Ot­to Car­ring­ton

Se­nior Re­porter

ot­to.car­ring­ton@cnc3.co.tt

Sev­er­al judges of the In­dus­tri­al Court of Trinidad and To­ba­go are now in lim­bo, fol­low­ing a de­ci­sion by the new Unit­ed Na­tion­al Con­gress (UNC) Cab­i­net to re­scind a cab­i­net note on their reap­point­ments from the pre­vi­ous Peo­ple’s Na­tion­al Move­ment ad­min­is­tra­tion.

Guardian Me­dia has learned that the re­scind­ed note, re­port­ed­ly draft­ed by for­mer at­tor­ney gen­er­al Regi­nald Ar­mour, in­clud­ed rec­om­men­da­tions for both reap­point­ments of ex­ist­ing judges and new ap­point­ments.

The is­sue came un­der scruti­ny dur­ing Thurs­day’s first meet­ing of the new Prime Min­is­ter Kam­la Per­sad-Bisses­sar Cab­i­net.

The de­ci­sion has ef­fec­tive­ly left sev­er­al judges with­out clar­i­ty on whether their tenures will be re­newed, as some terms are up in the com­ing weeks.

The In­dus­tri­al Court cur­rent­ly com­pris­es 25 judges, in­clud­ing the pres­i­dent, vice pres­i­dent, chair­man of the Es­sen­tial Ser­vices Di­vi­sion and oth­er mem­bers.

Un­der the cur­rent le­gal frame­work, all judges ex­cept the pres­i­dent are ap­point­ed by Cab­i­net for terms of three to five years. The pres­i­dent is ap­point­ed by T&T’s Pres­i­dent fol­low­ing con­sul­ta­tion with the Chief Jus­tice.

Guardian Me­dia reached out to cur­rent In­dus­tri­al Court judge Lar­ry Achong for a com­ment on the sit­u­a­tion yes­ter­day. How­ev­er, he said he while had heard of the cab­i­net note’s with­draw­al by the new Cab­i­net, he could not con­firm it.

“I heard this from some­one in the court, but I can­not con­firm if this was true,” Achong said.

Guardian Me­dia al­so at­tempt­ed to con­tact At­tor­ney Gen­er­al John Je­re­mie, Min­is­ter in the Of­fice of the At­tor­ney Gen­er­al De­vesh Ma­haraj and Min­is­ter of Labour and Mi­cro En­ter­pris­es Leroy Bap­tiste for com­ment on the de­ci­sion but calls to their cell­phones went unan­swered.

At­tempts to con­tact the of­fice of In­dus­tri­al Court pres­i­dent Heather Seale and for­mer PNM AG Regi­nald Ar­mour, SC, for com­ment, were al­so un­suc­cess­ful.

For­mer Labour Min­is­ter in the PNM gov­ern­ment, Stephen Mc Clashie, yes­ter­day con­firmed the note was gen­uine and that the PNM had act­ed on some of the rec­om­men­da­tions, but ac­knowl­edged such ap­point­ments fall un­der the purview of the At­tor­ney Gen­er­al’s Of­fice.

“That would have been brought by the At­tor­ney Gen­er­al, and we did re­new a num­ber of judges in the In­dus­tri­al Court. I be­lieve we may have ap­point­ed two new ones. I can’t re­mem­ber off the top of my head who they were, but that would re­al­ly be un­der the purview of the At­tor­ney Gen­er­al, who has ju­ris­dic­tion over the ap­point­ment of those In­dus­tri­al Court judges,” he said.

“The Min­istry of Labour may make rec­om­men­da­tions, but we are not the ones who ba­si­cal­ly rec­om­mend new judges or the re­new­al of old ones.”

This lat­est de­vel­op­ment has re­vived long­stand­ing con­cerns over the vul­ner­a­bil­i­ty of the In­dus­tri­al Court’s ju­di­cial in­de­pen­dence.

Such con­cerns were spot­light­ed dur­ing a sim­i­lar episode in 2003, when then-prime min­is­ter Patrick Man­ning’s Cab­i­net con­tro­ver­sial­ly de­clined to reap­point In­dus­tri­al Court judge Sam Ma­haraj, spark­ing a pro­longed le­gal bat­tle.

