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Trinidad and Tobago High Court |
] [Hide Context] REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE Claim No. CV 2011 – 04578
IN THE MATTER OF THE JUDICIAL REVIEW ACT, CHAP. 7:08
AND
IN THE MATTER OF AN APPLICATION MADE PURSUANT TO SECTION 15 OF THE JUDICIAL REVIEW ACT CHAP. 7:08
AND
IN THE MATTER OF AN APPLICATION BY RUBY THOMPSON-BRODIE AND LENORE HARRIS FOR JUDICIAL REVIEW
AND
IN THE MATTER OF THE FAILURE OF THE CABINET, OR BY THE ATTORNEY GENERAL AS CABINET’S DESIGNATE, TO MAKE A DECISION WHETHER TO ADVISE HIS EXCELLENCY THE PRESIDENT OF THE REPUBLIC OF TRINIDAD AND TOBAGO TO RE-APPOINT THE APPLICANTS AS MEMBERS OF THE INDUSTRIAL COURT
BETWEEN
RUBY THOMPSON-BRODIE LENORE HARRIS
Claimants
AND
THE CABINET OF TRINIDAD AND TOBAGO
THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO
Defendants
Before the Honourable Madam Justice Charmaine A. J. Pemberton
Appearances:
For the Claimants : Mr Douglas Mendes S.C. leading Mr. M. Quamina instructed
by
Mr. A. Bullock
For the First Defendant : Mrs. D. Peake S.C. leading Ms. C. Moore instructed
by Ms. Z.
Haynes
For the Second Defendant : Mr. S. R. Martineau S.C. leading Mr. G. Ramdin and
Ms. T.
Maharaj instructed by Ms. D. Dilraj Batoosingh and Mr. R.
Chaitoo
JUDGMENT
[1] INTRODUCTION
Trinidad and Tobago has had an eventful and oftentimes turbulent but
nevertheless interesting industrial relations climate over the
years. In 1965,
Parliament saw it fit to streamline industrial relations practice and
procedures by passing the INDUSTRIAL
STABALISATION ACT, (“ISA”)
which inter alia provided for the constitution of a Court.
[2] The expected halcyon days post 1965 were short lived. In fact,
Professor Chuks Okpaluba in his seminal piece in 1975
in commenting on the
effectiveness of the ISA had this to say:
... the operation of the law has experienced a dramatic turn toward ineffectiveness over the past years. Strikes with impunity, though illegal, have become almost as frequent in Trinidad and Tobago as they were in the pre ISA period. In fact repeal of the ISA is now only a matter of time...
Professor Okpaluba credits the ineffective functioning of the then Industrial
Court, that is, its inability to sit in two divisions,
as one of the main
reasons for the failure of the ISA1.
[3] The INDUSTRIAL RELATIONS ACT, (“the Act”)2, the
successor legislation was passed in
1972 which provided for the establishment of the Court in two divisions.
Section 4 of the Act provides for the establishment of the
Court, to be headed
by a President and a Vice-President together with such Members of the Court as
may be determined by His Excellency,
the President and the with stated
qualifications3.
[4] I say these things to create the setting for determining this matter
which relates at its core to the importance of the proper
functioning of the
Industrial Court to industrial relations in Trinidad and Tobago. I wish however
to state categorically that my
principal function in these judicial review
proceedings is clear and unequivocal. This court’s function is to examine
the
process by which the decisions to be impugned was arrived and allegations of
delay and not the decisions themselves.
[5] STYLE OF JUDGMENT
I recognize and thank all Counsel for their work and diligence in the
preparation and presentation of this case. I intend no disrespect
if I do
not present in detail their
1 “Statutory Regulation of Collective Bargaining: With Special Reference to the Industrial Relations Act of Trinidad and Tobago”, Mona, Jamaica, ISER, U.W.I., 1975
2 Chap. 88:01 of the Laws of the Republic of Trinidad and Tobago
3 Section 4(3) of the Act provides:
The Court shall consist of the following members: (a) a President of the Court ...;
(b) a Vice-President of the Court ...;
(c) such number of other members as may be determined by the President of
Trinidad and Tobago from time to time who shall be appointed by the President
of Trinidad and Tobago from among persons experienced in industrial relations or qualified as economists or accountants, or who are Attorneys-at-law of not less than five years standing.
arguments and authorities. Please be assured that all of the material
provided was studied and taken into account at arriving at
this
decision.
[6] FACTS
Mrs Ruby Thompson-Brodie and Mrs Lenore Harris were appointed Members of the Court over the periods 1991-9 and 2002-10. They signaled their desire to be re- appointed six months before the expiration of their latest terms. Their appointments came to an end in September 2010. They received from the then President (Ag.) an extension of their terms until 9th June 2011. Since that time, there has been copious correspondence passing among them, the President of the Industrial Court, both incumbent and predecessor and the Attorney General concerning their reappointments.
