Civ. App. No.P129 of 2012 H.C.A No. 3367 of 2003...

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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

Civ. App. No.P129 of 2012

H.C.A No. 3367 of 2003

BETWEEN

PAUL LAI

Appellant

AND

THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO

Respondent

PANEL: P. Weekes, J.A.

A. Yorke-Soo Hon, J.A.

P. Moosai, J.A.

APPEARANCES:

Mr. F. Hosein S.C, Mr. M. Quamina and Mr. A. Bullock on behalf of the Appellant

Mr. R Martineau S.C, Mr. G. Ramdeen and Ms. A Ramsook on behalf of the Respondent

DATE DELIVERED: 9th

December, 2014

I have read the judgment of Moosai J.A. and agree with it.

P. Weekes

Justice of Appeal

I too, agree.

A. Yorke-Soo Hon

Justice of Appeal

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JUDGMENT

Delivered by P. Moosai J.A.

A. Introduction.

[1] This matter concerns an appeal against the trial judge’s decision in judicial review

proceedings regarding a decision of the Cabinet of Trinidad and Tobago. It was the Cabinet’s

decision not to advise His Excellency the President of Trinidad and Tobago to reappoint the

appellant as a member of the Industrial Court of Trinidad and Tobago. Essentially, the appellant

contended that that decision was illegal, in breach of the appellant’s legitimate expectation,

irrational and in violation of the doctrine of separation of powers. The trial judge dismissed the

appellant’s application. The appellant now appeals against the entirety of the judge’s decision.

[2] On the issue of illegality, I have concluded that it was within the power of the Cabinet

(the recommendation having been made by the respondent) to advise the President of Trinidad

and Tobago as to whether the appellant should be reappointed. Where, as in this case, the

President of the Industrial Court makes a recommendation of reappointment on behalf of a

member, that recommendation must be fairly taken into consideration by Cabinet when the

member is being considered for reappointment. However, the Cabinet is not statutorily obliged to

accept that recommendation.

[3] Regarding the appellant’s contention that the decision was in violation of the separation

of powers, upon consideration of the authorities, I am of the view that ss 4(3)(c) and 5(1) of the

Industrial Relations Act (IRA)1 are neither in violation of the doctrine of separation of powers

nor of the fundamental human rights protected under ss 4 and 5 of the Constitution of the

Republic of Trinidad and Tobago (the Constitution)2. In my view, having regard to the

safeguards which are in place, the degree of protection given to the Industrial Court is, and can

be reasonably perceived and regarded as, satisfactory, despite the involvement of the executive

in the appointment and reappointment process.

1 Chap. 88:01.

2 Chap. 1:01.

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[4] In respect of the issue of irrationality, I can find nothing unreasonable or irrational in the

respondent’s decision. The evidence shows that the respondent fairly considered the appellant for

reappointment, but was unable to override the relevant consideration that the industrial climate at

the time only required one accountant and there was already sitting in the membership another

accountant whose term of appointment was still active. I cannot dispel this consideration as one

which is unreasonable or irrational.

[5] Finally, in relation to the appellant’s appeal on the basis of legitimate expectation, having

assessed the evidence before me, I cannot come to the conclusion that there was a regular

practice that was clear, unambiguous and devoid of qualification that a member would always be

reappointed for at least a second term based on the criteria which the appellant set out. Nor have

I found any foundation in the evidence for a legitimate expectation of consultation with the

appellant regarding the decision to reappoint.

[6] For these reasons which I have canvassed hereinafter, I affirm the decision of the trial

judge.

B. Summary of facts.

[7] The respondent is the Attorney General of Trinidad and Tobago. The respondent in the

instant matter is the person who recommends to Cabinet the persons to be appointed or

reappointed as members of the Industrial Court.

[8] The appellant is a qualified chartered accountant. In February 2000, he responded to a

newspaper advertisement for the post of member of the Industrial Court. In April 2000, he

attended an interview. The interview panel comprised the President, the Vice-President and the

Chairman of the Essential Services Division of the Industrial Court. The appellant was successful

and the President of the Republic of Trinidad and Tobago, acting in pursuance of s 4(3)(c) of the

IRA, appointed the appellant as a member of the General Services Division of the Industrial

Court, with effect from 23 October 2000. The appellant’s instrument of appointment recited the

material part of s 5(1) of the IRA (including eligibility for reappointment), and indicated that his

appointment was for a period of three years. Section 5(1) of the IRA provides that:

“The members of the Court appointed, other than under section 4(3)(a)(i), shall be

paid such salaries as the President of Trinidad and Tobago may determine, and

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shall hold office for such period, being not less than three or more than five years

as is specified in their respective instruments of appointment, but shall be eligible

for reappointment.”[emphasis added]

[9] Four other persons were appointed first-time members of the Industrial Court together

with the appellant, namely, Mr. Ramchand Lutchmedial (Attorney-at-Law), Mrs. Sandra

Ramparas (Attorney-at-Law), Mrs. Judy Rajkumar-Gualbance (Economist) and Ms. Bindimattie

Mahabir (Industrial Relations Expert). Each of these persons, as well as the appellant, was

eligible for reappointment upon expiration of their three year appointment.

[10] In July 2003, the appellant’s three year term of appointment was just a few months away

from expiration. Therefore, the appellant, by letter dated 4 July 2003, informed the President of

the Industrial Court of his interest in being considered for reappointment. The President acted on

the appellant’s letter by submitting a letter to the respondent, recommending the renewal of the

appellant’s appointment for a period of five years. The President of the Industrial Court then

orally informed the appellant that he made the recommendation.

[11] With respect to the practice concerning reappointment, the President of the Industrial

Court noted at para. 5 of his affidavit that:

“As President of the Court, I have and exercise supervisory powers over all of the

members of the Court; as well, I have the responsibility, within my discretion, for

making recommendations for the renewal or continuation in office of such

members.”

He further stated that:

“..the practice regarding reappointment of members of the Court (other than the

President) is that Notes of Cabinet are prepared by the Permanent Secretary in the

office of the Attorney General on occasions when the Attorney General chooses

to make a recommendation for re-appointment. Thereafter, a Cabinet Minute is

forwarded to the Registrar of the Industrial Court announcing Cabinet’s

agreement to any re-appointment and stating for what period. This is followed by

an Instrument of Appointment under the hand of the President of Trinidad and

Tobago”3.

[12] The President of the Industrial Court did not receive any response from the respondent on

the matter of the recommendation. Therefore, by letter dated 22 October 2003, he advised the

President of Trinidad and Tobago that the appellant should be permitted to continue in office for

a period of three months, after the end of his term, in accordance with s 4(9) of the IRA. His

3 See the affidavit of the Honourable Addison Masefield Khan, [9], 44 to 45 of the Record of Appeal.

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Excellency the President of the Republic of Trinidad and Tobago immediately responded, by

letter of the same date, informing the President of the Industrial Court that the appellant would

be permitted, pursuant to s 4(9) of the IRA to continue in office for a period of three months

from 23 October 2003 “to enable [him] to deliver judgment or to do any other thing in relation

to the proceedings that were commenced before [him] before [his] term of office expired”4.

[13] The appellant’s term of office as a member of the Industrial Court expired on 22 October

2003. Apart from the letter of 22 October 2003, there was no further correspondence with the

appellant regarding his status as a member of the Industrial Court or of the interest he expressed

in being reappointed to the Industrial Court.

[14] It appears from the evidence that the appellant was not, at first, concerned that his term of

office had not been renewed for the following reasons: (i) there was no advertisement inviting

applications to fill the vacancy created by the expiry of his term of office on 22 October 2003;

(ii) he observed that, in the past, members received their instruments of reappointment after their

terms of office had expired and that, prior to those reappointments, there were also no

advertisements inviting applications; (iii) he further observed, during his tenure, that all members

of the Industrial Court (save for one member who was over 70 years at the material time) whose

terms had expired were reappointed to the Industrial Court; and (iv) he was not told of any

adverse complaints or reports made against him during his term of office, nor of any allegations

of misbehavior or any matter or cause adverse to him that could have resulted in his removal

from office under s 4 (8) of the IRA and ss 106, 136 and 137 of the Constitution.

[15] The appellant also gained comfort from the fact that the President of the Industrial Court

assigned him to be a conciliator in approximately ten new matters after the expiry of his term of

office. According to the appellant, this “was an indication, at least, that the [President of the

Industrial Court] had not been informed that he was not to be re-appointed”5. However, in

evidence, the President of the Industrial Court explained that the appellant was assigned to the

function as conciliator, during this period of his continuation in office, because matters fixed for

conciliation are usually expected to be completed within a short period, and, if not resolved, are

remitted to the Industrial Court for hearing.

4 See letter from His Excellency the President of Trinidad and Tobago, dated 22 October 2003, 27 of the Record of

Appeal.

5 See affidavit of Paul Lai dated 3 December 2003, [17], 14 of the Record of Appeal.

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[16] Nonetheless, by 26 November 2003, the appellant had still not received any word that he

was to be reappointed. However, he noted that there were previous reports in the newspaper that

he was not to be reappointed, such reports not being refuted by the Government.

[17] Accordingly the appellant, by letter dated 26 November 2003, requested that the

President of the Industrial Court provide him with a copy of the letter of recommendation

relating to his reappointment, as he had decided to take legal proceedings to challenge the

decision not to reappoint him. The President of the Industrial Court, by letter of the same date,

declined to provide the appellant with a copy of the recommendation on the ground that it was

confidential. On that same day, the appellant, by letter, brought to the attention of the respondent

that he had instructed his attorneys to commence judicial review proceedings on his behalf. The

appellant stated in that letter that he was “naturally reluctant” to commence such proceedings “if

there was some good reason which led to the decision not to re-appoint [him], or if, of course, by

some chance, [he] was wrong in his assumptions” that he was not going to be reappointed.

[18] On 3 December 2003, the appellant filed his application seeking leave to apply for

judicial review in respect of the decision of the Cabinet of Trinidad and Tobago not to advise His

Excellency, the President of Trinidad and Tobago, to reappoint him as a member of the Industrial

Court. Counsel for the appellant, by letter of the same date, informed the respondent of the

appellant’s application. The respondent responded, by letter dated 10 December 2003, stating

that they were in the process of seeking instructions in relation to the matter.

[19] In his application for leave to apply for judicial review, the appellant exhibited a

memorandum from the Ag. Registrar Industrial Court to all judges and members of staff, dated

10 December 2003, which mentioned that during the month of December, four new judges were

expected to join the Industrial Court. He also exhibited a second memorandum from the

President of the Industrial Court to all judges, dated 15 December 2003, which announced the

assumption of duty of two new judges, namely, Her Honour Ms. Joy Donaldson-Honeywell and

Her Honour Ms. Deborah Thomas-Felix, both having assumed duty as a member of the General

Services Division of the Industrial Court.

[20] The appellant stated that he was also informed by the President of the Industrial Court

that the other two persons to be appointed as members of the Industrial Court were Ms. Victoria

Harragin and Mr. Gregory Rousseau. Furthermore, that both Mr. Ramchand Lutchmedial and

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Ms. Bindimattie Mahabir, both of whom were originally appointed with him in October 2000,

had been reappointed as members of the Industrial Court.

[21] In the notice of motion it was specified that the appellant “had not been advised of any

change in policy or practice regarding the advertising of vacancies in the Industrial Court, the

interviewing of applicants by the Interviewing Committee, the transmission of the

recommendations by the Interviewing Committee to the respondent for submission to the

Cabinet, or to the acceptance by the Cabinet of recommendations by the President of the

Industrial Court regarding re-appointments.”6 Bearing this in mind, the appellant in his evidence

stated that he had not been informed as to how the persons selected for appointment were

recommended to the respondent and submitted to Cabinet for consideration prior to advising the

President of the Republic of Trinidad and Tobago.

[22] Of particular relevance to this appeal is the affidavit evidence (filed in January 2004) of

Mrs. Glenda Morean-Phillip, who served as the Attorney General at the material time. This

appeared to be the first occasion upon which the appellant was being informed as to the reason

why he was not reappointed. She states:

“In 2003, there were placed before me, for my consideration, recommendations

made by the President of the [Industrial Court] that 5 of its members whose terms

of office were due to expire should be appointed for further terms of 3 to 5 years

together with applications for appointment. Among these was a recommendation

that the [appellant’s] appointment be renewed for a further period of 5 years.

I gave consideration to all the applications for appointment and the

recommendations for re-appointment as well as to the complement of members of

the [Industrial Court] and took into account their respective qualifications for

appointment to membership pursuant to Section 4(3) of the Industrial Relations

Act. I noted that Ms. Lenore Harris, an Accountant, had been appointed to the

[Industrial Court] in September, 2002.

Taking into consideration the skills of all the Applicants and the legal criteria I

considered that there was no need for more than one Accountant in the

membership of the [Industrial Court] at that time, and consequently, I did not

recommend the [appellant] for further appointment.”7

6 See Notice of Motion dated 12

th January, 2004, [6.P] pg. 7 of the Record of Appeal.

7 See the affidavit of Glenda Morean-Phillip dated 23 June 2004, [4] to [6], 55 and 56 of the Record of Appeal.

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C. Issue arising in High Court matter and decision of the trial judge.

