Page 1 of 39 REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No. CV2018-00626 BETWEEN KOFI CHAPMAN Claimant AND THE PUBLIC SERVICE COMMISSION Defendant Claim No. CV2018-00627 BETWEEN JANICE NURSE Claimant AND THE PUBLIC SERVICE COMMISSION Defendant Claim No. CV2018-00667 BETWEEN VALERIE HAMLET-BOBCOMBE Claimant AND THE PUBLIC SERVICE COMMISSION Defendant Claim No. CV2018-00668 BETWEEN MICHAEL GUELMO Claimant AND THE PUBLIC SERVICE COMMISSION Defendant
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REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE Claim No. CV2018-00626
BETWEEN
KOFI CHAPMAN Claimant
AND
THE PUBLIC SERVICE COMMISSION
Defendant Claim No. CV2018-00627
BETWEEN
JANICE NURSE Claimant
AND
THE PUBLIC SERVICE COMMISSION Defendant
Claim No. CV2018-00667
BETWEEN
VALERIE HAMLET-BOBCOMBE Claimant
AND
THE PUBLIC SERVICE COMMISSION Defendant
Claim No. CV2018-00668
BETWEEN
MICHAEL GUELMO Claimant
AND
THE PUBLIC SERVICE COMMISSION Defendant
Page 2 of 39
Before the Honourable Mr. Justice V. Kokaram
Date of Delivery: Friday 22 February, 2019
Appearances:
Mr. Kenneth Thompson instructed by Mr. Roland Bain, Ms. Nekisha Charles and Mr. Carlos
Mills-Mark, Betty Ramdass-Ali, Betty Dial and Ann-Hosein since these persons would have
satisfied both the training and experience requirement. With respect to the experience
requirement relevant to this dispute, they all either held a position in the Administrative Class
or an administrative office in local government.
Issues
46. The following issues fall for determination:
(a) Whether the Commission unlawfully delegated its powers to the DPA to carry out this
screening process;
(b) Was the application of the listed criteria for the post of CEO irrational or unreasonable;
(c) Did the Commission act unfairly in failing to give the Claimants an opportunity to be
heard;
(d) Were the actions in failing to shortlist the Claimants a breach of their constitutional rights
to equal treatment and protection of the law.
47. In summary my findings are as follows:
(a) The DPA did not usurp the functions of the Commission in carrying out a selection of
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candidates. The Commission lawfully delegated the administrative task of shortlisting
candidates for consideration of the Commission to the DPA.
(b) In any event, the Commission through the Selection Board considered the applications of
the Claimants and found them not to have the requisite experience to be shortlisted to
be interviewed.
(c) The Commission’s interpretation of the minimum experience and training is not irrational.
They have selected as the important area of experience the administrative class in local
administration of the public service. Once a candidate has such experience of a minimum
of eight (8) years together with the requisite training, the candidate would be shortlisted
for consideration. However, if the experience in such Administrative Class was less than
eight (8) years due allowance was given for the nature of his duties performed as well as
the nature of his academic qualifications. Reference to the CPO guidelines to assist in
interpreting the minimum experience and training criteria was not absurd, illogical or
irrational. In any event, no equivalency exercise was appropriate for these Claimants as
they simply did not hold a post within the Administrative Class of the public service.
(d) For these reasons, there was no breach of the right to the protection of the law.
(e) The discrimination claim must fail as there were no true comparators identified by the
Claimants and if so, there was an acceptable justification by the Commission for treating
the Claimants differently.
The role of the Commission and the authority of the DPA to shortlist candidates
48. The Claimants argued that the selection process must only be done by the Commission and
not the DPA. Further, in recruiting the DPA to select candidates, the Commission was in
breach of Regulation 16 of the PSC Regulations.
49. The argument is flawed simply on the basis that the DPA did not engage in a selection process
in relation to the Claimants. She conducted a purely administrative exercise of determining
whether the Claimants’ applications were suitably compliant with the advertised criteria for
consideration by the Commission itself or the Selection Board. Additionally and in any event,
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the Selection Board also considered their applications and found them to have been non-
compliant with the advertised criteria.
50. It is accepted that the Commission is the only body vested with the constitutional power
pursuant to section 121(1) of the Constitution to appoint on promotion, to appoint, to act,
transfer, remove and exercise disciplinary control:
“121. (1) Subject to the provisions of this Constitution, power to appoint persons to hold
or act in offices to which this section applies, including power to make appointments on
promotion and transfer and to confirm appointments, and to remove and exercise
disciplinary control over persons holding or acting in such offices and to enforce standards
of conduct on such officers shall vest in the Public Service Commission.”
51. By virtue of section 129 of the Constitution, the Commission can regulate its own procedures
through the use of Regulations or otherwise:
“129. (1) Subject to subsection (3), a Service Commission may, with the consent of the
Prime Minister, by regulation or otherwise regulate its own procedure, including the
procedure for consultation with persons with whom it is required by this Constitution to
consult, and confer powers and impose duties on any public officer or, in the case of the
holder of an office referred to in section 111(2), a Judge or on any authority of the
Government, for the purpose of the discharge of its functions.”
52. The PSC Regulations were adopted pursuant to section 129(1) of the Constitution.
Specifically, in relation to the filling of vacancies the relevant regulations provide as follows:
“13. (1) As soon as it is known that a vacancy will occur the Permanent Secretary or Head
of Department shall communicate to the Director in writing and shall make his
recommendations regarding the filling of the vacancy.
(2) Where a vacancy exists for more than three months and no request has been made
by the Permanent Secretary or Head of Department for the filling of the vacant post, the
Director shall send to each Permanent Secretary or Head of Department a statement of
existing vacancies in his Ministry or Department requesting early recommendations for
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filling vacancies.
(3) If recommendations, or satisfactory explanations for a lack thereof, are not received
within a month, the Director shall report the fact to the Commission and the Commission
shall require the Permanent Secretary or Head of Department to inform it of the reasons
for failure to request the filling of the vacancy.
