Permanent Secretary, Ministry of Foreign Affairs and Prime Minister Patrick Manning v Feroza Ramjohn (Trinidad and Tobago)

The exercise of constitutional appointment powers by a Prime Minister remains subject to statutory duties of fairness where the Prime Minister is performing a public function. Fairness will ordinarily require a person to be told of a specific adverse allegation and given an opportunity to answer it. National security or urgency limits that requirement only where disclosure would create a real risk or the circumstances genuinely prevent a fair opportunity to respond. A veto based on general grounds need not be preceded by notice, but it must be exercised rationally or supported by a rational explanation. A candidate successful in a competitive public-service selection process has an expectation of fair treatment.

The Privy Council heard two appeals from judgments of the Court of Appeal of the Republic of Trinidad and Tobago, both delivered on 8 July 2009.

In the first appeal, the Prime Minister revoked Feroza Ramjohn’s transfer to a posting at the High Commission in London after receiving an intelligence report alleging her involvement in the theft of blank passports. The Court of Appeal upheld a declaration that she had been treated unfairly.

In the second appeal, the Prime Minister vetoed the proposed promotion of Ganga Persad Kissoon to Commissioner of State Lands. The Court of Appeal declared that the decision breached natural justice. The central issues were whether the Prime Minister’s constitutional powers were subject to statutory fairness duties, what fairness required in each context, and whether further relief was available.

1. The Board delivered a single judgment and dismissed the Prime Minister’s appeals, subject to varying the declaration in the Kissoon appeal. The cross-appeals concerning costs, damages and disclosure were also dismissed.
2. The Prime Minister’s powers under section 121 of the Constitution of Trinidad and Tobago were public duties or functions within section 20 of the Judicial Review Act 2000. The political context and purpose of the powers did not remove the obligation to act fairly.
3. In the Ramjohn appeal, revoking an overseas posting because of suspected criminality without notifying the officer of the allegation, giving her an opportunity to respond, or providing reasons was unfair. The national-security argument failed because disclosure of the allegation to the officer posed no identified risk to national security. The asserted urgency was unsupported by evidence, and Regulation 5(3) of the Civil Service (External Affairs) Regulations 1977 did not justify the process adopted. Cases in which fairness permits denial of an opportunity to answer an adverse allegation are expected to be rare.
4. In the Kissoon appeal, the section 121(4) veto was subject to constitutional rights, could not be used for a collateral purpose, and could be exercised on non-political grounds of unsuitability. If based on a specific allegation, fairness required that allegation to be put to the candidate. General grounds did not necessarily require advance notice. Nevertheless, the process was unfair because Kissoon was never told what ground, if any, supported the veto. The declaration was therefore varied to state that the veto was exercised irrationally or without a rational explanation.
5. The classifications in McInnes v Onslow-Fane [1978] 1 WLR 1520 were of limited assistance. A candidate who had succeeded in a competitive selection process for senior public office had an expectation of fair treatment. The claim for damages failed under section 8(4) of the Judicial Review Act 2000 because the only damages basis had been struck out. Disclosure of PSC deliberative documents was unavailable under section 27(1) of the Freedom of Information Act, and no exception under section 35 applied.
6. The Board emphasised that the decision was confined to the particular evidence and circumstances. It was not a general charter for disappointed applicants to challenge public-service appointments.

• Privy Council: The Prime Minister’s appeals were dismissed, with the declaration in the Kissoon appeal varied. The related cross-appeals were dismissed.
• Court of Appeal of the Republic of Trinidad and Tobago: On 8 July 2009, the court upheld declaratory relief for Ramjohn by a majority and declared that the veto of Kissoon’s proposed promotion breached natural justice.
• High Court of Trinidad and Tobago: In the Ramjohn proceedings, Tiwary-Reddy J quashed the revocation decision and ordered assessment of damages. In the Kissoon proceedings, Myers J dismissed the judicial review challenge.