[23] The issue arising at the substantive hearing of the proceedings was whether the failure of

the respondent and/or Cabinet to accept the recommendation of the President of the Industrial

Court relating to the reappointment of the appellant and, further, failing to forward the

recommendation to the President of Trinidad and Tobago thereby causing the President not to

reappoint the appellant as a member of the Industrial Court, was -

(i) in breach of the appellant’s legitimate expectation;

(ii) illegal;

(iii) irrational or unreasonable;

(iv) in breach of ss 4(a) and (b) and 5(2)(e) and (f) (ii) of the Constitution; and

(v) in violation of the doctrine of the separation of powers.

The trial judge held in favour of the respondent and dismissed the appellant’s application, having

found no merit in any of the appellant’s grounds for judicial review.

D. Appellant’s Grounds of Appeal.

[24] The appellant now appeals against the whole of the decision of the trial judge on eight

grounds of appeal which, in the submissions of counsel for the appellant, were reduced under the

following subheadings:

(i) Illegality;

(ii) Constitutionality, separation of powers and independence of the judiciary;

(iii) Irrationality or unreasonableness;

(iv) Weight of the decision-maker’s opinion; and

(v) Legitimate expectation;

Therefore, I shall consider the appellant’s contentions under these subheadings. However, I find

it useful to first set out the statutory provisions relevant to this matter.

E. Relevant Statutory Provisions.

[25] The relevant provisions of the IRA are:

Section 4(3)

4(3) The Court shall consist of the following members:

(a) A President of the Court who shall be—

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(i) a Judge of the Supreme Court of Judicature designated, with his consent,

by the President of Trinidad and Tobago after consultation with the Chief

Justice; or

(ii) a person who has the qualification (age excepted) to be appointed a Judge

of the Supreme Court of Judicature and is appointed by the President of

Trinidad and Tobago after consultation with the Chief Justice,

but a Judge designated President of the Court under subparagraph (i) shall be deemed

not to have ceased to hold his substantive office of Judge of the Supreme Court of

Judicature by reason only of such designation and the provisions of section 136(2) of

the Constitution shall be deemed to apply to proceedings in the Court:

(b) a Vice-President of the Court, who shall be an Attorney-at-law of not less than

ten years standing, appointed by the President of Trinidad and Tobago;

(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. [emphasis added]

Section 4(8)

4(8) A member of the Court appointed, other than under subsection (3)(a)(i), may be

removed from office during his term of office only for inability to perform the

functions of his office (whether arising from infirmity of mind or body or any other

cause or for misbehaviour), but shall not be removed except in accordance with

section 106 of the Constitution.

Section 5(1)

5. (1) The members of the Court appointed, other than under section 4(3)(a)(i), shall be

paid such salaries as the President of Trinidad and Tobago may determine, and

shall hold office for such period, being not less than three or more than five years

as is specified in their respective instruments of appointment, but shall be eligible

for reappointment. [emphasis added]

(2) The President of the Court and other members of the Court shall receive such

allowances as may be prescribed by Regulations made by the President of Trinidad

and Tobago.

(3) The salary and allowances payable to a member of the Court appointed, other than

under section 4(3)(a)(i), and his other terms of service shall not be altered to his

disadvantage after his appointment, and, for the purposes of this subsection, in

so far as the terms of service of any person depend upon the option of that person,

the terms for which he opts shall be taken to be more advantageous to him than

any other terms for which he might have opted.

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[26] The relevant provisions of the Constitution are:

Section 4

4. It is hereby recognised and declared that in Trinidad and Tobago there have existed

and shall continue to exist, without discrimination by reason of race, origin, colour,

religion or sex, the following fundamental human rights and freedoms, namely:

(a) the right of the individual to life, liberty, security of the person and enjoyment of

property and the right not to be deprived thereof except by due process of law;

(b) the right of the individual to equality before the law and the protection of the law;

Section 5(2)(e) and 5(2)(f)(ii)

5(2) Without prejudice to subsection (1), but subject to this Chapter and to section 54,

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;

(f) deprive a person charged with a criminal offence of the right—

(i) to be presumed innocent until proved guilty according to law, but this shall

not invalidate a law by reason only that the law imposes on any such person

the burden of proving particular facts;

(ii) to a fair and public hearing by an independent and impartial tribunal; or...

Section 80

80 (1) In the exercise of his functions under this Constitution or any other law, the

President shall act in accordance with the advice of the Cabinet or a Minister

acting under the general authority of the Cabinet, except in cases where other

provision is made by this Constitution or such other law, and, without prejudice to

the generality of this exception, in cases where by this Constitution or such other

law he is required to act—

(a) in his discretion;

(b) after consultation with any person or authority other than the Cabinet; or

(c) in accordance with the advice of any person or authority other than the

Cabinet.

(2) Where by this Constitution the President is required to act in accordance with the

advice of, or after consultation with, any person or authority, the question whether

he has in any case so acted shall not be enquired into in any Court. [emphasis

added]

F. Illegality.

(i) Contentions

[27] It may be appropriate to begin with the issue of illegality raised by the appellant. The

appellant contended that the executive, more specifically, the respondent and/or the Cabinet

executed a power, relating to non-reappointment of the appellant, which it did not have.

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According to the appellant, it did so by refusing and neglecting to follow the recommendation of

the President of the Industrial Court relating to the reappointment of the appellant. Counsel for

the appellant cited the case of Council of Civil Service Unions v. Minister for the Civil Service

(C.C.S.U)8 in support of that contention, and quoted Lord Diplock at page 952 of his judgment

where he stated:

“By ‘illegality’ as a ground of judicial review I mean that the decision-maker

must understand correctly the law that regulates his decision-making power and

must give effect to it. Whether he has or not is par excellence a justiciable

question to be decided, in the event of dispute, by those persons, the judges, by

whom the judicial power of the state is exercisable.”

[28] In reply, counsel for the respondent submitted that this ground of appeal was based on an

erroneous interpretation of s 80 of the Constitution. According to the respondent, s 80 defines the

circumstances in which the President can exercise powers and how those powers are to be

exercised. Thus, the respondent contended that the conjoint effect of s 80 of the Constitution and

s 4(3)(b) of the IRA is that, in the case of the appointment of Industrial Court judges under s 4

(3)(c), the President acts on the advice of Cabinet. The President has no power and is not

required to act in the exercise of his discretion in the matter of the appointment of judges of the

Industrial Court. It was the respondent’s contention that the interpretation urged by the appellant

sought to place a candidate for reappointment in the same position and to afford him the same

security of tenure of a sitting judge. There is no provision of the IRA which sanctions such an

interpretation and such is not based upon any settled practice neither does it have any statutory

underpinning. It is illogical in its consequences as such an interpretation would be contrary to s

80 of the Constitution and s 4(3)(c) of the IRA, as the decision to reappoint would be removed

from the Cabinet to the President.

[29] The trial judge held that when read in conjunction with s 80 of the Constitution, it is clear

that the decision taken was not illegal. According to the trial judge, there is no rule that the

recommendation of the President of the Industrial Court must be followed and accordingly this

ground failed.

8 (1984) 3 All ER 935.

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[30] I am of the view that the trial judge was correct. The respondent and/or the Cabinet

understood correctly the law that regulated its decision making power and gave effect to it. The

issue arising from this contention for determination is whether, in appointing members of the

Industrial Court, pursuant to s 4(3)(c) and 5(1) of the IRA, the President is required to act in

accordance with the advice of the Cabinet or a Minister acting under the general authority of the

Cabinet.

(ii) Law

[31] The "object of construing an enactment is to ascertain the intention of the legislature as

expressed in the enactment, considering it as a whole and in its context, and acting on behalf of

the people": Halsbury's Laws of England 9.

[32] Section 74(1) of the Constitution vests the executive authority of Trinidad and Tobago in

the President. However, the exercise of the President's functions is circumscribed by the

Constitution. Thus, in the manner and exercise of his functions, s 80 of the Constitution creates

three broad categories:

(i) where the President is required to act in his discretion;

(ii) where the President is required to act after consultation with; and

( iii) where the President is required to act in accordance with the advice of.

[33] Section 4(3) of the IRA provides for the membership of the Industrial Court and the

manner of their appointment. Firstly, ss 4(3)(a)(i) and (ii) of the IRA10

provides that “The Court

shall consist of the following members: (a) A President of the Court who shall be a – (i) a

judge…or (ii) a person who has the qualification (age excepted) to be appointed a Judge of the

Supreme Court of Judicature”, and the section goes on to specify that the President of the

Industrial Court is to be appointed from those persons, by the “President of Trinidad and Tobago

after consultation with the Chief Justice.” The obvious intention of the draftsmen was to

prescribe the manner of appointment of the President of the Industrial Court, making it clear that

the President of Trinidad and Tobago was to exercise his powers after consultation with the

Chief Justice, as opposed to acting in his discretion or on the advice of any person or authority.

9 Vol 96 (2012) 5th edn. [1081].

10 See the full statutory provision, [25] of this judgment.

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In contradistinction s 4(3)(c) of the IRA provides that the Industrial Court shall consist also of

“such number of members as may be determined by the President of Trinidad and Tobago from

time to time…”. In the latter section, the legislation is silent as to the manner of the exercise of

the powers by the President of Trinidad and Tobago when appointing such members.

[34] In the instant matter, we are concerned with the exercise of the functions of the President

of Trinidad and Tobago, not under the Constitution, but under "any other law", namely the IRA.

Section 80 (1) of the Constitution, provides both a general position and then exceptions to it.

The general position is that which precedes the word "except", namely that in "the exercise of his

functions under this Constitution or any other law, the President shall act in accordance with the

advice of the Cabinet or a Minister acting under the general authority of the Cabinet". In

construing the conjoint effect of s 80 of the Constitution and s 4(3) of the IRA, it is noteworthy

that where the President is required to act in his discretion under s 80(1)(a) of the Constitution,

the draftsmen of our Constitution in the following instances have seen it fit to expressly provide

for same. For example, s 40(2)(c) of the Constitution provides that nine Senators "shall be

appointed by the President in his discretion". Further, s 126(4) of the Constitution provides that

"A member of the Service Commission, other than the Judicial and Legal Service Commission,

may be removed from office by the President acting in his discretion…"

[35] Similarly, apart from s 4(3)(a)(i) and (ii) of the IRA, the legislature has specifically

prescribed instances under the IRA where the exercise of the functions of the President of

Trinidad and Tobago is circumscribed. For example, s 4(9) of the IRA requires the President of

Trinidad and Tobago to act in accordance with the advice of the President of the Industrial Court.

Thus under s 4(9), where the term of office of a member of the Industrial Court has expired, that

member may, "with the permission of the President of Trinidad and Tobago acting in

accordance with the advice of the President of the Court, continue in office for such period after

the end of his term as may be necessary to enable him to deliver judgment or to do any other

thing in relation to proceedings that were commenced before the term of office expired." As is

apparent, the legislature has seen it fit to specifically prescribe where the President of Trinidad

and Tobago is required to act in accordance with the advice of the President of the Industrial

Court. Significantly, the IRA does not vest similar power in the President of the Industrial Court

to advise the President of Trinidad and Tobago to reappoint a member.

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[36] A further example is s 21 of the IRA which requires the President of Trinidad and

Tobago to select the Chairman of the Registration Recognition and Certification Board after

consultation with such organisations or other bodies of persons as in his opinion is the most

representative of workers and employers. Section 21(3) provides:

“Subject to this Part, the Minister shall appoint the Chairman and other members

of the Board as follows:

(a) in the case of the Chairman, a fit and proper person selected by the

President of Trinidad and Tobago after consultation with such

organisations or other bodies of persons as in his opinion are the most

representative of workers and employers; and

(b) in the case of the other members of the Board –

(i) three members, being persons nominated by such organisations or

other bodies of persons as in the opinion of the Minister are the most

representative of workers;

(ii) three members, being persons nominated by such organisations or

other bodies of persons as in the opinion of the Minister are the most

representative of employers;

(iii) two members being persons jointly nominated by the

organisations or other bodies of persons referred to in subparagraphs

(i) and (ii).” [Emphasis added]

(iii) Analysis

[37] With regard to s 4(3)(c) of the IRA, there being no other provision to the contrary on the

manner of the exercise of the powers of the President of Trinidad and Tobago in the appointment

of members of the Industrial Court by the President, it must have been intended that, when

appointing members of the Industrial Court, the general position as expressed in s 80(1) of the

Constitution would apply. Therefore the conjoint effect of s 4(3)(c) of the IRA and s 80(1) of

the Constitution is that the President of Trinidad and Tobago would be legally obligated to act

in accordance with the advice of the Cabinet or a Minister acting under the general authority of

the Cabinet. Thus, it was within the power of the Cabinet (as happened in the instant case) to

advise the President of Trinidad and Tobago as to whether the appellant should be reappointed.

However, the Cabinet is not statutorily obliged to accept the recommendation of the President of

the Industrial Court; nor is it bound to give reasons for not accepting the names recommended by

the President of the Industrial Court; nor does the recommendation of the President of the

Industrial Court, as I shall demonstrate later, give any legal right to the person recommended that

he would be reappointed, as there may be myriad policy considerations for the Cabinet to take

into account before making any appointment.

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G. Constitutionality, separation of powers and independence of the judiciary (including

security of tenure).