To date no decision has been made on their reappointments. It must be
noted that between the expiration of the instruments of appointments
and the
extensions granted by His Excellency the President of the Republic of Trinidad
and Tobago, and today, there has been a change
at the helm of the Court. The
President of the Court who recommended the Claimants’ reappointments
is different from
the President of the Court at present.
[7] CLAIM FOR JUDICIAL REVIEW
Having not heard about the reappointments, Mrs Thompson-Brodie and Ms Harris (“the Claimants”) instituted these proceedings seeking Mandamus against the Cabinet and Attorney General. On 9th December 2011, I granted leave to the Claimants to seek judicial review in respect of the alleged failure and delay of the Cabinet to make a decision whether to advise His Excellency to re-appoint them as Members of the Court. The Attorney General was named as a Defendant in the application “in the event that he is the Minister who exercises the general power of the Cabinet in relation to
decisions to re-appoint Members to the Court”.4 The
principal relief sought is as follows:
An order of mandamus directing the Cabinet to make a decision forthwith
whether to advise His Excellency, The President of the Republic
of Trinidad and
Tobago to re-appoint them as Members of the Industrial Court;
The grounds are many but the most salient is that there has been unreasonable
delay in deciding whether the Attorney General and
by extension the Cabinet
will act in accordance with the recommendation of the President of the Court
supporting their reappointments.
[8] EVIDENCE
THE CLAIMANTS – MRS RUBY THOMPSON – BRODIE AND MS LENORE
HARRIS
The Claimants in separate affidavits set out their qualifications and tenure, acknowledging that there was a hiatus in both of their terms as Members of the Court. The evidence further revealed much correspondence from the then President of the Court supporting their reappointments, requests for information from the Attorney General from October 2010, the supply of some of the evidence requested, a letter on their behalf from Senior Counsel in response to requests for information and a further request for information from the incumbent President of the Court. There was even a letter from existing Members of the Court supporting the Claimants in their quests for reappointments. There was no recommendation for their reappointments from the
incumbent President of the Court.
4 See para. 3 of the Affidavit of Lenore Harris sworn on 21st December 2011.
[9] THE DEFENDANTS
Mrs Singh-Maraj, the Secretary to the Cabinet (Ag.) outlined the practice and
procedure when dealing with reappointments of Members
to the Industrial Court.
A synopsis of this procedure is that when the Attorney General, the Line
Minister submits a Note containing
a recommendation of whether to reappoint or
not to reappoint for Cabinet’s consideration, that Note and recommendation
are
considered by the Cabinet. Cabinet either approves or disapproves the
recommendation. If there is an approval, a Minute is prepared
and sent to His
Excellency, the President who then issues the instruments of appointment. If
Cabinet disapproves, the Attorney
General informs the Member concerned. I
note that Mrs Singh-Maraj did not say if the disapproval is contained in a
Cabinet Minute.
Mrs Singh-Maraj further deposed that to date, no Note concerning
the Claimants’ reappointments has been received by the
Cabinet or
submitted by any member of Cabinet for its consideration.
[10] 2. THE ATTORNEY GENERAL - SENATOR ANAND RAMLOGAN
Senator Ramlogan supplied the court with a comprehensive account of the current procedure for reappointment to wit, that before the expiration of the Member’s term, the sitting President of the Court would write to the Attorney General recommending the Member for reappointment. Upon receipt of that letter and before making the recommendation to Cabinet, the Honourable Attorney General conducts his own enquiries to determine whether or not he would recommend the Member’s reappointment to the Court for another term; the fact that Members of the Court, unlike High Court Judges do not enjoy security of tenure and that the appointments are for fixed terms which automatically expire by effluxion of time on the last day of the fixed term as provided in the instruments of appointment. Senator Ramlogan set out in
detail the correspondence among himself, the former President of the Court
and the
Claimants’ Senior Counsel speaking to the nature and scope of his
enquiries.
[11] Senator Ramlogan informed the court that he continues to be in
discussion with the incumbent President about whether or not
the Claimants will
be re-appointed in the following words:
I am at present in discussion with the President of the Industrial Court
regarding the reappointments of the Claimants and the appointments
of other
persons to the Industrial Court. I must ensure that any person appointed to the
Industrial Court would fit into the new
strategic style of management of the
Industrial Court by the new President. The persons appointed to the
Industrial Court must
be able to contribute to the new goals and focus of the
new President of the Industrial Court.