(4) The Director shall, from time to time by circular memorandum or by publication in the
Gazette, give notice of vacancies which exist in the particular service and any officer may
make application for appointment to any such vacancy. Such application shall be
forwarded through the appropriate Permanent Secretary or Head of Department to the
Director, but the failure to apply shall not prejudice the consideration of the claims of all
eligible public officers.
(5) Notwithstanding subregulation (4), a Permanent Secretary or Head of Department
may with the consent of the Public Service Commission and in consultation with the
Director of Personnel Administration by—
(a) circular memorandum; and
(b) publication in the Gazette,
give notice of vacancies which exist in offices specific to the particular Ministry or
Department to which any eligible officer may apply.
(6) An application to fill a vacancy as advertised pursuant to subregulation (5) shall be
made directly to the Permanent Secretary or Head of Department.
(7) The failure of an eligible officer to apply for a vacancy as advertised pursuant to
subregulation (5) shall not prejudice the Commission’s consideration of the claims by that
officer.
14. Whenever in the opinion of the Commission it is possible to do so and it is in the best
interest of the particular service within the public service, appointments shall be made
from within the particular service by competition, subject to any Regulations limiting the
number of appointments that may be made to any specified office in the particular
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service.
15. Where the Commission considers either that there is no suitable candidate already in
the particular service available for the filling of any vacancy or that having regard to
qualifications, experience and merit, it would be advantageous and in the best interest of
the particular service that the services of a person not already in that service be secured,
the Commission may authorise the advertisement of such vacancy.
16. (1) The Commission may from time to time appoint one or more Selection Boards to
assist in the selection of candidates for appointment to the public service and the
composition of any such Board and the form in which its reports are to be submitted shall
be in the discretion of the Commission.
(2) On consideration of any report of a Selection Board, the Commission may, in its
discretion, summon for interview any of the candidates recommended by such Board.
(3) Where a Permanent Secretary or Head of Department has issued a notice of vacancy
pursuant to regulation 13(5), that Permanent Secretary or Head of Department shall
appoint a Selection Board to assist in the selection of a candidate for appointment to the
vacancy.
(4) The Selection Board appointed under subregulation (3) shall include the Director or
his representative and shall be constituted in accordance with guidelines issued by the
Public Service Commission.
(5) A Selection Board appointed under subregulation (3) shall follow the procedures
outlined by the Public Service Commission in “Guidelines for the selection of candidates”
issued from time to time.
(6) The report of a Selection Board appointed under subregulation (3) shall be submitted
to the Public Service Commission for consideration and the Commission may in its
discretion summon for interview any of the candidates recommended by that Selection
Board.
18. (1) In considering the eligibility of officers for promotion, the Commission shall take
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into account the seniority, experience, educational qualifications, merit and ability,
together with relative efficiency of such officers, and in the event of an equality of
efficiency of two or more officers, shall give consideration to the relative seniority of the
officers available for promotion to the vacancy.
(2) The Commission, in considering the eligibility of officers under subregulation (1) for an
appointment on promotion, shall attach greater weight to—
(a) seniority, where promotion is to an office that involves work of a routine
nature, or
(b) merit and ability, where promotion is to an office that involves work of
progressively greater and higher responsibility and initiative than is required for
an office specified in paragraph (a).
(3) In the performance of its functions under subregulations (1) and (2), the Commission
shall take into account as respects each officer—
(a) his general fitness;
(b) the position of his name on the seniority list;
(c) any special qualifications;
(d) any special courses of training that he may have undergone (whether at the
expense of Government or otherwise);
(e) the evaluation of his overall performance as reflected in annual staff reports
by any Permanent Secretary, Head of Department or other senior officer under
whom the officer worked during his service;
(f) any letters of commendation or special reports in respect of any special work
done by the officer;
(g) the duties of which he has had knowledge;
(h) the duties of the office for which he is a candidate;
(i) any specific recommendation of the Permanent Secretary for filling the
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particular office;
(j) any previous employment of his in the public service, or otherwise;
(k) any special reports for which the Commission may call;
(l) his devotion to duty.
(4) In addition to the requirements prescribed in subregulations (1), (2) and (3), the
Commission shall consider any specifications that may be required from time to time for
appointment to the particular office.”
53. It is clear from the PSC Regulations that the DPA plays an integral role in the process of
recruitment. The SCD is the secretariat to all Service Commissions under the Constitution
including the Commission. Under section 129 of the Constitution, the SCD and by extension
the DPA is vested with the power to provide administrative support services and advise the
PSC in the exercise of its functions including those of appointments, promotions, transfers as
well as the power to remove and exercise disciplinary control over officers. However, the role
of the DPA in the appointment process is restricted to administrative assistance. The exercise
of a discretion is reserved only for the Commission. It is also clear that the DPA was very clear
that it was the Commission which reserves the power to make appointments. In so far as she
played a role in this recruitment process she outlined her administrative role in screening and
shortlisting candidates to be interviewed by the Commission which precedes the decision to
appoint or not to appoint persons to the vacancy.
54. Certainly, Regulation 16 gives the Commission a broad discretion to appoint a Selection Board
from time to time. This was the Commission providing by regulation a method of selection.
However, section 129 of the Constitution also preserves unto the Commission the power to
regulate its own procedure “otherwise” than by regulation and conferring powers and
imposing duties on any public officer. There was nothing sinister nor suspicious in conferring
a power on the DPA to provide the administrative assistance she rendered in this case.
Indeed, several cases have acknowledged the high workload of the Commission and the
impracticality of requiring the Commission itself to accomplish many of the necessary but
ordinary tasks associated with recruitment. See Harridath Maharaj v Public Service
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Commission CV2007-01093, Robert Ramsahai v Teaching Service Commission [2011] UKPC
26 and Ashford Sankar and ors v Public Service Commission [2011] UKPC 27. In this case, it
was a sifting exercise to “check the papers” and determine if the applicants “pre-qualify”
based on the information they provided. If there were certificates missing they cannot be
shortlisted. If they provided the wrong information they cannot be shortlisted. If, as in this
case, they simply do not fall within the class of persons recognised by the Commission as
having the required experience as advertised they cannot be shortlisted.
