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Trinidad and Tobago High Court |
] [Hide Context] TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
H.C.A. 3133 of 2003
BETWEEN
OSWALD ALLEYNE AND OTHERS
APPLICANTS
AND
THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO
RESPONDENT
BEFORE THE HONOURABLE MADAME JUSTICE A. TIWARY-REDDY
Mr. R. Lawrence Maharaj S.C. leading Messrs R. Harnanan and D. Allahar for the Applicants
Mr. T. Thorne, Ms. M. Smith, Ms. M. Dennis and Ms. A. Singh for the Respondent
JUDGMENT:
The Applicants are 153 Municipal Police Officers (MPO’s) appointed pursuant to the Municipal Corporations Act (MCA) No. 21 of 1990. By Notice of Motion filed on 13.11.03 they are seeking redress under section 14 of the Constitution alleging inter alia, that they are required to and do perform the same duties and functions as members of the Trinidad and Tobago Police Service (Regular Police Officers) established under the Police Service Act but that they receive lesser salaries, allowances and benefits than the Regular Police Officer (RPO’s). Before the hearing began, the 10 th named Applicant, Urban Francis died. As a result there are now 152 Applicants herein.
In his closing submissions the Applicants’ attorney stated that the Applicants will not be relying on sections 4(a) and 5 (2)(b) of the Constitution. Accordingly the Applicants are seeking the following declarations:-
1. That in failing and/or refusing to equate the terms and conditions of service of the Applicants with those of members of the Police Service of equivalent rank the State has and continues to treat the Applicants unequally in breach of sections 4(b) and 4(d) of the Constitution.
2. That in failing and/or refusing to make regulations under section 26 of the Statutory Authorities Act (SAA)
(a) The State has and continues to deny the Applicants access to a court of justice for the determination of their rights and obligations as intended by Parliament in breach of section 4(b) of the Constitution
(b) The State has and continues to deny the Applicants their right to join an appropriate recognized association under the SAA for the purpose intended by Parliament in breach of the Applicants’ right to freedom of association guaranteed in section 4(j) of the Constitution.
3. That in failing and/or refusing to make regulations under section 60 of the MCA and sections 6, 26 and 28 of the SAA, the State has breached and continues to breach the Applicants’ right to such procedural provisions guaranteed to them by section 5(2)(h) of the Constitution for the purpose of giving effect to their rights and freedoms under sections 4(b), 4(d) and 4(j) of the Constitution.
Further the Applicants seek damages including exemplary damages to be assessed by a Judge in Chambers as well as their costs.
Section 4 recognizes and declares the following fundamental rights and freedoms:
“(b) the right of the individual to equality before the law and the protection of the law
. .
(d) the right of the individual to equality of treatment from any public authority in the exercise of its functions
. .
(j) freedom of association and assembly .”
Section 5 (1) expressly protects the rights and freedoms contained in Section 4 from abrogation, abridgement or infringement by any law, save for certain exceptions. And Section 5 (2) provides that Parliament may not:
“(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;
. . .
“(h) deprive a person of the right to such procedural provisions as are necessary for the purpose of giving effect and protection to the aforesaid rights and freedoms.”
14. (1) For the removal of doubts it is hereby declared that if any person alleges that any of the provisions of this Chapter has been, is Xbeing, or is likely to be contravened in relation to him, then without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for redress by way of originating motion.
(2) The High Court shall have original jurisdiction –
(a) to hear and determine any application made by any person in pursuance of subsection (1); and
(b) to determine any question arising in the case of any person which is referred to it in pursuance of subsection (4)
and may, subject to subsection (3) , make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of the provisions of this Chapter to the protection of which the person concerned is entitled.
(3) …”
Section 6
The Commission (Statutory Authorities Service Commission) may with the consent of the Prime Minister by Regulations or otherwise regulate its own procedure, including the procedure for appointment, promotion, transfer and removal from office of officers of statutory authorities and for the exercise of disciplinary control over officers
Section 15
The Personnel Organisation shall be responsible for -
(a) establishing and maintaining a classification of the offices in the service of the several statutory authorities;
(b) keeping under review the remuneration payable to officers;
(c) administering the regulations respecting the service of the statutory authorities;
(d) providing for and establishing procedures for consultation and negotiation between the statutory authority concerned and the appropriate recognised association in respect of –
(i) the classification of offices;
(ii) any grievances
(iii) remuneration;
(iv) the terms and conditions of employment.
i. The Minister may from time to time make recommendations with regard to remuneration to be paid to officers and employees.
ii. The Minister shall, before making recommendations on remuneration under subsection (2) –
(a) consider the requirements of the statutory authorities;
(b) take into account the rates of pay and other terms and conditions of employment prevailing in Trinidad and Tobago for similar work outside the service of the statutory authorities, and the relationship of the duties of the various classes and grades within the service of the statutory authorities; and
(c) be guided by the considerations set out in section 20(2)(a) to (f) of the Industrial Relations Act.
Section 25 (2)
Officers may form associations, and such associations shall, subject to this Act and the regulations, be recognised by the statutory authority as appropriate associations for consultation and negotiation in respect of any of the matters specified in section 15 and any other matters concerning such offices.
Section 26
The President may make Regulations setting out the conditions to be satisfied and the procedure to be adopted for the recognition by the statutory authority of existing associations and of associations formed pursuant to section 25 (2).
Section 28
The President may make Regulations generally for carrying this Act into effect and, subject to this Act, for prescribing all matters which are required or permitted to be prescribed and in particular for the following:
(a) for prescribing the terms and conditions of employment in the service of a statutory authority;
(b) for prescribing remuneration ;
MCA
Section 53
Every member of a Municipal Police Service, in addition to the special powers vested in him under this Act, has in respect of the whole of Trinidad and Tobago all the powers, privileges and immunities conferred on a constable by the Common Law, and also all the powers, privileges, immunities and liabilities conferred or imposed on a constable or on a First Division or Second Division police officer of corresponding rank by the Police Service Act and every act done by or to any member of a Municipal Police Service in the execution of his duty has the same effect and is attended with the same liabilities and other consequences and is punishable in the same manner as if done by or to a member of the Police Service in the execution of his duty.
The Commission may make regulations providing for the classification of officers in a Municipal Police Service, including qualifications, duties and remuneration and providing generally for the discipline, good order and government of the Municipal Police Services and until such regulations are made hereunder, regulations made under the Police Service Act, insofar as the Commission deems them applicable to any matter concerning Municipal Police Forces or Municipal Police Officers, shall apply mutatis mutandis .
(1) Where any dispute is before the Court, the Attorney General may, for the purpose of giving such assistance to the Court as he may be able to provide, intervene, whether at his own instance or at the invitation of the Court, and in particular, the Attorney General may intervene at his own instance in any dispute where it appears to him that some question of public importance or affecting the public interest or both has arisen and that it is fit and proper that the public interest should be represented therein.
(2) Upon any intervention by the Attorney General under subsection (1) it shall be open to him to submit that the Court, in addition to taking into account any submissions, arguments and evidence presented or tendered by or on behalf of the employers concerned and the workers concerned, be guided by the following considerations -
(a) the necessity to maintain and expand the level of employment;
(b) the necessity to ensure to workers a fair share of increases in productivity in enterprises;
(c) the necessity for the establishment and maintenance of reasonable differentials in rewards between different categories of skills;
(d) the necessity to maintain and improve the standard of living of workers;
(e) the necessity to preserve and promote the competitive position of products of Trinidad and Tobago in the domestic market as well as in overseas markets;
(f) the need to ensure the continued ability of the Government of Trinidad and Tobago to finance development programmes in the public sector,
and the Court may take such matters into consideration.
Each of the 152 Applicants swore individual affidavits during the period November 2-11, 2003. Further Neville Robinson (Robinson) the 38 th named Applicant swore two affidavits on 6.11.03 (the first Robinson affidavit) and on 18.5.04 (the Robinson affidavit in reply) on behalf of all the Applicants.
Three affidavits were sworn on behalf of the Respondent, one by Patricia Hypolite on 25.2.04 and two by Osborne Ashby on 25.2.04 (the principal Ashby affidavit) and on 12.5.04 (the supplemental Ashby affidavit). Both Robinson and Ashby were cross-examined on their later affidavits.
By Notice filed on 18.5.04 the Respondent sought to strike out three paragraphs in the Applicant’s affidavits filed in November-December, 2003 on the ground that the matters in these paragraphs were hearsay and/or not facts within the knowledge of the deponents and/or were opinion evidence, in breach of Order 41 Rule 5(1) of the Rules of the Supreme Court.
In its Further Written Submissions filed on 21.5.04 the Respondent objected to a fourth paragraph in the Applicants’ affidavits.
The paragraphs to which the Respondent objected were as follows:
a) I perform and have performed since I was first employed as aforesaid the same functions and duties as members of the Trinidad and Tobago Police Service (“the Police Service”). I was prior to the establishment of the Municipal Police Services, entitled to and paid the same remuneration as an officer of equivalent rank in the Police Service.
b. It has been my experience while working at the Port of Spain City Corporation that members of the Special Reserve Police employed alongside me and my fellow MPO’s are paid monthly salaries and allowances equal to those paid to equivalent members of the Police Service while we MPO’s are paid less.
c. Further, the State has regularized other officers similarly circumstanced as the MPO’s by bringing their terms and conditions into conformity with those members of a protective service, which such officers were intended to supplement on occasion but in fact were called upon to perform the same functions and duties. Fire Auxiliary Officers were given the same terms and conditions as members of the Trinidad and Tobago Fire Service. Recently members of the Special Reserve Police were provided they met specified conditions absorbed into the Police Service albeit with no credit given to them for past service. No attempt at any such regularization has been extended to members of the Municipal Police Forces.
d. The State has acknowledged to MPO’s that they should be treated the same as members of the Police Service, save and except in relation to pension, gratuity and other allowances.
For their part the Applicants maintain that the matters contained in the said paragraphs are within the personal knowledge of all the deponents. With respect to (a) the functions and duties of RPO’s are contained in the Police Service Act in particular section 35 thereof and are matters of public record. Further the Applicants share the same entrance requirements and training with the regular police.