[12] He continued as follows:
At the date of the commencement of these proceedings, I did not make a decision whether I should recommend to the Cabinet the reappointments of the Claimants because I had not been supplied with all the information I considered relevant and necessary to make such a decision, a fortiori the Cabinet has not made a decision with respect to the reappointments of the Claimants. By letter dated 2nd March 2012, I was provided by the President of the Industrial Court with the information I considered relevant and necessary and which I have been
requesting for some time since the expiration of the
Claimants’
instruments.
[13] Senator Ramlogan continued his evidence on whether an express promise had been made to the Claimants concerning their reappointments and whether there was a settled and binding practice concerning reappointments of Members of the Court. He
stated categorically as seen above that no decision has been made by him on
the issue to date.
[14] On the issue of delay, Senator Ramlogan has denied that any delay in
the process for the Claimants’ reappointments lay
at his door. In fact he
stated that the Claimants were made aware of that the issue of their
reappointments was under consideration
and could not be completed because
there was insufficient relevant and necessary information to consider as it
had not been
provided. Having now been supplied with the information, Senator
Ramlogan deposed that he is now in a position to treat with the
requests to
determine whether he would recommend the Claimants’
reappointments.
[15] SUBMISSIONS
All Counsel’s made interesting submissions on the issue at
bar.
THE CLAIMANTS
Counsel was at pains to point out that the proceedings did not require this
court to make an order of mandamus directing that the
Members be re-appointed or
whether the Members should or should not be re-appointed. The Claimants framed
their issues as follows:
• Does Cabinet have a duty to decide whether or not to re-appoint the
Claimants as Members of the Court?
o Issue of Legitimate Expectation discussed.
• Has there been unreasonable delay by Cabinet in the Performance of
its duties.
The short answers are that given the nature of the power to be exercised, the Cabinet has a duty to make a decision as to whether or not to re-appoint the Claimants. This is
well settled and reliance is placed on JULIUS v LORD BISHOP OF
OXFORD5; STOVIN v
WISE6; R v BARNETT LONDON BOROUGH COUNCIL ex parte NILISH
SHAH7.
[16] LEGITIMATE EXPECTATION
The duty placed on the Cabinet to decide flowed from the effect of ELCOCK v
AG8 which solidifies the Claimants’ position. In that case,
Cabinet took the decision not to re- appoint the affected Member.
The learned
Judge found as a matter of fact that there had been a long standing practice
that Members who were recommended for
reappointments by the President of the
Court would be re-appointed. On the facts of that case, there was therefore a
breach of the
legitimate expectation harboured by the Claimant Mr Elcock that he
would have been appointed. This expectation was that Mr Elcock
would have been
“treated in accordance with prevailing policy and that if Government
wished to depart therefrom it would first
observe the dictates of natural
justice by notifying him of their intention to replace the existing policy
sufficiently in advance
of implementing the change, so as to enable him to
prepare representations which he wished to make in order to persuade them
against
implementing the change and hearing his representations before
implementing them...”.
[17] Based on the evidence in this case, the Claimants had been recommended by the then President of the Court to be reappointed. Counsel opined that there was no evidence that they had been informed of any change of policy by the Cabinet and were asked to make representations in opposition to the change if they so desired. Prima facie therefore the Claimants in this case had a prima facie legitimate expectation to be re- appointed. In those circumstances, it was the duty of Cabinet to make a decision.
[18] In the case at bar therefore, the Claimants have a legitimate
expectation based on the settled practice to expect reappointments.
That
settled practice is that if the President
5 (1879-80) L.R. 5 App. Cas. 214
6 [1996] UKHL 15; [1996] A.C. 923;
8 HCA 3308 of 2004 High Court Trinidad and Tobago per Dean – Armorer J
recommends, the Attorney General would advise Cabinet to reappoint by way of
a Note to Cabinet. Then the Cabinet would advise His
Excellency accordingly and
the Members would be appointed.
[19] DELAY
The decision whether or not to reappoint must be made within a reasonable
time, if not the court can issue mandamus compelling the
relevant authority to
act. Has there been unreasonable delay by the Cabinet? Counsel admonishes the
court to be mindful that there
are several policy considerations which impel an
expeditious decision. Those considerations are:
• The Claimants have asserted that their lives have been in
abeyance;
[20] Counsel concluded that the chronology of events showed that there had already been substantial delay and since the Claimants’ terms had already come to an end and the issue of their reappointments was live since March 2010. Counsel opined that even though the Attorney General assumed office in May, he is deemed to be seized of the matter and in the face of several letters to him by the then President, there was no effort made by him to act until December 2010. The reasons advanced for non-action
are not good reasons and the Court ought to find that there was unreasonable
delay. Counsel reiterated his position on the interpretation
to be put on the
ELCOCK case.