55. By analogy in Ashford Sankar and others v The Public Service Commission [2011] UKPC 27
the Judicial Committee of the Privy Council held that the outsourcing of the examination to
Assessment Centre Exercise (ACE) was a legitimate tool to shortlist candidates. The
shortlisting was done using an ACE through the Public Service Commission of Canada. The
methodology of the ACE was challenged. There was an agreement between the Ministry of
Public Administration and Information and the United Nations Development Program (UNDP)
regarding the provision of project management services to improve, inter alia, efficiency and
new mechanisms for career management. The UNDP engaged the services of the Canadian
Public Service Commission to design an ACE for the selection of Candidates for Deputy
Permanent Secretary after the Commission agreed to use the Canadian Public Service
Commission as consultants for the ACE. The Court found that there was no breach of the
regulations.
56. In any event, it could not logically be expected that the Commission would sift all the
applications and some administrative support would be required. See Cooper & Anor v.
Director of Personnel Administration & Anor [2006] UKPC 37.
57. Further in De Smith’s Judicial Review, Sixth Edition, the learned authors observed:
“5-138 It is a well-known principle of law that when a power has been conferred to a
person in circumstances indicating that trust is being placed in his individual judgment
and discretion, he must exercise that power personally unless he has been expressly
empowered to delegate it to another….
5-139…. The principle does not amount to a rule that knows no exception; it is a rule of
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construction which makes the presumption that “a discretion conferred by statute is
prima facie intended to be exercised by the authority on which the statute has conferred
it and by no other authority, but this presumption may be rebutted by any contrary
indications, found in the language, scope or object of the statute.”
58. The mischief of the presumption against sub-delegation is the loss by the delegate of the
power to decide, conferred on it by the enabling power. In Judicial Review Handbook 6th
Edition by Michael Fordham QC, the learned author observed at paragraph 50.3:
“There are sound practical reasons for a degree of shared or transferred responsibility,
for example between a Minister and department officials. However, a public body may
not “give away” its key functions to another body or delegate impermissibly to its own
officials or committees. What is permissible depends on any statutory scheme, the
arrangements made, the relevant function and the particular context.”
59. There have been several authorities which confirm the principle that where a statute does
not prescribe the manner in which a public body is to carry out their duties, the public
authority is given a broad discretion as to the manner in which to carry out such duty. In R v
Secretary of State for the Home Department ex p Doody [1994] 1 AC 531 Lord Keith of Kinkle
observed at 548:
“Unless Parliament has indicated that the Secretary of State must make a particular
decision personally, it is a matter for him to arrange the business of his department.”
60. Further, Lord Mustill commented at 560-561:
“..the respondents acknowledge that it is not enough for them to persuade the court that
some procedure other than the one adopted by the decision-maker would be better or
more fair. Rather, they must show that the procedure is actually unfair. The court must
constantly bear in mind that it is to the decision maker, not the court, that Parliament has
entrusted not only the making of the decision but also the choice as to how the decision
is made.”
61. Where the statute is silent as to the manner in which a public authority is to conduct the duty,
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Lord Diplock observed in Bushell v Secretary of State for the Environment [1981] AC 75:
“Where rules regulating the procedure to be followed at a local inquiry held pursuant to
a particular statutory provision have been made by the Lord Chancellor under section 11
of the Tribunals and Inquiries Act 1971, the minister and the inspector appointed to hold
the inquiry must observe those rules; but no such rules were applicable in the instant case
- they had not yet been made. The Highways Act 1959 being itself silent as to the
procedure to be followed at the inquiry, that procedure, within such limits as are
necessarily imposed by its qualifying for the description "local inquiry," must necessarily
be left to the discretion of the minister or the inspector appointed by him to hold the
inquiry on his behalf, or partly to one and partly to the other. In exercising that discretion,
as in exercising any other administrative function, they owe a constitutional duty to
perform it fairly and honestly and to the best of their ability…”8
62. Bridges v R 1952 CanLII 9 (SCC) highlight that in determining Parliament’s intention, it may
be necessary to distinguish between obligations that are purely administrative and those
which discretion or personal performance is necessary. In Bridges, it was submitted that there
was an unauthorized delegation of the City Clerk of the Council’s discretionary right to decide
which groups of person shall be issued “extension permits.” All of the requirements for
issuing the permits were outlined in the relevant statutory bye laws. The statutory bye laws
had provided the conditions for issuing permits and therefore the Court found that the
Council had not substituted the clerk’s judgment and discretion for its own. The clerk’s duties
were administrative only and the delegation was not unlawful.
63. Famously, the Carltona Principle in Carltona Limited v Commissioner of Works [1943] 2 All
ER 560 (CA) where Lord Greene observed at 563:
“In the administration of government in this country the functions which are given to
ministers (and constitutionally properly given to ministers because they are
constitutionally responsible) are functions so multifarious that no minister could ever
personally attend to them…..The duties imposed upon ministers and the powers given to
8 Bushell v Secretary of State for the Environment [1981] AC 75 at 94-95
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ministers are normally exercised under the authority of the ministers by responsible
officials of the department. Public business could not be carried on if that were not the
case. Constitutionally, the decision of such an official is, of course, the decision of the
minister.”
64. In R v Secretary of State for the Home Department ex pa Oladehinde [1991] AC 254, Lord
Griffiths noted at paragraph 300:
“It is obvious that the Secretary of State cannot personally take every decision…The
decision must be taken by a person of suitable seniority in the Home Office for whom the
Home Secretary accepts responsibility. This devolution of responsibility was recognised
as a practical necessity in the administration of government by the Court of Appeal
in Carltona Ltd. v. Commissioners of Works[1943] 2 All E.R. 560 and has come to be known
as the Carltona principle.”
65. The DPA was further assisted in this screening exercise by a Circular Memorandum under
“experience and training requirements”, and where equivalency is concerned and applied, by
the guidelines handed down by the CPO and by the job descriptions of the positions held in
the past by applicants.
66. The DPA’s exercise of power in this instance does not therefore constitute an invalid power
nor one which usurped the prime constitutional functions vested in the Service Commission
to appoint officers.
