Police Service Commission and the Attorney General

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Jamadar, J.A.,Mendonca, J.A.
• Judgment Date: 26 March 2010
• Neutral Citation: TT 2010 CA 16
• Docket Number: Civil Appeal No. 2727 of 2006; Civil Appeal No. 8 of 2008
• Date: 26 March 2010

Court of Appeal

Mendonca, J.A.; Jamadar, J.A.; Bereaux, J.A.

Civil Appeal No. 2727 of 2006; Civil Appeal No. 8 of 2008

Police Service Commission v. Graham;

and

Graham Police Service Commission and the Attorney General

Appearances:

Mr. A. Ramlogan for Dennis Graham.

Mr. F. Hosein, S.C., Mr. I. Roach, Ms. M. Ramroop and Ms. A. Panchu for the Police Service Commission.

Mr. N. Byam for the Attorney General.

Constitutional law - Fundamental rights and freedoms — Equality of treatment — Whether proof of malice or intentionality necessary.

Jamadar, J.A.

1 I have read the judgment of Mendonca, J.A. and agree with his conclusions as well as his careful analysis which has led to those conclusions. However, I wish to add some comments of my own on the issue of what is required to prove a breach of the right to equality of treatment guaranteed by section 4(d) of the Constitution. The Privy Council in Bhagwandeen v. The Attorney General Privy Council Appeal No. 45 of 2003 seemed to have invited the local courts to revisit this issue, and this is what I propose to do here.

2 Mendonca, J.A. dealt with this issue at paragraphs 35 to 61 of his judgment, and following his analysis seemed to conclude (at paragraph 55) that:

Given the current state of the law, it is arguable that an applicant who alleges a breach of his section 4(d) right need only show that he was treated less favourably than one similarly circumstanced. It is for the public authority to justify the difference in treatment on some legitimate or reasonable basis. If it is thought that mere difference in treatment could not be sufficient to displace the presumption of regularity, consideration should be given to what Justice de La Bastide the President of the Caribbean Court of Justice, said in his address on “Development in Judicial Protection of Human Rights in the Commonwealth Caribbean” delivered on November 961, 2009 at the Inaugural Symposium on Current Development in Caribbean Community Law:

“Hamel-Smith, J.A. has pointed out that the requirement of proof of mala fides can be regarded as a fetter on the right to equality of treatment, particularly as those who practise discrimination are often at pains to conceal their motive. This lends weight to the argument that it should be sufficient for an aggrieved party to prove that he was less favourably treated than other persons who were similarly circumstanced, or that someone similarly circumstanced was more favourably treated than him. This argument could be accepted without abandoning the presumption of regularity if it was accepted that the burden on the aggrieved party is not only to prove difference in treatment, but also at least to negative on a prima facie basis the existence of any reasonable or legitimate reason for the difference. This could be regarded as necessarily involved in proving that the persons who were differently treated were similarly circumstanced.”

3 In Sanatan Dharma Maha Sabha of Trinidad and Tobago and Islamic Relief Centre Limited v. The Attorney General of Trinidad and Tobago H.C.A. No. Cv. S. 2065/2004, delivered on the 26th May, 2006, I also had cause to consider this issue and to reconcile the judgments in Smith v. L.J. Williams (1982) 32 W.I.R. 395, The Attorney General v. K.C. Confectionery Ltd. Civ. App. No. 75/1983, Bhagwandeen v. The Attorney General Privy Council Appeal No. 45 of 2003 and Central Broadcasting Services Ltd. v. The Attorney General Civ. App. No. 16 of 2004. In addition I also considered some of the relevant Indian jurisprudence and some of the decisions of the International Human Rights Committee on Article 26 of the International Covenant on Civil and Political Rights (At pages 47 to 65 of the judgment). At that time, and in relation to section 4(d) of the Constitution, I opined: (At page 59 of the judgment)

In Trinidad and Tobago, the law as to what is required to prove inequality of treatment … is in a state of uncertainty. In the Court of Appeal there is no clear agreement as to what is required.