At paragraph 4 of the principal Ashby affidavit, Ashby admitted that prior to 1967 MPO’s received the same salary as RPO’s and at paragraph 9 of the first Robinson affidavit, Robinson deposed to MPO’s enjoying parity of salary with equivalent RPO’s until 2000.
With respect to (b) Ashby admitted in paragraph (4) of the supplemental Ashby affidavit, that prior to October, 2003 SRP’s received the same salaries as RPO’s but different allowances. In any event the salaries of public officers including RPO’s are matters of public record.
With respect to (c) the State has admitted at paragraph 7 of the principal Ashby affidavit and paragraph 4 of the supplemental Ashby affidavit that SRP’s and Auxiliary Fire Officers were absorbed into the regular service.
With respect to (d) the Respondent has not denied that MPO’s do not get the same pension, gratuity and other allowances as regular police officers. In any event these are also matters of public record.
Robinson has been an MPO with the Port of Spain City Corporation continuously since 1977 and deposed at paragraph 15 of his principal affidavit that it has been his experience as an MPO:
“that members of the Special Reserve Police employed alongside me and my fellow MPO’s are paid monthly salaries and allowances equal to that paid to equivalent members of the Police Service while we MPO’s are paid less”.
It is to be noted that the Respondent has not sought to strike out this paragraph. The Applicants also submit that the State is being inconsistent in taking technical objections on the ground of hearsay and opinion evidence when it is itself guilty of similar conduct as contained in paragraph 3 of the supplemental Ashby Affidavit which reads:
“In my principal affidavit, I inadvertently omitted to mention the following facts. Officials of the Personnel Department are of the view that members of the Municipal Police Service are not similarly circumstanced with regular police officers in respect of the actual work performed by both categories of officers. The duties of the members of the Municipal Police Service are clearly bound up in the course of the work of the Corporations and in that regard are inherently different from that of regular police officers. Municipal Police Officers are engaged primarily in the security and protection of property in the Corporations as opposed to the detection of crime and infractions of law and the pursuit, apprehension and prosecution of criminal offenders, in which regular police officers are engaged throughout the country. Municipal Police Officers do not engage in the extensive policing and face the attendant degree of risk involved in the work of the regular police officers. Municipal Police Officers do perform policing duties but at a lower level than regular police officers in terms of scope, variety, complexity and risk. Additionally, the sphere within which the Municipal Police Officers operate is limited to the particular municipality to which they are assigned as opposed to the position of the regular police officer, who has unlimited jurisdiction throughout the country”.
In that very paragraph Ashby volunteers as “facts” the opinion of Officials of the Personnel Department on the material issue in this matter as to whether or not members of the Municipal Police Service are similarly circumstanced with regular police officers.
The Applicants contended further that in an application under Section 14 of the Constitution, where the State is aware of the facts relevant to such an application, the State has a duty to bring these facts to the Court rather than take technical objections.
In Civil Appeal No. 58 of 1991 Crane v Bernard and Ors . Davis J.A. stated at page 11:
“Further it is now the clear duty of a public authority to assist the Court by bringing forward in judicial review proceedings, and I would think in constitutional matters also, all facts and matters which are relevant to the determination of the issues. It is not that the Appellant has a right to have disclosed to him all information relevant to the decision of a public authority which he is seeking to impugn, but rather that the Court is entitled to have this information divulged to it so that it may do justice between the parties. This doctrine has been affirmed by Sir John Donaldson MR in R v Lancashire County Council ex p. Huddleston 1986 2 AER 941 at 945, letter b, where he says
‘ . . . in my judgment . . . if and when the applicant can satisfy a judge of the public law court that the facts disclosed … to the applicant are sufficient to entitle the applicant to apply for judicial review of the decision … it becomes the duty of the respondent to make full and fair disclosure.’
The case of Crane involved an application for judicial review as well as an application for redress for alleged breaches of inter alia, sections 4(a) and (b) of the Constitution.
In R. v. Civil Service Appeal Board Ex. p. Cunningham (1991) 4 All E.R. 310 Sir John Donaldson stated at p. 315:
“In R. v. Lancashire C.C. Ex. p. Huddleston (1986) 2 ALL E.R. 941 at p. 945 I expressed the view that we had now reached the position in the development of judicial review at which public law bodies and the Courts should be regarded as being in partnership in a common endeavour to maintain the highest standards of public administration including, I would add, the administration of justice. It followed from this that, if leave to apply for judicial review was granted by the Court, the Court was entitled to expect that the respondent would give the Court sufficient information to enable it to do justice and that in some cases this would involve giving reasons or fuller reasons for a decision that the complainant himself would have been entitled to.”
In the instant case the Applicants allege that they perform the same or similar duties as RPO’s but are treated less favourably. The Respondent denies any discrimination but contends that the Applicants have not produced any admissible evidence of the duties, salaries and allowances of RPO’s
Ashby has himself advanced the opinions of officials of the Personnel Department on the duties of MPO’s and RPO’s as being factual in clear violation of Order 41 Rule 5(1) of the Rules of the Supreme Court. The Respondent contends that by reason of Ashby’s employment in the Personnel Department for more than 30 years these matters came within his (Ashby’s) knowledge.
On the other hand I have noted that Robinson deposed that he has been employed as an MPO for the past 27 years during which he worked alongside SRP’s and RPO’s and became aware of the duties and terms and conditions of employment of these officers. It is to be noted that the Respondent has not challenged this statement.
I have also noted that RPO’s are employed by the State which must be aware of the terms and conditions of their employment as well as of their duties.
And this information is relevant to determine whether or not the Applicants have been discriminated against.
In all the circumstances and applying the above dictum of Davis JA that it is the clear duty of a public authority to assist the Court by bringing forward all facts and matters which are relevant to determine the issues so that the Court may do justice between the parties the Respondent’s application to strike out the aforementioned paragraphs is refused.
In its Amended Written Submissions filed on 18.5.04 the Respondent contended that the Court had judicial notice of other proceedings brought by SRP’s who were alleging that they should be treated on par with RPO’s and were contending that their fundamental rights had been breached. However, the Respondent provided no details of those other proceedings. This Court made inquiries at the Supreme Court Registry into the status of the said proceedings, which inquiries revealed the following:
1. On 3.1.01 a Consent Order was entered in HCA No. 470 of 2000 Claude Brown and Elroy Weekes v The Attorney General of Trinidad and Tobago in the following terms:
“1. That the failure by the State to make Regulations under the Special Reserve Police Act Chapter 15:03 contravenes the Applicants’ fundamental human rights in relation to equality of treatment from a public authority in the exercise of its functions under section 4(d) of the Constitution of Trinidad and Tobago.
2. That compensation, if any, be assessed by a Judge in Chambers in default of agreement.”
To date such compensation has not been assessed.
2. HCA No. 3463 of 2002 Winston Bernard and Victor Martinez v the Attorney General of Trinidad and Tobago was heard and the judgment therein was reserved to a date to be fixed. To date the judgment is still outstanding.
3. HCA No. S- 2284 of 2001 Lester Clarke v The Attorney General of Trinidad and Tobago was withdrawn on 24.10.02.
4. HCA No. 237 of 2001 Winston Charles v The Attorney General of Trinidad and Tobago was also heard and judgment therein was also reserved. This judgment has not yet been delivered.
Thus, in all the aforementioned proceedings there has been no determination by any court that any of the fundamental rights of SRP’s have or have not been breached.
EQUALITY OF TREATMENT
The principal complaint of the Applicants is that they perform the same duties as RPO’s but that they are treated less favourably in that they receive lesser salaries and allowances. In short the Applicants allege discrimination. The Respondent contends that the Applicants are not true comparators.
MPO’s are appointed by the SASC pursuant to section 48(1) of the MCA while RPO’s are appointed by the Police Service Commission pursuant to section 123 (1) of the Constitution. Further MPO’s are employees of the respective Municipal Corporations which are independent statutory corporations for which the State is not vicariously liable under section 2 (2) of the State Liability and Proceedings Act. RPO’s are employed by the State and are servants of the State under section 2(2) © of the said State Liability and Proceedings Act.
MPO’s are required to meet the same entrance requirements as regards age, education and medical fitness and to undergo similar training as RPO’s at the St. James Police Barracks. RPO’s and MPO’s wear identical or similar uniforms. Prior to 2000 MPO’s received the same salaries as RPO’s but not the same allowances. Post 2000 salaries of RPO’s were increased but not the salaries of MPO’s. Estate Police Officers receive the same salaries as RPO’s. Auxiliary Fire Officers receive the same salaries as Regular Fire Officers.
Although RPO’s are normally attached to a particular police division or district, they are authorized to perform their duties throughout Trinidad and Tobago while MPO’s are confined to their particular municipalities. While there are ranks in the Municipal Police Force and the Regular Police Force, the highest rank in the Municipal Police Force is that of Assistant Superintendent while the higher ranks in the Police Force are that of Superintendent, Senior Superintendent, Assistant Commissioner of Police, Deputy Police Commissioner and Commissioner of Police.
By section 33 of the Police Service Act an RPO “shall have such rights, powers, authorities, privileges and immunities, and be liable to all such duties and responsibilities” of a constable. There is no corresponding statutory provision in respect of MPO’s.
By section 53 of the MCA an MPO has “all the powers, privileges and immunities” of a constable at common law. But the section makes no reference to “duties and responsibilities”.
The principal area of dispute is in respect of the duties actually performed by MPO’s who maintain that they perform the same duties as RPO’s and face the same or similar risks while doing so. The Respondent contends that MPO’s perform some of the duties of RPO’s but not of the same variety, complexity and scope. Further MPO’s duties are confined to patrolling the streets of their municipality and detecting and prosecuting some crimes excluding rape, money laundering, kidnapping and murder.
Robinson has been an MPO with the Port of Spain City Corporation continuously since 1977 and currently holds the position of acting Corporal. For the past 10 years he has been the President of the Port of Spain Municipal Police Association, an unincorporated association which represents MPO‘s employed with the said Corporation and is aware that there are similar unincorporated associations at other municipal corporations.
