Derek Achong

A High Court Judge has de­clined to ex­tend an in­junc­tion stay­ing the ap­point­ment of a se­nior De­fence Force of­fi­cer to act as the Vice Chief of De­fence Staff (VCDS).

On Feb­ru­ary 3, High Court Judge Frank Seep­er­sad grant­ed Lieu­tenant Colonels Jozette McLean and Dex­ter Metivi­er leave to pur­sue a ju­di­cial re­view case against the Chief of De­fence Staff (CDS) Dar­ryl Daniel and the De­fence Coun­cil over be­ing al­leged­ly by­passed for pro­mo­tion.

As part of his de­ci­sion, Seep­er­sad stayed a de­ci­sion to ap­point T&T Air Guard Wing Com­man­der Kem­ba Han­nays to act as VCDS and a de­ci­sion to pro­mote Han­nays, Lieu­tenant Colonel Ke­ston Charles and Com­man­der Go­sine and oth­er of­fi­cers ju­nior in rank to McLean and Metivi­er to com­mand var­i­ous mil­i­tary for­ma­tions.

Seep­er­sad opt­ed to lift the in­junc­tion af­ter hear­ing ex­ten­sive sub­mis­sions from the duo’s lawyers and those for Daniel and the coun­cil.

His de­ci­sion was based on the duo’s de­lay in ini­ti­at­ing the lit­i­ga­tion over the is­sue as he point­ed out that Han­nays has been act­ing as the com­man­der of the Air Guard since May, last year.

“No pri­or ac­tion was tak­en to ei­ther chal­lenge her trans­fer to the Air Guard or her sub­se­quent act­ing po­si­tions and the record es­tab­lished that she has since act­ed in the role of the com­mand­ing of­fi­cer and then pre­vi­ous­ly as VCDS and those ap­point­ments were un­chal­lenged,” Jus­tice Seep­er­sad said.

Seep­er­sad al­so up­held an ap­pli­ca­tion to re­move the coun­cil as an in­ter­est­ed par­ty in the case.

He point­ed out that he agreed with sub­mis­sions from Daniel’s lawyers, who claimed that the Min­is­ter of Na­tion­al Se­cu­ri­ty and not the coun­cil had the re­spon­si­bil­i­ty to ap­point of­fi­cers to hold the act­ing and per­ma­nent ap­point­ments of CDS and VCDS.

Seep­er­sad or­dered that the duo’s lawyers join the min­is­ter in the case.

De­spite his rul­ings, Seep­er­sad still not­ed that there were le­gal is­sues over the trans­fer and pro­mo­tion of se­nior of­fi­cers which re­quired ju­di­cial con­sid­er­a­tion.

“There is al­so ev­i­dent­ly for the court to make a de­ter­mi­na­tion as to the man­ner in which the or­der of prece­dent list is utilised as it re­lates to var­i­ous ap­point­ments, be­cause on the face of the ev­i­dence, there seems to be no ab­solute clar­i­ty in po­si­tion as it re­lates to the process to be used to de­ter­mine which of­fi­cer is more se­nior when two or more com­mand­ing of­fi­cers have the same date of ap­point­ment in their sub­stan­tive post,” he said.

“In­vari­ably, if the court de­ter­mines the sub­stan­tive is­sues, then cer­tain de­clara­to­ry re­lief can be award­ed in favour of the claimants and there can be clar­i­ty as to the po­si­tions to be adopt­ed in re­la­tion to trans­fers to the var­i­ous for­ma­tions as well as the is­sue as it re­lates to the ap­point­ment of of­fi­cers to the rank of act­ing com­mand­ing of­fi­cers,” he added.

In their court fil­ings ob­tained by Guardian Me­dia, McLean and Metivi­er ex­plained their de­ci­sion to pur­sue the case.

Ac­cord­ing to McLean, who is as­signed to the T&T Reg­i­ment, she was pro­mot­ed to the rank in 2018 and was made act­ing Di­rec­tor of Strate­gic Lo­gis­tics in 2020.

She point­ed out that Daniel is set to demit of­fice on Sat­ur­day, with cur­rent VCDS Brigadier Gen­er­al Dex­ter Fran­cis set to re­tire in No­vem­ber.

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

She claimed that late last month, Han­nays, who holds the sub­stan­tive po­si­tion of Deputy Com­mand­ing Of­fi­cer of the T&T Air Guard and is ju­nior to her, was ap­point­ed to act as VCDS.

The sub­stan­tive case is sched­uled to come up for hear­ing on March 20.