(i) Contentions

[38] The appellant went further to contend that:

(i) ss 4(3)(c) and 5(1) of the IRA violate the separation of powers doctrine and is

therefore invalid, void and of no effect;

(ii) s 6(1) of the Constitution preserves an existing law from invalidity if it violates ss 4

and 5 of the Constitution. It however does not preserve the validity of an existing law

or save it from invalidity if it violates the separation of powers doctrine; and

(iii) alternatively, the sections of the IRA may be modified, adapted or qualified so that

they would not attract the provisions contained in s 80(1) of the Constitution that

requires the President of Trinidad and Tobago to exercise his functions on the advice

of Cabinet or a Minister acting under the general authority of Cabinet. The effect of

the modification, adaptation or qualification is to avoid violation of the separation of

powers doctrine and/or to resolve that violation. As a result of the modification,

adaptation or qualification, the President of Trinidad and Tobago would be required to

act in his own discretion or after consultation with the President of the Court in the

appointment of members.

[39] Additionally, according to the appellant, the authority claimed by Cabinet to determine

who should be recommended to the President of Trinidad and Tobago for appointment or

reappointment to the membership of the Industrial Court violates the principles of judicial

independence and impartiality. To this extent, the appellant further noted that, prior to his

appointment, the Mackay Commission of Enquiry into the administration of justice, submitted its

report to the President of the Republic of Trinidad and Tobago which, inter alia, stated:

“It is primarily in the interests of judicial independence that judges enjoy security of

tenure and in this connection we recommend that where as in the Industrial Court, judges

are exercising what are intended to be judicial functions they should enjoy security of

tenure up to a fixed age.”

[40] In response, the respondent submitted that this ground of appeal is misconceived and

without merit. The respondent contended that modification of law pursuant to the provisions of

the Constitution is only brought into operation where a law is found to be invalid and not in

conformity with the provisions of the Constitution. The IRA is an Act that was in existence at the

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commencement of the 1976 Constitution. Its constitutionality cannot be challenged as being in

breach of ss 4 or 5 of the Constitution: relying on s 6 of the Constitution. Conduct of the Cabinet

pursuant to it cannot give rise to a claim of breach of ss 4 or 5 of the Constitution. Therefore, s 5

of the Constitution cannot be used to modify the provisions of the IRA, on the basis that the IRA

is in breach of ss 4(b) and 5(2)(e) of the Constitution because the IRA is in conformity with the

Constitution by virtue of s 6 of the Constitution. Further, it was submitted that the Constitution

cannot be called into operation because the IRA cannot be found to be inconsistent with the

Constitution because of the operation of the savings clause at s 6 of the Constitution.

[41] Moreover, the respondent submitted that the appointment of the judges of the Industrial

Court on the advice of the Cabinet is no different from the appointment of assessors for the

Equal Opportunity Commission which was found to be legal and proper in Suratt v Attorney

General (No.1)11

. Similar bodies that are vested with the power to determine the rights of

individuals but do not enjoy the same protection as judges of the Supreme Court and are

appointed by the executive are the: (i) Police Complaints Authority; (ii) Rent Assessment Board;

and (iii) Environmental Commission. The situation is also similar to the appointment of members

of the Tax Appeal Board which was also discussed in Suratt12

.

(ii) Law

[42] The Republic of Trinidad and Tobago is a sovereign democratic state and the

Constitution is the principal, controlling and supreme law, with the effect that any other law that

is inconsistent with it is void to the extent of the inconsistency: see ss 1 and 2 of the

Constitution. It is axiomatic that the doctrine of separation of powers is a basic feature of our

Constitution. In the seminal judgment of Hinds v. The Queen13

, Lord Diplock articulated the

fundamental underpinnings of the Westminster-modelled constitutions. It bears repetition in

some detail:

“ A written constitution, like any other written instrument affecting legal rights or

obligations, falls to be construed in the light of its subject matter and of the

surrounding circumstances with reference to which it was made.

11

(2007) 71 WIR 391.

12 Ibid.

13 (1977) AC 195.

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Nevertheless all these constitutions have two things in common which have an

important bearing on their interpretation. They differ fundamentally in their

nature from ordinary legislation passed by the parliament of a sovereign state.

They embody what is in substance an agreement reached between representatives

of the various shades of political opinion in the state as to the structure of the

organs of government through which the plenitude of the sovereign power of the

state is to be exercised in future.... As to their subject matter, the peoples for

whom new constitutions were being provided were already living under a system

of public law in which the local institutions through which government was

carried on, the legislature, the executive and the courts, reflected the same basic

concept......

..... It is taken for granted that the basic principle of separation of powers will

apply to the exercise of their respective functions by these three organs of

government. Thus the constitution does not normally contain any express

prohibition upon the exercise of legislative powers by the executive or of judicial

powers by either the executive or the legislature. As respects the judicature,

particularly if it is intended that the previously existing courts shall continue to

function, the constitution itself may even omit any express provision conferring

judicial power upon the judicature. Nevertheless it is well established as a rule of

construction applicable to constitutional instruments under which this

governmental structure is adopted that the absence of express words to that effect

does not prevent the legislative, the executive and the judicial powers of the new

state being exercisable exclusively by the legislature, by the executive and by the

judicature respectively....

....All Constitutions on the Westminster model deal under separate Chapter

headings with the legislature, the executive and the judicature. The Chapter

dealing with the judicature invariably contains provisions dealing with the method

of appointment and security of tenure of the members of the judiciary which are

designed to assure to them a degree of independence from the other two branches

of government. It may, as in the case of the Constitution of Ceylon, contain

nothing more. To the extent to which the Constitution itself is silent as to the

distribution of the plenitude of judicial power between various courts it is implicit

that it shall continue to be distributed between and exercised by the courts that

were already in existence when the new Constitution came into force; but the

legislature, in the exercise of its power to make laws for the "peace, order and

good government" of the state, may provide for the establishment of new courts

and for the transfer to them of the whole or part of the jurisdiction previously

exercisable by an existing court. What, however, is implicit in the very structure

of a Constitution on the Westminster model is that judicial power, however it be

distributed from time to time between various courts, is to continue to be vested in

persons appointed to hold judicial office in the manner and on the terms laid down

in the Chapter dealing with the judicature, even though this is not expressly stated

in the Constitution: Liyanage v. The Queen [1967] 1 A.C. 259, 287-288.”14

[emphasis added]

14

Ibid at 211 to 213.

http://www.lexisnexis.com/uk/legal/search/enhRunRemoteLink.do?A=0.6540908696231237&service=citation&langcountry=GB&backKey=20_T20243187987&linkInfo=F%23GB%23AC%23vol%251%25sel1%251967%25page%25259%25year%251967%25sel2%251%25&ersKey=23_T20243187941

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[43] No doubt, the relationship among the several organs of the State must be underpinned by

mutual respect for the constitutional principles of the rule of law and separation of powers.

However, as made clear by the majority judgment of the Australian High Court in Wilson and

others v Minister of Aboriginal and Torres Strait Islanders Affairs15

, the separation of powers

doctrine exists not because the powers of one branch of government could not be exercised

effectively by the repository of the powers of another branch, but because the separation of

functions is designed to provide checks and balances on the exercise of power by the respective

organs of government in which the powers are reposed.

[44] Even though the doctrine speaks to the separation of powers, it has no rigid and precise

boundaries. Rather the efficient functioning of our democracy, as envisaged by the constitution,

requires that there be a symbiotic relationship among the three organs of the State. Accordingly,

there must, as a matter of practical and essential expediency, of necessity in several cases be a

degree of overlap. This was recognised by the Court of Appeal in Director of Personnel

Administration and anor. v. Eusebio Copper and ors16

, where Sharma CJ explained that:

“[28] In all Constitutions, based on the Westminster system of government, there

is in operation the doctrine of the separation of powers. By this doctrine, the

autonomy of each branch of government is presumed to be immune from undue

encroachment from which is presumed free from influence from each other’s

sphere.

[29] While in the popular sense it may be convenient to divide the powers of

government into three (3) spheres, in practical reality such rigid classification is

neither desirable nor possible. On the basis of the doctrine as initially formulated

by French jurist Montesquieu, what is desired is not that the different organs such

as the Legislature and Executive should have no influence or control over the acts

of each other but rather that neither should exercise the whole power of the other.

In essence:

“Its value lies in the emphasis placed upon those checks and

balances which are essential to prevent an abuse of the enormous

powers which are in the hands of rulers.”

In that same case, Kangaloo JA adumbrated the following test where there is an impermissible

degree of interference by one organ of the state over another:

15

(1996) 189 CLR 1[HCA].

16 Civil Appeal No. 10 of 2004, [28] and [29].

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“20. I also think that the potential for interference must exist once there is this

overlap of powers and that at the end of the day it becomes a question of the

degree of influence or interference that is permissible in a functioning democratic

society with proper regard for the rights of individuals. A proper balance has to be

struck between these competing estates of government and once the evidence

does not reveal undue influence by one estate over another, any questioned acts

ought to pass constitutional muster.”17

[45] It is worth noting that this flexible approach to the doctrine of separation of powers,

perhaps in light of the good administration that it enables, has also been applied in other

jurisdictions outside the Commonwealth. The American approach, in balancing the competing

interests, focuses on the extent to which the act in question prevents the affected branch of state

from accomplishing its constitutionally assigned functions:

“The separation of powers principle is sufficiently flexible to permit practical

arrangements in a complex government. The doctrine is designed to prevent a

single branch from assuming inordinate power, but does not bar cooperative

action among the branches of government; it guarantees a system of checks and

balances. The doctrine does not prevent one branch from assuming certain

functions from another branch which would aid its internal operations without

unduly restricting the endeavors of the other coordinate branch. Unless one

branch is usurping the power of another and coercively influencing the other,

there is no violation of the separation of powers doctrine. In this connection, a

usurpation of powers exists where there is a complete or significant interference

by one department with the operation of another department. In determining

whether an act disrupts the proper balance between the coordinate branches, the

proper inquiry focuses on the extent to which it prevents the affected branch from

accomplishing its constitutionally assigned functions.”18

[46] In this jurisdiction our apex court has provided invaluable guidance in Suratt19

as to

whether it was implicit in the Constitution that the Equal Opportunity Tribunal’s exercise of its

powers could only be properly exercised by persons enjoying exactly the same protection as

High Court judges. In Suratt20

, the Equal Opportunity Act (EOA) defined ‘discrimination’ and

prohibited discrimination by any person on grounds of, inter alia: sex, race or disability in

relation to employment, education or the provision of goods and services. The EOA set up an

Equal Opportunity Commission with the power to refer complaints, with the consent of the

17

Ibid [20].

18 Vol. 16 Corpus Juris Secundum, Constitutional Law § 217, under the rubric “Limitations of doctrine of separation

of powers.” 19

Suratt (fn 11). 20

Ibid.

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complainant, to a new Equal Opportunity Tribunal. By s 41 of the EOA, the tribunal was to be a

superior court of record chaired by a judge of equal status to a High Court judge, who sits with

two lay-assessors. The High Court judge was to be appointed by the President of Trinidad and

Tobago acting in accordance with the advice of the Judicial and Legal Service Commission.

Effectively, the lay-assessors were to be appointed by the President of Trinidad and Tobago,

acting on the advice of the appropriate Minister. The issue for the Board was whether the

creation of the Equal Opportunity Tribunal by the EOA, an ordinary Act of Parliament, was

unconstitutional and thus void by virtue of s 2 of the Constitution (the supreme law clause), as

inconsistent with the fundamental principle of the separation of powers. The Privy Council’s

material findings are accurately reflected in the headnote as follows:

(i) the Constitution contemplated that judicial bodies other than the High Court might

exercise the judicial power of the state;

(ii) since most complaints heard by the Equal Opportunity Tribunal would not overlap with s

4 of the Constitution and those which did were subject to the rights of any party to

request a reference to the High Court under s 14(4), the tribunal's jurisdiction did not

significantly derogate from that of the High Court; and

(iii)the tribunal's limited and specialist jurisdiction was not such that it had to be exercised by

a judiciary enjoying exactly the same protection as a High Court Judge, and its chairman

and lay-assessors had sufficient protection for their respective roles by way of tenure and

protection from removal, albeit not entrenched, as to afford the necessary degree of

independence from the legislature and the executive.

[47] Importantly, Baroness Hale, delivering the majority judgment in Suratt21

stated that “the

question remains whether the protection enjoyed by the tribunal is sufficient to afford the

necessary degree of independence of the legislature and executive.” Therefore, in determining

whether there is a breach of the doctrine of separation of powers, applying the test in Suratt22

,

this Court must of necessity consider whether the protection enjoyed by the Industrial Court is

sufficient to afford the necessary degree of independence from the legislature and executive.

21

Ibid [51].

22 Ibid.

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[48] In Ell v Alberta23

Major J of the Supreme Court of Canada articulated the essential

conditions of judicial independence which encompasses both an individual and institutional

dimension. He also advocated an approach to judicial independence which is contextual so that

in considering for example security of tenure, what would pass constitutional muster would

depend upon the specific context of the court or tribunal. Major J stated:

“As stated, judicial independence encompasses both an individual and

institutional dimension. The former relates to the independence of the particular

judge, and the latter to the independence of the court to which the judge is a

member. Each of these dimensions depends on objective conditions or guarantees

that ensure the judiciary's freedom from influence or any interference by others:

see Valente, supra, at p. 685. The requisite guarantees are security of tenure,

financial security and administrative independence: see Provincial Court Judges

Reference, supra, at para 115.

... Judicial independence serves not as an end in itself, but as a means to

safeguard our constitutional order and to maintain public confidence in the

administration of justice: see Provincial Court Judges Reference, supra, at para.