In his principal affidavit Ashby did not deny that MPO’s perform the same or similar duties as RPO’s. However at paragraph 3 of the supplemental Ashby affidavit Ashby deposed that he had inadvertently omitted to mention, inter alia, that MPO’s are not similarly circumstanced with RPO’s in respect of actual work performed by both MPO’s and RPO’s.
Much of the argument revolved around the type of work actually performed by MPO’s and RPO’s. In his second affidavit Robinson gave details of the duties of MPO’s and the operation of the respective corporations. The Respondent filed no affidavit in response but challenged its contents in the Respondent’s submissions.
According to Robinson MPO’s are on duty at their respective Corporations’ Stations 24 hours a day 7 days a week and each station is manned by different shifts of MPO’s. Each station has a charge room, holding cells and arms and ammunition lockers and is supplied with fire-arms and other basic law enforcement amenities similar to regular Police Stations. Some MPO shifts are of 16 hours duration for which a meal allowance is given.
Robinson listed the following among the duties of MPO’s:
1. To investigate and lay charges for all offences against the laws of Trinidad and Tobago save for murder which is usually preferred by the Homicide Division of the Police Service.
2. To execute arrest and search warrants and serve summons throughout Trinidad and Tobago.
3. To process prisoners and grant bail.
4. To perform Court and Process orderly duties including attending court, escorting prisoners to and from court and maintaining law and order in the precincts of the court.
5. To maintain the Station’s Charge Room, perform associated clerical duties and duties as station sentry.
6. To carry out armed escort duties as Mayor’s orderly during the transportation of payroll, for Public Health and Building Inspectors and for dignitaries while they are visiting or staying in a particular municipality.
7. To provide security at demonstrations and public marches and at squatter demolition exercises.
8. To participate in joint army/police patrols and Licensing Office compliance exercises.
It is to be noted that in times of national emergencies all MPO’s are summoned off leave and all Municipal Police Stations are utilized by the National Emergency Management Agency to co-ordinate disaster relief efforts.
Robinson exhibited a copy of a Duty Roster for one week which listed most of the above duties. The Duty Roster also showed that 9 MPO’s were assigned to a Task Force, which is a special unit dedicated to the detection of crime and the pursuit, apprehension and prosecution of criminal offenders. MPO’s who are assigned to the Task Force receive a full plain-clothes allowance.
Further MPO’s of the rank of Inspector and Assistant Superintendent of Police are ex officio Justices of the Peace, as are similar ranks in the Police Service. MPO’s are also engaged in special community and social welfare programmes including counselling, school lectures, adult literacy, student/youth groups, neighbour-hood watch groups, domestic violence and child abuse matters and the removal of dangerous dogs.
In cross-examination Robinson testified that among his duties are patrolling the streets of Port of Spain and detecting crime both in and out of his municipality (Port of Spain). In cross-examination Ashby confirmed that the Commissioner of Police can order MPO’s to assist RPO’s in keeping order whenever the circumstances warrant. Further when MPO’s join RPO’s in patrolling the streets and investigating and detecting crime, those MPO’s face the same risks as RPO’s, although not to the same extent.
Robinson also exhibited a list of the numbers and types of charges laid by MPO’s attached to the various Corporations over the past 10 years. Of a total of 3,118 charges 2,532 were for the following relatively minor offences:
1) Offering marketable commodities for sale without a licence 768 2) Obstruction of pavement 676 3) Pitching a stall 513 4) Using obscene language 167 5) Resisting arrest 117 6) Obstruction of street 113 7) Assault 78 8) Sleeping in enclosed premises 56 9) Littering in a public place 22 10) Hanging clothes abutting pavement 22
----------------
----------------
295 of the remaining 586 charges were laid by MPO’s for the following more serious offences:
(a) possession of cocaine/trafficking - 67
(b) housebreaking with intent – 1
(c) indecent assault – 3
(d) larceny – 80
(e) fraudulent conversion – 1
(f) assault occasioning actual bodily harm – 6
(g) prostitution – 1
(h) possession of ammunition/trafficking – 125
(i) possession of marijuana – 90
(j) possession of firearm – 1
(k) robbery with violence – 5
(l) unlawful/malicious wounding - 5
These statistics show that over a 10-year period MPO’s laid approximately 3,200 charges, that is approximately 320 charges per year in all the corporations combined at a time when crime has been escalating. Further less than 60 of the 320 charges laid annually were for the more serious offences. It is also significant that no charges were laid for robbery with aggravation, kidnapping, rape and money-laundering.
These statistics which were verified by Robinson appear to support the Respondent’s contention that in the performance of their duties MPO’s place greater emphasis on patrolling and supervising each municipality and less emphasis on detecting crime in general. Further the duties listed in the Duty Roster confirm that the duties of MPO’s are clearly bound up with the work of the corporations.
Further no evidence was produced of the actual or approximate numbers of MPO’s in all the corporations, the total population in all the municipalities and the geographic area covered by these municipalities. Neither was any similar evidence produced in respect of RPO’s.
The Applicants have offered no explanation for the absence of details regarding MPO’s. However, in respect of RPO’s the Applicants say that such evidence is peculiarly within the knowledge of the Respondents and is a matter of public record. Even so, the Applicants failed to produce such evidence for the Court’s consideration.
Hereunder are some of the authorities cited by the parties:
Attorney General v KC Confectionery Ltd. [1986] LRC (Const) 172
The Applicants, a locally owned manufacturing company, applied to the Minister of Industry and Commerce to have the importation of confectionery restricted by its entry on the negative list of goods requiring an import licence, thereby protecting the respondent’s product from foreign competition. The application was made in 1976 but no decision was taken on it. The respondent subsequently filed a Notice of Motion seeking inter alia, a declaration that the Government of Trinidad and Tobago contravened and infringed their fundamental right guaranteed by section 4(d) of the Constitution of Trinidad and Tobago to equality of treatment from any public authority in the exercise of its functions and to equality before the law and the protection of the law.
In substance the arguments in support of the motion were that the appellant had persistently refused or neglected to consider the application properly and had treated it differently and less favourably than applications from other local manufacturers.
Bernard, J.A. had this to say at pages184c-d:
“Having held that the presumption of regularity in the acts of public officials exists in this jurisdiction. I entertain the view that it can only be discharged by proof of mala fides on a balance of probability. In this connection mala fides may be express or on the other hand it may be implied from the overt acts of the public officials. With regard to the latter I adhere to the view which I expressed ion LJ Williams v Percival Smith and The Attorney General that so long as it can be demonstrated by evidence that the act of the public official or organ was a hostile act, or an intentional and irresponsible act that, in my view, will in fact be enough to rebut the presumption of regularity and to infer mala fides …”
Persaud, J.A. at page 197b-e stated thus:
“Counsel for the appellant discussed the question whether the respondents had to prove mala fides in the Minister to succeed in their constitutional motion. He referred us to the dictum of Bernard, J.A. in Attorney General v Lopinot Limestone Ltd (Civil Appeal No. 89 of 1982) where the learned judge said (at page 7 of his judgment) –
‘The presumption of regularity in the official actions of public officials and public authorities is of long standing and is more or less of world renown at least in most democratic countries; and I imagine it would obviously be all the more so the rule in non-democratic states. The principle is a salutary one and has everything that is good to commend it.’
Smith and Another v L.J. Williams Ltd (1981) 32 WIR 395
The Chief Immigration Officer deliberately refused to consider applications made by the plaintiff company for work permits for foreign nationals. The official at the same time issued work permits and granted many illicit favours to at least one of the other companies engaged in a line of business similar to that of the Plaintiff.
Bernard J stated at page 406 h-j :
Section 4(b)
In his treatise on article 14 of the Indian Constitution relating to denial of equality before the law or the equal protection of the law the author of Basu’s Shorter Constitution of India (1976), (7 th Edn) Vol. 1 under the rubic “Meaning of Equal Protection” states, inter alia, as follows (at page 29):
‘2. Equal protection means the right to equal treatment in similar circumstances both in the privileges conferred and in the liabilities imposed by the law: … In other words there should be no discrimination between one person and another if as regards the subject matter of the legislation their position is the same.’
Bernard J further noted at page 407b-f that at page 47 in dealing with the denial of equal protection in the administration of the law, the author states:
1. Equal protection may be denied not only by legislation but also by the administration of a law. The principles to be applied when an administrative act is challenged should not be confused with those which are to be applied when the law itself under which the administrative act is purported to be done is challenged.
2. When the statute itself is not discriminatory the charge of violation of equal protection is only against the official who is entrusted with the duty of carrying it into operation. The charge will fail if the power has been exercised in good faith within the limitation by the Act and for the achievement of the objects the enactment had in view; if however, the person who alleges discrimination succeeds in establishing that the step was taken intentionally for the purpose of injuring him, or in other words that it was a hostile act directed against him, the executive act complained of must be annulled even though the statute itself be not discriminatory. In short, if the Act is fair and good the authority who has to administer it will be generally protected. To this rule however, there is an exception which comes into play when there is evidence of mala fides in the application of the Act: …’
Then at pages 410 j to 411 e his Lordship noted:
“In my opinion section 4(b) transcends two basic concepts: (1) equality before the law; and (2) the protection of the law; both of which philosophies may be said to (and can) arise in the particular case, although for the purpose of an alleged contravention of the enshrined guarantee this need not necessarily be so.
In my opinion section 4(b) applies both to legislation as well as to administrative acts of officials. In so far as legislation is concerned, the right to reasonable legislative classification is not under Chapter 1 denied to the State. Further there is a presumption of the constitutionality of legislation. In consequence, the burden is upon the aggrieved party to show that the enactment is violative of the Republican Constitution.
In so far as official acts are concerned, the nub of the matter is, in my view that the section both guarantees and is intended to ensure that where parties are similarly placed under the law they are entitled to like treatment under that law. However, there is a presumption of regularity in the acts and conduct of officials. Consequently, the burden of proof is upon the aggrieved party to establish mala fides in the administration of the enactment. Of course, mala fides particularly in cases of this sort is not normally expressed. However, it can be and is usually to be implied from overt acts. In this connection it is not necessary in my view, to prove “an evil eye” although I do not doubt that in some cases the evidence may be such that the act complained about can be seen to transcend both the concept of “unequal hand” and an “evil eye” at the end of the day. In my opinion, so long as it can be shown that the act was a hostile act or an intentional and irresponsible act, i.e. an act done deliberately and without justification, that will be enough evidence to rebut the presumption of regularity.
