‘NOT ABOVE THE LAW’
Court rules Holness-recommended reassignment of Bernard unconstitutional
ATTORNEY-AT-LAW Marc Williams, who represented discarded education ministry Permanent Secretary (PS) Dean-Roy Bernard, says a message has been sent that “no one is above the law” after the court ruled that his reassignment to a “created post” by the Holness administration was unconstitutional.
In its judgment on Wednesday, the Supreme Court said that Barnard's reassignment to the position of director general in the Ministry of Finance and the Public Service was unconstitutional.
Further, the court noted that the post was created in February 2020, and gazetted 10 months later in December 2020 – more than a year after Bernard was assigned to the position.
Bernard, who was appointed as permanent secretary of the education ministry in November 2016, was reassigned in February 2019.
The Office of the Services Commission informed him in a letter that the governor general, on the recommendation of Prime Minister Andrew Holness, had approved the reassignment.
TRAMPLED ON CONSTITUTION
“It really makes it clear that no one is above the law, including the Government. The Constitution has certain provisions that protect the systems of Jamaica, and the decision of the Government trampled on that,” Williams said in a Gleaner interview hours after the judgment.
Williams said several administrations, in the past, had done the same thing. However, his client has been the only one to resist.
“It's been a long road. It's been three and a half years of frustration and feeling wronged, but the court has finally ruled in his favour, so I think he feels great,” said Williams.
He said it is now up to the Government to decide where it will assign Bernard.
Williams said that currently, there is only one vacancy – and that is in the education ministry.
Maureen Dwyer currently acts as PS in the ministry for Dr Grace McLean, who acted in the position since Bernard's transfer up to January last year.
At that time, McLean was interdicted and has been barred from returning to work until it has been decided whether she will have to pay back some of the $124 million at the ministry that allegedly cannot be accounted for.
“It would seem practical to me that that would be the place they would put him, given his experience and the fact that he was there before and they have a void there. But I don't know what they will do,” Williams said.
In its judgment, the court noted five main issues at hand. It questioned whether a PS could be transferred by the governor general based on the recommendation of the prime minister; whether Bernard was transferred to a position of a PS; whether a breach of natural justice in had occurred in reassigning him; whether Bernard had a legitimate expectation that he would not be re-assigned; and whether he was entitled the relief he sought.
The court found that the governor general, on the advice of the prime minister, can transfer a permanent secretary from one ministry to another.
At the same time, it found that Bernard had not been reassigned as a permanent secretary despite arguments to the contrary from attorneys representing the Office of the Services Commission, the first defendant in the matter.
NO JOB DESCRIPTION
“He is presently in a newly created position that does not have a defined job description. I find that the reassignment of the claimant did not allow him to assume the duties and responsibilities of a ministry as mandated by ... the Constitution. I, therefore, find that the reassignment of the claimant to director general in the Ministry of Finance was unconstitutional,” Justice Lorna Shelly Williams said in a 64-page judgment.
Williams, Justice Sonya Wint-Blair, and Justice Tara Carr handed down the ruling of the full court.
Carr noted that she had read the decision of her learned sisters in draft and concurred with the judgment of Williams and that there was nothing she wished to add.
On the matter of natural justice, Williams said that she did not find that there had been a breach of natural justice as it related to the reassignment of Bernard.
“I do not find that this was a demotion, nor does it amount to disciplinary action. I, therefore, find that there would have been no requirement to convene a hearing in these circumstances,” she said.
Bernard had argued that his expectation was that he would have remained as permanent secretary in the Ministry of Education until retirement, resignation, or termination for cause.
NOT GRANT CLAIMS
Meanwhile, Williams said that while there were occasions when sums were awarded for breaches of constitutional rights, she was not minded to award any sums in this case in light of the fact that an order was made for Bernard to be assigned to a ministry.
“I will, therefore, not grant any award for the claim for damages,” she said.
She also denied Bernard's claim for aggravated damages.
However, he was awarded costs in this matter to be agreed or taxed.
The court ordered that Bernard is the holder of the office of permanent secretary and that he be reinstated in such a post.