9…..

30 The manner in which the essential conditions of independence may be

satisfied varies in accordance with the nature of the court or tribunal and the

interests at stake. See Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1

S.C.R. 3, at para. 83, per Lamer C.J., and Therrien (Re), [2001] 2 S.C.R. 3, 2001

SCC 35, at para. 65, where the Court advocated a contextual approach to judicial

independence:

... although it may be desirable, it is not reasonable to apply the most

elaborate and rigorous conditions of judicial independence as

constitutional requirements, since s. 11(d) of the Canadian Charter

may have to be applied to a variety of tribunals. These essential

conditions should instead respect that diversity and be construed

flexibly. Accordingly, there should be no uniform standard imposed

or specific legislative formula dictated as supposedly prevailing. It

will be sufficient if the essence of these conditions is respected.”

31 The level of security of tenure that is constitutionally required will depend

upon the specific context of the court or tribunal. Superior Court judges are

removable only by a joint address of the House of Commons and the Senate, as

stipulated by s. 99 of the Constitution Act, 1867. This level of tenure reflects the

historical and modern position of superior courts as the core of Canada's judicial

structure and as the central guardians of the rule of law. Less rigorous conditions

apply in the context of provincial courts, which are creatures of statute, but which

nonetheless perform significant constitutional tasks. See Mackin, supra, at para

52:

23

(2003) 1 S.C.R. 857, [28] to [32].

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… the provincial judiciary has important constitutional functions to

perform, especially in terms of what it may do: ensure respect for the

primacy of the Constitution under s. 52 of the Constitution Act, 1982;

provide relief for violations of the Charter under s. 24; apply ss. 2 and

7 to 14 of the Charter, and show compliance with the division of

powers within Confederation under ss.91 and 92 of the Constitution

Act, 1867; and render decisions concerning the rights of the

aboriginal peoples protected by 35 (1) of the Constitution Act, 1982

While the respondents [justices of the peace] have important duties,

their jurisdiction is considerably more limited than that of provincial

Court judges. Their role in upholding the Constitution is narrower in

scope. As a result, less stringent conditions are necessary in order to

satisfy their security of tenure..”24

[Emphasis added]

Significantly, Major J identified the ultimate question in each case as being :

“The ultimate question in each case is whether a reasonable and informed person,

viewing the relevant statutory provisions in their full historical context, would

conclude that the court or tribunal is independent: Valente, supra, at p. 689. The

perception of independence will be upheld if the essence of each condition of

independence is met. The essence of security of tenure is that members of a

tribunal be free from arbitrary or discretionary removal from office. SeeValente,

supra, at p 698:

The essence of security of tenure for purposes of s 11 (d) is a tenure,

whether until an age of retirement, for a fixed term, or for a specific

adjudicative task, that is secure against interference by the Executive

or other appointing authority in a discretionary or arbitrary manner.”25

(iii) Analysis.

[49] Applying the law in Suratt26

, in the analysis of this issue there are two questions that I

must answer. Firstly, is the jurisdiction of the Industrial Court so characteristic of a Supreme

Court that it is implicit in the Constitution that it must be exercised by a judiciary enjoying

exactly the same protection as a High Court judge? Secondly, even if the first question is

answered in the negative, whether the protection enjoyed by the Industrial Court is sufficient to

afford the necessary degree of independence from the legislature and executive.

[50] Thus in this analysis, I have firstly reviewed the history and role of the Industrial Court.

On the basis of that review, I have concluded that the Industrial Court exercises a specialised

24

Ibid [28] to [31].

25 Ibid [32].

26 Suratt (fn 11) [51].

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jurisdiction unique from the Supreme Court and therefore not requiring for its members the same

protection as High Court judges. I then turned to the second question regarding whether the

protection enjoyed by the Industrial Court is sufficient to afford the court the necessary degree of

independence from the other arms of State. In answering this question, I have looked at the two

dimensions of judicial independence that were articulated in Ell27

, that is, individual and

institutional independence. Bearing in mind that there may be some overlap between institutional

and individual independence, in respect of individual independence I have reviewed in particular

the issues of impartiality, manner of appointment and security of tenure.

(a) Is the jurisdiction of the Industrial Court so characteristic of a Supreme Court

that it is implicit in the Constitution that it must be exercised by a judiciary

enjoying exactly the same protection as a High Court judge?

[51] It must be noted at the very outset that the Constitution contemplates that judicial bodies

other than the High Court might exercise the judicial power of the state.28

However, this is not a

case where the parties are contending that the legislature sought, as was in the case of Hinds29

, to

establish a new court which effectively usurped the existing jurisdiction of the High Court.

Indeed, the Industrial Court, like the Tax Appeal Board, has been in existence for over forty-five

years, the former emerging out of the struggles of the working class for improved terms and

conditions. A brief look at the historical development of the court would be of assistance in

framing the discussion.

[52] Looking at the IRA in its historical context, it is notable that the provisions of the IRA

which outline the manner in which the Industrial Court is to operate were born out of a need, as

explained by Chaudhary in “Studies in Caribbean Labour Relations Law”30

, to better provide for

the stabilisation, improvement and promotion of industrial relations. According to Chaudhary,

“after the Second World War industrial relations, with the growth of trade unionism, came

increasingly into focus, and these were found to be far from harmonious. This state of affairs

became a matter of concern for the Government.” Addison M. Khan in “The Law of Labour and

Employment Disputes in Trinidad and Tobago”, traces the historical development of the

27

Ell (fn 23).

28 Suratt (fn 11) [40].

29 Hinds (fn13).

30 (1977) at 138.

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Industrial Court from 1920. In that year, the legislature enacted the Industrial Court Ordinance

(the 1920 Ordinance), which became effective on 17 August 1920. That Ordinance provided for

the establishment of a standing Industrial Court of Trinidad and Tobago for the purpose of

settling disputes and advising the Governor on any industrial or economic matter on which he

required advice. The 1920 Ordinance stipulated that the Industrial Court should have a president

and other members appointed from time to time by the then Governor, from among independent

persons selected from representatives of employers and employees. However, there was no

established system of collective bargaining; nor were there any organised trade unions to

represent workers. A Trade Unions Ordinance that enabled trade unions to be lawfully formed

was enacted for the first time in Trinidad and Tobago in 1932. As it turned out the Industrial

Court was never convened under the Ordinance to determine an industrial dispute.

[53] The recommendation for the establishment of an independent tribunal to deal with

industrial relations had been advocated for by commissions in the 1930’s. Corthesy and Harris-

Roper, in “Commonwealth Caribbean Employment and Labour Law31

recounts the wider

Caribbean experience culminating in the appointment of the Moyne Commission in the 1930s

which, having recognised the non-existence of a working industrial relations framework, inter

alia, made a central recommendation that Caribbean governments should support the

establishment of institutions to regulate labour relations, with collective bargaining between

trade unions and employers expected to play pivotal roles. Additionally, in 1937, in this

jurisdiction, following a prolonged general strike in the oil and sugar industries to protest inferior

terms and conditions, the Forster Commission was appointed32

. That Commission criticised the

absence of an organised system of collective bargaining and, in particular, the absence of any

proper machinery for the ventilation of workers’ grievances. It included among its

recommendations the establishment of a Labour Department and an Industrial Court.

[54] In 1953 the Government of Trinidad and Tobago appointed the Dalley Commission to

inquire into trade union organisation and industrial relations. The Dalley Commission33

highlighted the failure by both employers and trade unions to consider that the consequences of

31

Corthesy and Harris-Roper, Commonwealth Caribbean Employment and Labour Law (2014), 6.

32 Report of the Commission of Inquiry into the 1937 Disturbances in Trinidad.

33 Dalley Commission Report (1954) [135] as referred to in Addison M. Khan, “The Law of Labour and

Employment Disputes in Trinidad and Tobago” (2014), 5.

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the bargains struck should not be detrimental to the national community. The Commission

recommended collective bargaining being supplemented by agreed arbitration by an independent

tribunal in the event of genuine deadlock.

[55] The recommendations of the commissions, backed by the crippling industrial unrests,

eventually led to the implementation of the Industrial Court under the Industrial Stabilisation Act

1965 which was then repealed and replaced by the IRA in 1972. Dr. Eric Williams, our nation’s

first Prime Minister, in his “Reflections on the Industrial Stabilisation Bill”34

, noted that the

Industrial Court created by the Industrial Stabilisation Act 1965 was a cross between the

Australian Court and the Singapore Court and that it was headed by a High Court judge. In his

first article dated 2 April 1965 “The Precedents for the Bill”, Dr. Williams wrote:

“For example – our Industrial Court is a cross between the Australian Court

which consists entirely of laymen, whilst we modified the New Zealand principle

of a Court headed by a barrister or solicitor. Our Court is headed by a High Court

Judge, we provide for a Deputy President who shall be a barrister or solicitor of

ten years' standing and we make provision for three additional independent

members experienced in the field of industrial relations, economics and

accountancy…”

Clearly the message sought to be conveyed was the quest to have a specialised local tribunal that

was both independent and impartial.

[56] Certainly, the development of specialised courts such as the Industrial Court is neither

prohibited nor uncommon. Similar specialist bodies within the jurisdiction include the Tax

Appeal Board, Equal Opportunity Tribunal, and the Environmental Commission. Specialised

courts or tribunals are a feature of the legal systems of many countries, although their jurisdiction

and function may vary widely. Such specialisation is capable of materially contributing to the

efficiency of the administration of justice. Indeed, in Suratt35

Baroness Hale, writing for the

majority, highlighted the demands being placed upon legal systems which may necessitate the

appointment of persons other than judges of the High Court in the decision-making process:

"… The demands upon the legal system are increasing all the time and cannot all

be met by judges of the High Court. It is not just that the volume of traditional

areas of work has grown. No legal system can stay set in stone as it has always

34

A series of articles published in “The Nation” (April 1965); and Addison M. Khan, “The Law of Labour and

Employment Disputes in Trinidad and Tobago” (2014), 9 and 10.

35 Suratt (fn 11) [42].

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been. It has to move and develop with the times. The complexity of the modern

world has seen the emergence of new problems which need new solutions. In the

United Kingdom, for example, specialist jurisdictions have been set up to cater,

not only for the myriad of disputes which may arise between citizen and state, but

also for some disputes between private persons. The most important examples are

disputes between employer and employee and between landlord and tenant, where

a different way of doing justice is thought necessary because of the perceived

imbalance in power and resources between the parties. It is common for such

jurisdictions to include people who are not lawyers but have relevant experience

or expertise or who are in some sense representative of each 'side' in the dispute."

[Emphasis added].

[57] There are, of course, similarities between the powers exercised by the Industrial Court

and those exercisable by the High Court. Such similarities include the enforcement of individual

contracts of employment, dismissal of workers, powers of injunction and contempt of court.

However, to focus on these similarities only creates an unbalanced view of the limitations in the

common law that gave rise to a need for a specialised court for industrial relations. A very

significant aspect of the Industrial Court is that it was established as a specialised court for the

settlement of employment and labour disputes which could not be appropriately determined by

civil courts applying the common law. Certain limitations existed in the common law which

proved ineffective in the arena of labour disputes. These limitations are illustrated most clearly

as regards its impact on trade unions, collective bargaining instruments and strikes – which

together make up the essence of the industrial climate.

[58] Regarding the recognition of trade unions as bargaining agents, the operations and

existence of such organisations were significantly restricted by the common law, which viewed

trade unions as illegal conspiracies and operating in restraint of trade36

. Thus, the contribution of

trade unions to the development of the working class was grossly inhibited by the common law,

and was for the most part secured only by statutory intervention. Moreover, the common law

system provided no machinery for the settlement of labour disputes and did not recognise

collective agreements as legally enforceable contracts unless a particular agreement had been

incorporated into an individual’s contract of employment37

. Difficulty further ensued as a result

of the inherent nature of the common law which also did not regulate strike action which became

rampant in the 1960s. At common law a strike was not in itself unlawful; rather the legality of a

36

Hornsby v Close (1876) LR 2 QB 153.

37 See Chuks Okpaluba, Statutory Regulation of Collective Bargaining, 1.

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strike depended always upon the means employed by the strikers and upon the objects of the

strike. It was the IRA which provided statutory procedures which were to be followed when a

strike action was intended38

.

[59] It is clear therefore that the Industrial Court was established as a result of the failure of

the common law system to provide machinery for the settlement of labour disputes and the then

inactivity of the State in regulating industrial relations in Trinidad and Tobago.39

The jurisdiction

of the court could not be confined to what formerly existed at common law. What was required

was a proportionate paradigm shift. Commendably, the legislature eschewed the rigidities of the

common law and fashioned a new jurisprudence based on normative standards encompassing

fairness, justice and equity. Accordingly, in the exercise of its powers, the Industrial Court shall,

pursuant to s 10(3) of the IRA:

(a) make such order or award in relation to a dispute before it as it considers

fair and just, having regard to the interests of the persons immediately

concerned and the community as a whole;

(b) act in accordance with equity, good conscience and the substantial

merits of the case before it, having regard to the principles and practices of

good industrial relations.

