DEREK ACHONG

Se­nior Re­porter

derek.achong@guardian.co.tt

A for­mer mem­ber of the Spe­cial Op­er­a­tions Re­sponse Team (SORT) has lost his law­suit over be­ing placed on sus­pen­sion for over three years due to a still on­go­ing probe in­to the deaths of two sus­pects in the mur­der of An­drea Bharatt. 

De­liv­er­ing a judg­ment yes­ter­day, High Court Judge Frank Seep­er­sad re­ject­ed the ju­di­cial re­view law­suit brought by PC Mikhail Gon­za­les against the Of­fice of the Po­lice Com­mis­sion­er. 

Jus­tice Seep­er­sad found that Gon­za­les’ con­tin­ued sus­pen­sion with full pay was law­ful. 

“The court is res­olute in its view that there is noth­ing il­le­gal or un­rea­son­able re­gard­ing the claimant’s con­tin­ued sus­pen­sion,” Jus­tice Seep­er­sad said, as he ruled that the sus­pen­sion was in the pub­lic’s in­ter­est to pre­serve the rep­u­ta­tion of the T&T Po­lice Ser­vice (TTPS).

Ac­cord­ing to his court fil­ings, ob­tained by Guardian Me­dia, Gon­za­les joined the TTPS in 2003. 

Bharatt, a 22-year-old court clerk, went miss­ing af­ter en­ter­ing a taxi in Ari­ma on Jan­u­ary 29, 2021. Al­most a week lat­er, her body was found down a precipice at Heights of Aripo. 

An in­ves­ti­ga­tion was con­duct­ed by sev­er­al spe­cialised units of the pro­tec­tive ser­vices, in­clud­ing SORT, dur­ing which time sus­pects An­drew Mor­ris and Joel Bal­con died while in cus­tody. 

Au­top­sies per­formed on the duo’s bod­ies al­leged­ly re­vealed they were beat­en to death. 

Ne­gus George, 24, of Good­ing Trace, Mal­abar, Ari­ma, and his 37-year-old com­mon-law wife Giselle Hob­son were even­tu­al­ly charged.

George was charged with Bharatt’s mur­der, while Hob­son was on­ly charged with re­ceiv­ing items al­leged­ly stolen from Bharatt in­clud­ing a cell­phone, ATM card and ear­rings. 

Four months af­ter Bharatt’s mur­der, head of SORT, In­spec­tor Mark Her­nan­dez, was charged with mis­be­hav­iour in pub­lic of­fice in re­la­tion to the treat­ment met­ed out to Mor­ris and Bal­con that led to their deaths. 

In Jan­u­ary 2022, Gon­za­les re­ceived his sus­pen­sion no­tice from for­mer act­ing po­lice com­mis­sion­er Mc­Don­ald Ja­cob, which in­di­cat­ed it was based on a Po­lice Com­plaints Au­thor­i­ty (PCA) in­ves­ti­ga­tion in­to the duo’s deaths that had start­ed al­most a year be­fore. 

The fol­low­ing month, SORT was dis­man­tled and re­placed with the Na­tion­al Op­er­a­tional Task Force (NOTF). 

In the law­suit, Gon­za­les’ lawyers, led by Jagdeo Singh and Ger­ald Ramdeen, claimed their client’s sus­pen­sion un­der the Po­lice Ser­vice Reg­u­la­tions was un­law­ful and un­con­sti­tu­tion­al as it con­sti­tut­ed a penal­ty. 

They re­lied on Sec­tion 129(4) of the Con­sti­tu­tion, which states that no penal­ty should be ap­plied to a pub­lic of­fi­cer ex­cept as a re­sult of dis­ci­pli­nary pro­ceed­ings. 

While Jus­tice Seep­er­sad not­ed that dis­ci­pli­nary pro­ceed­ings have nev­er been in­sti­tut­ed against Gon­za­les, he ruled that his sus­pen­sion could on­ly be con­sid­ered a penal­ty if his salary was re­duced dur­ing the pe­ri­od. 

“In this court’s view, to be viewed as a “penal­ty” in the con­text of sec­tion 129(4) of the Con­sti­tu­tion, the po­si­tion adopt­ed should im­pose an ad­verse con­se­quence up­on a pub­lic of­fi­cer on ac­count of his or her al­leged mis­con­duct,” Jus­tice Seep­er­sad said. 

He sug­gest­ed that it would be ab­surd for the po­lice com­mis­sion­er to on­ly be al­lowed to sus­pend of­fi­cers af­ter dis­ci­pli­nary pro­ceed­ings are in­sti­tut­ed. 

“Such a stance would be im­prac­ti­cal and coun­ter­pro­duc­tive and would un­der­mine the very na­ture of a sus­pen­sion which, in ef­fect, im­ple­ments an in­ter­me­di­ate po­si­tion,” he said. 

“This hold­ing po­si­tion im­pos­es no penal­ty and al­though the claimant can­not be con­sid­ered for pro­mo­tions, there is no right to a pro­mo­tion,” he added. 

Jus­tice Seep­er­sad al­so ruled that the po­lice com­mis­sion­er was not re­quired to seek Gon­za­les’ views be­fore tak­ing the de­ci­sion. 

“Par­lia­ment ex­press­ly leg­is­lat­ed for there to be no ex­press right to be heard and to im­ply such a right would be an­ti­thet­i­cal to Par­lia­ment’s in­tent,” he said. 

Al­though Gon­za­les’ lawyers claimed their client was cleared by the PCA, as he was not in­formed whether it had rec­om­mend­ed crim­i­nal charges or dis­ci­pli­nary ac­tion against him at the end of their probe as re­quired, Jus­tice Seep­er­sad said he could not con­sid­er the PCA re­port, which was not ev­i­dence in the case. 

He al­so found that the com­mis­sion­er had to await the find­ings of the par­al­lel TTPS probe. 

“The court can­not, and will not, cir­cum­vent, mi­cro-man­age, or in­ter­vene in this in­ves­ti­ga­tion process,” Seep­er­sad said. 

As part of his de­ci­sion, Jus­tice Seep­er­sad or­dered Gon­za­les to pay the le­gal costs in­curred by the com­mis­sion­er’s of­fice in de­fend­ing the claim.