In this connection it is not necessary that several acts be adverted to. It would be enough for the purposes of the Constitution if a single act of the kind is established. But I would imagine that where a single occurrence is complained of the evidence must of necessity be convincing. I do not mean to make by this comment a distinction in the quality of the evidence but only to distinguish between the approach to similar acts on the one hand and a single act at the end of the day.”
Mohanlal Bhagwandeen v Attorney General of Trinidad and Tobago (P.C. No. 45 of 2003) (Bhagwandeen)
The Privy Council was called upon to decide whether the Commissioner of Police had treated the appellant unequally and/or unfairly and had discriminated against him in refusing to recommend him for promotion from the rank of Constable to that of Corporal, contrary to section 4(b) and (d) of the Constitution of Trinidad and Tobago.
Lord Carswell delivered the judgment of the Board and stated at paragraph 18:
“18 . A claimant who alleges inequality of treatment or its synonym discrimination must ordinarily establish that he has been or would have been treated differently from some other similarly circumstanced person or persons described by Lord Hutton in Shamoon v Chief Constable of Royal Ulster Constabulary [2003] 2 AER at paragraph 71 as actual or hypothetical comparators. The phrase which is common to the anti-discrimination provisions in the legislation of the United Kingdom is that the comparison must be such that the relevant circumstances in one case are the same, or not materially different, in the other …”
Their Lordships placed heavy reliance on two Trinidad and Tobago cases in which the proposition appears that in order to prove discrimination by a public official it is necessary to prove mala fides. These cases are Smith v LJ Williams Ltd (1980) 32 WIR 395 and Attorney General v KC Confectionery (1985) 34 WIR 387
It was further noted by the Board that at first instance in KC Confectionery, Deyalsingh J, (with whom the Court Appeal disagreed) reasoned that both the presumption of regularity and the necessity for proof of mala fides rested on unsatisfactory foundations and should not be accepted as correct.
Their Lordships declined to express any definite conclusion on the correctness of the propositions accepted by the Court of Appeal without fuller consideration of the Indian authorities relied on by the Court of Appeal. However they were inclined to the view that there may have been a degree of confusion between two distinct concepts, the presumption of regularity and the necessity for proof of deliberate intention to discriminate in claim of inequality of treatment.
Bishop of Roman Catholic Diocese of Port Louis and Others v Suttyhudeo Tengur and Others Privy Council Appeal No. 21 of 2003.
These proceedings were brought by the first respondent; the father of an 11-year old Hindu girl, then approaching the end of her primary education and awaiting allocation to a secondary school. The father feared that the allocation system set up by the State might prejudice his daughter’s admission to one of the Catholic colleges if she did not score highly enough at the examination. He challenged the constitutionality of the arrangements made and operated by the Minister of Education and Scientific Research and the State of Mauritius.
Lord Bingham of Cornwall in delivering the judgment on behalf of the Board stated at page 12 paragraphs 16-17:
“16. The father’s first contention is made out. The giving of preference to one group of applicants necessarily works to the disadvantage of any group of applicants to whom preference is not given. In relation to the reserved places, the appellants’ avowed intention is to maintain the religious and moral character and ethos of the Catholic colleges by recruiting enough Roman Catholic pupils to leaven the whole loaf. Understandable and even admirable as this intention may be, it involves differentiating between one pupil and other.
17. But differentiation without more is not enough to enable the father to succeed. As was said by Rault J in Police v Rose [1976] MR 79, 81 :
To differentiate is not necessarily to discriminate … Equality before the law requires that persons should be uniformly treated, unless there is some valid reason to treat them differently. In Kedar Nath v State of West Bengal [1953] INSC 46; AIR 1953 SC 404 the Supreme Court of India held that it is permissible to apply different measures to different classes of persons if the classification is based on an intelligible principle having a reasonable relation to the object which the Legislature seeks to attain … ”
Later at paragraph 19 his Lordship added:
“19. 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 realized. …
James v Eastleigh Borough Council [1990]2 AC 751 HL
The Plaintiff, who had retired, and his wife, both of whom were 61 years of age, went to a leisure center run by the defendant council. The wife was admitted free of charge but the Plaintiff had to pay an admission fee as the council only provided free admittance to people who had reached state pension age, which in the case of a man was 65 and in the case of a woman 60. The plaintiff claimed unlawful sexual discrimination contrary to section 29 of the Sex Discrimination Act 1975.
The House of Lords (Lords Griffiths and Lowry dissenting), held that since the pensionable age fixed at 60 for women and 65 for men by section 27 (1) of the Social Security Act, 1875, itself directly discriminated between men and women on the ground of sex, contrary to section (1) of the Sexual Discrimination Act 1975, any other differential treatment of men and women adopting that criterion equally involved discrimination on the ground of sex; that since section 1(1)(a) of the Act was concerned to promote equality of treatment of men and women, the adoption of a gender-based criterion for that purpose was unlawful; that the test to be applied under section 1(1)(a) was objective, and if, applying an objective test, the answer would have been that the complainant would have received the same treatment from the defendant but for his or her sex there was direct discrimination; that the words “on the grounds of sex” did not refer to the subjective reason for the differential treatment of the two sexes and such a reason, albeit with a benign motive, was irrelevant; and that, accordingly, the council discriminated against the Plaintiff on the ground of sex, contrary to the section.
Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 AER 26 (HL)
Certain duties were removed from the applicant after complaints were made about the manner in which she was conducting appraisals. She lodged a complaint alleging that she had been discriminated against on the ground of her sex contrary to article 3(1)((a) of the Sex Discrimination (Northern Ireland) Order 1976 by her employer (the Chief Constable), because she had been treated less favourably than two male chief inspectors.
Lord Hope stated at paragraph 42:
“42. The control group which the appellant selected in the present case comprised the other chief inspectors in the employment of the RUC. Ms. McGrenera maintained that they were the appropriate persons with whom to make the comparison. In the appellant’s case the employer’s practice whereby appraisals were carried out by the chief inspectors was terminated. She says that she was less favourably treated than the other chief inspectors, who were of the same rank and were serving in the same branch of the police force, because the practice was allowed to continued in their case. There were two important differences. The first is that the other chief inspectors were serving in other divisions of the Traffic Branch over which Superintendent Laird had no managerial responsibility. The second is that in her case but not in theirs, there had been complaints and representations. But the appellant’s argument relying on what Lord Nichols said in Khan’s case is that these are ‘reason why’ points. The crucial question is whether this truly was the reason why she was treated less favourably, or whether she was treated less favourably than the men were on the ground of her sex. As to the prior question, which is whether the complainant was treated less favourably, the appellant’s case is that the fact that the other chief inspectors were in different divisions and that complaints and representations were made in her case and not in theirs should be disregarded as these are not to be treated for this purpose as relevant circumstances.”
At paragraph 63(j) – 64 (a) the House of Lords concluded:
“ The only explanation which is given by the majority is that they accepted that it was only in the appellant’s case that the custom and practice regarding the appraisals by chief inspectors was changed, and that they were satisfied that she was treated differently because she was a woman. The first of these propositions was not disputed. But what was the factual basis for saying that this was because of the appellant’s sex? Perhaps because of the error into which the tribunal had fallen of thinking that the other chief inspectors could be treated as valid comparators, the majority appears to have overlooked the fact that, as the circumstances of the other chief inspectors were not the same as those of the appellant, it was necessary to approach this question hypothetically. It was not enough simply to point to the fact that she was treated differently from the way other chief inspectors were treated. But there is no indication in the reasoning of the majority that any consideration was given to the question how they would have been treated on the assumption that their circumstances were the same as those of the appellant, in all respects. There is a gap here in the majority’s reasoning which the findings of fact cannot fill. ”
Surujrattan Rambachan and Trinidad and Tobago Television Company Limited v The Attorney General of Trinidad and Tobago H.C.A. No. 4789 of 1982
By Notice of Motion the Applicant moved the court for inter alia, a declaration that the refusal by the First Named Respondent, to show or exhibit a pre-recorded speech deprived the Applicant of the right to equality of treatment from a public authority in the exercise of its functions.
Deyalsingh J stated at page 43:
“I will first deal with the question of whether ‘mala fides’ must be shown when moving the court under section 4(d). I dealt with this very question in KC Confectionery and concluded:
‘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 justifiable made…’
I am still of that view. It is no consolation to one who has been treated unequally to say that such treatment was done in good faith. And how is the ordinary citizen to prove ‘mala fides’ by a public officer? At least it is not the easiest of tasks where the officer hides behind a veil of silence and boldly challenges ‘prove mala fides’ as sometimes occur.”
Later at page 44 he stated that:
“There must be in the public service, no favouring of one citizen over another. The public official must be fair; he must hold the scales of public benefits equally. Equal treatment does not of course mean identical treatment. It means similar or substantially similar treatment in similar or substantially similar circumstances and even in similar or substantially similar circumstances there may be justifiable reason in certain cases for treatment which is not equal.”
Wadinambiaratchi v Hakeem Ahmad and Others (1985) 35 WIR 325
The Appellant was the head of a department at the university. In April 1982 he placed a notice on the notice board stating that the Board of Higher Degrees had clarified the requirements for the successful completion of a course of studies. A memorandum from the Vice-Dean of the faculty subsequently confirmed this notice. A number of students applied to the High Court for, inter alia, an order against the Appellant declaring that the notice was ultra vires and that all consequential acts were null and void.
Bernard J.A. said at p. 332:
In this case the students were challenging the introduction of a new marking system but had produced no evidence of how they had been informed of the new system.
Ong Ah Chuan v Public Prosecutor, (1981) A.C. 648 P.C
Article 12 (1) of the Constitution of Singapore provides that all persons are entitled to equality before the law and are entitled to equal protection of the law. The Appellants were convicted of trafficking in more than 15 grammes of cocaine which carried a mandatory death sentence by virtue of the section 29 of the Misuse of Drugs Act. The Appellants alleged that they were deprived of equality before the law and equal protection of the law since section 29 of the said Act, by providing for a mandatory death penalty for trafficking in controlled drugs in excess of the higher minimum quantities stated in the Schedule, was inconsistent with the Constitution.
