any other person or authority, power to make appointments to the relevant service, promotions and transfers within the service and power to remove and exercise disciplinary control over members of the service. These autonomous commissions, although public authorities, are excluded …from forming part of the service of the Crown. Subject to the approval of the Prime Minister they may delegate any of their powers to any of their members or to a person holding some public office …; but the right to delegate, though its exercise requires the approval of the Prime Minister, is theirs alone and any power so delegated is exercised under the control of the Commission and on its behalf and not on behalf of the Crown or of any other person or authority.”

[63] The case of Endell Thomas therefore recognizes that persons appointed to certain public offices such as persons appointed by the public service commission set up under section 83 of the Constitution of Grenada are accorded protection from dismissal at pleasure. Those officers must be dismissed for cause. It is quite apparent then that Mr. Firer’s appointment as ambassador does not clothe him with the protections of persons appointed in accordance with section 84 of the Constitution of Grenada. Instructively, persons who hold diplomatic offices are not accounted for in the Constitution of Grenada at all, and this further buttresses the political nature of their appointment and recall at the whims of the executive.

[64] Accordingly, Mr. Firer cannot be said to enjoy any form of security of tenure, and there is no requirement in law that a minister or cabinet must consult or seek advice from some other person such as the Public Service Commission or the Governor General before determining whether to recall his appointment 27 as was the case with the diplomatic officer in the case of Elizabeth Darius – Clarke v The Attorney General of St. Lucia. In that case Webster JA, after considering the law on this point, reiterated that ambassadors do not enjoy tenure and insulation from political influence and the doctrine of dismissal at pleasure still obtains for such persons. In that case, the question of appointment and recall of diplomatic and consular officers was expressly addressed in the constitution of Saint Lucia. As stated above, Grenada’s Constitution does not include such provisions.

[65] Counsel for Mr. Firer properly concedes that Mr. Firer was dismissible at pleasure, but counters that Mr. Firer ought to have been informed of the reasons for his recall and given an opportunity to be heard before the recall was effected in light of the evidence filed in the claim. Counsel submits that this was because Mr. Firer’s purported recall was subject to, among other things, an allegation of financial impropriety made by Mrs. McLeish – Hutchinson in her evidence. In the case of Elizabeth Darius – Clarke v The Attorney General of St. Lucia, the court was tasked with determining inter alia whether an ambassador had the right to be heard prior to the recall of her appointment. As noted above, the High Court and Court of Appeal ruled that as Mrs. Clarke was dismissible at pleasure, there was no duty to consult her prior to her termination. The learned Webster JA however stated that:

“The duty to act fairly would have arisen if the decision to terminate her appointment was on the basis of a specific allegation made against her. In this situation, Mrs. Clarke would be entitled to an opportunity to respond to the allegation.31” (bold emphasis mine)

[66] In considering the evidence in totality, it is notable that the letters of 9th May, 2022 and 29th May, 2022, contain no allegations of impropriety against Mr. Firer in relation to his recall as ambassador. From the aforementioned documents, it appears that Mr. Firer was recalled from his posting without any specific cause or allegations, as the letter of 9th May, 2022 gave no reason and the letter of 29th May, 2022 references that the government was conducting review of ambassadorial accreditations. If the letters were the only matter for consideration, I would have agreed with the OAG that there was no reason for Mr. Firer to be told of the reason for his recall and that the Government was entitled to recall him at whim.

[67] However, allegations of serious impropriety against Mr. Firer were in fact raised by Mrs. McLeish – Hutchinson in her evidence. The OAG denies that what Mrs. McLeish – Hutchinson put before the court were allegations of impropriety made against Mr. Firer which would have necessitated providing him with reasons for his recall, and affording him the opportunity to make representations. Counsel suggests that I was misreading or misunderstanding what was said in Mrs. McLeish – Hutchinson’s evidence, averring that she simply sought to give an explanation of the reasona Mr. Firer was denied entry into Grenada on 22nd February, 2023. The evidence given by Mrs. McLeish – Hutchinson on this issue reads verbatim:

“25. Before the recall of the Claimant as ambassador, the Claimant had refused to comply with the request sent to all Heads of Missions to submit monthly financial reports and provide reports regarding the operations of the Embassy of Grenada in Russia. A copy of the request sent to the Claimant in above regard are attached herewith and marked as “Exhibit RH 3&4”.