[60] The jurisdiction to determine industrial matters based on principles and practices of good

industrial relations further emphasises the unique jurisdiction of the court. As described by the

court's first President (who later on became Chief Justice [Hayatali CJ] ) in the Civil Service

Association of Trinidad and Tobago v The Marketing Board and the Attorney General40

, “the

Court is not a court in the usual ordinary sense in which that term is understood…it is clothed

with a wide and flexible jurisdiction to do what is commonly called justice between the parties to

a dispute before it." Moreover, as expressed by Rees J in A-G v Panday et al, 41

it was the clear

intention of Parliament to have a superior court of record administering a system of law wholly

distinct both in substance and matters of procedure from the system of law administered by the

38

See ss 60 - 63 of the IRA.

39 Chaudhary (fn 28), 121 to 122.

40 Trade Dispute No 2 of 1965, 8.

41 (1967) 15 WIR 172.

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Supreme Court of Judicature. The "Industrial Court is not a branch of the Supreme Court of

Judicature of Trinidad and Tobago. It is a court with a new jurisdiction created by an Act of

Parliament which does not administer the common law."42

[61] Therefore, while Counsel for the appellant and respondent could not agree on the precise

ambit of the jurisdiction now vested in the Industrial Court which was formerly exercisable by

the High Court, I understood counsel for the appellant to be saying that the jurisdiction vested in

the Industrial Court was, in any event, unique. In my view, and even though not necessary for the

determination of the case, it is clear, even from a Hinds43

perspective, that the jurisdiction vested

in the Industrial Court could not have been described as sufficiently wide enough to have

constituted so significant a part of the jurisdiction that was characteristic of the Supreme Court as

to have fallen within the constitutional degree of protection.

[62] Against this backdrop I can now turn to the appellant’s central contention that ss 4(3)(c)

and 5(1) of the IRA violate the doctrine of the separation of powers. The appellant does not

suggest that the provisions of the IRA are inconsistent with the fundamental rights and freedoms

enshrined in Constitution and void as a result. Rather, the submission is that the conjoint effect of

ss 4(3)(c) and 5(1) of the IRA and s 80 of the Constitution violates the separation of powers

doctrine, having regard to the constitutionally impermissible role played by the executive in the

appointment or reappointment of members of the Industrial Court. As indicated earlier, the

Constitution does not contemplate that only the High Court, staffed by judges enjoying the

protection that High Court judges enjoy, shall exercise the judicial power of the state. The

Industrial Court performs a very limited and specialised function. It is a matter of public record

that for the period 2008 to 2012, an approximate yearly average of 5000 cases were filed in the

High Court compared to an approximate yearly average of 500 cases in the Industrial Court44

.

Thus, where a limited and specialist jurisdiction has been conferred on a court such as the

Industrial Court, the members of the court need not enjoy exactly the same protection as a High

Court Judge. This answers the first question as posed in Suratt45

.

42

Ibid, 176.

43 Hinds (fn 13), 222.

44 Based on official statistics received from the Judiciary’s Statistical Unit, Supreme Court of Justice, for the period

2008 to 2012 for both the High Court of Justice and Industrial Court.

45 Suratt (fn 11) [51].

of 55

(b) Whether the protection enjoyed by the Industrial Court is sufficient to afford the

necessary degree of independence from the legislature and executive?

[63] I now turn to the second question – whether, on the test propounded in Suratt, 46

the

protection enjoyed by the Industrial Court is sufficient to afford the necessary degree of

independence from the executive. As aforementioned, this I have subcategorized into elements of

individual and institutional independence so as to achieve a more comprehensive analysis. The

notion of independence in this context reflects the traditional constitutional value of judicial

independence. Consequently I shall address the issue of judicial independence in our local

constitutional environment. Some assistance may be derived from the applicable principles in the

Canadian and European jurisdictions.

[64] While the rule of law, which as a minimum is synonymous with constitutionalism and

widely-accepted principles of good governance47

, may be considered the bedrock of our

constitutional principles, judicial independence was hailed in R v Beauregard48

as "the lifeblood

of constitutionalism in democratic societies". The "independence of the judges (or, put

negatively, the protection of judges from executive pressure or interference) is all but universally

recognised as a necessary feature of the rule of law";49

though, as previously noted, the essential

conditions of judicial independence which encompass both an individual and institutional

dimension, would depend upon the specific context of the court or tribunal50

.

[65] The Canadian Supreme Court in Beauregard51

summarised the rationale for there being

both an individual and an institutional aspect to judicial independence, accentuating the critical

role played by the courts in the constitutional structure not only with respect to the adjudication

46 Suratt (fn 11).

47 Halsbury's Laws of England, Constitutional and Administrative Law, Vol 20 (5th edn) [6].

48 (1987) 2 SCR 56 [24].

49 Independent Jamaica Council for Human Rights (1998) Ltd v Marshall-Burnett (2005) UKPC 3 [12], Lord

Bingham.

50 Ell (fn 23).

51 Beauregard (fn 44).

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of individual cases, but as guardians of the Constitution and the fundamental values embodied

therein:

"The rationale for this two-pronged modern understanding of judicial

independence is the recognition that the courts are not charged solely with the

adjudication of individual cases. That is, of course, one role. It is also the context

for a second, different and equally important role, namely as protector of the

Constitution and the fundamental values embodied in it – rule of law,

fundamental justice, equality, preservation of the democratic process, to name

perhaps the most important. It is also the lifeblood of constitutionalism in

democratic societies."52

[66] It is axiomatic that judicial independence encompasses, among other matters, a hearing

before an independent and impartial court or tribunal53

. As to what "independence" and

"impartiality" connote, the High Court of Justice, Scotland considered there was no essential

difference of approach to these concepts between Article 6 (1) of the European Convention for

the Protection of Human Rights and Fundamental Freedoms, 1950 and section 11 (d) of the

Canadian Charter of Rights and Freedoms 1982.54

Both provisions expressly embrace the

concept of "a fair and public hearing by an independent and impartial tribunal". The requirement

of impartiality is in substance the same as the common law rule against bias.55

It should be noted

that in Panday v Virgil56

our Court of Appeal has held that the test for apparent bias is whether

the circumstances would lead a fair-minded and informed observer to conclude that there was a

real possibility that the tribunal was biased. In Valente v R57

the test for independence, as for

impartiality, was held to be whether the tribunal may reasonably be perceived as independent.

[67] In deciding whether a tribunal is independent, regard must be had, among other matters,

to the manner of appointment of its members and their term of office, the existence of guarantees

against outside pressures and the question of whether the body presents an appearance of

52

Ibid [24].

53 See for example s 5(2)(f)(ii) of the Constitution – right to a hearing by a fair and impartial tribunal.

54 Starrs v Procurator Fiscal (Linlithgow) (2000) 8 BHRC 1, 14 Cullen LJ –C.

55 Halsbury's Laws of England, Judicial Review, Vol 61 (2010) 5th ed [654]; and R v. Abdroimkov [2007]

UKHL 37 [16].

56 Mag. App No. 75 of 2006 [5].

57 (1955) 2 SCR 673 (Supreme Court of Canada) [21].

of 55

independence: Findlay v United Kingdom 58

Impartiality denotes an absence of prejudice or bias,

assessed by reference to both a subjective and an objective test. The tribunal must therefore be

subjectively free of personal prejudice or bias59

. This personal impartiality is presumed unless

there is evidence to the contrary.60

Further, the tribunal must also be impartial from an objective

viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this

respect. The concepts of independence and objective impartiality are closely interlinked and are

often considered together by the European Court of Human Rights.61

I propose to adopt a similar

approach.

Institutional independence.

[68] It may be useful at this stage to consider the institutional dimension to judicial

independence, which relates to the independence of the court to which the judge is a member62

and which necessitates the need to maintain the independence of a court or tribunal as a whole

from the executive and legislative branches of government. While institutional independence

encompasses the concepts of independent administration and independent adjudication, in the

context of Trinidad and Tobago, it is the latter which is relevant at this stage in our development.

In Valente63

the essentials of institutional independence which might reasonably be perceived as

sufficient were summed up as judicial control over the administrative decisions that bear directly

and immediately on the exercise of the judicial function. Thus, the executive must not interfere

with, or attempt to influence, the adjudicative function of the judiciary.

[69] The IRA was passed by a special majority (three–fifths) and came into force in July 1972.

The Industrial Court was accorded the status of a superior court of record and has, in addition to

the jurisdiction and powers conferred on it by the IRA, all of the powers inherent in such a court:

58

(1997) ECHR 22107/93 [73].

59 Ibid.

60 (1989) 12 EHRR 266 [43].

61 Findlay (fn 25) [73].

62 Ell (fn 20).

63 Valente (fn 57), [47] and [52].

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s 4 (1) IRA. Jowitt's Dictionary of English Law64

describes what is generally regarded as a

superior court of record:

"Courts are of two principal classes – of record and not of record. A court of

record is one whereof the acts and judicial proceedings are enrolled for a

perpetual memory and testimony, and which has the authority to fine and

imprison for contempt of its authority… Courts are also divided into superior and

inferior, superior courts being those which are not subject to the control of any

other courts, except by way of appeal…"

[70] Section 7 (1) of the IRA provides that, in addition to the powers inherent in it as a

superior court of record, the court shall have jurisdiction to –

(a) hear and determine trade disputes;

(b) register collective agreements and to hear and determine matters relating to the

registration of such agreements;

(c) enjoin a trade union or other organisation or workers or other persons or an employer

from taking or continuing industrial action;

(d) hear and determine proceedings for industrial relations offences under this Act; and

(e) hear and determine any other matter brought before it, pursuant to the provisions of

this Act.

[71] As is apparent, s 7(1)(a) to (e) encompasses a jurisdiction that is peculiar to the Industrial

Court which, in effect, operates as a specialised court for industrial relations matters. Pursuant to

s 7(2), the court shall have the same power to punish contempt of the court as is possessed by the

High Court of Justice.

[72] The separation of the Industrial Court, as a court which operates independently of other

courts, is further emphasised at s 9(1) of the IRA which provides that:

"In the hearing and determination of any matter before it, the Court may act

without regard to technicalities and legal form and shall not be bound to follow

the rules of evidence stipulated in the Evidence Act, but the Court may inform

itself on any matter in such manner as it thinks just and may take into account

64

(1977) 2nd

Edn. Vol 1, 493; also see Suratt (fn 11) [49].

of 55

opinion evidence and such facts as it considers relevant and material, but in any

such case the parties to the proceedings shall be given the opportunity, if they so

desire, of adducing evidence in regard thereto."

[73] At ss 10 and 11 of the IRA the court is given power to remit disputes, make orders,

award compensation or dismiss matters which come before it. Pursuant to s 10(3) of the IRA, the

court is mandated, in the exercise of its powers, to "make such order or award in relation to a

dispute before it as it considers fair and just, having regard to the interests of the persons

immediately concerned and the community as a whole" and, importantly, to "act in accordance

with equity, good conscience and the substantial merits of the case before it, having regard to the

principles and practices of good industrial relations".

[74] These statutory provisions make clear that the legislature has sought to restrict challenges

to the constitutionality of the legislation by passing the IRA with an enhanced majority. Further,

its status as a superior court of record immunises it from challenge by way of judicial review.

However, pursuant to section 18, an appellant is entitled as of right to appeal to the Court of

Appeal, but such appeal is limited, broadly speaking, to appeals concerning jurisdiction; the

obtaining of an order or award by fraud; findings or decisions being erroneous on points of law;

and illegality. Moreover it would seem, on the authority of Sundry Workers v Antigua Hotel

and Tourist Association65

, that a party is entitled as of right to appeal to the Privy Council in

accordance with s 109 (1) (a) of the Constitution. Subjecting the decisions of the Industrial

Court to the jurisdiction of the Court of Appeal is a significant safeguard for maintaining public

confidence not only in the Court's independence and impartiality, but in the wider administration

of justice.66

Additionally its inherent powers would, consistent with the powers conferred on it,

endow the court with jurisdiction to fulfil, properly and effectively, its role as a court of law.67

However, it should be noted that the IRA does not contemplate that the Industrial Court should

have an unlimited inherent jurisdiction. The Industrial Court is concerned solely with industrial

relations matters as prescribed by the IRA. As such the scope of its inherent jurisdiction is

limited by the nature of the subject matter.68

The dignity of the court is further enhanced by

65

(1993) 1 WLR 1250 (PC).

66Suratt (fn 11) [49], Baroness Hale.

67 Halsbury's Laws of England, Civil Procedure, Vol 12, 5th ed. (2009) [15].

68 Suratt (fn 11) [49], Baroness Hale.

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empowering it, consistent with its status as a superior court of record, to deal with the effective

interference to the administration of justice by way of contempt: s 7(2).

[75] Given the nature of the matters before it and the need to have an expeditious

determination, the court is not to be bogged down by technicalities and legal form, but focusses

on the substance of the matter. In doing so it is not bound to follow the rules of evidence

stipulated in the Evidence Act, but may inform itself on any matter in any such manner as it

thinks just, and may take into account opinion evidence and such facts as it considers relevant

and material, subject to the parties being given the opportunity to adduce evidence in regard

thereto: s 9(1). Thus the Industrial Court is not fettered by the limitations of the rules which bind

civil courts. However, while it can be said that there is a relaxation, broadly speaking, under s 9,

of the rules of evidence, procedural safeguards are put in place by providing the parties to the

proceedings with an opportunity of adducing evidence in regard to any matter which the court is

taking into consideration in arriving at its decision. Finally the court is required, pursuant to s

10(3), to, in effect, make an order or award that is fair and just in an industrial relations setting.