67. Further, there is no evidence of irregularity made by the Claimants that the DPA was not
authorized to conduct the first shortlist and in the absence of rebutting evidence, there is the
presumption of regularity in the acts and conduct of officials. See Mohanlal Bhagwandeen v
The Attorney General of Trinidad and Tobago No. 45 of 2003.
68. The DPA was not conducting any assessment nor weighing exercise in relation to these
Defendants. It was not even appropriate to conduct any equivalency exercise as the Claimants
simply did not meet the advertised criteria of having the experience in the Administrative
Class. In any event, the Claimants were further screened by the Selection Board.
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69. The Claimants can only succeed on this challenge by showing either (a) that they did fall
within an administrative class of the Second Schedule of the Civil Service Regulations in the
Civil Service Act Chap 23:01 in local government (b) that utilising such an approach or
requiring experience in an office listed in the Administration Class or Administration in local
government is unreasonable and (c) that in any event they were treated unfairly when
compared to other persons who were not in an administrative class yet were shortlisted for
interviews. None of these submissions are sustainable.
The advertised criteria
70. It is important at this stage to examine the advertised criteria that is material to this public
law challenge. The Commission was on the search for a candidate for the office of CEO whose
duties have been set out in the materials. It is an administrative post. The advertisement was
open to the widest pool of applicants both internally and externally. There are two sets of
criteria that must be fulfilled (a) experience and (b) training. There is no dispute that the
Claimants satisfied the training requirements. With respect to the requirement of experience
the application must on its face reveal “extensive (over 8 years experience) in Local
Government Administration”. Without this no applicant can remotely expect to have any
chance of being considered. The only issue in this case is what is reasonably to be considered
as experience in “Local Government Administration”. The Commission had stipulated that the
search was focused in experience in an office listed in the Administrative Class or in
administration in local government. If your application did not contain evidence of this, the
candidate cannot be interviewed. It indeed would be a waste of the Commission’s resources
to do so and it would be unfair to other applicants who have met the listed criteria. The real
issue is whether the approach to determining the experience required by the Commission
was irrational or unreasonable.
A reasonable criteria
71. It is patent that this Court is not being asked to substitute its own view as to what should be
the criteria for determining administrative experience in local government. Not only is that
not the function of judicial review, this Court is ill equipped to do so either in principle or on
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the evidence before it.
72. Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER
935 (CCSU) famously fashioned the tripartite grounds of review conveniently under the tags
of irrationality, illegality and procedural propriety. On the question of irrationality, a short
hand expression of Wednesbury unreasonableness, he was quick to acknowledge that the
concept was a sliding scale but that experienced Judges would be well equipped to recognise
whether a decision was unreasonable so that it defies logic or is absurd.
73. In Primanth Geelal and Rupnarine Geelal v The Chairman, Aldermen, Councillors And
Electors Of The Region Of San Juan/Laventille CV2017-04558, I recently set out the general
principles of judicial review to guide the Court on the irrationality/illegality/proportionality
challenge:
“71. Judicial review is the mechanism by which the Courts fulfil the rule of law by
preventing arbitrary, unwarranted and unlawful actions of the executive and public
bodies. The principles governing judicial review seek to address the tension between
judicial vigilance and judicial restraint to arrive at the right balance of legitimate
administrative action. See Kangaloo JA in Steve Ferguson v The Attorney General of
Trinidad and Tobago C.A. CIV 207/2010.35
72. Judicial review actions ought not to be viewed by this Defendant as an attack or an
action against it but rather an examination of its decision and where appropriate be seen
as an opportunity to improve the quality of the decision making process. See Re Waldron
1986 QB 824.
73. The Court in an application for judicial review will not substitute its views for that of
the administrator nor conduct an “appeal” of its decision. Its focus is on the process by
which administrative decisions are made. See Fordham, Judicial Review Handbook, 6th
Edition para 2.1.3 and R v Panel on take overs and mergers ex parte Datafin PLC and
another [1987] QB 815.
74. Decisions of a public body will be unlawful if it is irrational, illegal or procedurally
improper. The test of “Wednesbury unreasonableness” is whether the decision could
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have been reached by a decision maker acting reasonably or whether it was within the
range of reasonable decisions open to the decision maker. A deferential approach to an
authority in not conducting merit based reviews preserves the doctrine of separation of
powers. However, there are cases which warrant a greater intensity of review such as
where property and human rights are involved. In such cases, the demands of
accountability, transparency, rationality and fairness all call for anxious scrutiny of the
merits of the decision. To this end, the Court have developed an issue sensitive approach
to the question of the reasonableness test. See Council of Civil Service Unions v Minister
for the Civil Service [1984] 3 All ER 935, R v Secretary of State for the Home Department
[2003] EWCA Civ 364.
75. In appropriate cases therefore the traditional Wednesbury unreasonableness37 test
gives way to a hard edged review or to a test of proportionality. Wednesbury is not to be
regarded as a monolithic concept. It is a mutable standard of review; “it is no Procrustean
bed”. There are now various standards of the Wednesbury ground of review. The graver
the impact of the decision on the individual affected by it, the more substantial the
justification that will be required of the decision maker and the discretionary area of
judgment of the decision-maker is smaller; the standard of review of the Court is
stricter…..
77. An administrator or executive authority entrusted with the exercise of a discretion
must direct itself properly in law. A public body cannot choose to deploy powers it enjoys
under statute in so draconian a fashion that the hardship suffered by the affected
individual in consequence will justify the Court in condemning the exercise as irrational
and perverse. See Kennedy v Information Comr (SC(E)).
78. A public body must act conscientiously, fairly and not so unfairly as to abuse it powers.
Fairness will often require that a person who may be adversely affected by the decision
will have an opportunity to make representations on his own behalf either before the
decision is taken with a view to procuring a favourable result or after it is taken with a
view to procuring its modification or both. R v Secretary of State for the Home
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Department ex p Doody [1994] 1 AC 531 and Lloyd v McMahon [1987] AC 625.”9
74. Since CCSU, Judges have grappled with the concept of irrationality or Wednesbury
unreasonableness to the extent that the concept has been refined to several strands of
varying degrees of rationality or irrationality prompting some judicial calls for the recognition
of a separate ground of “proportionality”. I had explained that the uncertainty with the exact
parameters of the ground of unreasonableness reveals the underlying tension between
adopting a deferential approach to the exercise of administrative power and anxious scrutiny.
