Ravi Balgobin Maharaj v The Cabinet of The Republic of Trinidad and Tobago
| Jurisdiction | Trinidad & Tobago |
| Judge | Mr. Justice R. Rahim |
| Judgment Date | 16 January 2024 |
| Neutral Citation | TT 2024 HC 15 |
| Docket Number | Claim No. CV 2023-02275 |
| Court | High Court (Trinidad and Tobago) |
IN THE MATTER OF AN APPLICATION BY RAVI BALGOBIN MAHARAJ FOR AN ADMINISTRATIVE ORDER UNDER PART 56 OF THE CIVIL PROCEEDINGS RULES 1998 AND THE JUDICIAL REVIEW ACT, CHAPTER 7:08
and
IN THE MATTER OF THE EXTENSION OF THE SERVICE OF ERLA HAREWOOD CHRISTOPHER IN THE OFFICE OF COMMISSIONER OF POLICE BY THE COMMISSIONER OF POLICE (EXTENSION OF SERVICE) ORDER, 2023 PUBLISHED IN LEGAL NOTICE 149 OF 2023
and
IN THE MATTER OF THE INTERPRETATION OF THE CONSTITUTION OF THE REPUBLIC OF TRINIDAD AND TOBAGO INCLUDING SECTION 123 THEREOF AND THE POLICE SERVICE ACT, CHAPTER 15:01 INCLUDING SECTION 75 THEREOF
the Honourable Mr. Justice R. Rahim
Claim No. CV 2023-02275
IN THE HIGH COURT OF JUSTICE
(Sub-Registry, San Fernando)
Claimant: A. Ramlogan SC, N. Bisram, K. Samlal, R. Abdool-Mitchell instructed by J. Lutchmedial and V. Siewsaran.
First Defendant: R. Martineau SC, D. Martineau instructed by M. Ojah Maharaj.
Second Defendant: R. Dass SC, V. Gopaul instructed by M. Benjamin.
Interested Party: D. Peake SC instructed by A. Hosang.
This mixed claim for judicial review and relief pursuant to the Constitution challenges the extension of the term of office of the Commissioner of Police (COP) Mrs. Harewood- Christopher by the Executive. The Claimant argues that the process for appointment of a COP is that carried out by the independent body of the Police Service Commission (PolSC) and the Parliament in keeping with the relevant provisions of the Constitution under section 123 but that the Cabinet has side stepped that process (thereby infringing the doctrine of the separation of powers) and extended the term of the COP after her date of retirement (for a period of one year from May 15, 2023) by way of the issuance of the Commissioner of Police (Extension of Service) Order 2023 (issued on May 11, 2023) which Order could only have been issued by Her Excellency the President of the Republic pursuant to section 75 of the Police Service Act Chap 15:01. The Claimant therefore argues that the Order is invalid, illegal, unconstitutional, void and of no legal effect as section 75(a) of the Police Service Act is unconstitutional same being inconsistent with section 123 of the Constitution.
The Cabinet submits that an extension of service is not an appointment of a COP or an appointment to act as COP and therefore the section 123 procedure is inapplicable. That given the structure of the Constitution the power to deal with duration of contract of employment and extension of service beyond the prescribed retirement age is a power given to Parliament or the Executive (sections 74 and 75 of the Police Service Act) and not to the PolSC while the power to appoint is a power given to the PolSC and not the Legislature or the Executive (section 123 of the Constitution). The concept of appointing a person to the office of COP is different from the concept of extending the period of service of that person in that office.
The Cabinet also submits that section 75 of the Police Service Act is not unconstitutional. It deals with duration of service in office not appointment to office and is not in conflict with section 123 of the Constitution.
In so submitting, it accepts that there is a constitutionally protected jurisdiction vested in the PolSC and takes no issue with the following facts on the evidence:
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a. Mrs. Harewood-Christopher was appointed COP in accordance with section 123 of the Constitution on 3 rd February, 2023;
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b. Mrs. Harewood-Christopher turned 60 on 15 th May, 2023;
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c. Mrs. Harewood-Christopher's service “ in the office of Commissioner of Police” was extended pursuant to section 75(a) of the Police Service Act for a period of one year with effect from 15 th May, 2023 by Legal Notice 149 of 2023. This extension was made on 11 th May, 2023;
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d. No notification of the extension of the Mrs. Harewood- Christopher's service “ in the office of Commissioner of Police” was given to and/or debated in the Parliament;
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e. The PolSC on 5 th June, 2023 noted that the Cabinet had agreed to the extension of service of Mrs. Harewood-Christopher for a period of one (1) year from 15 th May 2023 to 14 th May 2024 in accordance with section 75 of the Police Service Act, Chap.15:01 1; and
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f. The PolSC received a copy of the Commissioner of Police (Extension of Service) Order, 2023, Legal Notice No. 149 of 2023, which extended the service of Mrs. Harewood-Christopher in the office of Commissioner of Police for a period of one year with effect from 15 th May 2023.