[76] With respect to the assignment of cases to Industrial Court judges, it is manifest that this

is an internal matter of judicial administration without any input or direction from the executive.

An example illustrative of such judicial control is that while the appellant in the instant case was

awaiting word on whether he would be reappointed for a second term, the President of the

Industrial Court had assigned him to perform the functions of a conciliator. Moreover, Addison

Khan stated that as President of the Industrial Court, he has and exercised supervisory powers

over all of the members of the court69

.

[77] Pursuant to s 6 of the IRA a Registrar of the Court is appointed. Thus the court is

entrusted with an officer who is the administrative Head of the Department and the Accounting

Officer and who does not answer to a member of the executive.

[78] The Court has two divisions (the General Services Division and the Essential Services

Division) each consisting of a chairman and such number of other members being not less than

69 Affidavit of Addison Khan filed 13 May 2004, [5].

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two: s 4(2A) and (2B). The President of the Court shall be the Chairman of the Division of

which he is a member and the Vice-President of the court shall, where he is not a member of the

Division of which the President is Chairman, be the Chairman of the other Division. Where the

President and the Vice-President are members of the same Division or where there is no Vice-

President, the Chairman of the other Division is to be appointed by the President: s 4(3A). In its

deliberations each judge on a particular panel is not merely an adviser, but is an integral part of

the decision-making process. It can readily be seen from a summary of these provisions, at least

where the President and the Vice-President chair each Division, that each Division would

generally be headed by experienced persons quite versed in the law. Moreover the President is

imbued with all the attributes which qualify someone for appointment as a judge of the Supreme

Court.

[79] An award of the court is binding on all parties to the dispute as provided for in s 19 of the

IRA. Moreover, the Attorney General, in his role as guardian of the public interest, may

intervene in any dispute: s 20 of the IRA.

[80] In the instant case, it is manifest from an institutional or structural standpoint that the

adjudicative independence of the Industrial Court is such that it can adequately perform its basic

judicial function without interference or what may reasonably be perceived to be interference by

the executive with the court’s adjudicative role.

Individual independence.

Security of Tenure and Financial Security.

[81] As has already been noted security of tenure is an essential condition of judicial

independence. The essence of security of tenure is a tenure, whether until an age of retirement,

for a fixed term, or for a specific adjudicative task, that is secure against interference by the

executive or other appointing authority in a discretionary or arbitrary manner70

.

[82] Section 5 of the IRA makes provision for the period of appointment, remuneration and

superannuation benefits of members appointed other than under s 4(3)(a)(i) (where the President

of the Industrial Court is a judge of the Supreme Court). Section 5(1) provides that the members

of the Court shall be paid such salaries as the President of Trinidad and Tobago may determine,

70

Ell (fn 23) [32].

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and shall hold office for such period, being not less than three or more than five years, but shall

be eligible for reappointment. Pursuant to s 5(3) the salaries and allowances payable to a member

of the court and his other terms of service, shall not be altered to his disadvantage after his

appointment. Provision is made at s 5(4) that a member of the court, or his widow, children,

dependants or personal representatives, may be granted such superannuation benefits as may be

prescribed by Regulations made by the President of Trinidad and Tobago.

[83] Even though the initial period of appointment of not less than three or more than five

years is relatively short, the fact that the tenure of a member of the court is for a fixed term can

be an adequate safeguard against interference by the executive. Thus judges of the Industrial

Court can focus on their adjudicatory role without pressure being brought to bear by an uncertain

tenure.

[84] With respect to the reappointment of the court, s 5(1) provides that members “shall be

eligible for reappointment”. In its context, I am of the view that “eligible” ought to be given its

ordinary meaning of “qualified”. Thus the term “eligible” for reappointment creates no right or

entitlement. The provision has the effect of enabling reappointment and requires that members

once appointed are to be fairly considered for reappointment.

[85] In addition to providing a fixed term of appointment, a degree of insulation is also

provided for members of the Industrial Court. In the High Court case of Vernon Ashby v

Registrar of the Industrial Court71

, I expressed the view that:

“It is clear that the legislative intent was to provide a degree of insulation for

members of the Industrial Court from improper pressure being brought to bear by

the executive and legislative arms of the State thereby undermining their judicial

independence by having their salaries and allowances determined by the

President of Trinidad and Tobago, and by protecting their terms and conditions

of service from being altered to their disadvantage. However no regulations have

been made by the President in accordance with Section 5 (2) of the IRA. Rather

the offices of President, Vice-President and members of the Industrial Court were

placed under the purview of the SRC by virtue of Section 5 (1) of the Constitution

(Prescribed Offices) Act, Ch. 1:02 which provides:

5. (1) For the purposes of section 141 (1) of the Constitution the

offices set out in the Second Schedule are prescribed.

71

HCA 1626 of 2004, [28].

of 55

Thus members of the Industrial Court were provided with a commensurate degree

of protection formerly enjoyed. This was achieved by having their salaries and

other conditions of service reviewed by the very body responsible for, among

others, the review of the terms and conditions of service of judges of the Supreme

Court. Thus their terms and conditions of service became statutorily and

constitutionally underpinned.”

[86] In aiming to protect security of tenure, the legislature did not stop short of merely

granting a fixed period of appointment (albeit for not less than three, nor more than five years)

and a secured salary protected from unjust tampering. The legislature went further at s 4(8) of

the IRA to provide that a member of the court such as the appellant “may be removed from office

during his term of office only for inability to perform the functions of his office (whether arising

from infirmity of mind or body or any other cause or for misbehavior), but shall not be removed

except in accordance with section 106 of the Constitution”. As counsel for the respondent rightly

pointed out, the security of tenure is provided for “during the term of office”, and thus if the

member is to be removed during that term, then proper reasons should be given and procedural

fairness granted. Additionally, and significantly, removal can only be effected in a manner

similar to that of judges of the Supreme Court.

Manner of appointment.

[87] The composition of the Industrial Court is as follows. The President of the Industrial

Court must be either a judge of the Supreme Court or a person who has such qualification: s

4(3)(a) of the IRA. The Vice-President must be an attorney-at-law of not less than ten years

standing: s 4(3)(b). The court shall also consist of such number of other members as may be

determined from time to time who shall be appointed 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: s 4(3)(c). The members of the court appointed, other than under s

4(3)(a)(i), shall hold office for such period, being not less than three or more than five years, but

shall be eligible for re-appointment.

[88] It is manifest that the legislature was acutely aware of the possible destabilising or

detrimental effect that unresolved disputes could have on the entire economy. As such a

considerable degree of care has been exercised in achieving a delicate balance in the court’s

composition. Headed by a judge of the Supreme Court or someone having the qualification to be

appointed a judge thereof; manned by persons experienced in industrial relations undoubtedly

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designed to secure the voices of the employers and trade unions; economists who may assist,

among other matters, on the impact of decisions on the economy in the short, medium and long

term; lawyers who would be able to interpret and apply the law; and accountants who no doubt

would be able to guide the other members, among other matters, in the manner of operations of

corporations and accounting procedures and processes.

[89] Chief Justice de la Bastide in Caroni (1975) Ltd v ATASS72

commented on the court’s

expertise as follows:

“The practice [industrial relations practice], which is not codified in our

jurisdiction, is to be determined and applied to the facts of each case by the

Industrial Court. The policy of the statute is obviously to entrust that function

only to judges of the Industrial Court who come equipped with experience of, and

familiarity with, industrial relations practice. This is a qualification which judges

of the Supreme Court do not necessarily or even ordinarily have.”

[90] With respect to their appointment I have found that:

(i) the President of the Industrial Court is appointed by the President of Trinidad and Tobago

after consultation with the Chief Justice;

(ii) all other judges on the Industrial Court are appointed by the executive, in this case the

Cabinet;

(iii)Judges of the Industrial Court, save and except where the President of the Court is a

judge of the Supreme Court, are reappointed by the executive. Pursuant to s 5(1), save

and except where the President of the Supreme Court is a judge of the Supreme Court,

judges of the Industrial Court shall hold office for such period, being not less than three

or more than five years, as is specified in their respective instruments of appointment, but

shall be eligible for reappointment.

[91] From the outset it should be noted, in so far as the initial appointment of Industrial Court

judges is concerned, that appointment by the executive is not inherently objectionable: Starrs v

72

(2002) 67 WIR 223 (CATT) 226.

of 55

Procurator Fiscal (Linlithgow)73

. Indeed Lord Bingham, relying on Starrs74

, in Kearney v HM

Advocate75

, considered the practice almost universal:

“As was accepted in Starrs v Ruxton, above, p 229, per the Lord Justice-Clerk

(Cullen), there is nothing inherently objectionable in the appointment of judges by

the executive, which is the practice in much of the world...”

[92] However, I bear in mind that both Starrs76

and Kearney77

were concerned respectively

with temporary sheriffs and a temporary judge, and not, as in the instant case, with judges

appointed by statute for a fixed period. The European Court of Human Rights in Campbell v

United Kingdom78

has also weighed in on the issue of appointment of judges by the executive:

“Members of Boards [Prison Boards of Visitors] are appointed by the Home

Secretary, who is himself responsible for the administration of prisons in England

and Wales…The Court does not consider that this establishes that the members

are not independent of the executive: to hold otherwise would mean that judges

appointed by or on the advice of a Minister having responsibilities in the field of

the administration of the courts were also not "independent". Moreover, although

it is true that the Home Office may issue Boards with guidelines as to the

performance of their functions….they are not subject to its instructions in their

adjudicatory role.”

[93] It should also be noted that in this jurisdiction provisions similar to those of the IRA exist

for the appointment of members of the Tax Appeal Board, save and except the Chairman and

Vice-Chairman (who are both appointed by the President acting in accordance with the Judicial

and Legal Service Commission: s 4(3) of the Tax Appeal Board Act (TABA)79

. Further, ordinary

members of the Tax Appeal Board hold office for such term, not less than three years, “as may

be determined by the President at the time of the appointment, and shall be eligible for

reappointment”: s 4(4) of the TABA.

73

(2000) 8 BHRC 1, 14 Cullen LJ –C, 33.

74 Ibid.

75 (2006) UKPC D1 [5].

76 Starrs (fn 66).

77 Kearney (fn 68).

78 (1984) ECHR 7819/77, [79].

79 Chap. 4:50.

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[94] One of the notable features of the appointment procedure is the absence of any settled

practice. Thus in 1996, 1997 and 2000 the executive, through the Attorney General, adopted the

practice of having senior judges on the interview panel. The evidence reveals that advertisements

for the appointment of judges were for the first time published in 1996 and 1997 after the

Supreme Court had commenced doing so. An interview panel comprising the Minister of Labour

and the President of the Industrial Court conducted interviews and assessed candidates. This

resulted in the appointment of two members of the Industrial Court. In April 2000 a similar

procedure was adopted. However, the interview panel in this instance comprised the President,

the Vice-President and the Chairman of the Essential Services Division of the Industrial Court.

That interview committee recommended five out of one hundred candidates for appointment as

members. All five including the appellant were appointed.

[95] However, in November and December 2000, two members were appointed without there

being interviews by any committee. Further, in December 2003, there were three additional

appointments; however, there is no evidence that those appointments were preceded by

interviews. That notwithstanding, the question that ultimately arises for decision at the end of the

day is whether, in the circumstances of the case, there are sufficient safeguards in place to

guarantee the independence and impartiality of the Industrial Court80

.

[96] While not inherently objectionable, initial appointment by the executive is capable of

detracting from judicial independence as there may be a risk that Industrial Court judges may be

perceived as having attained their position as a result of the executive’s favour and therefore are

beholden to the executive. However, there must be objective justification for such perceptions.

Reappointment by the executive is somewhat more disconcerting when considered against the

backdrop of an initial appointment of a relatively short period. There is the obvious challenge to

the independence and impartiality of a judge who is seeking a reappointment in that there is a

risk that he may seek to ingratiate himself with the executive. Moreover, as with initial

appointments, there are no prescribed criteria for reappointment and both are at the sole

discretion of the executive. Nor is there any defined limit as to the number of terms that can be

served or any age limit.

80

R v. Spear (2002) UKHL 31, [51] Lord Rodger.

of 55

[97] Nonetheless, in my view, the essential conditions of judicial independence of the

Industrial Court in the process of appointment and reappointment, in the instant case, are

satisfied by the existence of the checks and balances derived from statute and even from the

Constitution. One significant safeguard with regard to the appointment of members is that the

IRA prescribes the appointment of qualified professionals each with an independent voice.

Another significant check and balance is the possibility of mounting proceedings for judicial

review against the decision of Cabinet or the Minister authorised thereunder where there is, for

example, arbitrary conduct. Additionally, as previously discussed members are granted adequate

security of tenure and financial security so as to protect against influence by the legislature and

executive.

(iv) Conclusion on issue of separation of powers.

[98] In light of the foregoing the jurisdiction of the Industrial Court is not analogous to that

exercised by the High Court or any other court. In its function as a specialised court which

determines industrial relations matters, the Industrial Court is to be clothed with the same degree

of judicial independence as other courts of law, in exercising what are intended to be judicial

functions. However, its specialised nature may affect, as stated in Ell81

, "the manner in which the

essential conditions of independence may be satisfied". This may justify the difference between,

for example, High Court judges and Industrial Court members in terms of the type of security of

tenure and the body empowered to appoint members.

