CATEGORY:COMMENTARY ----------------------- INSIDE GRENADA TUESDAY Sempember 18,2007 by Lloyd Noel (Editor's note: The information contained in the following commentary represents the views/opinions of the writer and not necessarily those of Grenadian Connection). It is a fundamental principle, when dealing with officials in public positions, that the method of appointment, as well as the relationship between the person appointed and those in authority, must be seen to be above board - as it were. In small communities like ours here in Grenada, the principle is even more important - because of the ways and methods by which the systems operate, on the one hand, and the fact that the person appointed could be subject to a certain measure of responsibility and duty to those in authority, on the other hand. We recently had two major changes in the Supervisor of Elections Office, and from the facts and reports surrounding those changes - it is my considered opinion, that a fair minded and informed observer, having considered those facts and reports, would be bound to conclude that there could be a real responsibility of bias in the future, embedded in those changes and replacements. It was public knowledge and very widely reported, that the Political Leader of the N.N.P. and the Prime Minister, had stated in a party meeting that the deputy Supervisor of the Elections Office, Mr. Roberts, had to go.Then came the news that both the Supervisor and the said deputy were dismissed. The Supervisor of Elections, Mr. Victor Ashby, as principal of the G.B.S.S. (a public office), had reached the age of retirement of 60/61, and therefore he had to go - unless it was decided to extend his appointment for another year. There was no such limitation in respect of the deputy Supervisor. The Constitution of Grenada lays down in section 35(2) thereof, ----“The functions of the Office of Supervisor of Elections shall be exercised by the person holding or acting in such public office as may for the time being be designated in that behalf by the Governor General acting in his own deliberate judgment.” The above provision means therefore, that to hold the office of Supervisor of Elections - the holder must firstly be holding or acting in a public office that is designated by the Governor General. For the deputy Supervisor’s position, the holder thereof does not have to be a public officer - but he too must also be appointed by the Governor General acting in his own deliberate judgment. The appointment of the deputy comes under section 27 of the Representation of The People’s Act No. 35 of 1993; but unlike the supervisor, the position of the deputy does not depend on him being the holder of any public office to continue as deputy. Now, throughout the Constitution there are references where the Governor General must act in his own deliberate judgment, and others where he has to act with the advice of the Prime Minister, and yet others where, in the exercise of his functions he shall act in accordance with the advice of cabinet, or a Minister acting under the general authority of Cabinet. In the Case of the lady who now holds the position of Supervisor of Elections, Ms. Nordica McIntyre, the public office she holds is that of Permanent Secretary in the Ministry of Health. Readers may recall there was some controversy over the appointment of Permanent Secretaries by the Public Service Commission (P.S.C.), and whether or not the Prime Minister as Leader of the Government was in agreement with certain appointments ; it was publicly stated, and with reasonable understanding I would accept, that the Prime Minister had to approve of those Permanent Secretaries appointments. Because after all is said and done, the Permanent Secretaries are in charge of the Ministry, and have overall responsibility for ensuring that the wishes of the Government/Minister are implemented, and the Government policy vis-a-vis the respective Ministry is carried out. The Prime Minister as the direct boss of all the Ministers, and the Minister as the direct boss of his Permanent Secretary - both have and can exercise control over that public officer in the carrying out of his/her duties - wherever those duties are allocated. In all that is known about so-called independent action by subordinates, including Permanent Secretaries, and in particular in such a sensitive and very critical department as that of the office of the Supervisor of Elections - it is my very humble opinion, that the designation of the public office of Permanent Secretary should Not have been so chosen. It is my view, that fair-minded and informed observers, having considered the facts and the surrounding circumstances, would conclude that there is a real possibility that the office of Supervisor of Elections would be very seriously compromised. The informed observer would be greatly