At page 673 E-F Lord Diplock succinctly stated:
“Equality before the law and equal protection of the law require that like should be compared with like. What art. 12 (1) of the Constitution assures to the individual is the right to equal treatment with other individuals in similar circumstances. It prohibits laws which require that some individuals within a single class should be treated by way of punishment more harshly than others; it does not forbid discrimination in punitive treatment between one class of individuals and another class in relation to which there is some difference in the circumstances of the offence that has been committed.
The discrimination that the defendants challenge in the instant case is discrimination between class and class; the imposition of capital penalty upon a class of individuals who traffic in 15 grammes of heroin or more and the imposition of a penalty, severe though it may be, which is not capital upon that class of individuals who traffic in less than 15 grammes of heroin. The dissimilarity in circumstances between the two classes of individuals lies in the quantity of the drug that was involved in the offence. The questions whether this dissimilarity in circumstances justifies any differentiation in the punishments imposed upon individuals who fall within one class and those who fall within the other and, if so, what are the appropriate punishments for each class, are questions of social policy … ”
It was concluded that there is no inconsistency with article 12 (1) of the Constitution.
The Public Service Commission of Trinidad and Tobago and the Attorney General v Wayne Hayde (Hayde) Cv. Appeal No. 12 of 1999
This appeal arose out of a constitutional motion brought by the respondent against the Police Service Commission and the Attorney General. The respondent claimed a declaration that by repeatedly appointing and promoting other persons to higher posts in the Police Service and thereby bypassing him, the appellants had treated him unfairly contrary to section 4 (b) and (d) of the Constitution. Sharma JA with whom the other Justices of Appeal agreed stated at pages 8-9:
“A claim that a public authority has violated a citizen’s right to equal treatment is one that must be supported by cogent evidence. Indeed in Smith v LJ Williams the case lasted an entire month during which there was extensive cross-examination of the public official, the Chief Immigration Officer. The evidence in that case was voluminous; in the present case it is exiguous.
Sufficient evidence must be placed before the Court to raise a case of unequal treatment. As Persaud J.A. said in A -G v K.C. Confectionery 1985 34 WIR 387 at page 400 g:
‘Even if it could be said that the respondents were treated differently from persons similarly circumstanced, mere differentiation or inequality of treatment does not per se amount to discrimination within the inhibition of the equal protection clause.’
… Perhaps it might be useful at this stage to repeat what I said in Crane v Rees and Others Civil Appeal No. 59 of 1981 at p. 38”
Holders of High Office
It is of utmost importance to us to assume that those who hold high office would act with the greatest constitutional propriety. Were it otherwise, it would also be a recipe for disaster. It is expected that holders of high office … would act with probity and rectitude at all times in the discharge of their function”
Sharma JA further stated at pages 10-12:
“The Applicant sought to establish unequal treatment by comparing himself with two groups of officers who had received promotions …
Although two of these officers Corporals Ramkissoon and Burke entered the Police Service at the same time as the respondent officer in 1975 they were both promoted to the rank of Corporal in 1991, two years before the respondent officer. Thus when the respondent officer sought promotion in 1997 he was not on equal footing with these officers.
In 1997 eight other Corporals were promoted to the rank of sergeant although they entered the Police Service after the respondent officer. Again, these Corporals had also been appointed in 1991, and so were senior to the respondent officer …
The second comparator group referred to by the respondent officer consisted of officers who had obtained university degrees or other educational qualifications. The respondent officer contended that these officers received rapid promotions after attaining their qualifications.
The object of the respondent officers’ evidence was to show that ‘many other officers received rapid promotions after receiving their First degrees or other qualifications.’
The inference which the respondent apparently wished to draw from that evidence was that he was similarly circumstanced with the named officers and that there was a causal link between obtaining educational qualifications and promotions”
Sharma JA concluded that the evidence did not amount to proof of unequal treatment of the respondent officer or give rise to an inference of discrimination against the respondent officer. Accordingly, there being no prima facie case of unequal treatment, the appellants were not required to produce evidence to rebut that conclusion, as the learned Judge suggested.
Since the Applicants failed to provide evidence of the numbers of MPO’s, the total population in all municipalities and the geographic area covered by these municipalities and provided no such evidence in respect of RPO’s or of charges actually preferred by RPO’s over a fixed period this Court is unable to make any analysis to determine whether the Applicants are true comparators with RPO’s. Further, the Applicants have produced no evidence of the nature, scope, variety, complexity and degree of risk involved in the duties of RPO’s.
This Court has noted the dictum of Lord Carswell at paragraph 18 of Bhagwandeen above, that in order to establish inequality of treatment or its synonym discrimination a claimant must ordinarily establish that he has been treated differently from some other similarly circumstanced person or persons. Further in Hayde above Sharma JA emphasized that a claim that a public authority has violated a citizen’s right to equal treatment is one that must be supported by cogent evidence and that sufficient evidence must be placed before the Court to raise a case of unequal treatment.
In the instant case the Applicants are seeking to compare themselves with RPO’s whom they allege perform the same or similar duties as MPO’s. However the Applicants failed to provide sufficient evidence in respect of MPO’s and provided no evidence in respect of RPO’s. Accordingly I find that the Applicants have failed to establish a prima facie case of unequal treatment.
In the light of this conclusion it is not necessary for this Court to consider whether, on the facts, mala fides has been established.
The Applicants complain that the State has failed to make regulations under the MCA and the SAA as a result of which the Applicants’ rights under sections 4(b) and 4(j) of the Constitution have been breached.
Section 60 of the MCA provides that the Commission may make regulations providing for the classification of officers in a Municipal Police Force, including qualifications, duties and remuneration and providing generally for the discipline, good order and government of the Municipal Police Forces and until such regulations are made hereunder, regulations made under the Police Service Act, insofar as the Commission deems them applicable to any matter concerning Municipal Police Forces or Municipal Police Officers, shall apply mutatis mutandis.
To date the Commission has not made any regulations under Section 60 neither has the Commission deemed regulations made under the Police Service Act applicable to any matter concerning MPO’s.
Section 6 of the SAA empowers the Commission with the consent of the Prime Minister to regulate its own procedure either by regulations or otherwise. And by Section 28 the President may make regulations for carrying the Act into effect and for inter alia, prescribing the terms and conditions of employment in the service of a statutory authority and for prescribing remuneration.
Section 25 (2) empowers officers of statutory authorities to form associations which are recognised by the authority as appropriate for consulting and negotiating inter alia, the matters specified in section 15. And section 26 empowers the President to make regulations setting out the conditions to be satisfied and the procedure to be adopted for the associations so formed to be recognised.
By section 15 of the SAA the Personnel Organisation established by section 14, is responsible for inter alia, keeping under review remuneration (including pay and allowances) payable to MPO’s and providing for and establishing procedures for consultation and negotiations between the statutory authority concerned and the appropriate recognised association in respect of the classification of offices, any grievances, any previous remuneration and the terms and conditions of employment.
The Applicants complain further that in failing or refusing to make regulations pursuant to section 26, they are denied access to a court of justice for the determination of their rights and obligations in breach of section 4(b) of the Constitution. The Applicants wish to access the Industrial Court.
The State has not denied that to date no regulations have been made. Patricia Hypolite, a Senior Administrative Officer with the Commission deposed that there is no mechanism in place which enables the Commission to make regulations or to apply regulations made under the Police Service Act so as to bring MPO’s in line with RPO’s. Further the Commission has no Personnel Technicians and/or Human Resource Advisers and as such is unable to update job specifications, classify posts or work out terms and conditions of service.
Ashby is the Adviser, Human Resources in the Personnel Division of the Ministry of Public Administration and Information. He assists the Chief Personnel Officer (the CPO) in carrying out the functions of the Personnel Department to which he has been attached since 1971 and has access to all the files, records, documents and minutes of meetings belonging to or relating to the Personnel Department. Ashby confirmed the following history of MPO’s.
i.) Prior to 1967 MPO’s were employed directly by the three Corporations which remunerated MPO’s at the same salary as regular police officers.
ii.) Prior to the MCA 1990 the Personnel Department held discussions with associations representing MPO’s concerning conditions of employment and in particular the payment of increased allowances and salaries to MPO’s. As a result MPO’s were granted increases in allowances with effect from 1.6.95 and 1.1.97. MPO’s were granted allowances equivalent to 60% of that payable to Regular Police Officers.
iii.) In 1995 the CPO commenced a comprehensive job evaluation exercise, intended to extend to the entire Public Service. This exercise is still on-going, is being conducted in phases but has not yet extended to MPO’s.
iv.) Ashby holds the view that although the Commission is now responsible for determining terms and conditions of service for MPO’s, the CPO is considering conducting a job evaluation exercise for MPO’s.
v.) Certain former Auxiliary Fire Officers were absorbed into the Fire Service as a result of a Cabinet decision which took effect on 1.1.95 and 1.7.03. Apart from these persons, Auxiliary Fire Officers do not enjoy parity with RPO’s.
vi.) Officials of the Personnel Department have held and have always been willing to hold discussions with representatives of the MPO’s.
The Respondent contends that the mere fact that the Applicants are currently before the Court indicates that they have access to the Court for vindication of their rights. Further, since the Applicants have such access, the Applicants have been afforded the protection of the law under section 4 (b) of the Constitution.
Attorney General of Trinidad and Tobago and Anor. v McLeod (1984 1 AER 694
McLeod sought to challenge the validity of the Constitution of the Republic of Trinidad and Tobago (Amendment) Act, 1978 which purported to amend section 49 (2) of the Constitution. The Act under challenge sought to extend the instances in which a member of Parliament was required to vacate his seat in Parliament.