4 That position remains the same to date, though I discern in the opinion of Mendonca, J.A. in this matter a willingness to accept that all that may be required is to show “that he was treated less favourably than one similarly circumstanced”, which would be sufficient to shift the onus onto the State “to justify the difference on some legitimate or reasonable basis” (At paragraph 55 of his judgment).

5 My position has not changed fundamentally from what I stated in Sanatan Dharma Maha Sabha of Trinidad and Tobago and Islamic Relief Centre Limited v. The Attorney General of Trinidad and Tobago, agreeing then in principle with the acceptance by Hamel-Smith, J.A. (in Central Broadcasting Services Ltd. v. The Attorney General) that the appropriate approach in Trinidad and Tobago ought to be similar to that explained by the Privy Council in Bishop of the Roman Catholic Diocese of Port Louis & Ors v. Suttyhudeo Tengur, ( [2004] U.K.P.C. 9, Judgment delivered on the 3rd February, 2004, at paragraph 19) as follows:

Where apparently discriminatory treatment is shown, it is for the alleged discriminator to justify it as having a legitimate aim and as having a reasonable relationship of proportionality between the means employed and the aim sought to be realised.

6 As I stated then (At page 62 of the judgment in H.C.A. No. Cv. S. 2065/2004 Sanatan Dharma Maha Sabha of Trinidad and Tobago and Islamic Relief Centre Limited v. The Attorney General of Trinidad and Tobago) I now reiterate here: “Clearly this approach to administrative action is consistent with the approach I have outlined above with respect to legislation. It is an approach that acknowledges effects, maintains a presumption of regularity and affords an opportunity to justify seemingly discriminatory action. It is difficult to flaw such a fair and even handed approach to the analysis of equality claims. This is especially so given the disproportionality of resources and access to information between the ordinary claimant and the State”.

7 In my opinion the state of uncertainty in the precedents of the Court of Appeal of Trinidad and Tobago on the requirements to prove a breach of section 4(b) of the Constitution, permits a reconsideration of the relationship between the so-called ‘presumption of regularity’ and the proof of constitutional inequality of treatment.

8 In The Attorney General v. K.C. Confectionery Ltd., Bernard, J.A. was mainly responsible for robustly imposing the presumption of regularity into the proof of constitutional inequality of treatment, and this was done in answer to Justice Deyalsingh's explicit rejection of it (in the High Court).

9 Deyalsingh, J. in his judgment (unreported) (H.C.A. No. 585 of 1980, K.C. Confectionery Ltd. v. The Attorney General) had stated at pages 17 and 20:

There is in Trinidad and Tobago a common law presumption of regularity in the acts of public officials. But as was clearly pointed out in Ong ah Chuan (supra) the common law presumptions should not be automatically applied when interpretating a Constitution.

Further, such presumptions (which are foreign in origin) must be carefully examined before introduction into or continuance in this country where social conditions are different.

Giving my best consideration to the matter I am of the view that there is no place for “mala fides” as such in dealing with sec. 4(b) and especially sec. 4(d) of our Constitution; that upon its true construction, an applicant makes out a prima (facie) case upon proof of unequal treatment in similar circumstances whereupon the onus shifts to the State to show that such differential treatment was reasonably and justifiably made.

10 In response Bernard, J.A. (in the Court of Appeal) stated at pages 3, 4, and 5 of his judgment: (Civ. App. No. 75 of 1983, The Attorney General v. K.C. Confectionery Ltd.)

I would like to turn to the question relating to the presumption of regularity in the acts of public officials which did not find favour with the learned trial judge.

The presumption is a salutary and sensible concept of governmental action. Were it to the contrary, great difficulty and burdens can arise in proof of the bona fide exercise of day to day executive action and this could well lead to chaos or uncertainty. Unless it is established to the contrary, it is, in my view, essential to our democratic system of government that confidence and trust must prima facie be reposed in public officials, and more particularly senior ones.

Having held that the presumption of regularity in...