“It cannot be right.”
That was the angry reaction by lead attorney Elliott Mottley, QC, after the Court of Appeal Friday denied his request to reinstate his client, the outgoing Commissioner of Police Darwin Dottin, who was sent on early retirement four years ago.
“It borders on the denial of justice . . . and constitutional rights to fair trial,” said a frustrated Mottley, who also served early notice that the matter could be headed to the Caribbean Court of Justice, which is this island’s court of last resorts.
“The whole of this judgment lies on cases not cited . . . and counsel has the right to submit in all cases . . . but if necessary I will pursue it somewhere else,” the Queen’s Counsel said immediately after the decision was handed down in the No. 1 Supreme Court by a three-member panel, headed by Chief Justice Sir Marston Gibson and including justices Kaye Goodridge and Andrew Burgess.
Dottin, who was ordered by the Police Service Commission (PSC) into early retirement “in the public interest” on June 17, 2013, has been fighting ever since to get back his job, even though he was forced to retire from the post late last year.
However, while upholding the earlier ruling made by High Court Justice Margaret Reifer, the panel pointed out that her approach fully supported their recent decision in the case involving the former Central Bank Governor, who had also sought to challenge his removal in court, but was eventually forced to step down after his application was rejected.
Reifer had refused an interim injunction and interim declaration brought by Dottin’s legal team, which also includes Leslie Haynes, QC, challenging the PSC’s decision. The senior attorneys were adamant that the ruling by the High Court judge was not only illegal and null and void, but of no effect, because the “concept of such leave was not known to the law in Barbados”.
As a consequence, they have been seeking injunctive relief for Dottin, who was unceremoniously removed from the position of top cop after eight years and nine months on the job.
Dottin was informed of his removal in a letter dated June 17, 2013, that was signed by PSC chairman Guyson Mayers. It stated in part: “I write to inform you that His Excellency, Sir Elliott Fitzroy Belgrave, GCMC, KA, Governor General of Barbados, has been advised by the Police Service Commission to exercise the power conferred upon him by Section 11 (1) (a) of the Pensions Act, Cap, 25, and requested that you, in the public interest be retired from the office of Commissioner of Police.”
In a written ruling released Friday, the appeal judges said while they agreed that there were issues of procedural fairness, natural justice and improper exercise of discretion arising from the issue of administrative leave, and that the Commissioner of Police should have been given an opportunity to be heard, they felt that damages were “an adequate remedy” in Dottin’s case.
“We can find no legal evidentiary basis to interfere with the exercise by Reifer of her discretion in refusing the interim injunction based on her findings on the evidence before her that damages were an adequate remedy,” Goodridge said.
The appeal panel also deemed it unnecessary to consider public interest as an aspect of the balance of justice even though Dottin’s lawyers had also contended that he was illegally removed from office and that the judge was wrong in law in refusing the interim declarations sought by the appellant.
However, the justices of appeal said: “There is no power in a court or judge in Barbados to make an interim declaration.
“If Justice Reifer had the power to make an interim declaration this is not the case in which she could exercise that power,” they said.
The panel also took issue with Governor General Sir Elliott Belgrave being named as a party to the legal proceedings in his personal capacity.
“In our view this does not comport with the civility that should be accorded our Head of State. Accordingly in future any action brought against the Head of State should not specifically refer to that person by his or her name but by his or her office,” the appeal judges said.
Friday, the PSC was represented in court by Queen’s Counsel Patterson Cheltenham.
The two sides now have until May 2 to make submissions on the issue of costs.