Ravi Balgobin Maharaj v The Cabinet of The Republic of Trinidad and Tobago and another No 2 (Trinidad and Tobago)

The constitutional allocation of functions between a service commission and the executive must be respected, but it does not prevent the legislature from fixing terms of service. An extension of an incumbent Commissioner’s service beyond compulsory retirement is a limited extension of the existing appointment, not a new appointment or removal, provided it is not a device to circumvent the commission’s constitutional powers. A constitutional presumption that the President acts on Cabinet advice is displaced only by clear words or an equivalent recognised formula requiring personal discretion, consultation with another authority or advice from another authority. A requirement that the President consider whether an extension is in the national interest is insufficient. The President must therefore act on Cabinet advice under Police Service Act No 7 of 2006, section 75(a).

The appellant challenged the extension of the Commissioner of Police’s service beyond the compulsory retirement age of 60. He argued that section 75(a) of the Police Service Act No 7 of 2006 unconstitutionally interfered with the Police Service Commission’s appointment and removal powers, and that section 80(1) of the Constitution required the President to exercise an independent discretion rather than act on Cabinet advice.

Rahim J dismissed the claim. The Court of Appeal dismissed the appeal on 8 May 2024, holding that the constitutional and statutory provisions addressed discrete functions and that the President was required to act on Cabinet advice. The central issues before the Board were the constitutionality of section 75(a) and the applicable constitutional rule governing the President’s exercise of the power.

1. Disposition. The appeal was dismissed. Section 75(a) of the Police Service Act No 7 of 2006 was constitutional and the Commissioner of Police (Extension of Service) Order 2023 was lawful.
2. Division of functions. The constitutional powers of the Police Service Commission under section 123 concern appointment, promotion, transfer, confirmation, removal and disciplinary control. The legislature may prescribe terms of service, including the duration of an appointment, and the executive may act as employer in relation to matters not fixed by legislation. This division was supported by Thomas v Attorney General of Trinidad and Tobago [1982] AC 113 and Cooper v Director of Personnel Administration [2006] UKPC 37.
3. Extension is not appointment or removal. Section 75(a) operates only after a valid appointment by the Police Service Commission. It extends the duration of the incumbent’s existing appointment for limited periods. It does not appoint a new Commissioner, remove the incumbent, or interfere with the Commission’s security of tenure. The annual review required for further extensions is directed to the national-interest question and is distinct from the Commission’s performance appraisal and monitoring functions.
4. Separation of powers. The separation of powers must be respected when construing the Constitution and legislation, but it is not a free-standing legal norm above the Constitution. The Constitution deliberately leaves retirement age and service extensions to legislation. Executive involvement in a limited extension therefore does not itself breach the Constitution or an insulation principle. The Board relied on Chandler v State of Trinidad and Tobago [2022] UKPC 19.
5. Cabinet advice. Section 80(1) establishes a presumption that the President acts on Cabinet advice. That presumption is displaced only by clear words or a recognised constitutional formula requiring the President to act in her discretion, after consultation with another authority, or on advice from another authority. The words in section 75(a) requiring the President to consider whether an extension is in the national interest did not meet that threshold. The President was therefore obliged to act on Cabinet advice. The analogy in Teh Cheng Poh v Public Prosecutor, Malaysia [1980] AC 458 supported that conclusion.
6. Additional observation. Although the Order was constitutional and lawful, a decision to extend service under section 75(a) remains capable of challenge by judicial review on rationality grounds.

• Privy Council: In [2024] UKPC 41, the Board dismissed the appeal and upheld the lawfulness of the extension order.
• Court of Appeal of the Republic of Trinidad and Tobago: On 8 May 2024, Moosai, Mohammed and Aboud JJA dismissed the appeal from Rahim J’s judgment. The court held that section 75(a) did not conflict with section 123 of the Constitution and that the President was required to act on Cabinet advice.
• High Court: On 16 January 2024, Rahim J dismissed the judicial review claim, holding that an extension of an incumbent Commissioner’s service was not an appointment and did not trespass on the Police Service Commission’s functions.