McLeod issued an originating motion seeking a declaration that the 1978 Act was null and void and an injunction restraining the Speaker from declaring that he had resigned from or had been expelled by his party. The Judge dismissed the application but on appeal the Court of Appeal of Trinidad and Tobago granted the declaration sought, holding inter alia, that the passing of a law which was contrary to the entrenched provisions was an infringement of the respondent’s right to ‘the protection of the law’ under section 4 (b) of the Constitution. The Attorney General and the Speaker appealed to the Privy Council where the question to be decided was whether the 1978 Act was void under section 2 of the Constitution because, it was not supported at the final vote thereon by at least three quarters of all the members of the House of Representatives.
In his originating motion the only infringement alleged by McLeod was that of his right to “the protection of the law” under section 4(b) of the Constitution. The “law” of which protection he claimed to have been deprived, was section 53(3) of the Constitution, which he contended, (successfully in the Court of Appeal) prohibited Parliament from passing the amending Act except by the majorities as provided for in the subsection. The Board viewed this argument as fallacious and stated at page 701:
“For Parliament to purport to make law that is void under section 2 of the Constitution, because of its inconsistency with the Constitution deprives no one of the ‘protection of the law’, so long as the judicial system of Trinidad and Tobago affords a procedure by which any person interested in establishing the invalidity of that purported law can obtain from the courts of justice, in which the plentitude of the judicial power of the state is vested, a declaration of its invalidity that would be binding on Parliament itself and on all persons attempting to act under or enforce the purported law. Access to a court of justice itself for that purpose is itself “the protection of the law” to which all individuals are entitled under section 4(b).”
Their Lordships declined to give a comprehensive definition of what is meant by “protection of the law” since the respondent was not represented, and they had not had the benefit of adversarial argument. The Board concluded that the problem of defining what is included in each of the fundamental human rights and freedoms referred to in the lettered paragraphs of sections 4 and 5(1) would best be dealt with on a case by case basis.
Under the SAA Parliament provided for the Applicants to access the Industrial Court through an appropriate recognized association for resolution of disputes concerning inter alia, remuneration and terms and conditions of service.
The Applicants have submitted that by failing or refusing to make the appropriate regulations or deem those made under the Police Service Act applicable, the State has prevented the Applicants from accessing the Industrial Court, a specialist tribunal and has thereby denied them the protection of the law guaranteed to them under section 4(b) of the Constitution and the procedural provisions to give effect to rights guaranteed by section 5(2)(h) as well as to their right to a fair hearing in accordance with the principles of fundamental justice for the determination of their rights and obligations guaranteed to them in section 5(2)(e) of the Constitution.
In Fitzgerald v Muldoon and Others (1976) 2 NZLR 651 the Plaintiff sought a declaration against the Prime Minister of New Zealand that an announcement made by him for the abolition of the Superannuation Scheme established pursuant to the Superannuation Act, 1974 was illegal. The Supreme Court held that the sovereignty of Parliament is such that it has the right to make and unmake laws and no person or body is recognised as having the right to override or set aside the legislation of Parliament. At page 622 line 50, Wild CJ stated that the basic allegation of the plaintiff was founded on section 1 of the Bills of Rights (1688) (Eng.), the material part of which is printed in the Halsbury’s Statutes of England (3 rd ed) 490, in these words:
“ That the pretended power of suspending of laws or the execution of laws by legal authority without consent of Parliament is illegal .”
Therefore the law could be amended or suspended only by Parliament or with the authority of Parliament.
In Kemrajh Harrikissoon v Attorney General (1979) 31 WIR 348 the appellant appealed to the Judicial Committee of the Privy Council from the dismissal by the Court of Appeal of Trinidad and Tobago of his appeal for redress for contravention of his constitutional rights, guaranteed under section 1 of the 1962 Constitution. His complaint was that the Teaching Service Commission unlawfully transferred him from one school to another.
Their Lordships viewed the proceedings brought by the appellant as being “ wholly misconceived ”, and stated at page 350 paragraphs d-f that:
" The only alternative suggestion was that the transfer of the appellant from one school to another contravened his right under section 1(b), viz ‘the right of the individual to equality before the law and protection of the law”. This too is manifestly untenable. What the appellant was entitled to under this paragraph was to apply to a court of justice for such remedy (if any) as the law of Trinidad and Tobago gives to him against being transferred from one post to another against his will. There is nothing in the material before us to give any colour to the suggestion that he was deprived of the remedy that the law gave him. On the contrary, he deliberately chose not to avail himself of it ”
In Thornhill v Attorney General of Trinidad and Tobago (1980) 2 WLR 510 the applicant sought redress under section 6 of the 1962 Constitution for having been deprived of access to his legal adviser while under arrest by the police. The appellant was granted a declaration in the High Court that his constitutional rights had been infringed, but the respondents’ (the Attorney General and the police officers) appeal to the Court of Appeal was allowed. The appellant’s subsequent appeal to the Judicial Committee was allowed.
The Board in looking at sections 1 and 2 of the 1962 Constitution of Trinidad and Tobago which are renumbered sections 4 and 5 in the 1976 Constitution, noted at page 516 paragraph C that in Maharaj v Attorney General of Trinidad and Tobago (No. 2) (1979) A.C. 385 the Judicial Committee in dealing with the same sections at p. 396, held that the protection afforded to the individual by these sections was against contraventions of those rights and freedoms ‘ by the state or by some other public authority endowed by law with coercive powers ’ and not by another private individual.
Later at paragraphs F-H it was stated:
“ Section 2 is directed primarily to curtailing the exercise of the legislative powers of the newly constituted Parliament of Trinidad and Tobago. Save in very exceptional circumstances referred to in section 4 or by exceptional circumstances provided for in section 5, the Parliament may not pass any law that purports to abrogate, abridge or infringe, any of the rights or freedoms recognised and declared in section 1 or to authorize any abrogation, abridgment, or infringement. But section 2 also goes on to give, as particular examples of treatment of an individual by the executive or the judiciary, which would have the effect of infringing those rights, the various kinds of conduct described in paragraphs (a) to (h) of that section. These paragraphs spell out in greater detail (though not necessarily exhaustively) what is included in the expression ‘due process of law’ to which the appellant was entitled under paragraph (a) of section 1 as a condition of his continued detention and ‘protection of the law’ to which he was entitled under paragraph (b)”
In London v Clydeside Estates Limited v Aberdeen District Council (1980) 1 WLR 382 Lord Hailsham stated at pages 186H and 187A thus:
“ . . . I am content to assert a general principle to the effect that where Parliament prescribes that an authority with compulsory powers should inform the subject of his right to question those powers, prima facie the requirement must be treated as mandatory . . . ”
In Attorney General of Trinidad and Tobago and another v Whiteman (1992) 2 AER 924 the Judicial Committee of the Privy Council decided that it was incumbent on the State through police officers to ensure that persons arrested were informed of their right to communicate with a lawyer. The communication must be such that the arrested person understands that he has such a right. The following passage at page 927 paragraph g-h is instructive.
“ Given that there are some situations where the right to communicate with a legal adviser will not be effective if no provision exists for some procedure to be followed with a view to dealing with these situations, there is a clear necessity that such provision should be made. So section 5(2)(h) gives a right to such provision. Their Lordships further noted that, by necessary implication, there is a right to have the procedure provided for followed through. A procedure that exists only on paper and is not put into practice does not give practical protection .”
Asifa Saleem v Secretary of State for the Home Department, case No. QBCOF 1999 concerned an application by the applicant, Mrs. Saleem for asylum. The applicant’s appeal was dismissed and subsequently an application for leave to appeal to the Immigration Appeal Tribunal was made on her behalf. The Immigration Appeal Tribunal declined jurisdiction as the application for leave was out of time under Rule 13(2) of the Rules. It was argued that Mrs. Saleem was being shut out from an appeal to the Tribunal by the combined effect of Rule 13(2) and Rule 42(1)(a).
Lord Justice Roch noted at page 5:
“ If it is correct that section 20 right is a fundamental or basic right akin to the right of unimpeded access to a court, then there is this consequence that infringement of such a right must be either expressly authorized by Act of Parliament or arise by necessary implication from an Act of Parliament ” see Raymond v Honey (1983) A.C. 1 in the speech of Lord Wilberforce at p. 12H-13C, a speech with which Lord Elwyn-Jones, Lord Russel and Lord Lowry agreed. Lord Bridge went further saying at page 14g :
“ . . . I would add a third principle, equally basic, that a citizen’s right to unimpeded access to the courts can only be taken away by express enactment .”
Later at page 7 Lord Roch added:
“ I accept Mr. Nicol’s submission that the existence of these alternative remedies does not change the nature of Rule 42 (1) (a). These alternative remedies are not as effective as an appeal to the Tribunal. The Tribunal represents an independent review of the decision of the Secretary of State and of the Special Adjudicator. The Tribunal has the power to make a determination, which will secure for the asylum seeker asylum. The Tribunal or Special Adjudicator on a reference under section 21 has no such power. Section 21 is intended to be in addition to an appeal to the Tribunal and not in substitution for it.”
It was concluded that the rule, in the circumstances which had arisen, went beyond regulating the right of appeal and was destructive of that right. The rule was declared invalid in so far as it purported to determine conclusively the moment at which an asylum seeker received notice of the start of the 5 day period for applying for leave to appeal.
In Vriend and Others v Alberta and Others (A-G of Canada and Others intervening (1998) 3 L.R.C. 483 (Supreme Court of Canada) the appellant was dismissed from employment when he disclosed that he was a homosexual. He attempted to file a complaint with the Alberta Human Rights Commission on the basis that he had been discriminated against on the ground of his sexual orientation but alleged that he could not do so since the relevant Act did not include sexual orientation as a prohibited ground of discrimination.
It was held that the essential requirements of an analysis of section 15 (1) of the Charter would be satisfied by inquiring whether there was a distinction which resulted in the denial of equality before or under the law, or of equal protection or benefit of the law; and whether that denial constituted discrimination on the basis of an enumerated or analogous ground. The exclusion of sexual orientation from the grounds of discrimination prohibited under the 1980 Act created a distinction between homosexuals and heterosexuals and other disadvantaged groups expressly mentioned in the Act. Moreover, that distinction denied homosexuals the equal benefit and protection of the law on the basis of their sexual orientation which was a personal characteristic analogous to those enumerated in section 15(1) of the Charter.
