James awaits judgement in second claim against AG, Accountant General

After losing round one of her legal battle against Attorney General Judith Jones-Morgan and Chief Personnel Officer (CPO) Tyrone Burke, lawyers for Crown Counsel Annella James are now awaiting judgement in a second claim, this time against the Attorney General and Accountant General.{{more}}

James, who is crown counsel in the Attorney General’s Chambers, had filed a constitutional motion and an application for leave to make a claim for judicial review of the decision of the CPO, who in a letter dated April 2, 2009, had instructed the Accountant General to make the deduction from her salary.

The matter was heard before Justice Gertel Thom in chambers at the High Court on Thursday, July 29, 2010.

In her application, James contended that the letter of April 2, 2009, “is procedurally improper, in breach of the rules of natural justice, in excess of the powers of the Chief Personnel Officer and in contravention of Section 6 of the Constitution.”

Section 6 of the Constitution guarantees protection from deprivation of property.

The claim, number 138 of 2009 was originally against the respondents and the state owned National Commercial Bank (NCB). The case against the bank was however withdrawn by the claimants.

An application was tabled by the respondents to strike out the claim against the Attorney General and the Accountant General, stating the matter before the court was not a constitutional motion and was an abuse of process. In response, Keith Scotland, one of the lawyers representing James, also made an application, this time, to strike out the respondents application.

After nearly two and a half hours of arguments from the applicants and respondents, Justice Thom reserved her judgement on the matter.

Trinidadian Scotland and Maia Eustace represent James in the matter while Anthony Astaphan S.C and Grahame Bollers appears for the respondents.

In an interview with Scotland last Thursday, he said they believe in their case and will be pursuing it to the end.

“We respect the decision of the court on the first application and respect the rule of law,” he noted.

Scotland is a barrister with over 13 years experience and practices from the Justitia Omnibus headed by Israel B. Khan SC. in Trinidad.

James’ first application was dismissed on Monday, July 26, 2010, in a judgement handed down by High Court judge, Gertel Thom.

She had brought a constitutional motion and filed an application for leave to apply for judicial review of the decision of the CPO to temporarily assign her to the Ministry of Housing.

Justice Thom, in her judgement, 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 Judicial and Legal Services Commission (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.”

The claimants are in the process of filing an appeal in this matter and have applied for a stay of execution pending the outcome of the judgement.