One of the characteristics of dictators is that they deliberately hide truth and reason from the masses. Adolf Hitler put it this way; “I use emotion for the many and reserve reason for the few.”
Dictators and tyrants do not act alone they need enablers. It is best when those enablers are well respected because dictators need to act outside the law while appearing to be acting lawfully and perfectly justified and reasonable.
Considering the oppression our people have endured since our ancestors were forcibly brought here on slave ships, it is now our sacred duty, whenever we see dictatorship or tyranny raising its ugly head, to stand up and speak out. You see, all tyranny needs to flourish are: a ruler with such tendencies, a few enablers (who may not even see themselves as such) and a few good men and women who see and understand what’s happening, but choose to remain silent.
It is in this context, that I am constrained to publicly take issue with the pronouncements and explanations offered by some Government legal advisors and other learned individuals close to those in charge, on the right of public workers to pension benefits in Grenada.
Written and oral statements concerning the legal strength of the unions’ position, of those who support the Government express the following:
(1). The Pensions (Disqualification) Act, 24 of 1983 (“the PDA”) remains good law and in force for persons joining the public service after 22nd February 1985; so that, such persons only qualify for NIS benefits on retirement;
(2). The Validation Act 1985 is still good law as it relates to pension benefits for people joining the service after 22nd February 1983, the day it was passed;
(3). The judgments in the Mc Queen and Armstrong cases only apply to people falling under the specific circumstances of Mr. Mc Queen and Mrs. Armstrong;
(4). As a result of all of the above, there is no right or entitlement to pension for certain public officers.
I, and several other colleagues including former Attorney General Jimmy Bristol, who with his father represented Mr. Mc Queen, do not agree with those views. One senior lawyer put it this way: “The rulings in the Mc Queen and Armstrong cases make it quite clear that the Pension Act of 1958 is still the law of the land”.
The right to pension benefits is protected by section 92 of the Constitution of Grenada. This entrenched provision can only be changed or removed by a referendum.
In 1997, Chief Justice Denis Byron handed down the judgment in Irvin Mc Queen vs. the Attorney General. In that case, the Court of Appeal ruled that the PDA was unconstitutional in that it sought to remove public officers from the Pension Scheme existing under the Pension Act of 1958 without creating a new pension regime under the NIS Act.
Any new regime must not be less favourable than what obtained when the officer joined the service. The court also found that an ordinary law such as the PDA “cannot remove a benefit conferred by an entrenched clause of the Constitution” without changing the Constitution itself.
The decision of the court in Mc Queen case is clear. It is irrelevant that section 84(8) was the trigger that caused Mr. Mc Queen to be entitled to pension benefits under the 1958 Act because, section 84(8) itself says that a person who is retired under that section is to enjoy pension benefits “as if he had attained the compulsory retirement age” i.e., as if he had reached the age of 60.
In Mc Queen, the Court also ruled that the only effect the Validation Act of 1985 can have is to validate those laws passed by the PRG which were themselves in compliance with the Constitution. Therefore, since the PDA was unconstitutional, the Validation Act, as far as it related to the PDA was also void and of no effect.
It is therefore wrong for Government to proceed as if the Validation Act was still in place.
In the Armstrong case, section 84(8) did not feature because Mrs. Armstrong had reached the compulsory retirement age of 60. Nonetheless, the Court followed and applied the exact reasoning as in Mc Queen.
There is no indication in the Armstrong judgment that it only applies to a certain class of people, namely, those joining the service after 22nd February 1985. Indeed, to apply such an interpretation would be to ignore the ruling of the Court of Appeal that the Validation Act is also unconstitutional.
At paragraph 43 of Armstrong, the Judge made a clear and general finding. She said:
“ What people’s Law 24/83 [the PDA] sought to do is clearly inconsistent with the provisions of 92(2)(b) which seeks to protect pension rights of public officers. I find in its terms that People’s Law 24/83…inconsistent with the stated need to protect pension rights under the Constitution.”
A clearer statement of the law could not be found. With the PDA and the VA declared unconstitutional, the only lawful pension scheme available is what exists under the Pensions Act 1958.
If the statement that there is no right to a pension in Grenada is correct, that will lead to the absurdity that section 92 of the Constitution protects some public officers, but not others. Furthermore, it will make nonsense of section 92(2)(b) which clearly envisages the protection of public officers joining the service any time after the Constitution came into force and continuing until that section is itself amended or repealed in a referendum.
It is important to note that in both Mc Queen and Armstrong, the Government lost and chose not to appeal. The two Attorneys General, Errol Thomas (now a Judge) and Cajeton Hood gave Cabinet sound advice in that regard.
Government now must either: (a) obey the law and find a way to pay in accordance with the Pension Act 1958; (b) change the pension regime but in a way that is not less favourable to the pensioner than what now obtains or; (c) go back to court and get a ruling that overturns Mc Queen and Armstrong. It simply cannot just ignore the law and get the enablers to justify its behaviour.
One can only speculate that the wrath of the ruler must be strongly felt by those near him and this is probably what prompted the misconceived views. In these moments we are reminded of the words of the French revolutionary, Montesquieu: “There is no crueller tyranny than that which is perpetuated under the shield of law and in the name of justice”.
(Claudette Joseph is a practicing attorney-at-law and current executive member of the main opposition National Democratic Congress)