(sic) 25. In connection to the above, the Defendants state that the Claimant resisted his recall as an ambassador, ignoring the letters sent to him in that regard and continued to host activities at the Grenada Embassy in Russia regardless of the instructions from the Ministry of Foreign Affairs.

  1. In view of the posture of the Claimant, the 2nd Defendant was well informed of the way and manner the Claimant had been conducting himself as a security threat to the state of Grenada and as such, the 2nd Defendant deemed the Claimant as an undesirable visitor within the contemplation of section 4(1)(f) of the Immigration Act Cap. 145 of the laws of Grenada and instructed the appropriate department to refuse the Claimant entry into Grenada. The 2nd Defendant deemed the Claimant as persona non grata relative to his manner and conduct towards the state of Grenada before and following his recall as an ambassador…
  2. …While all the detail of the administrative matters were not raised with the Claimant during the Whatsapp contact, the real reason for the contact, among others, was because of a diplomatic note received from the Embassy of Russia informing that the Government of Grenada has a debt of over USD 1 million dollars in outstanding rent for the use of the premises housing the Embassy for the period 2020 – 2022. To date, the Claimant has failed and refused to provide the requested information with respect to the running and operations of the Embassy in Russia, a concern that was expressed previously to the Claimant and which influenced the decision to recall his appointment as an ambassador.” (bold emphasis and underline mine)

[68] From a plain reading, this evidence from Mrs. McLeish – Hutchinson raises 2 issues. Firstly, upon my review of the exhibits referenced in paragraph 25 of the affidavit of Mrs. McLeish – Hutchinson, the memorandum to all heads of overseas missions was dated 4th April, 2022. From the evidence presented, the Government of Grenada took the decision to recall Mr. Firer’s appointment in February, 2022, even though he was only informed in May, 2022. Therefore, this reason would not aid the defendants’ case, as by the date of that memorandum, 4th April 2022, the decision to recall Mr. Firer from the office of ambassador had already been taken by Cabinet. If the concerns outlined in that 4th April, 2022 memorandum indeed formed one of the bases on which Mr. Firer was removed from office as stated by Mrs. McLeish – Hutchinson, then those concerns should have been put to him prior to the decision to recall him from office.

[69] Further, the allegations referenced in paragraph 25 and 27 of Mrs. McLeish – Hutchinson’s evidence hinted at allegations of financial impropriety or dereliction of duty against Mr. Firer. Mrs. McLeish – Hutchinson stated emphatically that these issues influenced the decision to recall Mr. Firer as ambassador. The letters informing Mr. Firer of his recall did not recite this information. In these circumstances and further to the learning in the case of Elizabeth Clarke mentioned in paragraph 65 herein, it is my view that Mr. Firer ought to have been told specifically of these allegations. Additionally, he should have been afforded an opportunity to respond, especially as the evidence from Mrs. McLeish – Hutchinson recites, the allegations founded the basis for the recall.

[70] More specifically, I cannot see any gainsaying that given the serious nature of the charges being laid against Mr. Firer, principles of fairness dictate that he should be afforded these basic procedural safeguards prior to his recall as ambassador. Indeed, none of the parties, correctly in my view, argued that the principles of fairness ought not to apply where serious misconduct is being alleged. The OAG, however, as I have stated above, takes a different view of the facts with which I disagree. In the consolidated appeals of Permanent Secretary, Ministry of Foreign Affairs & Prime Minister Patrick Manning et ors v Feroza Ramjohn, the Privy Council succinctly addressed the principle in this regard thusly:

TO BE CONTINUED

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