The discriminatory effects of the exclusion were serious, imposing on lesbians and gay men a disadvantage not imposed on others and withholding from them benefits or advantages which were available to others. Lesbians and gay men who experienced discrimination on the basis of their sexual orientation were denied access to the mechanisms set up by the 1980 Act to make a formal complaint of discrimination and seek a legal remedy.
Cory J in delivering his judgment noted at pages 516 i - 517 b that:
“ The denial of access to remedial procedures for discrimination on the ground of sexual orientation must have dire and demeaning consequences for those affected. This result is exacerbated both because the option of a civil remedy for discrimination is precluded and by the lack of success that lesbian women and gay men have had in attempting to obtain a remedy for discrimination on the ground of sexual orientation by complaining on other grounds, such as sex or marital status. Persons who are discriminated against on the ground of sexual orientation, unlike others protected by the Act are left without effective legal recourse for the discrimination they have suffered .”
Kenneth Surat and Ors v The Attorney General of Trinidad and Tobago H.C.A. No. 11526 of 2003
The applicants allege that they have suffered discrimination as defined by the Equal Opportunities Act No. 69 of 2000 but are unable to obtain relief because of the failure, refusal or neglect of the Government of the day to implement the Act. It was contended that this failure, refusal or neglect had deprived them of the due protection of the law and/or of such procedural provisions as are necessary for the protection of their rights guaranteed in the Constitution of Trinidad and Tobago.
In dismissing the motion Smith J held, inter alia, that the Act was clearly unconstitutional in several respects and there were also serious doubts as to the constitutionality of some of its provisions. In those circumstances, the protection of the law does not and cannot include the right to enforce or to insist on enforcement of a law which is itself inconsistent with the Constitution. Smith J stated at page 13:
“Suffice it to say that I preferred the arguments proferred by the Applicants and I find that all things being equal, the suspension/non-implementation of the Act would have deprived the Applicants of the due protection of the law ”
Smith J found support for this view from Vriend v Alberta cited above. His Lordship noted at page 14:
“ This case lends support for the proposition that a failure to enact or to implement laws which purport to give rights to individuals can be a denial of the rights of those individuals to the protection of the law and/or to the remedial procedures established by such laws.
It should also be noted that in Vriend’s case, it was also decided that this non-implementation of the laws was a denial of the right to equal benefit; this right roughly equates to the right to equality before the law as is also provided for in section 4(b) of the Constitution . . .”
Lewis v The Attorney General of Jamaica (2000) 3 W.I.R. 1785
The Judicial Committee of the Privy Council in allowing the appeal and dismissing the cross-appeal held inter alia, that the right to protection of the law under section 13 (a) of the Constitution and the common law was in effect the same as an entitlement to due process of law; that, although ratified but unincorporated treaties did not ordinarily create rights for individuals enforceable in domestic courts, when the state acceded to such treaties and allowed individuals to petition international human rights bodies the protection of the law conferred by section 13 entitled a petitioner to complete that procedure and to obtain the report of such bodies for consideration by the Jamaican Privy Council (JPC) before determination of the application for mercy, and to a stay of execution until those reports had been received and considered; that where a petition had been lodged with such a body execution of a sentence of death consequent upon a decision of the JPC made without consideration of that body ’s report would therefore be unlawful.
Lord Slynn of Hadley in delivering the majority opinion stated at page 1811 D-G,
“ Their Lordships agree with the Court of Appeal in Lewis that ‘the protection of the law’ covers the same ground as an entitlement to ‘due process’. Such protection is recognised and guaranteed by section 13 of the Constitution and is to be found in the common law.
Their Lordships do not consider that it is right to distinguish between a Constitution , which does not have a reference to “due process of law” but does have a reference to ‘the protection of the law’. They therefore consider that what was said in Thomas v -Baptiste 200 2 A.C. 1 to which they have referred is to be applied mutatis mutandis to the Constitution like the one in Jamaica, which provides for the protection of the law. In their Lordships’ view when Jamaica acceded to the American Convention and to the International Covenant and allowed individual petitions the petitioner became entitled, under the protection of the law provision in section 13, to complete the human rights petition procedure and to obtain the reports of the human rights bodies for the Jamaican Privy Council to consider before it dealt with the application for mercy and to the staying of execution until those reports have been received and considered.”
CONCLUSION
The law, as it stands, requires:
(1) The SASC with the consent of the Prime Minister by regulations to regulate its own procedure for, inter alia, the promotion and transfer of MPO’s – section 6 of the SAA.
(2) The Personnel Organisation to keep under review remuneration payable to MPO’s and to establish procedures for consulting and negotiating between the corporations and the recognised associations with respect to classification of offices, grievances, remuneration and the terms and conditions of employment – section 15 of the SAA.
(3) The President to make regulations setting out the conditions to be satisfied and the procedure to be adopted for the recognition of associations as well as regulations generally for carrying the SAA into effect with particular reference to prescribing remuneration and terms and conditions of employment of MPO’s – sections 26 and 28 of the SAA.
(4) The SASC to make regulations providing for the classification of MPO’s, including inter alia, qualifications, duties and remuneration. Further until such regulations are made the SASC may deem regulations made under the Police Service Act applicable to any matter concerning MPO’s – section 60 of MCA.
It is not disputed that no regulations have been made to date. Neither has the Commission deemed the regulations made under the Police Service Act applicable to MPO’s. Further there has been no explanation from the Respondent for these defaults.
Patricia Hypolite deposed that there is no mechanism in place which enables the Commission either to make regulations or to apply the Police Service Commission Regulations to MPO’s. Further the Commission does not have the requisite personnel needed to update job specifications, classify posts or work out terms and conditions of service of MPO’s.
Ashby stated that in 1995 the CPO commenced a comprehensive job evaluation exercise intended to extend to the entire Public Service. This exercise is still on-going, is being conducted in phases but has not yet extended to MPO’s. Further although the Commission is now responsible for determining terms and conditions of employment of MPO’s, the CPO is considering conducting a job evaluation exercise for MPO’s. However Ashby gave no details as to when such an exercise will commence and how long it is likely to take.
In the interim although Parliament has enacted legislation setting out the procedure for the Applicants to have their representative associations recognised in order to access the Industrial Court for the determination of their terms and conditions of employment, the State has failed to carry out its statutory duties and has given no explanation for such default.
I reject the Respondent’s contention that since the Applicants are currently before this Court this is confirmation of access by them to a Court for vindication of their rights. The Applicants complain about their inability to access the Industrial Court for a review of their remuneration and terms and conditions of employment. The Respondent’s contention in this regard is disingenuous.
It is not sufficient, as the Respondent contends, that the Personnel Organisation has been meeting and holding discussions with the Applicants’ unrecognized association. Section 15 of the SAA provides for the Personnel Orgainsation to establish procedures for consultation and negotiation between the statutory authority and the appropriate recognised association. To date no regulations have been made to enable the representative associations to be recognised. Neither has the Personnel Organisation established the procedures for consultation and negotiation with the recognised associations.
The SAA took effect from 1.1.1967 and Part III including section 60 of te MCA took effect from 17.6.96 per Legal Notice 90 of 1996. For the past 7 to 8 years it appears that no steps have been taken to make the relevant regulations.
Neither Ashby nor Hypolite has given any explanation for this omission. The mere statement that the CPO lacks the required expertise or personnel does not excuse the State’s failure to act. The CPO has not informed the Court whether it advised the Executive of the need to make the requisite regulations or to deem the Police Service Regulations applicable in the interim or even to provide the necessary expertise or personnel.
In A.G. v Ramanoop Privy Council Appeal No. 13 of 2004 (Ramanoop) the Privy Council noted that the jurisdiction to award remedies for breaches of Chapter 1 rights and freedoms is an essential element in the protection granted under the Constitution against mis-use of state power.
I find that by failing to make the relevant regulations the State has denied the Applicants the protection of that law which would enable them to access the Industrial Court. This Court cannot predict what the Industrial Court might decide, if and when the regulations are made and the Applicants actually go before that Court. In fact the Applicants have been denied the opportunity or chance to have their remuneration and terms and conditions of employment reviewed by that Court.
ABUSE OF PROCESS – Alternative Remedy
In its Amended Written Submissions the Respondent contended that the failure to make regulations or to deem regulations made under the Police Service Act applicable is a matter which is more appropriate for judicial review and that the instant Motion was an abuse of process. The Respondent also referred to several authorities including Harrikissoon (above) and Thakur Persad Jaroo v The Attorney General (Jaroo) 2002 59 WIR 348 . However counsel for the Respondent did not develop this argument and this Court got the impression that the Respondent was not pursuing this issue forcibly.
For his part Senior Counsel for the Applicants insisted that alleged breaches of the Applicants’ fundamental rights guaranteed under sections 4(b); (d); and (j) and section 5 (2) (h) of the Constitution were at the heart of the Applicants’ case and relied on the authorities of Bhagwandeen v The A.G. (above) and Observer Publications Ltd v Matthew [2001] UKPC 11; 2001 58 WIR 188
In the latter case the Privy Council endorsed the principle enunciated by Lord Steyn in
Ahnee v DPP [
1999] UKPC 11; 1999 2 AC 294 AT 307
that bona fide resorts to rights under the Constitution ought not to be discouraged. In
Bhagwandeen
the Privy Council found that the appellant Bhagwandeen was not entitled to claim damages on an application for judicial review which
involved a claim that a public authority had deprived him of a constitutional right. Further, the Privy Council distinguished
Bhagwandeen’s
case from
Jaroo
in which the appellant had a sufficient claim in detinue and held that
Bhagwandeen
was justified in bringing a constitutional motion which did not constitute an abuse of the court’s process.
This Court agrees with the Applicants that all their complaints are directed to alleged breaches of their rights to equality before the law and the protection of the law, equality of treatment from any public authority in the exercise of its functions and to freedom of association guaranteed under the Constitution. Further the alleged failure of the State to make subsidiary legislation is inextricably bound up with the facts upon which the Applicants are relying to establish that their fundamental rights have been breached.
In the circumstances this Court is unable to accept that the Applicants’ Constitutional Motion is an abuse of the process of the Court.
