The Court of Ap­peal has par­tial­ly re­ject­ed an ap­peal over the out­come of a le­gal dis­pute be­tween Com­mis­sion­er of State Lands (COSL) Paula Drakes and the Pub­lic Ser­vice Com­mis­sion (PSC) over the lat­ter’s han­dling of mis­con­duct al­le­ga­tions lev­elled against her.

De­liv­er­ing a judg­ment yes­ter­day morn­ing, Ap­pel­late judges Mi­ra Dean-Ar­mor­er, Vasheist Kokaram, and Mal­colm Holdip ruled that their col­league High Court Judge Car­ol Gob­in could not be fault­ed for up­hold­ing Drakes’ law­suit against the com­mis­sion and or­der­ing com­pen­sa­tion in May last year.

De­spite their rul­ing, which up­held Jus­tice Gob­in’s de­ci­sion to quash the dis­ci­pli­nary charges brought against Drakes, the judges held that she was wrong to rule that the com­mis­sion did not have dis­ci­pli­nary con­trol over the COSL, as the of­fice was ex­clud­ed from the de­f­i­n­i­tion of a civ­il ser­vant due to ap­par­ent par­lia­men­tary over­sight.

Jus­tice Kokaram, who de­liv­ered the pan­el’s judg­ment, said, “While we have con­clud­ed that the com­mis­sion has ju­ris­dic­tion to dis­ci­pline the COSL and has the pow­er to in­ter­dict the of­fi­cer pend­ing the de­ter­mi­na­tion of the dis­ci­pli­nary pro­ceed­ings, we have al­so found that the com­mis­sion did not in these pro­ceed­ings jus­ti­fy why an in­ter­dic­tion was nec­es­sary nor af­ford­ed her an op­por­tu­ni­ty to be heard on whether she should be in­ter­dict­ed.

“We are al­so of the view that the com­mis­sion act­ed ir­ra­tional­ly and un­fair­ly in with­draw­ing the ini­tial charges and in­sti­tut­ing fresh charges against her with­out pro­vid­ing a ra­tio­nal ba­sis for do­ing so,” he added. 

Drakes was ap­point­ed to the post in Oc­to­ber 2016. Af­ter she was first in­formed of the charges re­lat­ed to her al­leged­ly al­lo­cat­ing state lands to in­di­rect fam­i­ly links in 2018, the PSC wrote to her and claimed that no fur­ther ac­tion would be tak­en. Sev­er­al months lat­er, Drakes was in­formed of new amend­ed charges and her sus­pen­sion.

The charges were even­tu­al­ly stayed pend­ing the de­ter­mi­na­tion of her law­suit, in which she claimed that the dis­ci­pli­nary process used by the PSC was in breach of its own reg­u­la­tions. Jus­tice Kokaram point­ed out how Jus­tice Gob­in made an er­ror in de­ter­min­ing whether the PSC had ju­ris­dic­tion over Drakes’ of­fice.

“The ques­tion the tri­al judge should have fo­cused on is not whether the com­mis­sion can dis­ci­pline but how are they to do so and, in this case, whether they adopt­ed the cor­rect pro­ce­dure,” he said. 

Not­ing that the PSC ap­points the COSL, Kokaram sug­gest­ed that the COSL was er­ro­neous­ly or de­lib­er­ate­ly ex­clud­ed from the sched­ule of civ­il ser­vants.

“Yet it re­mains an of­fice in the pub­lic ser­vice, and as a pub­lic of­fi­cer, the com­mis­sion ex­er­cis­es dis­ci­pli­nary con­trol over her,” he said.

Deal­ing with the com­mis­sion’s dis­ci­pli­nary process in re­la­tion to Drakes, Jus­tice Kokaram crit­i­cised it for act­ing ir­ra­tional­ly and un­fair­ly in with­draw­ing and re­lay­ing the same charges.

“While the com­mis­sion is mas­ter of its own pro­ce­dure, it must con­form to its own reg­u­la­tions. There is no ex­press pow­er to amend a charge,” he said, as he sug­gest­ed that there was no ra­tio­nal ba­sis for with­draw­ing the charges. He al­so ruled that the com­mis­sion was wrong to pre­vent her from of­fi­cial­ly at­tend­ing a Roy­al In­sti­tute of Char­tered Sur­vey­ors Con­fer­ence in the Ba­hamas in late 2019 and to cut her salary in half for the du­ra­tion of her con­tin­ued sus­pen­sion.

“While the com­mis­sion can law­ful­ly in­ter­dict and with­hold pay, it did not in this case do so con­sis­tent­ly with the prin­ci­ples of fun­da­men­tal fair­ness,” he said.
“Fur­ther, in the ab­sence of law­ful charges, there was no ba­sis to de­prive the COSL of her op­por­tu­ni­ty to at­tend the con­fer­ence,” he added.

Un­less the com­mis­sion suc­cess­ful­ly chal­lenges the out­come of the ap­peal be­fore the Privy Coun­cil, the com­pen­sa­tion owed to Drakes, who was re­in­stat­ed af­ter her ini­tial le­gal vic­to­ry, will be as­sessed.

Drakes was rep­re­sent­ed by John Je­re­mie, SC, Kei­th Scot­land, SC, Jacque­line Chang, Sarah Ram­s­ingh, and Lau­ri­na Ramkaran.  Scot­land, who serves as Port-of-Spain South MP, led Drakes’ le­gal team in the High Court and par­tic­i­pat­ed in the ap­peal but was forced to with­draw be­fore the judg­ment based on his ap­point­ment as Min­is­ter in the Min­istry of Na­tion­al Se­cu­ri­ty last week. 

The PSC was rep­re­sent­ed by Rus­sell Mar­tineau, SC, Coreen Find­ley, Nicol Yee Fung, Sav­it­ri Ma­haraj and Rad­ha Sookdeo.