75. In R v Secretary of State for the Home Department ex p Brind [1990] 1 All ER 469 it was
9See also TOSL Engineering Ltd v Minister of Labour and Small Micro Enterprise Development CV2013-02501 this Court observed at paragraph 19:
“19. The traditional heads of reasonableness and irrationality are viewed as sufficient to advance the purpose of judicial review without engaging in a merit based review. However, there will be cases where the judicial review court must force the issue and adopt a more robust review of a decision which resembles a reconsideration of the merits. Such a hard edged review has been recognised especially in cases where breaches of the Constitution may arise. In T Mobile (UK) Ltd v Office of Communications [2009] Bus. L.R. 794: “Traditionally those limits indeed confined the courts to considering things like procedural unfairness or Wednesbury unreasonableness (Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223)—various forms of error of law. Judicial review did not allow an attack purely on the merits of the impugned decision. And that is still broadly so, as the cases cited by Lord Pannick demonstrate. He took us to R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 and R (SB) v Governors of Denbigh High School [2007] 1 AC 100. Both were concerned with the impact of the European Convention for the Protection of Human Rights and Fundamental Freedoms in judicial review cases. It is sufficient for present purposes to go to what Lord Bingham of Cornhill said in the latter case, at para 30:
“Secondly, it is clear that the court's approach to an issue of proportionality under the Convention must go beyond that traditionally adopted to judicial review in a domestic setting. The inadequacy of that approach was exposed in Smith and Grady v United Kingdom (1999) 29 EHRR 493, para 138, and the new approach required under the 1998 Act was described by Lord Steyn in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, paras 25–28, in terms which have never to my knowledge been questioned. There is no shift to a merits review, but the intensity of review is greater than was previously appropriate, and greater even than the heightened scrutiny test adopted by the Court of Appeal in R v Ministry of Defence, Ex p Smith [1996] QB 517, 554. In the context of human rights, Miss Rose showed us cases where it was held that it was necessary to go into the merits on a judicial review application. Thus in R (Wilkinson) v Broadmoor Special Hospital Page 11 of 41 Authority [2002] 1 WLR 419, this was held necessary in the context of a case concerning the human rights of a compulsorily detained convicted mental patient. The issue was whether the patient was mentally capable or not to consent to a treatment regime. The court held that this issue could be investigated in judicial review proceedings, even, if necessary, by the calling of medical witnesses in those very proceedings.””
Brooke LJ referred to the availability of a “full merits review”: “Super Wednesbury is not enough. The Claimant is entitled to a proper hearing on the merits of whether the statutory grounds for imposing this treatment upon him against his will are made out.”
Page 27 of 39
observed:
“Proportionality
In Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935 at 950,
[1985] AC 375 at 410 Lord Diplock classified under three heads the grounds on which
administrative action was subject to judicial control. These were illegality, irrationality
and procedural impropriety. However, he added:
That is not to say that further development on a case by case basis may not in
course of time add further grounds. I have in mind particularly the possible
adoption in the future of the principle of "proportionality" which is recognised in
the administrative law of several of our fellow members of the European
Economic community ... '
Even at that time, the principle that administrative action could be quashed if it was
disproportionate to the mischief at which it was aimed had been accepted by the courts,
albeit not as a classified ground for judicial review: see R v Barnsley Metropolitan BC, ex
p Hook [1976] 3 All ER 452 at 456, 461, [1976] 1 WLR 1052 at 1057, 1063. Encouraged by
Lord Diplock's speech, the concept surfaced again in R v Secretary of State for Transport,
ex p Pegasus Holidays (London) Ltd [1989] 2 All ER 481 at 490, [1988] 1 WLR 990 at 1001,
where Schiemann J accepted a submission that it was but an aspect of irrationality and
asked himself the question: 'Is there here such [Wednesbury] total lack of proportionality
or lack of reasonableness?' (see Associated Provincial Picture Houses Ltd v Wednesbury
Corp [1947] 2 All ER 680, [1948] 1 KB 223). It also made a fleeting appearance in R v Brent
London BC, ex p Assegai (1987) Times, June 18, where Woolf LJ, with the agreement of
McCullough J, sitting as a Divisional Court, said that the council's action was--
'wholly out of proportion to what Dr Assegai had done. Where the response is out
of proportion with the cause to this extent, this provides a very clear indication or
unreasonableness in a Wednesbury sense.'
In the instant case the Divisional Court held that ground 2 (proportionality) and ground 3
(Wednesbury unreasonableness) were identical. Watkins LJ continued:
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'The contention arising from them is that the principle of proportionality in the
law of the United Kingdom being one test or tool to be used in resolving the
question, was the decision under consideration unreasonable in the sense that
the decision was one which no reasonable minister properly directing himself as
to the law could have taken? Applying that test, if, for example, a sledge hammer
is taken to crack a nut when there are a pair of efficient nut crackers readily
available, that is a powerful indication that the decision to use the sledge hammer
was absurd, unreasonable. Our response to that is, in our view, that the law of the
United Kingdom has not developed so that a decision, which is neither perverse
nor absurd and which is one which a reasonable minister properly taking into
account the relevant law could take, becomes unlawful simply because it can be
shown that it was not in proportion to the benefit to be obtained or the mischief
to be avoided by the taking of the decision. In our opinion the application of such
a concept of proportionality would result in the courts substituting their own
decisions for that of the minister, and that is something which the courts of this
country have consistently declined to do. The courts will not arrogate to
themselves executive or administrative decisions which should be taken by
executive or administrative bodies.'”10
76. In Geelal delivered today11 I re-examined the question of Wednesbury unreasonableness
challenges and their synergy with proportionality. I opined that there may come a time when
full discussion would be needed to adopt proportionality as a more appropriate test to gauge
whether administrative decisions can pass public law muster and can ensure accountability,
transparency and honesty in public administration.