[99] The institutional independence of the court is such that it can adequately perform its

basic judicial function without interference by the executive with its adjudicative role. Industrial

Court judges also have considerable security of tenure and financial security while they are

actually carrying out their judicial functions. The judges enjoy a fixed tenure that is secure

against interference by the executive. Their terms and conditions of service are substantially

protected. In my view, having regard to the safeguards which are in place, the degree of

protection given to the Industrial Court is, and can reasonably be perceived and regarded as,

satisfactory. I therefore affirm the decision of the trial judge who, on this issue, in essence held

that the Industrial Court operates as a specialised court separate and apart from the High Court,

81

Ell (fn 23).

of 55

and the involvement of the executive in the appointment and reappointment of the judges of the

Industrial Court is not such as to interfere with the independence and impartiality of the court. I

agree with the trial judge that there was no breach of the doctrine of separation of powers in the

instant matter.

H. Irrationality or unreasonableness and weight of the decision-maker’s opinion.

[100] I now turn to the issues of unreasonableness and the weight of the decision-maker’s

opinion which I shall canvass jointly as, in my view, the two issues may be intertwined.

(i) Contentions

[101] The appellant contends that the decision not to reappoint him as a member of the Court

was Wednesbury unreasonable. The appellant further contends that although the court must have

regard to the opinion of the decision- maker, the weight attributed to the decision-maker’s

opinion must be conditioned by the nature of the decision in question.

[102] In opposition, the respondent submitted that the unchallenged evidence of the Attorney

General was that she took into account: the recommendations for reappointment; the complement

of the court, that the applicant was qualified in the field of accounting; the respective

qualifications for appointment; and that there was no need for more than one accountant in the

membership of the court at that time. It was the respondent’s contention that all of those

considerations were clearly rational and relevant. Further, the respondent contended that if any of

those considerations were not taken into account, it could be argued that the decision failed to

take into account relevant considerations. Thus, the decision cannot be regarded as in defiance of

logic.

[103] Upon these contentions, the trial judge held that there was no solid ground on which to

base irrationality. According to the trial judge, the affidavit of Mr. Khan clearly stated that there

was no established procedure regarding the advertisements for positions and, further, a

recommendation by the President of the Court did not guarantee that a member would be

automatically reappointed. Moreover, the trial judge concluded that the respondent had shown

that, for the periods 1965 to 2004, there had been one accountant only sitting as a member of the

Court and this had not been refuted or challenged (I note at paras. 126 and 127 below the actual

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periods for which there was only one accountant, which is somewhat different from that stated

by the trial judge, but which was unlikely to affect his conclusion).

[104] I have already concluded that the respondent, acting under the authority of s 80 of the

Constitution so as to achieve the objectives of s 4(3)(c) of the IRA, was not acting illegally,

unconstitutionally, or contrary to due process and the separation of powers in deciding not to

reappoint the appellant. Therefore, the focus of this issue raised by the appellant is as to the

degree of weight that should have been attributed to the respondent’s decision, in light of the

nature of the decision in question, and whether in the circumstances the decision of the

respondent was Wednesbury unreasonable.

(ii) Law

[105] The starting point for any discussion on unreasonableness is by reference to the well-

established principle as stated by Lord Greene, M.R in Associated Provincial Picture Houses

Ltd v. Wednesbury Corporation82

:

“…a person entrusted with a discretion must direct himself properly in law. He

must call his own attention to the matters which he is bound to consider. He must

exclude from his consideration matters which are irrelevant to the matter that he

has to consider. If he does not obey those rules, he may truly be said, and often is

said, to be acting “unreasonably.”

And later at pages 233 to 234

“The court is entitled to investigate the action of the local authority with a view to

seeing whether they have taken into account matters which they ought not to take

into account, or, conversely, have refused to take into account or neglected to take

into account matters which they ought to take into account. Once that question is

answered in favour of the local authority, it may be still possible to say that,

although the local authority have kept within the four corners of the matters which

they ought to consider, they have nevertheless come to a conclusion so

unreasonable that no reasonable authority could ever have come to it. In such a

case, again, I think the court can interfere. The power of the court to interfere in

each case is not as an appellate authority to override a decision of the local

authority, but as a judicial authority which is concerned, and concerned only, to

see whether the local authority have contravened the law by acting in excess of

the powers which Parliament has confided in them.”

82

[1948] 1 K.B. 223, 229 and 233 to 234.

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[106] On this issue of irrationality in R v. Ministry of Defence ex parte Smith83

, Sir Thomas

Bingham MR (as he then was) endorsed the following as an accurate distillation of the principle:

“The court may not interfere with the exercise of an administrative discretion on

substantive grounds save where the court is satisfied that the decision is

unreasonable in the sense that it is beyond the range of responses open to a

reasonable decision-maker.”

(iii) Analysis

[107] As detailed at paragraph 17 of this judgment, Mrs. Glenda Morean-Phillip, who served as

the Attorney General at the material time, revealed that in 2003, she considered the

recommendation made by the President of the Industrial Court that the appellant’s appointment

be renewed for a further period of 5 years. She stated that in considering whether the appellant

should be re-appointed she took into consideration “all the applications for appointment and the

recommendations for re-appointment as well as to the complement of members of the [Industrial

Court] and took into account their respective qualifications for appointment to membership

pursuant to Section 4(3) of the Industrial Relations Act.” She further “noted that Ms. Lenore

Harris, an Accountant, had been appointed to the [Industrial Court] in September, 2000”. She

decided that, having taken “into consideration the skills of all the Applicants and the legal

criteria [she] considered that there was no need for more than one Accountant in the

membership of the [Industrial Court] at that time, and consequently, [she] did not recommend

the [appellant] for further appointment.”84

[108] I can find nothing unreasonable or irrational in that decision. The respondent did as was

intended by ss 4(3)(c) and 5(1) of the IRA, together with s 80(1) of the Constitution. The

respondent, bearing in mind that the appellant was “eligible for reappointment”, considered the

recommendation of the President of the Industrial Court and further considered whether the

industrial climate at the time required more than one accountant to sit as members of the

Industrial Court. It was within the respondent’s authority to conclude that only one accountant

was required and there was already on the membership an accountant, whose term of

appointment was still active. Cabinet, thereafter, consistent with s 80(1) of the Constitution,

accordingly advised the President of Trinidad and Tobago in exercise of his powers under s

83

(1996) 1 All ER 257, 263 [CA UK].

84 See the affidavit of Glenda Morean-Phillip (fn 7).

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4(3)(c). This in turn resulted in the appellant not being reappointed. To put it in the words

endorsed by Sir Thomas Bingham, I am of the view that the respondent’s decision is not

unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-

maker. I am satisfied that the decision of the respondent was reasonably made and took into

consideration relevant matters. In my view the trial judge was correct in concluding that there

was no solid ground on which to base irrationality.

I. Legitimate expectation.

(i) Contentions and issues.

[109] Finally, I turn to the issue of legitimate expectation raised by the appellant. The appellant

claimed a legitimate expectation of both a procedural and substantive benefit. The nature of the

substantive legitimate expectation claimed is that he was, unless it was in the public interest not

to do so, entitled to be reappointed based on the regular practice that a member was always

reappointed for at least a second term, once the following criteria were satisfied, namely that:

(i) there were no proven allegations of misbehaviour against the member that would warrant

his removal;

(ii) the President of the Industrial Court had recommended his reappointment;

(iii) the member was less than 70 years of age;

(iv) the member was not suffering from any physical or mental disability that would

ordinarily render him unfit to be appointed; and

(v) the member had indicated his willingness to be reappointed.

The Respondent disputes the existence of any such practice.

[110] The procedural legitimate expectation contended for is that, if the appellant met the

criteria set out above and it was contemplated that reappointment would not take place, then he

would be afforded the protection of procedural fairness. He contends that such procedural

fairness requires that his interest in reappointment cannot be denied unless he is given the

opportunity to comment and given rational grounds for any adverse decision.

[111] In support of these contentions, counsel for the appellant relied on the principle that

legitimate expectation may either arise from an express promise on behalf of the public authority

or from the existence of a regular practice which can reasonably be expected to continue.

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Counsel also relied on the principle established in the Privy Council case of Paponette v. The

Attorney General85

that substantive legitimate expectations are protected, not just by the

operation of the common law, but also by the due process clause in s 4(a) of the Constitution.

[112] In reply, counsel for the respondent submitted that it cannot be disputed that the most

fundamental requirement that must be satisfied before any legitimate expectation can arise,

whether of a substantive or procedural benefit, is that there must be a clear and unambiguous

representation that is devoid of relevant qualification. The respondent submitted that the

appellant gave no evidence of any such clear unambiguous representation. Further, the

respondent contended that the affidavit evidence of Addison Masefield Khan (then President of

the Industrial Court) was that there were other persons who had been recommended by the

President of the Industrial Court for reappointment and who were not reappointed. Counsel

submitted that this evidence was not disputed or challenged in any way by the appellant.

Moreover, the trial judge was entitled to reject any submission that there was a settled practice as

contended for by the appellant in the face of this unchallenged evidence adduced by the

respondent before the trial court. Counsel submitted that the evidence of Mr. Khan shows that

there was no settled practice to give rise to the legitimate expectation claimed by the appellant;

the appellant may have had a hope or even an expectation, but it was not legitimate.

[113] By reason of the foregoing, two issues arise for determination:

(i) whether there was evidence of a legitimate expectation of the substantive benefit

that the appellant would be reappointed for at least a second term; and

(ii) whether the facts evidenced a procedural legitimate expectation that if for any

reason it was contemplated that the appellant would not be reappointed, then he

would be afforded the protection of procedural fairness by being given the

opportunity to comment and given rational grounds for any adverse decision. Put

simply, he would be consulted or heard in the event that he was not to be

reappointed.

[114] On these issues the trial judge held that the appellant “had not shown in evidence that

there was a clear and unambiguous representation upon which it was reasonable for him to rely.

Cabinet in no way, made any statement or expressed any undertaking or promise to adopt a

85

(2010) UKPC 32.

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certain procedure with regard to reappointment of members of the Industrial Court. Even though

the [appellant] sought to substantiate it by introducing the tenures of several members of the

Court, there are no grounds for a reasonable belief of legitimate expectation.”86

(ii) Law in respect of evidence upon appeal of judicial review proceedings.

[115] In Ramnath and ors. v Public Service Commission87

, Bereaux JA set out the basis upon

which the Court of Appeal would interfere with a trial judge's findings in judicial review

proceedings:

"On the issues of fact, the question is whether [the trial judge] was correct to have

found as he did. I bear in mind that in assessing the propriety of the judge's

findings of fact, the judge does not enjoy any advantage over the Court of Appeal,

as the evidence was on affidavit and there was no cross-examination of the

deponents. This Court will however pay due deference to the judge's findings

unless of course they are plainly wrong."88

[116] I bear in mind that in the instant case the factual scenario was similar. The evidence was

on affidavit and there was no cross-examination of the deponents. Due deference must therefore

be accorded to the judge's findings unless they were plainly wrong. In Ramnath89

, Bereaux JA

also dealt with the issue of the failure on the part of the appellant to cross-examine the

respondent. He stated:

"In accepting the Commission's evidence the Judge noted that the appellants did

not pursue cross-examination of the Commission's deponents. He thus applied the

decision of Woolf J in R v Oxfordshire Local Valuation Panel ex parte Oxford

City Council [1981] 79 LGR 432, 440, that when there is a conflict of affidavit

evidence, and 'it is impossible from the internal evidence to come to any

conclusion as to which account is the more credible', the proper course for the

court to adopt is to act on the evidence of the respondent. "90

[117] It is also worth noting that Fordham, Judicial Review Handbook emphasises the

obligation in certain circumstances “to make findings of fact (with or without oral evidence),

especially if crucial to whether a ground for intervention is made out. Where necessary, judicial

86

HC 3367 of 2003 [40].

87 Civil Appeal No. 123 of 2008.

88 Ibid [37].

89 Ibid.

90 Ibid [29].

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review can and must be a suitable forum for deciding questions of fact, and must adopt the

necessary means to do so.”91

[118] A helpful summary of the position where there are factual disputes in judicial review

cases is provided in R v (Al–Sweedy) v Secretary of State for Defence92

. The court envisaged

cross-examination occurring with increasing regularity in cases where there are crucial factual

disputes between the parties in human rights cases. However, in so far as disclosure was

concerned, the court observed that this should be kept to a minimum because of the very high

duty cast on a public authority to assist the court with a full and accurate explanation of all of the

facts relevant to the issue the Court must decide. Scott Baker LJ stated:

"17 The difficulty confronting us was that, as is well known, the usual procedure

in judicial review cases is first for there to be no oral evidence and second, in so

far as there are factual disputes between the parties, the court is ordinarily obliged

to resolve them in favour of the defendant (see, for example, R v Board of

Visitors of Hull Prison ex parte St Germain (No2) [1979] 1 WLR 1401 , 1410 H

per Geoffrey Lane LJ (as he then was)).

18 If that approach had been adopted in this case, the Secretary of State would

have succeeded and it would also have had the more far-reaching consequence

that a defendant would always succeed if sued for an infringement of human

rights which was disputed. So a different approach was needed because these “

hard-edged ” questions of fact represented an important exception to the rule

precluding the court substituting its own view in judicial review cases. It is

noteworthy that Lord Mustill has distinguished between “ a broad judgment

whose outcome could be overruled only on grounds of irrationality” and “ a hard-

edged question [where t]here is no room for legitimate disagreement ” ( R v

Monopolies & Mergers Commission ex parte South Yorkshire Transport Ltd

[1993] 1 WLR 23 , 32 D-F).

