Derek Achong

Se­nior Re­porter

derek.achong@guardian.co.tt

The coun­try’s high­est ap­pel­late court has pro­vid­ed guid­ance on the in­ter­pre­ta­tion of the statu­to­ry cri­te­ria for ap­point­ing the chair­man of the Na­tion­al In­sur­ance Board of T&T (NIBTT).

The Unit­ed King­dom-based Privy Coun­cil de­liv­ered the rul­ing yes­ter­day in dis­miss­ing an ap­peal brought by po­lit­i­cal and so­cial ac­tivist Ravi Bal­go­b­in Ma­haraj, who had chal­lenged the dis­missal of his ju­di­cial re­view claim over the ap­point­ment.

How­ev­er, the five-mem­ber pan­el was di­vid­ed on the in­ter­pre­ta­tion of the rel­e­vant leg­is­la­tion, with a three–two ma­jor­i­ty up­hold­ing the de­ci­sions of the lo­cal courts and two Law Lords is­su­ing a dis­sent­ing judg­ment.

Ma­haraj ini­ti­at­ed the chal­lenge af­ter for­mer fi­nance min­is­ter Colm Im­bert sought to ap­point busi­ness­man Patrick Fer­reira as chair­man of the board, which over­sees the na­tion­al in­sur­ance sys­tem.

Ma­haraj’s le­gal team, led by Anand Ram­lo­gan SC, re­lied on the leg­is­la­tion es­tab­lish­ing the NIBTT, which pro­vides for an 11-mem­ber board com­pris­ing three gov­ern­ment nom­i­nees, three busi­ness as­so­ci­a­tion nom­i­nees, three from trade unions, and the ex­ec­u­tive di­rec­tor as an ex-of­fi­cio mem­ber.

Un­der the leg­is­la­tion, the Fi­nance Min­is­ter nom­i­nates the chair­man, who is re­quired to be in­de­pen­dent of gov­ern­ment, busi­ness and labour.

Ma­haraj’s at­tor­neys con­tend­ed that Fer­reira was ap­point­ed as a gov­ern­ment-nom­i­nat­ed di­rec­tor while si­mul­ta­ne­ous­ly be­ing named chair­man, con­trary to the re­quire­ment of in­de­pen­dence.They al­so point­ed to Fer­reira’s sub­se­quent ap­point­ments as chair­man of three sub­sidiaries of the Fur­ness Group of Com­pa­nies—Fur­ness Chem­i­cals Lim­it­ed, Fur­ness Ship­ping and Mar­ket­ing Lim­it­ed, and Fur­ness Per­son­nel Ser­vices Lim­it­ed—as well as his pri­or ser­vice as a di­rec­tor of the Na­tion­al In­sur­ance Prop­er­ty De­vel­op­ment Com­pa­ny Lim­it­ed (Nipdec) and the De­posit In­sur­ance Cor­po­ra­tion, a sub­sidiary of the Cen­tral Bank.

The claim was dis­missed by High Court Judge Jacque­line Wil­son and, on ap­peal, by Jus­tices Nolan Bereaux, Pe­ter Ra­jku­mar and Maria Wil­son.

Al­though the fi­nal ap­peal was pend­ing, Fer­reira re­signed from the po­si­tion. De­spite this, the Privy Coun­cil pro­ceed­ed with the in­ter­pre­ta­tion is­sue, not­ing it would pro­vide guid­ance for fu­ture ap­point­ments. The Min­istry of Fi­nance had with­drawn its op­po­si­tion to the ap­peal on the eve of the hear­ing in Ju­ly last year.

De­liv­er­ing the ma­jor­i­ty judg­ment, Lord An­drew Bur­rows said that “in­de­pen­dent,” as used in the leg­is­la­tion, meant that a can­di­date must not be un­der the con­trol or in­flu­ence of gov­ern­ment, busi­ness or labour, even if the per­son had pri­or con­nec­tions to one or more of those groups. He said the in­ter­pre­ta­tion adopt­ed by the lo­cal courts en­sured a suf­fi­cient­ly wide pool of el­i­gi­ble can­di­dates.

“In con­trast, the ‘sig­nif­i­cant con­nec­tion’ in­ter­pre­ta­tion put for­ward on be­half of Mr Ma­haraj ap­pears to have the ab­surd con­se­quence of re­duc­ing the pool of pos­si­ble can­di­dates al­most to a van­ish­ing point (on the as­sump­tion that the pool should not be con­fined to those who have long re­tired),” Lord Bur­rows said.

He agreed Im­bert could not be fault­ed for nom­i­nat­ing Fer­reira.

“For the rea­sons he gave, he was en­ti­tled to re­gard Mr Fer­reira as some­one who, as chair, would be in­de­pen­dent be­cause he would not be con­trolled or in­flu­enced by Gov­ern­ment or Busi­ness or Labour,” Lord Bur­rows said.

In their dis­sent­ing judg­ment, La­dy Vivien Rose and Lord David Richards agreed with Ram­lo­gan’s in­ter­pre­ta­tion, which they de­scribed as be­ing con­sis­tent with the pur­pose of the leg­is­la­tion.

De­spite their dif­fer­ing con­clu­sions, the Privy Coun­cil did not as­sess Fer­reira’s suit­abil­i­ty based on his ca­reer his­to­ry, not­ing it would be in­ap­pro­pri­ate to do so fol­low­ing his res­ig­na­tion.

Im­bert wel­comed the out­come in a post on X ac­count, stat­ing: “In 2023, the UNC aban­doned an on­go­ing le­gal chal­lenge of my ap­point­ment of the NIB chair­man. We won the case lo­cal­ly, but when it got to the Privy Coun­cil, the UNC fired the pre­vi­ous gov­ern­ment lawyers and did not fight the ap­peal. We still won!”

Ma­haraj was al­so rep­re­sent­ed by at­tor­neys Mo­hammed Hafeez-Baig and Vishaal Siewsaran. The Min­istry of Fi­nance was rep­re­sent­ed by Ja­son Mootoo, SC, and Thomas de la Mare, KC.