[21] THE DEFENDANTS
The Defendants disagree.
1. THE CABINET
The Cabinet’s position may be summarized as follows:
a. Members of the Court do not enjoy security of tenure such as judges of
the
Supreme Court of Judicature under the Constitution.
b. The appointments are for fixed terms and automatically expire by
effluxion of time on the last day of the fixed term as per
the instruments of
appointments or reappointments.
c. There is no legal right and/or entitlement to reappointments nor
is there a legitimate expectation to such reappointments.
The Act is silent
on the procedure to be adopted in order to fill vacancies to the Court whether
by way of appointments or reappointments
or the factors to be considered to
determine appointments or reappointments.
d. There is no statutory provision establishing a time frame within
which the decision of whether or not to reappoint Members
to the Court is to be
made.
e. There is no statutory provision that appointments or reappointments are made solely upon the recommendation of the President of the Court or that they are to be made on his recommendation or if he makes a recommendation that it must be accepted.
f. There is no settled or consistent practice with regard to
appointments or reappointments being made on the recommendation
of the
President of the Court.
g. The Claimants have not proved that they had a legitimate expectation
to be reappointed as Members.
h. The trigger for Cabinet’s action is a Note for its consideration by
a Member.
There is no Note submitted for Cabinet’s consideration.
i. The expression of disquiet by sitting Members with respect to the
Claimants’ non reappointments, does not equate with
non-functioning of the
Court. The then President did not contend that the Court was in danger of not
functioning or was not functioning.
j. There is no evidence that the Court is unable to function without
there being a decision as to whether or not the Claimants
should be
reappointed9.
k. The purpose of mandamus is to compel the performance of a public
duty. There is no duty imposed on the Attorney General or
on Cabinet to a Member
after that Member’s term has expired.
l. No delay can be attributed to the Cabinet in respect of which any
order sought especially mandamus can issue in the Claimants’
favour10.
m. There may be a danger that this application for judicial review was not timely. [22] THE ATTORNEY GENERAL
Mr Martineau gave a detailed analysis of the evidence presented by all the parties. Counsel posited that there is no duty in the Act or any law for the Attorney General or
the Cabinet to make any decision to reappoint judges to the court. He
reiterated that
9 See SHARMA v THE REGISTRAR TO THE INTEGRITY COMMISSION AND ANOR. [2007] UKPC 42
10 Op. cit.f.n.6
the Act is silent as to what factors ought to be considered for reappointments. In the absence of statutory provisions, it is for the person charged with making the decision to take whatever factors he considers relevant in order to arrive at the decision. In addition, the issue clearly stated in the EX PARTE VENABLES CASE11 is directly applicable in this matter. That case stated the general rule on the adoption of policies as to the exercise of a decision maker’s discretion. As applied to this case, Mr Martineau submitted that it was for the Attorney General to determine what factors ought to be
considered when recommending the reappointments of Members of the Court and
these considerations may be reviewed only on the WEDNESBURY
principles.
[23] In any event, the factors taken into consideration were reasonable
and rationally connected to the Members’ reappointments.
Further, there
was an obligation on the Attorney General to take reasonable steps to
acquaint himself with the relevant material
in order to make an informed
determination on whether or not to reappoint the Claimants as Members of the
Court12.
[24] As far as appointment and by extension reappointments are concerned,
it is important to note that the Attorney General DOES
NOT make appointments;
he/she recommends and it is up to the Cabinet to decide and to advise His
Excellency the President who then
appoints a Member, in conformity with the Act
and the provisions of the Constitution.
[25] DELAY
It was stated that it was arguable that the lapse of time in arriving at the
decision to be made was longer than it ought to have
been13. Counsel
explained that on the evidence
11 R v SECRETARY OF STATE FOR THE HOME DEPARTMENTS ex parte
VENABLES [
1997] UKHL 25; [1998] A.C. 407; see especially
496G – 497C.
12 See THE QUEEN ON THE APPLICATION OF DF v CHIEF CONSTABLE OF NORFOLK POLICE [2002] EWHC 1738 at para. 45
13 This submission arose out of the application the two stage approach adopted by Dean-Armorer J. in RICHARD
RAMNARACE v THE POLICE SERVICE COMMISSION CV 2007 – 000218 para. 16 which reads: “In order to determine whether such lapses amounted to ‘unreasonable delays’ for the purpose of s. 15 of the Judicial Review Act, the court employed a two stage process:
before the court that detailed the circumstances of this case, to wit, the changes in the political directorate, the piecemeal fashion in which the information was received and processed and the fact of the appointment of a new President of the Court, the lapse of time cannot constitute a delay capable of being reviewed. Further, there was no evidence that any perceived delay in coming to a decision has defeated the policy or objects of the Industrial Relations Act and the establishment of the Court and had a
debilitating effect on the functioning of the
Court.14
[26] LEGITIMATE EXPECTATION
Counsel addressed this issue on his legs and he was quite clear that a court
would not give effect to an expectation if it would mean
that a public authority
had to perform acts contrary to the terms of a statute or acts which had no
statutory basis at all. In any
event, he maintained that the Claimants provided
no evidence to show that they had a legitimate expectation to be
reappointed.