77. I also commented in TOSL at paragraph 24:
“24. What then should be the approach? There is no reason to depart from the salutary
role of the judicial review court as being a court exercising supervisory jurisdiction. It will
10 R v Secretary of State for the Home Department ex p Brind [1990] 1 All ER 469 at 479-480 11 Primanth Geelal and Rupnarine Geelal v The Chairman, Aldermen, Councillors And Electors Of The Region Of San Juan/Laventille CV2017-04558
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be wrong in the absence of a statutory requirement to do so for the judicial review court
to rise to the status of an appellate court. It is also wrong in principle if there is meaning
to the separation of powers. In this context, a degree of deference must be given to the
decision of public officers and bodies engaged in specialised areas of expertise. This does
not jettison the foundational principles of rationality, procedural impropriety and legality.
However in cases where human rights are concerned the Court must be more robust and
demanding of the decision maker. This is not such a case. I agree therefore in this context
with the submissions of the Minister that deference should be paid to the special
knowledge of the Minister of good industrial relations practice. Deference however is no
synonym for reverence and where the decision cannot pass judicial review muster on
grounds of irrationality or proportionality it would be struck down. The context of the
decision paving the way for more robust review where necessary.”
78. There are several reasons why the Claimants’ reasonableness challenge fails in this case: the
Commission is well equipped to make the determination as to what criteria is suitable for the
advertised post; there is no competing rational which would demonstrate that the
Commission’s logic defies comprehension or is absurd, even if one applies a proportionality
test.
79. The Claimants themselves have not advanced any evidence other than their own testimony
to demonstrate that the choice by the Commission of the criteria of examining experience in
the administrative class is logically flawed or absurd. The post of CEO carried administrative
duties. The advertisement itself spoke to training requirements with respect to
Administrative Class. The Commission was selecting persons from the widest pool possible
both inside and outside of the public service. The administrative experience considered with
posts in Local Government on its face is reasonable in determining administrative experience.
How is this logic flawed? The Claimants only argument is not that this logic is flawed but that
simply they were better than those who were short listed. Such an argument simply does not
raise a Wednesbury unreasonableness challenge.
80. Even if a proportionality test is applied to the decision making process, the Commission will
not be found wanting. There was a legitimate object pursued in selecting the criteria. The
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DPA set out objectively her reasons for choosing the criteria. There was no issue of
disadvantage to any other class of persons save for the natural consequence of selection by
open competition where the rules are the same for all candidates.
81. On this aspect the Claimants submit that the screening process is flawed in that the
Commission failed to take into account the suitability criteria set out Regulation 18 when it
decided to shortlist the Claimants. This argument is misconceived. Regulation 18 sets out the
principles for selection for promotion and where several persons are vying for promotion to
a particular post, the appointment must be based on considerations such as seniority, merit
and ability together with relative efficiency. However, in this case, the issue is a fresh
appointment advertised to the public at large and therefore such considerations do not arise
in the same way as they would for a “promotion case”. Once Regulation 15 is engaged, it
renders Regulation 18 inapplicable.
82. In Nairob Smart and others v DPA and JLSC CV2014-00038, Jones J made the following
observations on Regulations 15 and 18 at paragraphs 24, 25, 30, 38:
“24. The clear purpose of regulation 15 is to attract persons from outside the Service in
circumstances where the Commission considers that either (a) there is no suitable
candidate in the Service or (b) having regard to qualifications, experience and merit, it
would be advantageous and in the best interest of the Service to secure the services of a
person not in the Service. In either circumstance the Commission must advertise such
vacancy. By this regulation the Commission therefore once it considers that either (a) or
(b) is applicable can in fact by pass the requirements of both regulations 14 and 18 in that
it can go outside the Service to make the appointment but it must advertise.
25. Regulation 18 deals specifically with the eligibility of officers for appointment on
promotion. ‘Promotion’ is defined by the Regulations “as the appointment of an officer
to an office in a grade carrying a higher remuneration whether such office be in the same
Ministry or Department or not”. The regulation sets out the criteria to be taken into
account by the Commission when considering eligibility of officers within the service for
promotion. It deals with the suitability of officers available for promotion; what criteria is
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to be used in this regard and the manner of preferring one over the other. It does no more
than require the Commission when dealing with such suitability to have regard to certain
benchmarks. The regulation does not determine who is entitled to be promoted. It merely
provides a guide to the Commission as to the criteria to be used when considering
promotions.
30. Similarly regulation 15 applies when regulation 14 and 18 does not. Its purpose is to
attract persons outside of the Service. The regulation applies when the Commission
considers that either (a) there is no suitable candidate in the Service or (b) having regard
to qualifications, experience and merit, it would be advantageous and in the best interest
of the Service to secure the services of a person not in the Service. Indeed it would seem
to me that the purpose of regulation 15 is to get the best candidate for the job.
38. By the Regulations the fact that the Commission considered that having regard to
qualifications, experience and merit it would be advantageous and in the best interest of
the Service to secure the services of a person not already in the Service only permitted
the Commission to advertise the post. The Commission was required to consider all the
candidates for the post including those in the Service who responded to the
advertisement. And in doing so was required to consider the candidates fairly and treat
each by the same benchmarks. In the circumstances the Commission could not apply
regulation 18 considerations to the persons within the Service to the exclusion of the
other candidates.”
83. By this authority the following propositions are sufficient answers to the Claimants’ concerns:
(a) the recruitment process was conducted pursuant to Regulation 15 (b) its purpose is to
attract the widest pool of persons (c) Regulation 15 is entirely delinked from Regulation 18
(d) it would be patently unfair to apply the considerations of Regulation 18 to one class of
applicants and not to do the same for other applicants who are applying from outside of the
public service (d) the presumption that the Commission has acted in the best interest of the
public service without any particular interest to serve is an extremely strong one.
