IN THE COURT OF APPEAL BETWEEN AND PATRICK MANNING, PRIME MINISTER OF THE REPUBLIC OF TRINIDAD AND TOBAGO APPELLANTS AND

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO IN THE COURT OF APPEAL Civ. App. No. 71 of 2007 BETWEEN PERMANENT SECRETARY MINISTRY OF FOREIGN AFFAIRS AND PATRICK MANNING, PRIME MINISTER OF THE REPUBLIC OF TRINIDAD AND TOBAGO APPELLANTS AND FEROZA RAMJOHN RESPONDENT PANEL: M. Warner, J.A. W.N. Kangaloo, J.A. A. Mendonça, J.A. APPEARANCES: Mr. R. Martineau, S.C., Ms. Khan and Ms. Ali appeared on behalf of the Appellants. Sir F. Ramsahoye, S.C., and Mr. A. Ramlogan appeared on behalf of the Respondent. DATE DELIVERED: 8 TH JULY 2009.

2 Dissenting Judgment Delivered by W.N. Kangaloo, J.A. 1. I have had the privilege of reading in draft the very thorough and learned judgment of my friend, Mendonca, J.A. I say at the outset that I agree with his analysis of the law on the several issues however with great respect, I am unable to agree with the conclusion arrived at. From his judgment, Mendonca J.A. has concluded that in the usual case of a transfer under section 121(6)(b) of the Constitution, the rules of natural justice do not apply. With this I wholeheartedly agree. However we part company at his conclusion that this is an exceptional case so that the rules of natural justice ought to be read into the section. With this conclusion I respectfully disagree The facts are well set out in the judgment of my learned friend, under section 121(6)(b) of the Constitution, the Prime Minister has powers to make appointments on transfer to: (b) any office the holder of which is required to reside outside of Trinidad and Tobago for the proper discharge of his functions, and such offices in the Ministry of External Affairs as may from time to time be designated by the Prime Minister after consultation with the Public Service Commission. 3. It is not in dispute that this is the sub-section under which the respondent was initially transferred on appointment, and under which the appointment was subsequently revoked. It is also not in dispute that the transfer of the respondent was exactly that, it was not a promotion and there was no financial or other gain associated with the transfer. In the normal 1 See paragraph 54 of Mendonca J.A. s judgment. Page 2 of 9

3 course of things therefore I do not see there is room for an argument that a person has to be heard before he is transferred abroad nor conversely when he is recalled to Trinidad and Tobago from overseas. Nothing has been placed before me to indicate that there is some requirement in any regulation to suggest otherwise than as I have set out. Neither should the fact that the respondent was being transferred to London, with all its attractions, cloud the interpretation of section 121(6)(b). It may very well be that a person who is being recalled from a far less desirable location than London would be only too happy to return to Trinidad and Tobago and it could hardly be contended that the rules of natural justice require that he be heard before the recall. The point is that on transfers and recalls under section 121(6)(b) there is no room for the implication of the rules of natural justice. These transfers and recalls are no more than the demands and exigencies of the foreign service. 4. To the extent therefore that transfers and recalls under section 121(6)(b) are run of the mill operational or managerial decisions of the Prime Minister, it is in my view, quite inappropriate for a supervisory court in exercising its jurisdiction to imply the rules of natural justice. If there were some element of disciplinary proceedings as a result of the recall, the position would in all probability be different as in those kinds of situations, the rules of fairness come into play. There is however no suggestion of such action. Neither is there any suggestion that her career or career prospects are jeoparised. On the interpretation that I have given to section 121(6)(b) I would go so far to say in normal circumstances, the Prime Minister on a transfer or recall is not obliged to provide reasons for his decision. However, the reason for the recall of the respondent became apparent when these proceedings were filed. It cannot be said therefore that the reason for the recall of the respondent (i.e. that issues of national security arose) is what could have triggered the expectation of the respondent of the application of the rules of natural justice, which application the respondent contended for in her statement filed pursuant to Order 53 of the Rules. The Prime Minister Page 3 of 9

4 was entitled to recall the respondent without giving reasons, or without giving to the respondent the opportunity to be heard once there was no intention to institute disciplinary or other like proceedings and once the respondent s career prospects were not endangered. 5. Mendonca J.A. is of the view that this is an exceptional case so as to attract the rules of natural justice because the BWIA Security Department Intelligence Report (the report) casts a terrible shadow on the reputation and character of the Respondent. 2 About this I say: (a) nowhere in her affidavits does the respondent make this claim; in fact after the report in 2001, the respondent continued to occupy important offices in the Ministry of Foreign Affairs; (b) it is highly unlikely that the decision to recall the respondent would have been any different, even if she were afforded the right to be heard before the recall, because of the urgency of the need for the posting of someone in London at the time, as is borne out by the affidavits; (c) the respondent attempted to criticize the use of the report, not from the point of view of its effect on the reputation and character of the respondent, but to show that its use by the Prime Minister was not rational, given the fact that nothing affecting the career of the respondent resulted from the report which was three years old at the time of the recall. The unreasonableness of the report from this perspective was not successful before the judge below and there is no appeal from this. 2 See paragraph 55 of his judgment. Page 4 of 9