[27] NATURE OF THE STATUTORY POWER – DOES IT IMPLY A DUTY TO ACT AND
ONE THAT IS ENFORCEABLE BY MANDAMUS?
Counsel posited that it is the “construction of statutes that we are about” in this case. One must therefore examine the language used and the setting in which that language is used in order to determine whether there is a duty imposed on the actor and moreover a duty which is enforceable by mandamus. When one looks at the language used in the Act, there is no duty to appoint or reappoint a Member to the Court. Section 4 (3) speaks to “such number of other members as MAY be determined by the President”. To see if “may” imports a duty, one has to look at the legislation. There is
no authority to suggest that in this case, a duty to consider arises and far
less a duty to
• 14 See SHARMA v THE REGISTRAR OF THE INTEGRITY COMMISSION AND ANOTHER op. cit. f. n. 6
decide. In this case, the Act gives the President power to appoint. The
President exercises that power on the advice of Cabinet15. In
addition, this is not a case of an enforcement of a right or that the Claimants
have a legitimate expectation. The power is
entirely
discretionary.16
[28] If the failure to exercise the power will frustrate the purpose of
the Act, then the holder has a duty to act. In this case,
the power to be
exercised is to provide Members of the Court. The Claimants had provided NO
evidence that spoke to if there is no
decision made on their reappointments that
it would be impossible to provide Members of the Court, not unless the Members
are selected
for some special purpose.17
[29] THE ORDER FOR MANDAMUS
Put quite simply, the heart of this point is that the issue of whether
mandamus can lie in this case, based on delay cannot arise
once it is
established that there was no obligation or duty imposed by the Attorney General
or the Cabinet to act in the way that
the Claimants say he must act.
[30] ANALYSIS AND CONCLUSION
I have considered the arguments and the authorities as presented. As far as
I see it, the answer to this case is that the Order of
Mandamus does not lie and
cannot lie against these Defendants. The reasons are as
follows:
15 See section 80 (1) of the Constitution: “In the exercise of his functions under this Constitution or any other law, the President shall act in accordance with the advice of Cabinet or a Minister acting under the general authority of the Cabinet ...”.
16 Counsel distinguished the cases of FREDERIC GUILDER JULIUS v THE RIGHT REV. THE LORD BISHOP OF OXFORD
THE REV. THOMAS THELLUSSON CARTER (1879-80) L.R. 5 App. Cas. 214; STOVIN V WISE op. cit. f. n. 3 and
ACKBARALI v BRENT LONDON BOROUGH COUNCIL [1983] 2 A.C. 309
17 See SHARMA v THE REGISTRAR OF THE INTEGRITY COMMISSION op. cit. f. n. 6
A. NATURE OF THE ACT
The nature of the Industrial Court as envisioned by the framers of the
Act and as provided in the Act gives life to the view that
“industrial
relations, not being immutable must change with the political, economic and
social circumstances”18.
[31] B. ELIGIBILITY OF THE CLAIMANTS FOR RE-APPOINTMENT
The fact that a Member is eligible for reappointment does not create a
right or entitlement to such reappointment.19 The latter part of
Professor Okpaluba’s view quoted above to my mind provides the rationale
for the provisions of Section 5
of the Act which specify the term of engagement
for Members other than the President of the Court and their being eligible for
reappointment.
It is clear that qualification wise, the Claimants are eligible.
But is that all?
To my mind eligibility has to be regarded in the context not only as to the
qualifications of Members but also as to the needs, role
and functions which the
Court is called upon to play in the prevailing industrial relations climate,
as influenced by the “political,
economic and social
circumstances”. Let me say that to my mind therefore, the arguments
for or against security of tenure
are irrelevant and call for no discussion in
this case.
[32] In relation to this particular Act and these Claimants, I asked Mr. Quamina if their positions are any different to warrant special consideration. He conceded in his oral address that the meaning of the word “eligible” or the intent and effect of it would not produce a different result or meaning in relation to the Claimants in the case at bar. I can therefore categorically conclude that based on the clear provisions of the Act there is no right or entitlement without more resident in the Claimants that they are to be re-
appointed as Members of the Court.