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Natural Justice
84. Fairness has many faces. What is fair is contextual. See Rees v Crane [1994] 2 AC 173. See
Roy Thompson and Lennox Clarke v The Public Service Commission CV2016-01437 per
Donaldson-Honeywell:
“55. In the case of Barnett v Commissioner of Police, the court considered a situation
where the Commissioner of Police made the decision to promote officers who ranked
below the Claimants on the Order of Merit list. The court determined that this was within
the Commissioner’s powers but that there had been an established practice of making
promotions in accordance with such list and the Claimants were justified in conceiving a
legitimate expectation of such continued practice. On this basis the judge determined:
“17. …However, in so far as the claimants held a legitimate expectation, fairness
required that they be afforded an opportunity to be heard before action was taken
against their expectations.”
56. This view is supported by Denning MR in the case of Breen v Amalgamated
Engineering Union. At p. 1154 he stated:
“It all depends on what is fair in the circumstances. If a man seeks a privilege to
which he has no particular claim—such as an appointment to some post or other—
then he can be turned away without a word. He need not be heard. No explanation
need be given”.
57. This can be contrasted with the present case where such an established practice has
been determined not to have existed, and even if it had, the Commission did not act
unfairly in not continuing such practice. It follows therefore that there could be no real
unfairness in not hearing the Claimants before the decision was made. Therefore, the
Claimants’ claim under this head must also fail.”12
85. In this case, the Claimants could not have had an opportunity to be heard as the process had
not passed beyond the administrative stage of determining whether the application was
12 Roy Thompson and Lennox Clarke v The Public Service Commission CV2016-01437 paragraphs 55-57
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suitable. The advertisement itself clearly stated that unsuitable applications would not be
acknowledged. In such an instance if an applicant is not contacted it is presumed that the
application was deemed unsuitable or incomplete without more.
86. The judicial review challenges therefore all fail. The interpretive criteria was rational, the
Commission acted lawfully and fairly.
The Constitutional Law Challenges: Protection of the Law
87. It stands to reason from the analysis of the evidence above that the Claimants cannot contend
that they were denied the protection of the law. They were not entitled to reasons nor could
there be any legitimate expectation to any in circumstances where their applications were
deemed insufficient.
Equality of Treatment
88. The Claimants have pointed to several officers and contended that they were short listed and
there is no reason why they are to be treated differently from those officers. The Claimants
contend that employees such as Ms. Satragie Maharaj fall under the jurisdiction of the
Statutory Authorities Service Commission and not the Commission. They contend that the
Commission took into consideration the experience gained by Ms. Maharaj in the office of
the Assistant Executive Officer from June 2015 to January 2016 but did not take into
consideration the experience he gained as acting CEO and Director of the Municipal
Corporation after 2015.
89. They contend that none of the offices held by Ms. Betty Ramdass-Ali falls within Commission
and none of them fall under the Administrative Class. They also contend that it is not true
that Ms. Magdalene Matthew held several offices in the Administrative Class and that Ms.
Dianne Lakhan held several offices in the Administrative Staff.
90. They contend that none of the offices listed which Ms. Betty Ann Dial held fell within the
Administrative Class. It is also not true that Ms. Shivastri Ramawadh, Ms. Kathy Ann Mills-
Mark and Ms. Ann Hosein even held office which falls under the administrative class. They
further contend that they were similarly circumstanced at these officers in that they were all
certified at tertiary level, they never held an office in the Administrative Class and they have
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served for long periods under the jurisdiction of the Commission or the SASC.
91. The DPA however has explained fully why there is in fact a world of difference between the
Claimants and those officers:
92. Satragie Maharaj held the following offices: Acting Administrative Assistant, Port of Spain City
Corporation (October 2008 to January 2010); Acting Administrative Officer II, Port of Spain
City Corporation (February 2010 to March 2010); Acting Human Resource Officer, Port of
Spain City Corporation (March 2010-July 2010), Acting Marketing Administrator, Port of Spain
City Corporation (July 2010 to July 2014); Acting Clerk IV Port of Spain City Corporation (July
2014 to June 2015) and Assistant Executive Officer Port of Spain City Corporation (June 2015
to January 2016). Having held several offices in the Port of Spain City Corporation he had
extensive administrative experience in the field of local government.
93. Betty Ramdass-Ali held the following offices: Acting Clerk III Port of Spain City Corporation
(2004 to 2006); Acting Accounting Assistant, Port of Spain City Corporation (2006 to 2009);
Acting Administrative Assistant, Port of Spain City Corporation (2009 to 2010); Acting
Personnel and Industrial Relations Officer I, San Fernando City Corporation, Ministry of Local
Government (July 2010 to February 2017. Having held several officers in the multiple city
corporations she had extensive administrative experience in the field of local government.
94. Magdalene Matthew held the following offices: Clerk I, Registrar General Department (1980
to 1981), Clerk I, Point Fortin Borough Corporation (1981 to 1990); Clerk II, Point Fortin
Borough Corporation (1990 to 1997), Clerk III Point Fortin Borough Corporation (1997 TO
2001), Accounting Assistant and Acting Clerk IV Point Fortin Borough Corporation (2001 TO
2008); Acting Personnel and Industrial Relations Officer I, Point Fortin Borough Corporation
(2008 to February 2017) and Acting Deputy Chief Executive Officer, Point Fortin Borough
Corporation (October 2014 to November 2014). Having held several officers in the
Administrative Class, several offices in the Point Fortin Borough Corporation and having acted
in the office of the CEO, she therefore had extensive experience in the field of local
government.
95. Ravindranath Gangoo held the following offices: Road Officer I, Ministry of Local Government
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(1993); Acting Project Officer I, Ministry of Local Government (1993 to 1997), acting as Project
Officer I, Ministry of Local Government (1997), acted as Chief Executive Officer, Ministry of
Local Government (1997 to 1999); promoted as Road Officer II, Ministry of Local Government
(2000 to 2007); promoted as Road Officer III Ministry of Local Government (2007-2013) and
Acting Country Superintendent Ministry of Local Government (from 2013). Having held
several offices in the Ministry of Local Government since 1993, he was have deemed to have
the equivalent experience based on Part 2(1) of the CPO guidelines.
