High Court rules Defence Chief acted unlawfully in promotion case

Lead Editor – Newsgathering

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The High Court has ruled that the Chief of Defence Staff acted unlawfully by declining to receive a recommendation for the promotion of former Trinidad and Tobago Regiment Staff Sergeant Sherwin Russell to Warrant Officer Class II.

Justice Robin Mohammed delivered the judgment on September 30 in Claim No. CV2023-03378, Sherwin Russell v The Chief of Defence Staff and the Attorney General of Trinidad and Tobago.

Russell served in the Trinidad and Tobago Regiment for 24 years and 230 days before retiring on March 7, 2023. His military conduct was assessed as “Exemplary”.

Before retiring, Russell successfully completed Warrant Officers Course 2201, a professional development course required for consideration for promotion to Warrant Officer Class II.

The Chief of Defence Staff declined to receive a recommendation for Russell’s promotion, relying on an order made in separate court proceedings. The High Court found that interpretation was wrong in law.

According to the judgment, the order stayed any decision to promote Russell but did not prevent the Chief of Defence Staff from receiving a recommendation. The court found that receiving the recommendation was an earlier and distinct stage in the promotion process.

Justice Mohammed also found that the decision was based on a material factual error.

Although it was asserted that no recommendation had been made for Russell beyond his nomination to attend the Warrant Officers Course, an earlier affidavit from the Vice Chief of Defence Staff stated that Russell had been assessed, had passed the qualifying course and had received a positive recommendation from his commanding officer.

The court declared that the decision not to receive the recommendation was unlawful and breached Russell’s legitimate expectation that he would be treated in accordance with the Regiment’s established practice for officers approaching compulsory retirement.

It also found that the decision breached Russell’s constitutional right to the protection of the law under section 4(b) of the Constitution.

The court quashed the decision and issued an order of mandamus compelling the Chief of Defence Staff to rescind Russell’s Certificate of Discharge and receive and properly reconsider a recommendation for his promotion to Warrant Officer Class II, effective January 17, 2023.

The court directed that Russell’s case be reconsidered lawfully, in accordance with the relevant Regiment Standing Orders and the established practice identified in the judgment, and without regard to the court order that had previously been misinterpreted.

Russell was also awarded TT$50,000 in vindicatory damages for the breach of his constitutional right, together with his costs.

The judgment also addressed the obligations of public decision-makers when interpreting court orders and making administrative decisions. It found that a good-faith misunderstanding of a court order did not make an otherwise unlawful decision valid.

The court further found that an administrative decision based on a material factual assertion contradicted by the public authority’s own records could amount to an arbitrary exercise of power and breach the constitutional right to the protection of the law.

Russell was represented by a legal team from Omega Chambers, led by Michael Rooplal and instructed by Vishan Michael Gopaul-Gosine.