18 Professor Chuks Okpaluba op.cit. f. n. 2
19 Section 5(1): The members of the court ... shall hold office for such period, being not less than three years or more than five years ... BUT SHALL BE ELIGIBLE FOR REAPPOINTMENTS. (Emphasis mine).
[33] C. PROCEDURE FOR RE-APPOINTMENTS
There is no procedure laid down in the Act with respect to reappointments of
Members to the Court.20 There is evidence of what obtained under
the previous Presidents of the Court but that does not bind or fetter the hand
of successive
Presidents and certainly not this incumbent.
[34] The key to this matter lies in analyzing the nature of the Statutory
power given to the President as a result of the conjoined
effect of Sections
4(3)(c), 5(1) of the Act and Section 80 of the Constitution.
[35] D. NATURE OF A STATUTORY POWER – DUTY OR POWER?
I agree that there are instances where a statutory power is cast in such a
way that the repository of the power is burdened with
a duty to act.
Those instances were clearly seen in all of the authorities cited by Mr
Quamina21. However, is that the case here? What are the conditions
for the court to find that such a duty exists?
[36] (a) EXPRESS LEGISLATIVE PROVISIONS
One of the most obvious is that such a duty is expressed in a statute. I agree with both Mr Martineau and Mrs Peake that the legislative framework under consideration – The Act (Sections 4(3) (c) and Section 5(1) and The Constitution (Sec. 80) do not so provide in relation to the President and moreover to the Cabinet or the Attorney General. There is no duty imposed on them; to appoint or re-appoint members to the Court. The Claimants have brought no other legislation to fortify their positions that there is such a duty cast by statute. From that standpoint I conclude that there is no express duty laid upon either the President to re-appoint members and moreover on the Cabinet or the Attorney General to advise the President to re-appoint the Claimants as members of
the Court.
20 See SAM MAHARAJ v P.A.M. MANNING PRIME MINISTER AND HEAD OF CABINET H.C.A. No.203 of 2004 and
PAUL LAI v ATTORNEY GENERAL OF TRINIDAD AND TOBAGO H.C.A. 3367 of 2003 per Myers J para.36
21 See f.n. 5,6 and 7 infra.
[37] (b) IMPLIED DUTY TO ACT – AN EXAMINATION OF THE INDUSTRIAL
RELATIONS ACT AND THE CONSTITUTION
A duty to act can be implied from a consideration the legislative framework
in which the power is granted. The test is whether the
failure to exercise that
power will be inimical to the purpose for which the power is granted. In this
case the question is whether
the alleged delay by either the Cabinet or the
Attorney General would either create vacancies in the court which would in turn
impair
the proper functioning of and role that the Industrial Court plays in
this society?
[38] (1) THE INDUSTRIAL RELATIONS ACT –
(i) WHETHER THERE HAVE BEEN VACANCIES CREATED ON THE COURT?
Mr. Quamina stated that the Claimants’ departure has created vacancies
on the court which needed to be filled. The Act makes
provision for the
appointments of a President and a Vice-President. The Act goes on to define the
complement as “such number
of other members as may be determined by the
President from time to time”.
[39] My understanding of these matters is that a vacancy can only arise if there is no one holding a particular position where there is a definite provision regarding the number of persons required to perform the particular function. In the Act, the definite positions of President and Vice-President are provided for22. If there were no President or Vice- President holding those positions, then one may speak of a vacancy arising. The provision dealing with Members is different. There may be one, two or three Members at any given time. The Act allows the President the flexibility to appoint or re-appoint such number as may be determined from time to time23. Nothing is cast in stone. I do not share the view that the issue of vacancies arises in these circumstances and
therefore is not a leg permitted to the Claimants.
22 See Section 4(3) (a) and (b) – f.n. 3 infra.
23 See Section 4(3) (c) f.n. 3 infra and Section 5(1) f.n. 19 infra provides
[40] (ii) WERE THE COURT’S ROLE AND FUNCTION IMPAIRED?
Cases are successfully prosecuted on evidence. The Claimants proffered no
evidence that the decision whether or not to reappoint
them has had an adverse
effect on the Court’s ability to function. The letters exhibited show
recommendations by the then President
in their favour, but if scrutinized,
there is no statement made that these Claimants possessed unique skill sets or
any other
factors which would have placed them in any special category. The
support from their colleagues, whilst admirable and commendable,
does not carry
their quest any further.
[41] (2) SECTION 80 OF THE CONSTITUTION.
