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Derek Achong

SE­NIOR RE­PORTER

derek.achong@guardian.co.tt

The Com­mis­sion­er of State Lands, Paula Drakes, has emerged vic­to­ri­ous in her le­gal bat­tle against the Pub­lic Ser­vice Com­mis­sion (PSC) over its han­dling of mis­con­duct al­le­ga­tions lev­elled against her.

De­liv­er­ing a judg­ment on Wednes­day, High Court Judge Car­ol Gob­in up­held Drakes’ ju­di­cial re­view law­suit and or­dered the im­me­di­ate lift­ing of her sus­pen­sion, which was part of the dis­ci­pli­nary process that be­gan al­most five years ago.

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.

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.

In the law­suit, her lawyers al­so con­tend­ed that Drakes was nev­er giv­en a warn­ing of an ad­verse re­port against her and ques­tioned whether a mem­ber of the pub­lic could make an ad­verse re­port in the ab­sence of com­plet­ed crim­i­nal pro­ceed­ings against her.

They al­so took is­sue with the fact that the PSC barred her from of­fi­cial­ly at­tend­ing a Roy­al In­sti­tute of Char­tered Sur­vey­ors Con­fer­ence in the Ba­hamas in late 2019 and al­so cut her salary in half for the du­ra­tion of her con­tin­ued sus­pen­sion.

In re­solv­ing the case, Jus­tice Gob­in had to de­ter­mine whether Drakes could be clas­si­fied as a civ­il ser­vant, who could be sub­ject to the PSC’s dis­ci­pli­nary pro­ce­dure.

Jus­tice Gob­in not­ed that Drakes’ po­si­tion was not in­clud­ed un­der the Civ­il Ser­vice Act (CSA).

“It is not in dis­pute that the COSL is a “pub­lic of­fi­cer”- that the of­fice is one of emol­u­ment in the pub­lic ser­vice. But that de­f­i­n­i­tion is not suf­fi­cient to au­to­mat­i­cal­ly bring it with­in the purview of Chap­ter XI of the CSA,” Jus­tice Gob­in said.

She al­so re­ject­ed the com­mis­sion’s claim that Drakes’ po­si­tion was un­der its purview as its reg­u­la­tions were in­cor­po­rat­ed in­to her ap­point­ment let­ter as she claimed that it (the com­mis­sion) could not side­step the will of Par­lia­ment.

“The PSC can­not ex­tend its ju­ris­dic­tion where the lim­its of it are de­fined by leg­is­la­tion. That is a mat­ter for Par­lia­ment, or the min­is­ter,” she said.

Al­though Jus­tice Gob­in not­ed that her find­ing on the pre­lim­i­nary point was enough to dis­pose of the case in Drakes’ favour, she still went ahead to con­sid­er the le­gal­i­ty of the dis­ci­pli­nary pro­ce­dure em­ployed by the PSC.

Jus­tice Gob­in ruled that the move to block Drakes from at­tend­ing the con­fer­ence was un­law­ful as it was ef­fec­tive­ly a pun­ish­ment.

“It af­fect­ed her pro­fes­sion­al growth, de­vel­op­ment, and stand­ing with­in the pub­lic sec­tor and with­in her pro­fes­sion­al cir­cle,” she said.

“It ex­posed her to sanc­tions. The ef­fect of it was ad­verse and puni­tive,” she added.

Deal­ing with the with­draw­al of the orig­i­nal charges and the re­lay­ing of new charges, Jus­tice Gob­in crit­i­cised the PSC for fail­ing to give Drakes an ex­pla­na­tion for the move un­til the tri­al of the law­suit.

“The mere fact of a with­draw­al and sub­se­quent prefer­ment of new though sim­i­lar charges against the back­ground of this case gave rise to an in­fer­ence of abuse of pow­er and bad faith,” she said.

“The ab­sence of rea­sons un­der­stand­ably fu­elled sus­pi­cions of both,” she added, as she la­belled the de­ci­sion as ar­bi­trary and ir­ra­tional.

Not­ing that the orig­i­nal charges were a re­sult of a mis­ap­pre­hen­sion of the rel­e­vant le­gal prin­ci­ples, Jus­tice Gob­in stat­ed that such was not jus­ti­fi­ca­tion for al­low­ing the PSC to take the cor­rec­tive ac­tion would be prej­u­di­cial to Drakes.

“In the light of this, there is no rea­son why the PSC should not face con­se­quences of charg­ing a nul­li­ty,” she said.

As part of her de­ci­sion, Jus­tice Gob­in is­sued a se­ries of de­c­la­ra­tions over the PSC’s con­duct. She al­so is­sued an or­der quash­ing the amend­ed charges as she di­rect­ed that her em­ploy­ment record be ex­punged. Jus­tice Gob­in or­dered com­pen­sa­tion for Drakes but will quan­ti­fy it in a sub­se­quent as­sess­ment be­fore her. The com­mis­sion was al­so or­dered to pay her le­gal costs.

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