by JK Roberts
Public officers appointed in the public service of Grenada after 3 April 1983, have been disenfranchised from their constitutional entitlement to receive pensions from the State.
This happened with the gazetting of the Pensions (Disqualification) Act, labeled as People’s Law No. 24 of 1983 (PL24 of 1983) by the People’s Revolutionary Government (PRG), on 16 September 1983. Although the demise of the PRG on 25 October 1983, the PL24 of 1983 has been drawn-on to depress public officers, to destabilise the public service and to destroy the public service sector trade unions. Furthermore; this distressing situation places Grenada at a great disadvantageous disparity to its Caribbean countries and it discredits particularly the Caricom Agreement on Social Security, as a means in the harmonisation of policies and legislations.
Joseph Ewart Layne, a former member of the PRG and now a trained lawyer, gives credits and reasons for the PL24 of 1983 (also referred to as the PDA) in his internet-circulated series of enlightening articles on “pension rights of public officers in Grenada”. Part VIII quotes in part that the PDA “was intended as a temporary measure …. to establish a cutoff point between the old system of non-contributory pensions under the 1958 Pensions Act and the new system of contributory pensions under the NIS (National Insurance Scheme)”. He also indicated that there is an obvious anomaly in the sum of pensions received by a public officer who has been first appointed on 3 April 1983 and by an officer first appointed on 4 April 1983. The latter officer would only receive the basic NIS pension-benefits, whilst the former would receive both the NIS benefits and the pension-benefits under the 1958 Pensions Act; this case also applies to the two categories of all officers appointed before and after 3 April 1983. The NIS Act, by the gazetting of People’s Law No. 14 of 1983 (PL14 of 1983) on 18 March 1983, took effect from 4 April 1983 which is the same date on which the PDA also took effect with the “cutoff point”.
Although the Grenada’s 1974 independence constitution was suspended by the PRG (virtually from 13 March 1979 to 25 October 1983), Layne promotes that the PRG acknowledged and applied the provisions of section 92 of the Constitution, by making mention for example of a People’s Law No. 9 of 1979. Section 92 which captions “pensions laws and protection of pensions rights”, gives the principle that the pension-benefits to be granted to a public officer must be derived from the law existing on the first day when he/she was appointed, or any other more favourable law in-force at a later date. This principle speaks about a progressive Pensions Scheme; meaning that at no point in the public service should the pension-benefits be less than whatever previously existed. It was envisaged that the NIS Act, together with the PDA, would usher-in new (or reformed) employment terms and conditions on pension-benefits for public officers, but for only those who are appointed in the public service on or after 4 April 1983. It is interesting to note that constitutional lawyer Lawrence Joseph, in his article “Do public officers have a constitutional right to pensions”, argues “if at the commencement of service there is no law in place …. then public officers within that range will not be entitled to pensions ….”.
Layne contends that subsequent governments from 1983 did not complete the legislative intent of the PRG, by exercising the powers to reform the pensions scheme for public officers, under sections 46 and 47 of the NIS Act. His position also seems to be the general sentiment of the ‘limited and open’ court-judgments presented on the constitutional challenges to the PDA. Thus; this executive failure is responsible for the on-going controversial debates, court cases, and industrial impasse between the government and the public service sector trade unions regarding pensions. He recognised and relied on the Confirmation of Validity Act (No. 1 of 1985) which was gazetted by the returned democratic government on 22 February 1985. The Act then validated all the ‘constitutional’ proclamations, orders and laws passed under the PRG; this also includes the PDA and the NIS. He also holds the firm view that the correct legal remedy for the post 3 April 1983 (now essentially post 22 February 1985) public officers is not a declaration of the unconstitutionality of the PDA but rather, it is a declaration that the State has acted “unreasonably and unfairly” by not exercising the power under section 47 of the NIS Act.
Whatever the source and solution about the PDA; it is very important to address and ascertain the pertinent issue as to whether or not the PDA was really necessary. If yes; was the PDA thorough, sufficient and unambiguous? Was the PDA well thought-out, with considerations for all the implementations and implications? Was the PDA, or its process, a genuine blunder?
Shouldn’t it be said that the PRG made a blunder by choosing to repeal in effect, instead of modifying, the 1958 Pensions Act in accordance with section 47 of the NIS Act? That is; wasn’t the “legislative intent” fulfilled by the PRG itself with the PDA? Section 47 is cited as “modification or repeal of Public Service Pension Scheme”, having the provision for the modification or winding up of the scheme or repeal of any enactment relating to the scheme. It should not be difficult to realise that the PDA is a product of or is a response to the NIS Act, particularly to satisfy section 47, which was passed about six months earlier by the PRG. The issue being faced though, is to remove any serious anomaly caused by the PDA, in the receipt of the pensions by the different categories of public officers, and to ensure the receipt of not less-favourable pension-benefits as previously obtained, consistent with the Constitution (section 92).
The purported “real intention of the PRG” for the PDA could have been achieved without the passing of the PDA in its current form; and the executive failure of the post-PRG governments is more about not reviewing the PDA and about not budgeting for the pension-benefits of public officers. The sustainability of the pension-benefits seems to be the overriding factor for the passing and the prolonging of the PDA and in fact, the PDA may well have its origin and continued support from outside ‘global’ influences but with the violation of the Constitution.
How serious is the concern for the sustainability of the pension-benefits by the State, is reflected by the extent of the management of the Consolidated Fund and by the respect placed on the retirement status of persons. Could the sustainability-concern be justified when considering the tremendous cost incurred by principally the New National Party government to defend the PDA in the court relentlessly, to conduct extensive studies and develop alternative pension schemes for public officers fruitlessly, and to contract so-called professional service workers in the public service whilst castigating the officers unconscionably? Moreover, to date; no detailed creditable analysis has been declared to justify the millions of dollars proposed it would cost the State to meet the constitutional entitlement of pension-benefits to public officers and to justify the difficulty with Pension Reform. Review the previous internet article “Grenada’s Pension Reform is under the IMF”, which also shows that the basic NIS pension-benefits are possibly at risk.
Whilst there is concern about the financial capacity of the government to meet its fiduciary obligation to public officers regarding their pension-benefits and despite the bleak forecast from the actuarial reviews of the NIS, NIS should already be prepared to return all monies to employees (and/or their beneficiaries accordingly) who have made contributions during the period from 4 April 1983 to 21 February 1985. This is so, based on the legal premise which luminaries as Joseph E Layne and Lawrence A Joseph welcome for the PDA; and unless it can be proven to the contrary, the premise must also be respected for and related to the NIS. That is; Act 1 of 1985 validates all laws passed by the PRG with effect from 22 February 1985, and thus makes null and void the legitimacy of all such laws before that date. Should NIS then complain by saying that to refund would be financially burdensome and unsustainable for meeting its current social security objectives and that any effort to demand such sum will bring bankruptcy for the NIS, especially in light that the government had requested a “hair cut” with its Structural Adjustment Programme, financed and supervised by the International Monetary Fund (IMF)?
Closure on the suffering, confusion and predicament which the PDA generates, seems not to be near. More and more ‘moral and legal’ issues are being revealed; as the PDA and the NIS Act (section 47) will continue to face constitutional challenges, in the absence of a caring and honest government. Review internet-circulated articles “Is the Pensions (Disqualification) Act Valid” by Sir Lawrence Joseph, and “Grenada’s pensions dispute echoing send the fool farther on”.