The Act provides that His Excellency, President may appoint and by necessary
implication may reappoint “such number of other
members” to the
court. Section 80 of the Constitution details how the President should exercise
his functions, that is, “on
the advice of the Cabinet”. The
Attorney General is the member of Cabinet charged with the responsibility over
affairs concerning
the Industrial Court. It is he who takes the Notes to
Cabinet to secure the wishes and desires of the Court in the appointment
or
reappointments of Members.
[42] The fact that the Attorney General conducts his own enquiries to determine whether or not to recommend Members’ reappointments, may be viewed by some as troubling but without alleging mala fides or unreasonableness or irrationality which is not the Claimants’ case, the Court makes no definitive finding but to say that it does not carry the Claimants’ case anywhere on the grounds in support of the relief claimed.
[43] It is clear that where there are no statutory provisions which guide
a decision maker in coming to his decision, it is for
the decision maker himself
and not a court to decide upon the relevance of the issues and information he
needs to arrive at that
decision24. The Attorney General must make
his decision as to relevance and be guided only by
24 See CREEDNZ v GOVERNOR GENERAL [1981] N.Z.L.R. 172 cited with approval in TRINIDAD AND TOBAGO CIVIL RIGHTS ASSOCIATION v PATRICK MANNING H.C.A. No. 47 of 2004 per Dean-Armorer J.
reasonableness in the WENDESBURY sense. I am of the view that the evidence
relating to the actions taken by Attorney General in fulfilling
his role and
mandate under the Constitution must be viewed in this context.
[44] EVIDENCE
An examination of the evidence reveals that there can be no argument against
the view that the issues raised by the Attorney General
for him to consider in
arriving at his decision were reasonable. It seems that the issues under
consideration were “guided
by the policy and objects of the governing
statute...”.25
[45] I adopt the dicta in the VENABLES CASE as applicable to this case and
I make it one of the bases of my decision. The Court
in that case stated that
“when Parliament confers a discretionary power exercisable from time to
time over a period, such power
must be exercised on each occasion in the light
of the circumstances at that time. In consequence, the person on whom the
power
is conferred cannot fetter the future exercise of his discretion by
committing himself now as to the way in which he will exercise
his power in
the future. He cannot exercise the power nunc pro tunc”. [Emphasis
mine]. In other words, a decision
maker cannot fetter in any way, his
discretion when it comes to making a decision that he has a statutory mandate to
make.
[46] Can this court be heard to say that the Attorney General must act blindly, or should the Attorney General not inform himself sufficiently so that whatever he takes to the Cabinet is proper and accords with logic and good sense? I do not think that anyone would hesitate to agree that the latter view is to be preferred. This finds support as well in the VENABLES CASE. I go so far in this case to say that from the volume of correspondence on the issue of the Claimants’ reappointments, the Attorney General seems to be “bending over backwards” in an attempt to properly inform himself on what to present in his Note to Cabinet. In the circumstances, I can make a positive
finding that this matter was not dealt with capriciously at all.
25 See CREEDNZ infra.
[47] Therefore the question whether the statutory powers which are vested
in the President by virtue of the conjoint effect of
the Act and the
Constitution created an implied duty to act on the part of the Cabinet and the
Attorney General must be answered
in the negative.
[48] E. SEPARATION OF POWERS
The argument that the actions of the Attorney General in seeking further
information upon which to base his recommendation to Cabinet
in the form of a
Note for its consideration violates the doctrine of the separation of powers
cannot be successfully advanced. In
fact Myers J. dealt succinctly with the
entire issue of re-appointments and the separation of powers in the SAM MAHARAJ
and OAUL
LAI case. 26 The learned judge disagreed with this
proposition and I agree with his stance and reasoning and adopt it in this
case.
[49] F. THE CABINET
There is no trigger in existence, that is, no Note has been presented so as
to cause the
Cabinet to act in accordance with Section 80 of the Constitution. [50] G. LEGITIMATE EXPECTATION
I would be so bold as to say that being “eligible” without more does not create in the Member a legitimate expectation to be reappointed. What obtained under previous Presidents cannot amount to a settled practice as to the procedure regarding reappointments of Members to the Court given the nature of the court and its functions and the fact that the reappointment of members is governed by a provision in flexible terms allowing for reappointments of “such number of other members as may be determined by the President from time to time”. In any event, a court would not give
effect to an expectation if it would mean that a public authority had to
perform acts
26 In the SAM MAHARAJ and PAUL LAI cases, Myers J dealt with the issue as argued by the Claimants in this case that the decision not to reappoint them violated the doctrine of the separation of powers. See paras. 44 – 55.
contrary to the terms of a statute,27 and I would add to perform
acts not contemplated at all by the Legislature.
[51] H. THE INCUMBENT PRESIDENT
I must comment on this issue as, although the parties did not address this
in much detail. I think this is at the heart of the matter.
