NASSAU, The Supreme Court has temporarily blocked the government from proceeding with the proposed retirement of Deputy Financial Secretary Athena Marche, finding that serious legal questions surround its attempt to use allegations of insubordination, poor performance, attendance difficulties and breaches of official duties to retire her “in the public interest.”
Justice Leif Farquharson ordered that the Attorney General and Minister of Labour and the Public Service be restrained from taking any further steps to retire Marche under Regulation 45 of the Public Service Commission Regulations until her application for an extension of time and substantive judicial review claim are determined, or until further order.
The ruling, dated August 24, does not decide whether the allegations against Marche are true or whether the proposed retirement is lawful. It preserves the existing position until the court can hear the substantive matter on September 9.
Marche was appointed Deputy Financial Secretary with effect from July 2018. According to the ruling, she attended a meeting with Financial Secretary Simon Wilson in April 2023, during which she was told that alleged performance difficulties and insubordinate behaviour remained unresolved.
She was reportedly presented with two options: transfer from the Ministry of Finance to the University of The Bahamas or face a recommendation that she be retired in the public interest.
Marche, through her attorney Kahlil Parker KC, disputed the allegations, challenged the procedure and requested details of the alleged misconduct. She was placed on administrative leave in May 2023 without loss of salary, and the leave was subsequently extended.
In March 2024, Marche was informed that a recommendation had been made for her retirement under Regulation 45 and was given 14 days to show why she should not be retired.
She later sought judicial review, alleging illegality, procedural unfairness, irrationality, improper purpose, abuse of power and an absence of lawful authority for her prolonged administrative leave. She also claimed damages for alleged breaches of her contractual, statutory and constitutional rights.
Justice Farquharson found there was a serious question over whether Regulation 45 was being used lawfully, noting that several allegations in the Financial Secretary’s report appeared disciplinary in nature.
“There is an arguable question whether those matters are disciplinary in substance and, if so, whether the Respondents were required to proceed under regulations 41-44 of the PSCR rather than regulation 45,” the judge said.
Regulation 45 applies where the grounds for retiring a public officer in the public interest cannot suitably be addressed under another regulation.
The judge also found an arguable question over whether Marche received the required degree of procedural fairness, including whether adequate particulars of the allegations were provided.
He said the propriety or rationality of relying on allegations dating as far back as 2012—before Marche’s elevation to Deputy Financial Secretary—was also open to question.
The government argued that Regulation 45 authorised the proposed process, no final retirement decision had been made and Marche had been given an opportunity to show cause. It also maintained that she continued to receive her salary and benefits and that any financial or reputational loss could be addressed through damages or the available statutory and constitutional procedures.
Justice Farquharson said the merits of both sides’ cases appeared mixed, but concluded that allowing the retirement process to proceed before the substantive hearing could expose Marche to consequences that may not be easily reversed.
Those consequences could include removal from office, damage to her reputation and career, pension implications and the possible impairment of the court’s ability to provide effective relief.
The judge also noted that the retirement process had already been suspended for more than two years and that the government had identified no new or urgent operational reason for completing it before the upcoming hearing.
“The public interest seemingly operates in both directions,” Justice Farquharson said, pointing to the need for efficient management and discipline in the public service, as well as the importance of ensuring public powers are exercised lawfully and constitutionally appointed officers are treated fairly.
The injunction is conditional upon Marche’s undertaking to cover damages if it is later determined that the order should not have been granted.