FREEDOM OF ASSOCIATION
It is not disputed that to date no regulations have been made setting out the conditions to be satisfied or the procedure to be followed for recognizing existing or newly formed associations. The Applicants maintain that the failure to make these regulations constitutes a breach of their right to freedom of association.
The Respondent contends that notwithstanding the absence of these regulations, over the years officials of the Personnel Department have held numerous discussions with representatives of the Applicants’ informal association on the subject of their terms and conditions of employment. Further, arising out of these discussions increases in allowances were granted to MPO’s with effect from 1.6.95 and 1.1.97 and that these new rates were equivalent to 60% of the allowances payable to RPO’s at the relevant time.
The Respondent contends further that the lack of formal recognition of the Applicants’ associations does not breach their right to freedom of association since the ability to consult and negotiate with the municipal corporations is not encompassed in the right of freedom of association.
In Collymore v Attorney – General (1967), 12 WIR 5 Collymore and others were members of the Oilfield Workers’ Trade Union. They contended that the Industrial Stabilization Act, 1965 abrogated what they termed to be the right of free collective bargaining and the right to strike, both of which they maintained to be inherent in the freedom of association. The court rejected this contention holding inter alia, that the right to free collective bargaining and the right to strike are not included in the fundamental right of freedom of association recognised and declared by section 1(j) of the Constitution and are consequently not protected as such under the provisions of sections 2 of the Constitution.
Per Wooding CJ at p. 15 F-G:
“In my judgment, then, freedom of association means no more than freedom to enter in consensual arrangements to promote the common-interest objects of the associating group. . . . But the freedom to associate confers neither right nor licence for a course of conduct or for the commission of acts which in the view of Parliament are inimical to the peace, order and good government of the country. ”
And at page 16 G-I:
“What then has been abridged is freedom of contract. But that is not the freedom recognised, declared or guaranteed by the Constitution. . . . There is nothing in the Constitution which prohibits Parliament from restricting freedom of contract …”
On appeal to the Privy Council – Collymore v The Attorney General [1969] 15 WIR 229 (PC) – the Board agreed with the Court of Appeal and held that the Industrial Stabilization Act abridged the freedom to bargain collectively and the freedom to strike; but that neither of those freedoms could be equated with the freedom of association and assembly which merely connote the right of persons to associate or assemble and does not include the purposes for which they associate or the objects which they pursue as an association.
In Banton and Others v Alcoa Minerals of Jamaica Incorporated and Others (1971) 17 WIR 275 employees of the Defendant Company were members of one or other of two major trade unions. The Defendant Company recognised only one of the unions as the sole bargaining union for all of its workers. The Plaintiff, members of the unrecognized union, claimed to be entitled to be represented by their union and that their freedom of association had been hindered. The Supreme Court of Jamaica confirmed the position expounded in Collymore v The Attorney General (above) and held that the right of freedom of association involves no more than the right of a worker to join and to belong to a union of its choice. This does not include as against an employer a right to be represented by that union in negotiations with that employer. It is in conflict with the entrenched provisions of the Constitution.
In Attorney General v Mohammed Ali and Others [1987] 41 WIR 176 the Court of Appeal of Guyana held that Article 147 of the Constitution of Guyana (right of enjoyment of freedom of assembly and association) did not guarantee a right of collective bargaining and, accordingly, it could not be said that any impediment to collective bargaining imposed by Section 28 of the Labour Act violated the rights guaranteed by Article 147. Massiah C. at page 198 of his judgment agreed with the approach and with the ultimate conclusion that the judge reached in Collymore that “there is no fundamental right to collective bargaining.”
In Professional Institute of the Public Service of Canada v Commissioner of Northwest Territories and another (Attorney General of Canada and another, intervening){1992} LRC 456 (Supreme Court) the appellant Institute contended that the requirement that an employee’s association be incorporated by section 42(1)(b) of the Public Service Act, 1974, in order to bargain collectively on behalf of territorial government employees constituted an infringement of the freedom of association guaranteed by section 2(d) of the Charter of Rights and Freedoms. The trial Judge upheld that claim. The Court of Appeal reversed that decision and the Institute appealed to the Supreme Court of Canada. Applying Reference re Public Service Employees Relations Act 1987 1 SCR 313 the Supreme Court of Canada held that the requirement in section 42(1)(b) that a union be incorporated did not constitute a violation of section 2 (d) of the Charter. The constitutional guarantee of freedom of association in section 2 (d) of the Charter applied to individuals, not groups, and did not include a guarantee of the right to bargain collectively.
In The Health Services and Support – Facilities Subsector Bargaining Association – v British Columbia, (2003) BCSC 1379 the Supreme Court of British Columbia accepted the position that collective bargaining is not included in the right of freedom of association.
Conclusion
Having reviewed these authorities it is clear that collective bargaining is not included in freedom of association. It follows that the failure to make regulations for recognizing the Applicants’ associations to enable the associations to negotiate terms and conditions of employment does not constitute a breach of the Applicants’ right of freedom of association enshrined in section 4(j) of the Constitution.
Each of the Applicants has filed an affidavit giving details of the sums owed to him/her if each were to be paid salary and allowances equivalent to those paid to RPO’s. However this Court has found that there has been no breach of the Applicants’ right to equality of treatment from a public authority. Consequently the Applicants are not entitled to receive the same salaries and allowances as RPO’s.
But the Court has found that the Applicants’ rights to the protection of the law and to the procedural provisions necessary to give effect to the aforesaid right have been breached. However no evidence has been adduced to enable the Court to assess the amount of compensation if any, due to each Applicant in respect of the alleged breaches. Further, the Applicants are seeking exemplary damages.
In Ramanoop (above) the Privy Council recently dealt with the question whether exemplary damages may be awarded by way of redress for contravention of the human rights provisions enshrined in our Constitution and rejected the Attorney General’s basic submission that a monetary award under section 14 of the Constitution (section 14) is confined to an award of compensatory damages in the traditional sense.
In the Board’s opinion, section 14 affirmed the court’s power to award remedies for breaches of Chapter I rights and freedoms. Further, in exercising its jurisdiction under section 14 the Court will be able to give effective relief to a citizen for the state’s violation of his constitutional right. The Board also noted that this jurisdiction is separate from and additional to all other remedial jurisdiction of the court.
Per Lord Nicolls of Birkenhead:
18. When exercising this constitutional jurisdiction the court is concerned to uphold, or vindicate, the constitutional right which has been contravened. A declaration by the court will articulate the fact of the violation, but in most cases more will be required than words. If the person wronged has suffered damage, the court may award him compensation. The comparable common law measure of damages will often be a useful guide in assessing the amount of this compensation. But this measure is no more than a guide because the award of compensation under section 14 is discretionary and, moreover, the violation of the constitutional right will not always be co-terminous with the cause of action at law.
19. An award of compensation will go some distance towards vindicating the infringed constitutional right. How far it goes will depend on the circumstances, but in principle it may well not suffice. The fact that the right violated was a constitutional right adds an extra dimension to the wrong. An additional award, not necessarily of substantial size, may be needed to reflect the sense of public outrage, emphasise the importance of the constitutional right and the gravity of the breach, and deter further breaches. All these elements have a place in this additional award. “Redress” in section 14 is apt to encompass such an award if the court considers it is required having regard to all the circumstances. Although such an award, where called for, is likely in most cases to cover much the same ground in financial terms as would an award by way of punishment in the strict sense of retribution, punishment in the latter sense is not its object. Accordingly, the expressions “punitive damages” or “exemplary damages” are better avoided as descriptions of this type of additional award.
The Privy Council suggested that the expression “punitive damages” or “exemplary damages” should be avoided although the Board recognised that in certain circumstances a breach of a fundamental right under the Constitution may attract an additional award to reflect the sense of public outrage, emphasise the importance of the Constitutional right and the gravity of the breach and to deter further breaches. The Court is required to consider whether in all the circumstances such an additional award is called for.
The Applicants vigorously argued the alleged breach of their right to be treated equally with RPO’s. But the Court found that the Applicants failed to make out a prima facie case on this ground. Their application for redress for breach of the right to freedom of association and assembly has also not found favour with the Court.
Although the Applicants have succeeded in respect of the breach of their right to the protection of the law the Court is not persuaded on the evidence that an additional award is warranted to reflect the sense of public outrage, emphasise the importance or gravity of the Constitutional breach or to deter further breaches. Much of the Applicants’ evidence was directed towards establishing that MPO’s were comparators with RPO’s and so should be treated equally. In all the circumstances therefore, the Court declines to make any additional award.
In the light of the foregoing and in the exercise of the discretion conferred by section 14(2) of the Constitution, the Court grants to all the Applicants save the 10 th named Applicant, Urban Francis, the following:
1) A declaration that the State in failing and/or refusing to make regulations under section 26 of the Statutory Authorities Act has and continues to deny the Applicants access to a court of justice for the determination of their rights and obligations in breach of their right to the protection of the law guaranteed under section 4(b) of the Constitution.
2) A declaration that the State in failing and/or refusing to make regulations under section 60 of the Municipal Corporations Act and sections 6, 26 and 28 of the Statutory Authorities Act has and continues to deny the Applicants the right to such procedural provisions guaranteed to them by section 5(2)(h) of the Constitution for the purpose of giving effect to their rights and freedoms under the said section 4(b) of the Constitution.
3) An order that the Respondent do pay to the Applicants compensation for the aforementioned contravention of their rights and freedoms to be assessed by a Judge in Chambers.
I will hear attorneys on the issue of costs.
Dated this 9 th day of November, 2005.
…………………………
Amrika Tiwary-Reddy
Judge
INDEX
NOTICE OF MOTION 1 – 3
STATUTORY PROVISIONS 3 – 9
APPLICATION TO STRIKE OUT 9 – 15
JUDICIAL NOTICE OF SIMILAR PROCEEDINGS 15 - 16
EQUALITY OF TREATMENT 16 – 37
PROTECTION OF THE LAW 38 – 53
ABUSE OF PROCESS 53 – 54
FREEDOM OF ASSOCIATION 55 – 57
DAMAGES 58 – 60
ORDERS 61 - 62
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