Claude Gerald Plaintiff v The Governor of Montserrat The Public Service Commission Attorney General Defendants [ECSC]

• Jurisdiction: Montserrat
• Court: High Court (Montserrat)
• Judge: BAPTISTE J
• Judgment Date: 28 April 2003
• Judgment citation (vLex): [2003] ECSC J0428-1
• Docket Number: ACTION NO. M6 OF 2000
• Date: 28 April 2003

[2003] ECSC J0428-1

IN THE HIGH COURT OF JUSTICE

ACTION NO. M6 OF 2000

In the matter of the Transfer of Claude Gerald from the Ministry of Agriculture to the Ministry of Finance

Between:

Claude Gerald

Plaintiff

and

The Governor of Montserrat

The Public Service Commission

The Attorney General

Defendants

Mr Sydney Christian, Q.C. for the Plaintiff

Ms Anesta Weekes, Q.C. for the Defendants

BAPTISTE J

1 —Mr Gerald claims declaratory and other relief arising out of his transfer by the Governor of Montserrat from the post of Director of Agriculture in the Ministry of Agriculture to the post of Principal Assistant Secretary in the Ministry of Finance as a consequence of remarks made by him in a welcoming speech at an Agricultural Exhibition on 15^th December, 1999.

2 In his speech Mr Gerald effusively praised P. Autsin Bramble the former Minister of Agriculture. The speech caused deep embarrassment to the Government of Montserrat and the matter was referred to the Department of Administration. By letter dated 5January 2000 addressed to Mr Gerald, the Permanent Secretary of that Department stated inter alia:

"It has been reported to the Department of Administration that on 16^th December 1999 at the opening ceremony of the Agricultural Exhibition you spoke in public, namely in your praise of the Honourable P.A. Bramble and in your failure to address any welcome to or recognition of the newly appointed Honourable Minister of Agriculture, Land, Housing and the Environment.

2. The charge laid against you is one of general misconduct contrary to General Order 311 (iv) in that:

• (a) you spoke in public on a matter reasonably regarded as of a political or administrative nature, namely the appointment of the Honourable P. Meade as Minister in place of Honourable P.A. Bramble.

3. You are required to state in writing by Wednesday 19^th January 2000 any reason(s) why disciplinary proceedings should not be instituted against you as ndicated at paragraph 2 (a)."

3 In his reply, dated 6 January 2000 Mr Gerald denied the charge and stated that his remarks sought to offer praise and commendation to the two individuals who were instrumental in the planning and execution of the exhibition: Messrs P.A. Bramble and Justin Cassell. Mr Gerald also stated that he did not seek to nor indulge in any reference to the appointment of or the replacement of Ministers, nor was it implied.

4 On 17 January 2000 Mr Gerald appeared before the Public Service Commission to explain the remarks he made at the exhibition. Mr Gerald eventually wrote a letter of apology, approved by the Commission, to the Minister of Agriculture. On 18 April 2000 the Permanent Secretary of Administration wrote to Mr Gerald advising him that His Excellency the Governor had decided that the interests of the public service required that he be transferred from the Ministry of Agriculture. By letter dated 6 June 2000 Mr Gerald was advised that effective 5 June he had been relieved from the post of Director of Agriculture and that he had been appointed to the position of Principal Assistant Secretary in the Ministry of Finance.

RELIEF SOUGHT

5 Being aggrieved by the circumstances surrounding the transfer and the transfer, Mr Gerald seeks the following relief: -

"(a) A declaration that the charge of 'general misconduct contrary to General Order 311 (iv)' made against the plaintiff in that the matters about which the plaintiff spoke on 15^th December, 1999 in his official capacity of Director of Agriculture were not capable of being regarded as of a political or administrative nature.

(a) A declaration that the plaintiff has not been treated fairly in accordance with the rules of natural justice by the Governor and/or by the Public Service Commission and/or that there has been no adjudication on the disciplinary charge brought against the plaintiff.

(b) A declaration that the act of transferring the plaintiff out of the Ministry of Agriculture was not effected in due course of law, was arbitrary and was without justification.

(c) An order directing the Governor to transfer the plaintiff back to the Ministry of Agriculture as Director of Agriculture.

(d) A declaration that the Governor has no power to transfer the plaintiff out of the Ministry of Agriculture without his consent and that the Governor and/or the Public Service Commission failed to show any or any sufficient cause for transferring the plaintiff against his will from the Ministry of Agriculture to the Ministry of Finance.

