Attorney-at-law, Ruggles Ferguson has brushed aside claims being made in some quarters that he has lost the case brought by dismissed Supervisor of Elections, Judy Benoit against Governor-General, Dame Cecile La Grenade following a decision handed down last week by a single judge of the Court Appeal.
Ferguson called a press conference to announce that Benoit intends to use all legal options available to her to have her day in court with Dame Cecile who was appointed to the post following the February 19 victory at the polls of the opposition New National Party (NNP) of Dr. Keith Mitchell.
The island’s female Head of State allegedly removed Benoit following complaints made by former Tourism Minister Glynis Roberts on a matter relating to the conduct of the February 2013 general elections and over her resistance to a directive from government for the Elections Office to be linked to a programme to be run from the Ministerial Complex in the Botanical Gardens.
Benoit is said to have raised concerns that the decision could compromise the independence of the Electoral Office.
A single judge of the Court of Appeal ruled in favour of submissions made by State lawyers that the high court judge who accepted Ferguson’s application for judicial review of the dismissal of Benoit had erred when she purported to give the defense lawyers additional time to file the matter.
According to Ferguson, he has two options still open to him – challenging the ruling of the single judge through a hearing before a complete panel of Court of Appeal Justices or refiling the application seeking leave of the court to get permission to file for a judicial review of the decision of the GG.
He said that Benoit is committed to getting the high court to rule on whether the decision to remove her from the post by Dame Cecile was “unreasonable, irrational and procedural improper and in breach of the principle of natural justice”.
The senior civil servant has complained that the island’s female head of state did not give her an opportunity to respond to allegations made against her and just moved to dismiss her from the post.
Ferguson told reporters that after he accepted the brief from Benoit to represent her interest in court, he had to first seek leave of the court to get the required permission to obtain a hearing of the judicial review proceedings against the decision taken by Dame Cecile.
He spoke of filing legal papers before the court on November 14, 2013 and the judge granted the leave without a hearing.
He said this is not unusual as the court is entitled to do that regardless of the person involved because “the Governor-General is no exception in relations to this”.
“The rules say that once the court is satisfied (with) the documents before it, that a case is made out for judicial review then the judge may grant leave without a hearing.”, he added.
The effect of this, Ferguson said is that the judge is not mandated to hear arguments from either the applicant or defendant on the filing of paper seeking permission to go ahead with a judicial review.
According to Ferguson, the sour point in the issue is that although the judge granted the leave for him to seek judicial review of Dame Cecile’s decision affecting Benoit, that decision of the judge was never “communicated to us who would have made the application”.
He said this “administrative blunder” on the part of the court only surfaced when the two sides appeared before the judge on December 12, 2013 in connection with the Judy Benoit matter.
“So all parties went to the court .. we and the AG’s Chambers on the understanding that we would deal with the leave application”, he said.
Ferguson stated that the judge sent for her notebook and it was only then that she confirmed that she had already granted him on November 14 as attorney for Benoit, the permission he was seeking to apply to the court for judicial review.
“She (the judge) discovered that it (the leave permission) was never communicated to us and therefore the judge duly apologised and the Order was prepared on that day December 12, 2013.
Ferguson spoke of the AG’s Chambers then deciding to ask for leave to appeal the decision of the judge on the grounds that since leave was granted by the judge on November 14 then the applicants had 14 days in which to file their papers before the court with respect to the substantive matters.
Ferguson described this position of the AG’s Chamber as inaccurate since “the order (of the judge) never said that the Order that granted leave must be served on the Attorney-General’s Chambers within 14 days”.
He contended that there was another flaw in the argument in that after having granted leave, the judge did not state that the claimant now had 14 days within which to file their documents with respect to judicial review proceedings.
He went onto say, “If we check the Maths that would mean by November 28 Miss Benoit should have filed her actual judicial review proceedings having now been granted leave and also by that time the AG’s Chambers should have been served. That is not how the law works. If you don’t know leave is granted ….. then time cannot begin to run”.
“What the rules states is that 14 days leave is conditional…. so whether the Order (was) made on November 14, 2013, December 12, 2013 or September 2013, once we don’t receive that order…. Rules 56 (11) of the Civil Procedure Rule (says)…. time only begins to run when you receive the order.
“We receive the order on December 12 when the court realised that it was an administrative blunder (and) sought immediately to finalise and serve the order on us. So that is when time begins to run from December 12th which means that we would have have until 28th December to file judicial review proceedings. We did it on December 16, four days after”.
Ferguson was not in agreement with the ruling of the single Judge of the Court of Appeal that with the time having expired, the female high court judge did not have the jurisdiction or power to extend the time.
He is adamant that this is not what the high court judge did with his application because after she realised that her Order was never served on him, it was clear that time can only start to run when “you are served with the order”.
Ferguson said: “So what we are doing now in response… because that is not the end of the matter. In fact, it is only the beginning of the matter. Miss Benoit intends to take every legal step available to her to ensure that justice be done or that she be heard on this matter”.
According to Ferguson, it is the intention of his client to ensure that the matter brought against Dame Cecile is “decided upon on the substantive issues and the options open to them is either refiling it or appeal the decision of the single Court of Appeal judge before a full Court of Justices of Appeal.
He feared that if this decision of the single Court of Appeal Judge is not set aside by the full panel of Justice of Appeal “it will send a bad signal or dangerous precedent for the future if the rules state clearly … that leave is conditional upon the applicant filing judicial review 14 days after receipt of the order.. not 14 days after the order was made”.
“We are clear on the procedures of this matter. If the full court rules otherwise the matter will be refiled afresh”, he quipped..
Ferguson is adamant that Governor-General Dame Cecile is not untouchable and her decisions can be reviewed by a court of law.
“It is our Constitution that is supreme. Our Constitution lays down certain procedures for doing certain things and if it is not done in accordance with what the Constitution says then that person (Benoit) has a right to seek redress from the court”, he said.