19 In our view, it was necessary to allow cross-examination of makers of witness

statements on those “ hard-edged ” questions of fact. We envisage that such cross-

examination might occur with increasing regularity in cases where there are

crucial factual disputes between the parties relating to jurisdiction of the ECHR

and the engagement of its Articles.

20 We consider that this conclusion is consistent with the approach adopted by

Dyson LJ when giving the judgment of the Court of Appeal in R (N) v M and

others [2003] 1 WLR 562 at 574, when he explained that cross-examination in

judicial review cases should be ordered only if it is necessary to enable the court

to determine factual issues for itself. A similar conclusion was arrived at by the

Court of Appeal in R (Wilkinson) v Broadmoor Special Hospital Authority [2002]

1 WLR 419 especially at page 442 per Hale LJ (see also Fordham in Judicial

91

6th

Edn. (2012) [17.3].

92 [2009] EWHC 2387 (Admin).

http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=999&FindType=Y&SerialNum=1979025052









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Review Handbook ((5th edition) paragraph 16.1).”

(iii) Law and analysis of substantive and procedural legitimate expectation.

[119] With this in mind, I now turn to the law and analysis of substantive and procedural

legitimate expectations in the instant matter. In this developing area of the law it may be useful

to examine some basic principles.

[120] A person may have a legitimate expectation of being treated in a certain way by an

administrative authority even though there is no other legal basis upon which he could claim

similar behaviour. A legitimate expectation may arise “either from an express promise given on

behalf of a public authority or from the existence of a regular practice which the claimant can

reasonably expect to continue.”93

A representation inducing a legitimate expectation can

therefore be express or implied. De Smith’s Judicial Review94

posits that to qualify as

“legitimate” the expectation must possess the following qualities:

(i) The representation must be clear, unambiguous and devoid of relevant qualification;

(ii) The legitimate expectation must be induced by the conduct of the decision-maker;

(iii) The representation must be made by a person with actual or ostensible authority to

make the representation;

(iv) The person who seeks to rely upon the representation must be one of the class to

whom it may reasonably be expected to apply; and

(v) The representation must be preceded by full disclosure.

Further, detrimental reliance, though it may be a relevant consideration, is not an essential

element of a legitimate expectation: see also Ramnath95

.

[121] In R (on the application of Simpson and others) v Chief Constable of Greater

Manchester Police96

, Supperstone J at paras. 39 and 41 of that judgment, helpfully summarised

93

C.C.S.U (fn 8) 401B, Lord Fraser.

94 7

th Edn. (2013) [12-030].

95 Ramnath (fn 87) [44(ii)].

96 [2013] EWHC 1858.

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Laws LJ's review of the law of legitimate expectation in R (on the application of Bhatt Murphy

(a firm) and other) v Independent Assessor97

. Supperstone J stated, inter alia:

"[39]… The cases show that broadly the doctrine encompasses two kinds. There

is procedural legitimate expectation, and there is substantive legitimate

expectation. In the procedural case there is a promise or practice of notice or

consultation in the event of a contemplated change in policy. In a substantive case

there is a promise or practice of present and future substantive policy (para 33).

.........

[41] The paradigm case of procedural legitimate expectation, Laws LJ explained

(at para 29) 'arises where a public authority has provided an unequivocal

assurance whether by means of an express promise or an established practice, that

it will give notice or embark upon consultation before it changes an existing

substantive policy."

[122] In one of the leading cases on legitimate expectation, C.C.S.U.98

, Lord Diplock defined

the principle of legitimate expectation. For legitimate expectation to arise, the decision:

“....must affect [the] other person… by depriving him of some benefit or

advantage which either (i) he had in the past been permitted by the decision-

maker to enjoy and which he can legitimately expect to be permitted to continue

to do until there has been communicated to him some rational grounds for

withdrawing it on which he has been given an opportunity to comment; or (ii) he

has received assurance from the decision-maker will not be withdrawn without

giving him first an opportunity of advancing reasons for contending that they

should not be withdrawn." [emphasis added]

[123] Additionally, with specific reference to procedural legitimate expectation, in Attorney

General of Hong Kong v Ng Yuen Shiu99

, it was held, that (as summarised in the head note):

“Assuming that there was no general right in an alien to have a hearing in

accordance with the rules of natural justice before the making of a removal order

against him, a person was nevertheless entitled to a fair hearing before a decision

adversely affecting his interests was made by a public official or body if he had a

legitimate or reasonable expectation of being accorded such a hearing. Such an

expectation might be based on some statement or undertaking by, or on behalf of,

the public authority which had the duty of making the decision if the authority

had, through its officers, acted in a way which would make it unfair or

inconsistent with good administration to deny the person affected an inquiry into

his case.” [Emphasis added]

97

[2008] EWCA Civ 755.

98 C.C.S.U (fn 8) 936, 937.

99 (1983) 2 All ER 346, 346.

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[124] In the recent decision of Paponette100

, the Privy Council approved of the test adopted by

Lord Woolf in R v. North and East Devon Health Authority, Ex p Coughlan101

as to the

circumstances in which a public authority is entitled to frustrate a substantive legitimate

expectation. Lord Woolf stated:

“Where the court considers that a lawful promise or practice has induced a

legitimate expectation of a benefit which is substantive, not simply procedural,

authority now establishes that here too the court will in a proper case decide

whether to frustrate the expectation is so unfair that to take a new and different

course will amount to an abuse of power. Here, once the legitimacy of the

expectation is established, the court will have the task of weighing the

requirements of fairness against any overriding interest relied upon for the change

of policy.”

[125] Interestingly Professor Forsyth in his article "Legitimate Expectations Revisited"102

,

postulates that the jurisprudence justifying the protection of legitimate expectations includes

fairness, the advancement of good administration and the abuse of power. However, he argues

that these overarching justifications, while not wrong, may not be helpful in identifying the core

principle. Professor Forsyth advocates a return to fundamentals, failing which there is a real

danger that "the concept of legitimate expectation will collapse into an inchoate justification for

judicial intervention." He posits that the justification for the protection of legitimate expectations

is based on the simple notion that the law should protect the trust that has been reposed in the

promise made by an official (the German concept of "Vertrauenschutz").

[126] As previously stated, s 5 of the IRA does not give rise to a right of reappointment.

Therefore, for this Court to find that there was a legitimate expectation, the appellant’s

expectation must be premised on an express promise made by the public authority or on the

existence of a regular practice which can reasonably be expected to continue.

[127] It is common ground between both parties in this matter that, when addressing the issue

of legitimate expectation of the substantive benefit of reappointment, the focus is not on any

express promise, but is based on there being a regular practice. In respect of there being such a

practice, the appellant exhibited a list of fifty-two names of members with their periods of

100

Paponette (fn 85), [34].

101 (2001) QB 213, [57].

102 Judicial Review; Dec 2011, Vol. 16 Issue 4, pg. 429 (Academic Journal).

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service and qualifications who served in the Industrial Court from 1965 to 2004.103

There is no

reason to doubt the accuracy of this list as it originated from the Chief State Solicitor. The

appellant in his affidavit evidence104

deposed that during his tenure as a member of the Industrial

Court, the term of office of the following members expired and they were all reappointed:

Mr. Addison Khan – Attorney at Law – In or about December 2002

Mr. Albert Aberden – Trade Unionist – In or about the first half of 2001

Mr. Patrick Rabathally – trade Unionist – In or about the first half of 2001

Mr. Lloyd Elcock – Attorney at Law – In or about the first half of 2001

Mr. George Ramsubeik – Industrial Relations Expert – In or about the first half of 2001

Mr. Fitzroy Regis – Industrial Relations Expert – In or about the second half of 2001

Mr. Gregory Baker – Attorney at Law – In or about the second half of 2001

Mr. Cecil Bernard – Attorney at Law – In or about early 2003

Mr. Vernon Ashby – Industrial Relations Expert – In or about early 2003”

[128] From this list, it appears that between 1965 and 2004, there were six occasions on which

members were not reappointed for a second term (Harold Hutson [1965 – 1968], Hector McLean

[1981 – 1984], Lawrence Achong [1994 – 1999], Joe Young [2000 – 2003], Sam Maharaj [2000

– 2004] and the Appellant [2000 – 2004]). As can be seen, within recent times, between 1994 to

2004, four of those persons were not reappointed for a second term, although it should be pointed

out that two of those four persons (the Appellant and Sam Maharaj) have launched proceedings

challenging the failure to reappoint. Moreover no evidence was adduced as to why the others

were not reappointed; nor indeed whether the President of the Industrial Court recommended the

reappointment or otherwise of Lawrence Achong or Joe Young, it being a matter of record that

Sam Maharaj and the appellant were recommended by the President of the Industrial Court for

reappointment. This has the potential of putting a damper on the existence of any regular practice

contended for by the appellant.

103

See exhibit “P.L.13” of the affidavit of Paul Lai, sworn to and filed on 4th

November, 2004, at pgs 66 to 67 of the

Record of Appeal.

104 See [9] of the affidavit of Paul Lai, sworn to and filed on the 3

rd December, 2003, at pg. 12 of the Record of

Appeal.

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[129] The respondent also challenged the evidence of the appellant as to the practice of

reappointment upon the recommendation of the President of the Industrial Court, by producing

evidence of the names of three members thereof who were not reappointed despite the

recommendation of its President. Paragraph 14 of the affidavit evidence of Addison Masefield

Khan105

(I have included the periods of service) states that:

“the following members who had been recommended for re-appointment by the President

of the Industrial Court, were not re-appointed, Mr. Hamilton Johnson in 1990 (Mr.

Hamilton Johnson had been a member of the Court from October, 1974) [1974 – 1990],

Mr. Clive Beckles (a Vice President of the Court) in 1993 [1987 – 1993] and Mr. Francis

Corbie (Chairman of the Essential Service Division) in 1994 [1979 – 1994].”

[130] The importance of the evidence elicited on behalf of the respondent in respect of the three

persons who were not reappointed, despite the recommendation of the President of the Industrial

Court, is that it shows that not in every instance of the President’s recommendation is a member

reappointed. However, I note that all three would have served at least two terms. Again it is

difficult upon a close examination of the evidence led in this trial to ascertain what other factors

might have influenced the failure to reappoint these three members and, without further

evidence, to make any determination on the issue would require me to engage in speculation.

[131] I have also considered the evidence with respect to accountants who have been appointed

to the Industrial Court since its inception. This reveals that:

(i) There was one accountant:

(a) between August 16, 1965 to August 10, 1988 [Gregory Awang];

(b) between February 1, 1989 to November 30, 1991 [Joseph Pounder];

(c) between November 15, 1999 to October 22, 2000 [Lawrence Achong];

(d) the greater part of 2002 [Paul Lai]; and

(ii) There were two accountants:

(a) between August 11,1988 to January 31,1989 [Gregory Awang and Joseph

Pounder];

105

See page 46 of Record of Appeal.

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(b) between December 1, 1991 to November 14, 1999 [Joseph Pounder and

Lenora Harris];

(c) between October 23, 2000 to December 31,2001[ Joseph Pounder and

Paul Lai] ;

(d) between September 10, 2002 to January 22,2004 [Paul Lai and Lenora

Harris].

[132] As can be seen, the aggregate of the periods during which there was one accountant

member only exceeds twenty-six years, including one period of twenty-three years when Mr.

Gregory Awang was a member of the Court [1965 to August 1988]. However, the figures also

reveal that, from 1988, there were occasions when there were two accountants appointed to the

court. But there is no discernible trend suggestive of any pattern which might be of assistance in

determining whether or not there was an established practice of reappointment as alleged by the

appellant. Rather, the evidence seems more in keeping with the constitutional and statutory duty

of the President (acting on the advice of the Cabinet), to, in accordance with section 4 (3) (c) of

the IRA, determine the composition of the court and the balance to be maintained thereof in

respect of the expertise of its members.

[133] That being the state of the evidence, it is difficult for me to come to the conclusion, on

the totality of the evidence, as to the existence of a regular practice that was clear, unambiguous

and devoid of qualification that a member would always be reappointed for a second term once

he satisfied the five criteria set out at paragraph 109 herein. In light of the evidence, and applying

the law as stated by Bereaux JA in Ramnath106

, the trial judge cannot, in my view, be said to

have been plainly wrong in his determination, the essence of which was that there was

insufficient evidence to found a claim for legitimate expectation of a substantive benefit based on

either an express promise or the existence of a regular practice.

[134] Having determined the issue of the substantive legitimate expectation of reappointment, I

now turn to the issue of the appellant’s legitimate expectation of a procedural benefit. In my

view, and in substantial agreement with the reasons of the trial judge, there is as well no

evidence of any representation that is clear, unambiguous and devoid of qualification emanating

from the respondent, indicative of the appellant being accorded any hearing in the event that he

106

Ramnath (fn 87).

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was not to be reappointed. Indeed, the affidavit of Addison Masefield Khan, in outlining the

procedure for reappointment, made no reference to there being any practice with respect to

consultation with members of the court regarding the decision to reappoint.

J. Disposition.

[135] In light of the foregoing, the appeal fails and I affirm the decision of the trial judge to

dismiss the claim of the appellant. We propose to hear the parties on the question of costs.

P. Moosai

Justice of Appeal

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