(i) NO EVIDENCE OF RECOMMENDATIONS BY THE INCUMBENT
PRESIDENT.
There is no recommendation from the incumbent President of the Court
concerning the reappointments of the Claimants. One may argue
that this came
late in the day, but this to me is a crucial hurdle to cross. There is no duty
on the incumbent President to accept
recommendations made by a predecessor and
far be it from a court to hold otherwise.
[52] (ii) LEGITIMATE EXPECTATION
I wish to visit this as it pertains to the reality of a new President of the
Court. Even if I am wrong to find that there is no settled
practice, and in
fact there is, the reality is that the President in the chair has not made a
recommendation and there is no evidence
that the incumbent President has held
out to the Claimants that they would be reappointed. It really would be
inelegant of this
Court to order the Attorney General to make a decision on
whether or not to reappoint the Claimants without any reference to the
President
of the Court.
[53] What is even more crucial is the reality that it is, I think the President of the Court, who must be allowed to make the first call in matters such as these. However, the President of the Court is not a party to this action. Put another way, the effective residence of the power and the duty to recommend reappointments of Members rests not in the
Defendants, the Cabinet and the Attorney General, but in the President of the
Court
27 See REGINA v SERETARY OF STATE FOR EDUCATION AND EMPLOYMENT ex parte BIGBIE [2000]1 W.L.R. 1115; RAMDEO RAMTAHAL v THE DEFENCE COUNCIL CV 2008-03436.
who is not named in these proceedings. Not naming the President of the Court
as a party to this action or even alluding to the role
and function in this
matter, seems to me to be unfavorable to the Claimants argument that there is a
settled practice with respect
to reappointment of members.
[54] It would be further inelegant of this Court to even suggest to
the President of the Industrial Court, a superior Court
of Record, that the
incumbent must be bound by the administrative decisions made by predecessors.
How can this Court attempt to
as it were traverse that preserve through the back
door?
[55] I. THE ATTORNEY GENERAL
From the above it cannot be doubted that the Attorney General is the Minister
who exercises the general power of Cabinet in relation
to decisions to
re-appoint members of the Court. However, an order of mandamus cannot lie
against him in the absence of all the
necessary and relevant information
including a recommendation from the incumbent president of the Court.
[56] J. DELAY
The issue of delay does not arise in relation to the Defendants at bar since
they cannot act in the absence of their respective triggers
– in the case
of the Attorney General, the recommendation of the incumbent President,
(moreso when there is argument in
favour of settled practice) and in the case
of the Cabinet, the presentation of a Note for Cabinet’s
consideration.
[57] K. ORDER FOR MANDAMUS
The last reason, that the failure of the Claimants to establish that there was an obligation of duty imposed on the Attorney General or the Cabinet to consider whether to reappoint the Claimants and that there was a delay in the exercise of that duty are crucial to the determination of the question whether the Court can grant an Order of
Mandamus against the named Defendants. To my mind, the Defendants’
actions are hinged upon these issues.
[58] In my view, an Order for Mandamus against the named Defendants will
not serve any purpose and will be of no effect since the
effective trigger to
the process has not been established – the recommendation of the President
of the Court.
[59] L. OTHER ISSUES
I do not think much turns on the other issues so they shall not be addressed
in any detail. Heavy weather was made by Mr. Martineau’s
submitting on the
issue of whether the Cabinet’s or the Attorney General’s actions may
have amounted to maladministration
and faults in administration as opposed to
being amenable to judicial review28. I have decided that this is not
a case in which an order for mandamus would arise. I do not think that there is
sufficient evidence
or even arguments to hazard an opinion on maladministration.
I say no more.
[60] CONCLUSION
In the premises, the Claimants’ application for judicial review fails.
The Claimants must now pay the Defendants’ costs.
I would add though that
this matter screams for delicacy in its handing and this court trusts that
the relevant processes will
be timely and efficient.
ORDER
1. That the Claimants’ claim for judicial review seeking an order
of Mandamus against the Cabinet and the Attorney General
of Trinidad and Tobago
fails and is dismissed.
2. That the Claimants’ do pay the Defendants’ costs to be
assessed if not agreed.
28 See HILDA AMOO-GOTTFRIED v LEGAL AID BOARD (No. 1 Regional Committee) 2000 WL 1741402
3. That the Defendants do file their Statements of Costs on or before September 28th
2012.
4. Responses if any to be filed and served on or before 19th
October 2012.
5. Assessment of costs to take place on 23rd November 2012 at
10:30 a.m. POS #17.
Dated this 2nd day of July,
2012.
/s/CHARMAINE A.J. PEMBERTON HIGH COURT JUDGE
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