by JK Roberts (Sound Public Policies Advocate)
Sir Lawrence A Joseph, constitutional lawyer and consultant to the government of Dr Keith Mitchell’s New National Party (NNP), inquires in his July’s public writing, “Is the Pensions (Disqualification) Act Valid?”
Joseph then answered his question by stating that the Act (PDA) became clothed with validity as from the date on which the Confirmation of Validity Act was gazetted, which was 22 February 1985. He further asserts that section 92(2)(b) of the Constitution envisages that the PDA could only affect persons who were appointed to the public service after 22 February 1985. That is; the Act disqualifies those officers (a vast majority) from any pension, gratuity or other allowance in accordance with the pertinent pensions laws which were existing at the time of the introduction of Grenada’s Independence Constitution, despite their years of yeoman service and essential sacrifice to the nation.
Sir Lawrence’s hypothesis must not be accepted conclusively. Prudence and principle must be exercised, especially when there is semblance of inaccuracies and insufficiencies and of tendency to mislead. It must not be missed that Joseph has been a vanguard in seeking Grenadians to accept a flawed constitutional reform process and ill-intent referendum Bills, from January 2014 to November 2016. Review the internet-circulated article, “Grenada Constitution Reform: Voting with Conscience,” in analysing the ploys of the powers-that-be.
Sir Lawrence tends to postulate that the 1985 Validity Act has the moral and legal authority, as well as international standing to supersede the Constitution. Validity must be contextualised and be achieved within due process and against a standard. If the Herbert Blaize’s 1984 NNP government were ‘serious and sincere’ on the pensions issue, it would have realised that the PDA was unconstitutional and unconscionable and thus does not meet the criteria for meaningful validity and application. In fact, Blaize should have sought measures to correct the shortcomings and to complete the process already started; both Joseph and Mitchell had active roles in his government and their stances then on the issue need to be ascertained.
The April 1983 Disqualification Act (PDA) was decreed by the People’s Revolutionary Government (PRG), in the absence of a national constitution; and although the PRG may have had good reason and intention, there were some blunders in the process. The ‘insensitivity and insult’ for public officers on the pensions issue took focus and prominence when the restoration of the Independence Constitution commenced in October 1983 and completed in August 1991, but without the recognition and observance of section 92 which provides for “pensions laws and protection of pensions rights.” Thereafter, the government has been spending tremendous monies on defending the validity (or rather the invalidity) of the Act, to the extent of plans to devastate the public service; despite time and time again, and under various circumstances, the Privy Council has elaborated on its unconstitutionality.
It seems that the government finally concedes that public officers affected negatively in their tenure must be compensated in accordance with section 84(8) of the Constitution. Apart from the Irvine Mc Queen case (1997), it is essential to mention the rulings on the situations relating to the dismal of Galway Donovan (1987), Richard Duncan (1997), Christelene Henry (1997), Brian Francis (1998), and Malcolm Holdip (1998). However, Joseph sought to verify and isolate these Court cases from the bigger picture of the entitlement of pensions-benefits to all public officers on their retirement after completing their employment period and meeting statutory requirements. The impression given is that, distinct from section 84(8) which cannot be changed by mere parliamentary laws, section 92(2)(b) of the Constitution is not entrenched and thus does not depend on a referendum to be changed. Unless interpreted wrongly, this message is mind-boggling when section 39(5) makes reference to a Bill to alter the constitution and certain other laws, including Schedule 1 to the Constitution which also takes section 92.
It is no praise to the government for it not having to appeal the Justice Price Finlay’s 2012 judgement in the Hermilyn Armstrong case. Mrs Armstrong is yet to receive just closure on her plight and is justly contemplating appeal of the judgement; particularly challenging the aspect, “If she (Armstrong) has received any NIS (National Insurance Scheme) benefits those sums are to be deducted from the monies she is entitled to under the Pension Act.” The point needs to be made that, in no way must the NIS pensions be equated to, or be a replacement for, the State pensions; the former is based on contributions made, whilst the latter is based on compensations secured. Furthermore, Armstrong, like all other retiring established public officers, is entitled to be given the opportunity to exercise the option as to which of the two sets of laws shall apply for her pensions. That is; section 92 (3) of the Constitution must be evoked for Armstrong’s case and for the negotiations sought by the government with the stakeholders on resolving the outstanding pensions issue and on the so-called Pensions Reform it touts.
What is the real basis and in whose good interest is the promulgation of Sir Lawrence’s message; is it about the State, the Prime Minister or individual public officers? Is Joseph trying to bring easier the negotiations of the government with the trade unions representing public officers, on the manner of payments of the pensions; by duping, by frightening or by pacifying them? Is he indeed facilitating the resolution of the problem before the impending general election? Prime Minister Mitchell has been preaching that his NNP is the only party committed to deal with finding a solution to the pensions issue and thereby he is agitating political mileage. However, an objective review with dedicated research on the previous internet article in 2015, “No Prime Minister Mitchell, Not Again!” would reveal the full-proof rationales for Grenadians to have no confidence, no compromise and no comfort in the utterances of Mitchell.
The apparent underlined effort is to settle the legal validity on the pensions issue and to shift to its financial viability. Political sympathy for the government would then result from concerns generated for the economic growth and sustainability of the nation; but without regard to the natural justice and social welfare for public officers and their dependents. This strategy is blatantly and offensively executed when there is no accounting statement on the payments of the pensions, there are vague allocations in the national budgets, parliamentarians receive state pensions as well as NIS pensions, there is a litany of alleged corruptions by the government, and there are many unanswered questions on the bargains with foreign investors on the national assets, especially in terms of monetary guarantees, incentives and licences.
Lawrence Joseph needs to make clear and simple his recent ‘convoluted and distorted article’ on the pensions issue, especially showing the direct connection and validity of the Pensions (Disqualification) Act with section 92 (2)(b) of the Constitution. For Joseph to recoil from the rhetoric without rectifying the misconceptions, would only help to condemn his aspiration and push for the conducting of a referendum at the same time of the upcoming general elections. Moreover; once again, all public officers should be vigilant and prepared to Vote No on the Referendum Bill for the accession to the Caribbean Court of Justice for final judicial appeal in Grenada, setting aside the London-based Judicial Committee of the Privy Council, which can further frustrate the enjoyment of their constitutional entitlement on pensions-benefits.
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