High Court rules Defence Chief

Chester Sam­bra­no

Lead Ed­i­tor – News­gath­er­ing

chester.sam­bra­[email protected]

The High Court has ruled that the Chief of De­fence Staff act­ed un­law­ful­ly by de­clin­ing to re­ceive a rec­om­men­da­tion for the pro­mo­tion of for­mer Trinidad and To­ba­go Reg­i­ment Staff Sergeant Sher­win Rus­sell to War­rant Of­fi­cer Class II.

Jus­tice Robin Mo­hammed de­liv­ered the judg­ment on Sep­tem­ber 30 in Claim No. CV2023-03378, Sher­win Rus­sell v The Chief of De­fence Staff and the At­tor­ney Gen­er­al of Trinidad and To­ba­go.

Rus­sell served in the Trinidad and To­ba­go Reg­i­ment for 24 years and 230 days be­fore re­tir­ing on March 7, 2023. His mil­i­tary con­duct was as­sessed as “Ex­em­plary”.

Be­fore re­tir­ing, Rus­sell suc­cess­ful­ly com­plet­ed War­rant Of­fi­cers Course 2201, a pro­fes­sion­al de­vel­op­ment course re­quired for con­sid­er­a­tion for pro­mo­tion to War­rant Of­fi­cer Class II.

The Chief of De­fence Staff de­clined to re­ceive a rec­om­men­da­tion for Rus­sell’s pro­mo­tion, re­ly­ing on an or­der made in sep­a­rate court pro­ceed­ings. The High Court found that in­ter­pre­ta­tion was wrong in law.

Ac­cord­ing to the judg­ment, the or­der stayed any de­ci­sion to pro­mote Rus­sell but did not pre­vent the Chief of De­fence Staff from re­ceiv­ing a rec­om­men­da­tion. The court found that re­ceiv­ing the rec­om­men­da­tion was an ear­li­er and dis­tinct stage in the pro­mo­tion process.

Jus­tice Mo­hammed al­so found that the de­ci­sion was based on a ma­te­r­i­al fac­tu­al er­ror.

Al­though it was as­sert­ed that no rec­om­men­da­tion had been made for Rus­sell be­yond his nom­i­na­tion to at­tend the War­rant Of­fi­cers Course, an ear­li­er af­fi­davit from the Vice Chief of De­fence Staff stat­ed that Rus­sell had been as­sessed, had passed the qual­i­fy­ing course and had re­ceived a pos­i­tive rec­om­men­da­tion from his com­mand­ing of­fi­cer.

The court de­clared that the de­ci­sion not to re­ceive the rec­om­men­da­tion was un­law­ful and breached Rus­sell’s le­git­i­mate ex­pec­ta­tion that he would be treat­ed in ac­cor­dance with the Reg­i­ment’s es­tab­lished prac­tice for of­fi­cers ap­proach­ing com­pul­so­ry re­tire­ment.

It al­so found that the de­ci­sion breached Rus­sell’s con­sti­tu­tion­al right to the pro­tec­tion of the law un­der sec­tion 4(b) of the Con­sti­tu­tion.

The court quashed the de­ci­sion and is­sued an or­der of man­damus com­pelling the Chief of De­fence Staff to re­scind Rus­sell’s Cer­tifi­cate of Dis­charge and re­ceive and prop­er­ly re­con­sid­er a rec­om­men­da­tion for his pro­mo­tion to War­rant Of­fi­cer Class II, ef­fec­tive Jan­u­ary 17, 2023.

The court di­rect­ed that Rus­sell’s case be re­con­sid­ered law­ful­ly, in ac­cor­dance with the rel­e­vant Reg­i­ment Stand­ing Or­ders and the es­tab­lished prac­tice iden­ti­fied in the judg­ment, and with­out re­gard to the court or­der that had pre­vi­ous­ly been mis­in­ter­pret­ed.

Rus­sell was al­so award­ed TT$50,000 in vin­di­ca­to­ry dam­ages for the breach of his con­sti­tu­tion­al right, to­geth­er with his costs.

The judg­ment al­so ad­dressed the oblig­a­tions of pub­lic de­ci­sion-mak­ers when in­ter­pret­ing court or­ders and mak­ing ad­min­is­tra­tive de­ci­sions. It found that a good-faith mis­un­der­stand­ing of a court or­der did not make an oth­er­wise un­law­ful de­ci­sion valid.

The court fur­ther found that an ad­min­is­tra­tive de­ci­sion based on a ma­te­r­i­al fac­tu­al as­ser­tion con­tra­dict­ed by the pub­lic au­thor­i­ty’s own records could amount to an ar­bi­trary ex­er­cise of pow­er and breach the con­sti­tu­tion­al right to the pro­tec­tion of the law.

Rus­sell was rep­re­sent­ed by a le­gal team from Omega Cham­bers, led by Michael Rooplal and in­struct­ed by Vis­han Michael Gopaul-Go­sine.