troubled by the statement of the Leader of the N.N.P. and Prime Minister, that the deputy Supervisor had to go - although it was not his function to get rid of him - and now the persons replacing the dis-missed officials can only be seen as officials well disposed to the ruling party. And in the run-up to a critical Election period - the scenario looks rather bleak and very disturbing. It must be made very clear, that I am not saying that the person who holds the designated public office would deliberately engage in wrong-doing or unfair practices. But I am relying on the appearance of wrong doing or bias, and the fact that such wrong-doing or bias is likely to be un-conscious, as was explained in the case of R vs. Gough by Lord Denning. Because of all the circumstances surrounding the relationship between the party leader and Prime Minister and his Minister and the designated office holder - a notional informed observer knowing the situation, would no doubt assume that the new Supervisor would be very likely to be well disposed to her political bosses. As it has been repeatedly stated in situations like this one - that it is the appearance of bias or unfairness that matters.The Supervisor of Elections has tremendous responsibilities, and very wide discretions in the exercise of her duties and decisions - when it comes down to who is registered, in which polling division and constituency a perosn is registered, and whose names are added, or kept on the list, or deleted for whatever reason. And once the damage is done, it is not always so easy - if at all - to remedy the situation. And in Carriacou /Petite Martinique in the 2003 Elections, six to Ten (6/10) votes separated the winners from the losers; and the people are paying dearly since then for that result. As Lord Denning put it in the above Case - “There must be circumstances from which a reasonable man would think it likely or probable that the Justice, or the Chairman (or whoever the decision-maker) as the Case maybe, would or did, favour one side unfairly at the expense of the other. The Court will not inquire whether he did, in fact, favour one side unfairly.Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking the decision-maker (Judge) was bias”. And as the furore continues, with charges and countercharges by the side blindly supporting those in authority, as well as the side whose eyes have been opened by the passage of time - and their heavy consciences are crying out that enough is more than enough - over the issue of how much was received by Michael Creft from the then fraudulent offshore Bank, and what sum was paid to the Prime Minister, or the Treasurer of N.N.P. or whoever. The Country got the belated news that the Attorney General, or Director of Public Prosecution, or the Government, or all three, had withdrawn and dis-continued the frivolous application for Leave to the Court of Appeal - to challenge the decision of Justice Belle on the 1st of June, 2007, when he refused to recuse himself (withdraw) from the Case of Re-sentencing the Grenada Thirteen - as was Ordered by the Privy Council in London. Having filed the Application, after the final decision was handed down on the 27th June, 2007- a Judge of the Court of Appeal on the 24th July, had issued Case Management Orders to the Applicant to comply with certain procedures by the 31st July, 2007. Nothing was done in response. On the 8th August, 2007, a letter addressed to the Registrar, Mr. Robert Branch, and signed by Ms. Dionne Lawrence (Crown Counsel) on behalf of the D.P.P., Mr. Christopher Nelson - simply stated ----“In relation to the Criminal Appeal 17 0f 2007, we hereby withdraw our application, as we have no interest in pursuing the same”. The said letter was copied to the A.G. but not to Counsel for the Defendants/Respondents. The Respondents filed an Application to the Court of appeal on the 3rd September, 2007 seeking an Order to dismiss the Leave Application with Costs, and that was served on the D.P.P. office. Then on September 11th, a letter signed by the said Ms. Dionne Lawrence as Acting D.P.P. - was delivered to Counsel for the “Thirteen”, and enclosed therein was a copy of the letter of August 8th which dis-continued the Appeal - and Counsel was thereby so advised. No further word on the other frivolous application, for leave to Appeal to the Privy Council in the Peter David validity to sit in Parliament matter - by the A.G. and Special Legal Advisor. Maybe that too is dying a natural death, as the fraudulent Financial sources are drying up, or all in prison - so no more money to spend in the Court house. The foregoing not only does not look good - it smells to the depths of hell; but then again, Grenadians, the verdict is yours - and you will have to decide one way or another, sooner rather than later, as things cannot go on indefinitely nor forever.