96. Dianne Lakhan held the following offices: Clerk I, Ministry of Education (1990 to 1993); Acting
Office Manager/Clerk II/I Princes Town Regional Corporation (1993 to 2008); Clerk II Ministry
of Local Government (2006), Acting Personnel Industrial Relations Officer/Acting
Administrative Assistant, Ministry of Local Government (2009); Acting Administrative Officer
II/ Administrative Assistant, Ministry of Energy and Energy Affairs (2010 to 2011) and Acting
Human Resource Officer II, Ministry of Local Government (2011 to present). Having held
various officers in the Administrative Class in Local Government and offices in the Princess
Town Regional Corporation, she had extensive experience in the field of local government.
97. Betty Ann Dial held the following officers: Storekeeping I, Accounting Assistant, Clerk I, Clerk
II, Clerk III, Clerk IV, Ministry of Local Government (1990 to 2009); Accounting Assistant Clerk
IV Unemployment Relief Programme (2009 to 2010); Administrative Assistant Office of the
Prime Minister (2010 to 2011); Budget Analyst I, Ministry of Finance and the Economy (2011)
and Acting Budget Analyst II, Ministry of Finance and Economy (April 2013 to December
2014). Having held several offices in the Ministry of Local Government and considering she
gained clerical experience of increasing complexity for entry into the administrative class
from the offices of Clerk IV, Storekeeper and Accounting Assistant, she satisfied the
experience requirement.
98. Shivastri Ramawadh held the following offices: Clerk I Personnel Department (1983 to 1984);
Clerk I, Ministry of Education (1989); Acting Administrative Assistant/Personnel Industrial and
Relations Officer I/ Clerk II/ Clerk III, Ministry of Rural Development and Local Government
(1990 to present), promoted to Clerk II, Ministry of Education (2002); Clerk IV, Princes Town
Regional Corporation (2005 to 2012); Personnel and Industrial Relations Officer I, Princes
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Town Regional Corporation (2006); Acting Administrative Assistant Ministry of Rural
Development and Local Development (2008); Acting Administrative Officer II, Ministry of
Rural Development and Local Government (2012 to 2014) and Project Officer I, Ministry of
Rural Development and Local Government (2014 to 2015). Having held several offices in the
Administrative class since 1989 in the Ministry of Local Government and several officers in
the Princes Town Regional Corporation she satisfied the experience requirement.
99. Kathy Ann Mills-Mark held the following offices: Clerk I, II, III, Acting Auditing Assistant, Port
of Spain City Corporation (September 1983 to September 2005); Accounting Assistant, Port
of Spain City Corporation (September 2005 to July 2008); Clerk IV, Port of Spain City
Corporation (July 2008 to October 2008); Administrative Assistant, Port of Spain City
Corporation (October 2008 to July 2009); Administrative Officer II, Port of Spain City
Corporation (April 2009 to May 2009); Human Resource Officer I, Port of Spain City
Corporation (July 2009 to July 2014); Auditing Assistant, Port of Spain City Corporation (July
2014); Acting Auditor I, Port of Spain City Corporation (August 2014 to May 2015) and
Personnel and Industrial Relations Officer I, Port of Spain City Corporation (May 2015 to
present). Having held offices in the Administrative Class in the Port of Spain City Corporation,
she satisfied the experience requirement.
100. Ann Hosein held the following offices: Temporary Clerk I, Ministry of Finance (1989 to
1993); Clerk I, Ministry of Finance (December 1992), Acting Clerk II, Ministry of Finance (1989
to 1993); Clerk IV, Contract Officer, Siparia Regional Corporation (1995 to 2002); Community
Coordinator, Penal/Debe Regional Corporation (2002 to 2007); Communication Coordinator,
Penal/Debe Regional Corporation (2004 to 2006); Health and Safety Coordinator, Siparia
Regional Corporation (2008 to 2009); Project Officer, Repairs and Maintenance Division,
Education Facilities Company Ltd (2011 to 2012); Acting Clerk II, Ministry of Rural
Development and Local Government (2012 to 2015); Planning Officer, Ministry of Rural
Development and Local Government (March 2012 to present). Having held several offices in
the Administrative Class and multiple offices in multiple regional corporations, she satisfied
the experience requirement.
101. Jameel Chadee entered the public service as a Temporary Road Officer I, was promoted
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to Civil Engineer I and acted as Civil Engineer II where he gained experience in areas of Local
Government Laws, Bye Laws and regulations. He was required to report to an administrative
head, the Chief Engineer which would have allowed him to gain exposure to administrative
procedure in local government. Mr. Kerwyn Pantin also gained experience on secondment in
the Ministry of Local Government as an Assistant City Engineer which included areas of
procurement, supervisory skill, financial experience and project supervision.
102. In further response to Mr. Guelmo, she contends that at the time of the submission of his
application, the Certificate in Public Administration was not attached to his CV. This indicated
that the course was completed and that he was awaiting the Certificate which did not satisfy
the training component at the closing date for submission of the applications. He also did not
have the requisite Local Government administrative experience.
103. In Mohanlal Bhagwandeen v The Attorney General of Trinidad and Tobago No. 45 of
2003 it was observed by Lord Carswell at paragraph 20:
“[20] The proposition that to establish a case of discrimination by a public official it is
necessary to prove mala fides on his part appears in several cases in the courts of Trinidad
and Tobago, notably the judgment at first instance in Smith v LJ Williams Ltd (1980) 32
WIR 395 and that of the Court of Appeal in A-G v KC Confectionery Ltd (1985) 34 WIR 387.
In the former case Bernard J considered Indian and United States authorities and stated
at page 411:
“In so far as official acts are concerned, the nub of the matter is, in my view, that the
section both guarantees and is intended to ensure that where parties are similarly placed
under the law they are entitled to like treatment under that law. However, there is a
presumption of regularity in the acts and conducts of officials. Consequently, the burden
of proof is upon the aggrieved party to establish mala fides in the administration of the
enactment.”
In A-G v KC Confectionery Ltd the Court of Appeal adopted a similar approach, accepting
as correct the propositions that there is a presumption of regularity in the acts of officials
and that it is necessary to show a clear and intentional discrimination when a claimant