Derek Achong

Se­nior Re­porter

derek.achong@guardian.co.tt

A so­cial ac­tivist has won his law­suits against the Min­istry of For­eign and Cari­com Af­fairs and the Chil­dren's Life Fund Au­thor­i­ty over their fail­ure to pub­lish an­nu­al re­ports be­tween 2016 and 2021 as re­quired un­der the Free­dom of In­for­ma­tion Act (FOIA).

De­liv­er­ing two judg­ments on Mon­day and Tues­day, High Court Judge Robin Mo­hammed up­held Her­shael Rame­sar's ju­di­cial re­view law­suits against the min­istry and the au­thor­i­ty.

In 2022, Rame­sar filed the law­suits claim­ing that the min­istry and the au­thor­i­ty breached their du­ties un­der Sec­tion 7 of the FOIA.

The leg­is­la­tion re­quires pub­lic au­thor­i­ties and bod­ies, with the ap­proval of the re­spon­si­ble gov­ern­ment min­is­ter, to pub­lish an­nu­al state­ments in the Gazette and a dai­ly news­pa­per.

In the state­ments, the au­thor­i­ties are re­quired to ex­plain their func­tions, the cat­e­gories of doc­u­ments kept by them, iden­ti­fy the of­fi­cer re­spon­si­ble for han­dling dis­clo­sure re­quests un­der the FOIA, and the pro­ce­dure to be fol­lowed when such re­quests are made.

In re­spond­ing to the lit­i­ga­tion, the Min­istry of For­eign and Cari­com Af­fairs sought to ex­plain the rea­sons for its non-com­pli­ance.

It claimed that it faced ad­min­is­tra­tive chal­lenges when its head­quar­ters were re­lo­cat­ed in 2019.

It al­so claimed that it was pre­oc­cu­pied with co­or­di­nat­ing the gov­ern­ment's re­sponse to the Covid-19 pan­dem­ic.

The Chil­dren's Life Fund Au­thor­i­ty claimed that it was un­able to com­ply be­cause the gov­ern­ment min­is­ter at the time had re­fused to grant ap­proval on the ba­sis of gov­ern­men­tal pol­i­cy.

Both the au­thor­i­ty and the min­istry even­tu­al­ly pub­lished their state­ments for 2022 and claimed the law­suit was aca­d­e­m­ic, as their re­cent pub­li­ca­tions would have su­per­seded the state­ments they missed.

In de­ter­min­ing the case against the min­istry, Jus­tice Mo­hammed re­ject­ed its ex­pla­na­tions for non-com­pli­ance.

"The FOIA does not pro­vide for a gen­er­al sus­pen­sion of its oblig­a­tions due to ad­min­is­tra­tive in­con­ve­nience or ex­ter­nal events," he said.

Jus­tice Mo­hammed al­so re­ject­ed the au­thor­i­ty's claims over a lack of sup­port from its line min­is­ter.

"It is a well-es­tab­lished prin­ci­ple of pub­lic law that a statu­to­ry du­ty im­posed by Par­lia­ment can­not be law­ful­ly dis­placed, sus­pend­ed or neu­tralised by ex­ec­u­tive pol­i­cy," he said.

"Pol­i­cy may guide the ex­er­cise of a dis­cre­tion, but it can­not over­ride or con­tra­dict a manda­to­ry statu­to­ry oblig­a­tion," he added.

Jus­tice Mo­hammed al­so re­ject­ed sim­i­lar claims from the min­istry and the au­thor­i­ty over the 2022 pub­li­ca­tion, ab­solv­ing them of past non-com­pli­ance.

"Ac­cept­ing the de­fen­dant's po­si­tion would cre­ate a per­verse in­cen­tive where­by pub­lic au­thor­i­ties could ig­nore their statu­to­ry oblig­a­tions for years, on­ly to pub­lish a sin­gle state­ment at a lat­er date and claim full com­pli­ance," he said.

"That ap­proach would un­der­mine ac­count­abil­i­ty, di­min­ish trans­paren­cy, and erode pub­lic con­fi­dence in the statu­to­ry regime," he added.

In up­hold­ing both cas­es, Jus­tice Mo­hammed is­sued a se­ries of de­c­la­ra­tions against the min­istry and au­thor­i­ties and or­ders com­pelling them to make the pub­li­ca­tions for the years they missed.

De­spite his le­gal vic­to­ry, Jus­tice Mo­hammed did not or­der the State to cov­er the full le­gal costs in­curred by Rame­sar for the lit­i­ga­tion, as he not­ed that he (Rame­sar) filed sim­i­lar cas­es against oth­er au­thor­i­ties and min­istries that were pre­vi­ous­ly set­tled.

"It would there­fore be un­rea­son­able to award sub­stan­tial costs against the State where there has been tremen­dous du­pli­ca­tion of law and ar­gu­ments across dif­fer­ent mat­ters," he said.

Rame­sar was rep­re­sent­ed by Jagdeo Singh, Vashisht Seep­er­sad and Sav­it­ri Sama­roo.

The au­thor­i­ty was rep­re­sent­ed by Michael Quam­i­na and Leah Ab­du­lah, while Maria Bel­mar-Williams and Akee­nie Mur­ray rep­re­sent­ed the min­istry.