It however disputed that the extension was done in a manner without any regard for the jurisdiction retained by the PolSC as the Executive did nothing to trespass on the jurisdiction of the PolSC in making the extension.
It agreed that the Executive cannot exert any general influence over the COP, however under section 75(1) of the Constitution the Executive is charged with the general direction and control of the Government of Trinidad and Tobago which includes responsibility for national security ( Griffith v National Security Council and Others, CV2022-03915 para 137). Further, the compensation package of the COP rests with the Executive and not with the Salaries Review Commission (“the SRC”). The SRC is not responsible for setting the remuneration package. This latter point is not in issue in the view of the court and the suggestion otherwise by the Claimant was clearly incorrect.
On the issue of the doctrine of separation of powers, the Cabinet argued that the doctrine derives from the structure of the Constitution in that it allocates certain functions to the Legislature, the Executive and the Judiciary but that there has been no infringement of the doctrine does in this case. Further, in so far as it may be argued that there is a separation of powers between the Legislature and the Executive on the one hand and the PolSC on the other (in relation to dealings with the COP so far as material) the power of the Legislature and the Executive lies in relation to terms of office which include duration of the contract of employment whereas the power of the PolSC relates to appointment and removal from office.
The AG submits similarly that the case “does not concern” either an appointment or an acting appointment to the office of COP and there is no challenge to the substantive appointment. According to the AG, the crux of the challenge lies in the claimant's argument that section 75 of the Act is inconsistent with the Constitution. He argues that there is plainly no such inconsistency as the terms and conditions of the office of COP (including matters such as the duration of the term of employment) are not prescribed by the Constitution but are left by the Constitution to be determined by the Executive (as employer) or as in this case the Legislature. Further, that to interpret section 75 in the manner set out by the Claimant would be to depart from the plain and ordinary meaning of the words of that section. Finally, he urges the court not to engage in judicial overreach by extending constitutional protection beyond that which has been prescribed within the walls of the Constitution.
The PolSC was served and invited by the court to make submissions but has declined the invitation.
Affidavits were filed in support by the claimant, in opposition by the Cabinet through Stuart Young, a Minister of Government who filed both a principal and a supplemental affidavit and one in reply by the Claimant. The PolSC filed an affidavit by Corey Harrison Director of Personnel Administration ( DPA). None has been filed by the AG.
In addition to the facts leading to the legal challenge, the Claimant has set out evidence in which he attempts to demonstrate that it was not in the national interest to extend the service of the COP as is set out as part of the criteria in section 75 of the Police Service Act. This evidence has been answered at length by the Cabinet in its evidence. However, when the relief sought is considered there simply is no relief claimed that is premised on a challenge to the exercise of the discretion to extend the service of the commissioner otherwise than by way of a challenge to jurisdiction based on the illegality and unconstitutionality of section 75 and thereby of the Legal Notice 149 of 2023 which extended such service. It is not the case that the Claimant seeks an order that to so extend the time was unreasonable or irrational. The court understands the claim to be one based purely in the realm of the legality of the enabling legislation. As a consequence most of the evidence on both sides as relate to the rate of crime, crime fighting efforts and pending cases against politicians and the like will not be set out herein as the court is of the view that the evidence holds no relevance in the context of the case.
Mr. Stuart Young (a member of Cabinet since 2015 and the holder of several Ministerial posts over the years) deposed that the Cabinet has responsibility for the general direction and control of the Government and is collectively responsible to Parliament. He deposed to the principle of confidentiality of Cabinet deliberations and made it clear that his affidavit in no way waives the privilege of confidentiality in Cabinet deliberations. The process for the appointment of the present COP was set out. Her name was submitted to the President by the PolSC on January 30, 2023 as the highest graded candidate and the President issued a notification to the Parliament thereafter. A motion for her appointment was moved in the House of...
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