High Court dismisses James’ application
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July 30, 2010
High Court dismisses James’ application

Lawyers for Crown Counsel in the Attorney General’s Chambers, Annella James, have already signaled their intention to file an appeal in relation to a judgment handed down by the High Court earlier this week.{{more}}

James, who brought a constitutional motion and filed an application for leave to apply for judicial review of the decision of the Chief Personnel Officer (CPO) to temporarily assign her to the Ministry of Housing, had her application dismissed in a judgment handed down by Justice Gertel Thom on Monday, July 26, 2010.

The motion and applications were brought against the Chief Personnel Officer, the Attorney General and The Accountant General.

In claim number 105 0f 2009, James contended that her constitutional rights under sections 5, 6(1) and 83 of the Constitution of St Vincent and the Grenadines were infringed.

James in her application for judicial review alleged that the decision in the March 4, 2009, letter by CPO Tyrone Burke was “illegal, null and void and in excess of the powers of the office of the Chief Personnel Officer…”

She also contended that in the letter of April 2, 2009, the procedure was improper, in breach of the rules of natural justice in excess of the powers of the CPO and in contravention of Section 6 of the constitution.

Burke, who was given instructions by the Attorney General to write the letters, in the letter to James dated March 4, 2009, stated “In accordance with the many demands of the Ministry of Legal Affairs for the provision of legal advice to the Ministries, you are temporarily assigned with effect from Thursday March 5, 2009, to Friday September 4, 2009 to the Ministry of Housing…”.

On April 2, 2009, Burke again wrote to James, informing her that she had not taken up her assignment at the Ministry of Housing and that the Accountant General “has been informed and instructed to make the relevant deduction from your salary.”

James’ lawyers argued that only the Judicial and Legal Services Commission (JLSC) could interfere with her salary. Section 6 of the constitution guarantees protection from deprivation of property.

On March 5, 2009, James reported to the Permanent Secretary at the Ministry of Housing. She then visited the CPO, and did not return to the Ministry of Housing. Instead, James reported back to work at the Attorney General’s Chambers and submitted sick leave certificates from the period March 9-20 and March 25-27,2009.

The respondents, represented by attorneys Anthony Astaphan S.C. and Grahame Bollers in their submissions stated that the letter of April 2, 2009, “amounts merely to a threat”. In his oral submission, Senior Counsel Astaphan said: “It did not alter any legitimate expectation and was therefore not subject to judicial review.”

Justice Thom, in her judgement, said that she agreed with the lawyers for the respondents that “there is a fundamental difference between the power to appoint, remove and exercise disciplinary control, which in this case is vested in the JLSC, and the power to lay down and prescribe terms and conditions of employment, which includes the power to assign duties to a public officer.”

The judge also ruled that “Ms James was appointed by the JLSC, but it is the Government of St. Vincent and the Grenadines who is her employer….It is included in her terms and conditions of service that Ms. James will be subject to the Civil Service Orders. Section 3.1 of the Civil Service Orders in effect requires Ms. James to perform the duties of the office to which she is appointed, i.e. the office of Crown Counsel and any other related duties that she may be required to perform by the Head of Department or Permanent Secretary.”

Justice Thom also said that it has not been disputed that the matters outlined by the Permanent Secretary in the Ministry of Housing for which legal advice was sought were duties of a Crown Counsel and or related duties of a Crown Counsel in the Attorney-General’s Chambers.

James’ lawyers had argued that the letter of March 4, 2009, “does not amount to an assignment of duties, but rather removal from the ministry to which she was appointed.” Justice Thom disagreed, saying “The letter when read as a whole seeks to assign Ms. James to perform legal duties which were to be discharged at a particular location being the Ministry of Housing. These duties were to be completed within a specified time. Ms James was not to become an employee within the Ministry of Housing…”

Justice Thom ruled that in view of the above, “I find that the authority to direct a legal officer to perform duties at a particular Department / Ministry for a specified period is within the ambit of the terms and conditions of service of the officer and is not in contravention of the powers of the JLSC as set out in Section 83 of the Constitution.”

Thom said: “In view of the above, I find that Ms. James is not entitled to any of the relief sought.”

Justice Thom did not make an order as to the costs as she was of the opinion that James “did not act unreasonably in making the application.”

Counsel, Maia Eustace, who also appeared on James’ behalf, informed SEARCHLIGHT that James’ lawyers have already applied for a stay of execution pending the outcome of the appeal. Trinidadian attorney Keith Scotland and Sharon Cummings also appeared on behalf of James.

James has also filed an application for leave to apply for judicial review of a decision by Burke, contained in a letter dated Apr 2, 2009, instructing the Accountant General to make deductions from her salary.

That matter was ventilated in chambers yesterday. (KW)