(e) A declaration that the charge brought against the plaintiff for his remarks at the exhibition on 15^th December, 1999 was an invalid charge, and as a result it amounts to a hindrance to his right to freedom of expression guaranteed under section 60 of the Montserrat Constitution 1989 and is an improper and invalid restriction upon him as a public officer.

(f) A declaration that the plaintiff is entitled to compensation for the manner in which he has been treated for since his return to work in June, 2000.

(g) Alternatively, a declaration that the plaintiff has been constructively dismissed from the Public Service, and is entitled to substantial damages for the arbitrary manner of such dismissal."

ISSUES

6 In his skeleton arguments Sydney Christian Learned Queen's Counsel for Mr Gerald crystallized the principal issues as follows:

• (1) Did the plaintiff's speech of 16^th December 1999 amount to general misconduct contrary to General Order 311(iv) as alleged?

• (2) Is the Montserrat General Order void for unconstitutionality?

• (3) Was the plaintiff accorded a fair trial according to the rules of natural justice?

• (4) Was the transfer of the plaintiff from the Department of Agriculture to the Ministry of Finance punitive and a direct result of the charge of general misconduct laid against him?

• (5) Can the Court inquire into the determination by the Governor of Montserrat that the plaintiff be transferred from the Ministry of Agriculture to the Ministry of Finance?

7 It is prudent at this stage to reproduce the salient parts of the impugned speech and then consider the issue of whether General Order 311(iv) is unconstitutional.

THE SPEECH

8 "His Excellency, The Governor

Hon Ministers of Government

Speaker of Legislature

Etc

I am very pleased to greet you and to welcome you to this exhibition on behalf of the entire Department of Agriculture.

But before I proceed I will like to punctuate this welcome by recognizing and paying a special tribute to the immediate past Minister of Agriculture, Mr. P. Austin Bramble. Mr. Bramble was instrumental in laying the foundation for the planning and formulation of this exhibition. Beyond that though, you would allow me to say that Mr. Bramble endeared himself to us as a man of honour, respect, and decency who should carry the title of Honourable for the rest of his life because he defines the word, and he lived the word and he was the word.

In office, Mr. Bramble was impeccably coherent, fit and mentally sharp who used his considerable experience to debate issues with staff to the benefit of the agricultural sector and any strides which we have been making in the last couple of years, Mr. Bramble is integral to them.

Just to give you a tangible idea of the nature of the ex-Minister. He called, on his return from a well-deserved vacation in the UK. I was in my office. He immediately asked how things were going in the Department he had left only weeks ago. Then he became specific. "DA, how did it go with the pineapples from Guyana," in obvious reference to the intrigue we were experiencing in getting the planting material out of that country. "What of the exhibition and how are farmers responding to it all?" and further, "Those improved stock from Antigua, did theyarrive?" and the questions went on and on about the plans and programmes he left behind.

This man is a special act. He is the stuff that leaders are made. He is broad-minded. He is well intentioned. The trappings of power do not affect him. He is not haughty and puffed up. He does not inflate his ego and seek to terrify others. He does not pick fights with his staff. He is humble and approachable. He is mild mannered and meek but yet he is current, he is with it and appropriately responsive. And you feel enriched when you would have discoursed with him. We thank him for his services to agriculture and indeed to this country for in the last thirty years.

Mr. Bramble's contribution to the quality of life on this island has been telling impressive and we say a fond farewell to you Sir for we know that in the fullness of time your noble ideas on development of a small island state will stand monumentally as your past programmes have been for this country. Mr. Bramble made the word sustainable real and alive on Montserrat long before it became an international buzzword. We therefore must hail your majestic works."

IS THE MONTSERRAT GENERAL ORDER VOID FOR UNCONSTITUTIONALITY?

9 Mr Christian, Q.C. submitted that laws amounting to blanket restrictions on all civil servants from communicating to anyone any expression of view on any matter of political controversy are deemed excessive and unconstitutional as they do not satisfy the qualification in modern constitutions that the restrictions be reasonably required for the proper performance of civil servants' functions. Reliance was placed on the case ofde Freitas v Permanent Secretary of the Ministry of Agriculture, Fisheries, Lands and Housing and Others (1998) 53 WIR 131. Mr Christian stated that General Order 311(iv) read in conjunction with section 60 of the Montserrat Constitution Order 1989 subsection 2 is analogous to section 10 (2) of the Civil Service Act CAP 87 of Antigua read in conjunction with section 12 (1) of the Antigua and Barbuda Constitution. Section 10 (2) of the Civil Service Act was declared unconstitutional by the Judicial Committee of the Privy Council in ...