Ma­haraj, a for­mer All-Trinidad Sug­ar and Gen­er­al Work­ers Trade Union gen­er­al sec­re­tary, had com­plet­ed a three-year term and was rec­om­mend­ed for reap­point­ment by then-court pres­i­dent Ad­di­son Khan. How­ev­er, the cab­i­net re­ject­ed the rec­om­men­da­tion, re­port­ed­ly due to ob­jec­tions from then-Labour Min­is­ter Lawrence Achong, who ques­tioned Ma­haraj’s lit­er­a­cy and com­mu­ni­ca­tion skills.

Ma­haraj filed for ju­di­cial re­view in 2004, ar­gu­ing that the de­ci­sion breached the prin­ci­ples of nat­ur­al jus­tice. His le­gal strug­gle cul­mi­nat­ed in a land­mark 2016 rul­ing by the Privy Coun­cil, which found he had been treat­ed un­fair­ly and the cab­i­net had failed to in­ves­ti­gate the al­le­ga­tions be­fore re­ject­ing his reap­point­ment. In 2019, the High Court award­ed Ma­haraj over $3 mil­lion in com­pen­sa­tion for lost in­come and dam­ages.

Trade unions raised
is­sue with judges

Con­tact­ed for com­ment on the de­ci­sion yes­ter­day, Joint Trade Union Move­ment gen­er­al sec­re­tary Ozzie War­wick said he be­lieved it may have been sparked by con­cerns raised about the court’s hi­er­ar­chy by the labour move­ment.

“The move­ment has al­ways ex­pressed con­cern about the re­cent di­rec­tion of the In­dus­tri­al Court, par­tic­u­lar­ly in light of sev­er­al rul­ings from both the Privy Coun­cil and the Court of Ap­peal. We have con­sis­tent­ly stat­ed that there is a need to re­view the In­dus­tri­al Court. We be­lieve this presents an op­por­tu­ni­ty for an ob­jec­tive re­view of the court and the per­cep­tion among work­ers re­gard­ing whether it is tru­ly fair and im­par­tial,” War­wick said.

The struc­ture of In­dus­tri­al Court ap­point­ments has drawn crit­i­cism over the years, par­tic­u­lar­ly due to the gov­ern­ment’s dual role as em­ploy­er and lit­i­gant in nu­mer­ous cas­es in­volv­ing state en­ti­ties such as WASA, T&TEC and Caribbean Air­lines.

Le­gal an­a­lysts warn that the re­liance on Cab­i­net for reap­point­ments could un­der­mine ju­di­cial in­de­pen­dence by cre­at­ing im­plic­it pres­sure on judges pre­sid­ing over mat­ters in­volv­ing the State.

The Law As­so­ci­a­tion of Trinidad and To­ba­go (LATT) echoed these con­cerns in De­cem­ber 2023, fol­low­ing the non-re­new­al of then-In­dus­tri­al Court pres­i­dent Deb­o­rah Thomas-Fe­lix’s con­tract. The as­so­ci­a­tion high­light­ed that while judges nor­mal­ly en­joy se­cu­ri­ty of tenure dur­ing their ap­point­ed terms, the un­cer­tain­ty sur­round­ing reap­point­ment to the In­dus­tri­al Court weak­ens ju­di­cial in­de­pen­dence.

LATT has called for ur­gent re­form of the In­dus­tri­al Re­la­tions Act to trans­fer ap­point­ment au­thor­i­ty from the Cab­i­net to the Ju­di­cial and Le­gal Ser­vice Com­mis­sion (JLSC). Such a shift, they ar­gue, would bet­ter align with in­ter­na­tion­al stan­dards for ju­di­cial in­de­pen­dence and help re­store pub­lic trust in the im­par­tial­i­ty of the In­dus­tri­al Court.

Al­so con­tact­ed yes­ter­day, Com­mu­ni­ca­tion Work­ers’ Union (CWU) sec­re­tary gen­er­al Joanne Ogeer said, “The CWU’s view is that the se­cu­ri­ty of tenure is of sta­ple im­por­tance. How­ev­er, if there’s a re­moval of per­sons who act or use their po­lit­i­cal in­flu­ence at the In­dus­tri­al Court to be op­pres­sive or con­tra­dic­to­ry to the sys­tem, then the union wel­comes the re­moval of those per­sons. It is in­ter­est­ing to know if the chair­man of the ESD will be re­moved.”

In a short What­sApp mes­sage, mean­while, Es­tate Po­lice As­so­ci­a­tion (EPA) pres­i­dent Deryck Richard­son, “This is Jus­tice!”

He al­so took to his so­cial me­dia page stat­ing the same.