5 I therefore do not agree that it has been shown that the report casts a shadow on the reputation and character of the respondent so as to invoke the rules of natural justice in the decision in this case, especially where given the urgency of the situation at the time, it is very unlikely that the decision would have been any different. 6. However if any of the repercussions I set out in paragraph 4 herein (disciplinary proceedings, damage to career and career prospects) were likely to be a result of the recall and were the reasons for the recall, the respondent would more likely have been entitled to the principles of fairness which would have included reasons and an opportunity to be heard. I should add that I would circumscribe all of what I have said with the requirement of good faith on the part of the Prime Minister. I would hope that nothing I have said can be interpreted to suggest that a Prime Minister acting under section 121(6)(b) of the Constitution is entitled in a clear abuse of power to exercise his powers in bad faith or whimsically to the detriment of the persons affected. There is on the evidence, and it is not in dispute, that this case raises no allegations of bad faith or abuse of power or caprice. Discrimination on the basis of race was raised as an issue. This was rejected by the learned trial judge and there has been no appeal from that rejection. Similarly, irrationality was rejected and not appealed. 7. I have attempted to analyse section 121(6)(b) from first principles to show that there is no room in the run of the mill type transfers and recalls for the rules of natural justice. The evidence shows that the respondent suffered some relatively minor financial detriment as a result of the change of mind of the Prime Minister in first transferring and then recalling the transfer. It is also obvious that the respondent would have been greatly disappointed when she learnt she was no longer being sent to London, no doubt a high status posting. Like Scott Baker L.J. in R (on the application of Tucker) v. Page 5 of 9

6 Director General of the National Squad 3 I can well understand the distress that the recall caused the respondent especially as it was so proximate to the recall of an individual from London, who was to face criminal charges, however I am of the view for the reasons I have given that the respondent cannot appeal to the rules of natural justice for relief simply because she suffered financial detriment and disappointment. 8. There are the Civil Service External Affairs Regulations 4 which the respondent can invoke to be compensated for any loss as a result of the exigencies of service, but I would think even if there was a lack of a remedy for compensation on the facts of this case available to the respondent, that is no reason to imply into section 121(6)(b) the rules of natural justice. 9. Finally, I find the facts and circumstances of this case remarkably similar to those in Tucker, where the Court of Appeal was of the opinion, that those facts did not even give rise to the supervisory discretion of the court in judicial review proceedings. Mr. Martineau, for the appellants, contends that he is not putting his case as high as that, but is relying on the dicta in the case to support his submission that the rules of natural justice do not apply to the instant case. I agree that if authority is necessary for an interpretation of section 121(6)(b) to see whether it imports the rules of natural justice, that Tucker is tremendously helpful. 10. In that case the appellant was a Detective Inspector in the Derbyshire Constabulary who was seconded to the elite crime force known as the National Crime Squad (NCS). In April 2001 there was a covert operation into drug related crime called Operation Lancelot in which several members of the NCS were implicated in criminal offences. Some officers were dismissed, 3 [2003] EWCA Civ. 2 4 Chap. 23:01 Reg. 20 Page 6 of 9

7 others were subject to disciplinary action. In the case of the appellant his secondment was summarily terminated and he was returned to his local force. 11. By way of explanation the Deputy Director of the NCS informed the Appellant that in light of certain information which had come to his attention he had lost confidence in the appellant s ability to perform his professional responsibilities. No disciplinary action was taken against the appellant. He was given no notice of any allegations against him nor was he given any opportunity to be heard. In addition his request for a further explanation was denied. With that state of affairs the Appellant brought a claim for judicial review of the decision of the Deputy Director. The Court of Appeal dismissed his claim on the basis that this decision was not amenable to judicial review and there was no breach of the public law principles of fairness and natural justice. It was held that the decision of the Deputy Director to end the Appellant s secondment was operational in nature and thus lacked the public law element required to attract the remedy of judicial review. Scott Baker L.J. put the matter thus: It seems to me that this was an entirely operational decision similar to the kinds of decision that are made with officers up and down the country every day of the week. Examples are transferring officers from uniform to CID or from traffic to other duties. These, to my mind, are run of the mill management decisions involving deployment of staff or running the force. They are decisions that relate to the individual officer personally and have no public element. They are, if you like the nuts and bolts of operating a police force, be it the NCS or any other. It is, in my judgment, quite inappropriate for the courts to exercise any supervisory jurisdiction over police operational decisions of this kind. There is, quite simply, no public law element to them. The position is different where, however, disciplinary proceedings have been taken against the officer and the ordinary principles of Page 7 of 9

8 fairness have been breached In my judgment there is a clear line between disciplinary issues where an officer has the right to public law safeguards such as fairness, and operational or management decisions where the police are entitled to run their own affairs without the intervention of the courts The court also held that while the case did not raise any issues of national security, it did involve sensitive intelligence information which modified the public law principles of fairness and natural justice. Thus the decision of the Deputy Director in refusing to reveal the reason behind the decision to terminate the appellant s secondment could not be impugned. In the circumstances all that fairness demanded was that the Deputy Director act honestly and in good faith. In addition the Conditions of Service which the appellant agreed to enabled the Director to terminate his appointment after giving one month s notice in advance. The following passage from the judgment of Scott Baker L.J. is worthy to note: It is clearly established that where there are real concerns about national security, the obligations of fairness may have to be modified if excluded. See Hosenball 773B-F, 786E this case does not involve any issue of national security. It does however involve, using the expression broadly, sensitive intelligence information. There is no reason in principle why the ordinary obligations of fairness should not be modified in this class of case just as they are in cases where issues of national security are involved. Certainly there is no authority that limits any modification or exclusion to the latter category. 13. In my view the relationship between the Prime Minister and the respondent in this case and that of the Deputy Director and Tucker in Tucker and the facts surrounding the transfer in each scenario bear a striking 5 See paragraphs 32, 35 Page 8 of 9

9 resemblance and I am unable in principle to see that the outcome of the challenges should be different. In the circumstances therefore, for the reasons given, I would allow this appeal. The respondent is ordered to pay the costs below and the costs of the appeal to be taxed fit for senior and junior counsel. W.N. Kangaloo Page 9 of 9