Judge rules against Chief of Defence Staff in promotion lawsuit

The content originally appeared on: Trinidad and Tobago Newsday

Justice Frank Seepersad –

A High Court judge has faulted the Chief of Defence Staff’s recommendations for two acting positions in the TT Defence Force (TTDF) ahead of their more senior counterparts.

In a ruling on Tuesday, Justice Frank Seepersad declared the CDS’s recommendations to the National Security Minister that Wing Commander Kemba Hannays to act as vice CDS (VCDS)and Lt Col Keston Charles to act as commanding officer of the Regiment were unreasonable.

He also declared the CDS did not take into account the seniority precedence, qualifications and experience of all the suitable senior officers who should have been submitted for the minister’s consideration.

Seepersad also said the CDS erred in law and procedure when he failed to ensure Lieutenant Colonels Jozette McLean and Dexter Metivier were appraised before he made his recommendations to the minister.

He declared that appraisals for senior ranks must be completed annually so they can be used and considered for promotions and advancements in the TTDF and the principles of natural justice must be engaged when recommendations are being made, especially when junior officers are being considered over their seniors.

On February 3, Seepersaad granted the two leave to pursue a judicial review case against CDS Air Vice Marshal Darryl Daniel over being allegedly bypassed for promotion.

Their lawsuits were filed when Daniel was set to demit office in November 2022. That changed when he received an extension in March, allowing him to remain as CDS.

In their lawsuits, McLean and Metivier claimed they believed that they would have been considered for promotion based on the upcoming vacancies, their qualifications and experience.

In July, Hannays and Charles were promoted.

Hannays is now the commanding officer (CO) of the Air Guard while Charles was promoted to commanding officer of the Regiment.

In his ruling, Seepersad said McLean and Metivier were “evidently senior” to Hannays and Charles in terms of precedence.

Although McLean and Metiver, in their lawsuits, claimed legitimate expectation of promotion, the judge said this was misconceived as there was no automatic right to promotion or advancements as those movements were ultimately the discretion of the minister as provided for under the Defence Force Act.

“The court, however, wishes to emphasise that every member of a public institution has the right to be treated fairly as it relates to advancements and promotions.

“The perception that in this Republic mediocrity rises to the top has to be altered, and focus must be centred upon the attainment of excellence. This objective can only be achieved when competence, suitability and efficiency are objectively rewarded in furtherance of the best interest of the organisation.”

He also recommended a revised list of suitable officers for promotion to the post of acting VCDS and acting CO of the Regiment be sent to the minister for his re-consideration.

“On the operative factual matrix, the actions of the CDS instil in the court a significant degree of disquiet and the court, with regret, formed the view that the CDS did not act in a manner which was consistent with the principles of natural justice.

“The evidence suggests that a fair, measured and balanced approach was not followed in relation to his recommendations for the appointments of acting Wg Cdr Hannays VCDS and Lt Col Charles.

“This type of arbitrary decision-making cannot be condoned, it dampens morale, adversely affects the confidence of officers in the impartiality of the institution and ultimately erodes public trust and confidence in the institution’s integrity.”

In evidence at the trial, the judge said the CDS did not deny the two senior officers’ appraisals were incomplete. McLean’s started in the middle of January while Metivier’s was submitted in February. Daniel said Metivier did not fall under his command.

“As the leader, the CDS cannot adopt a ‘Shaggy defence’ and say ‘it wasn’t me’. The buck stops with him, and he must ensure that all appraisals for the relevant officers are completed in a timely manner so as to enable him to engage in a rational and objective assessment as to their overall suitability for advancement or promotion.”

He also said performance appraisals must be completed annually.

“The failure by the CDS to ensure that the claimants’ appraisal reports were duly prepared may be viewed as a gross dereliction of duty, and the unfortunate scenario which unfolded on the facts of this case should never be repeated.”

It was for this reason that Seepersad found the exercise of discretion to recommend junior officers to the minister was unfair and flawed.

“The failure to ensure a timely completion does not accord with the public interest expectation that the Defence Force is a disciplined organisation that operates in a focused manner which rejects preferential treatment and/or grants rewards that are premised upon biases or fashioned by favouritism.

“The approach to recommendations for advancement or promotions must reflect that the institution is bigger than the personalities and the need for good administration and the strict adherence to established processes and procedure has to be observed.”

The TTDF consists of four formations: the Regiment, Coast Guard, Air Guard and Volunteer Defence Force. Each of the four formations is under the charge of a formation CO. Above the COs are the CDS and VCDS. Each commanding officer reports directly to the CDS and/or the VCDS.

Section 12 of the Defence Act provides that all appointments and promotions above the rank of major/lieutenant commander are made by the President, acting on the advice of the minister, who must consult with the prime minister.

Seepersad said although there was a need for autonomy, the issues raised could have a fundamental and detrimental impact on the command structure of the military.

Several Defence Force officers have said Seepersad’s ruling was “actually the most significant TTDF decision ever.”

McLean and Metivier were represented by attorneys Arden Williams and Mariah Ramrattan while the CDS was represented by Senior Counsel Kerwyn Garcia and Rachael Theophilus. Senior Counsel Michael Quamina represented the minister.

As part of his ruling, the judge ordered the CDS to pay McLean and Metivier’s costs.