A High Court judge has ruled in favour of a lance corporal with the TT Defence Force whose rank was retroactively reduced to private by the Chief of Defence Staff in August, last year, after a firearm went missing from the armoury at Camp Omega, Chaguaramas.
On Friday, Justice Margaret Mohammed declared the actions of the CDS were illegal, irrational and unreasonable.
She also held that the CDS erred in law and procedure in reducing Lance Corporal Timothy Raper’s rank and deducting his pay for six months, which she also set aside.
On May 31, 2019, Raper was the duty storeman at Camp Omega, Chaguaramas, responsible for ensuring a proper handover of the armoury from the orderly officer, Cpl Curt Marcelle.
A nine-millimetre pistol was discovered missing and was not found after extensive searches.
The camp was locked down to allow anyone who had a part to play to submit reports which, the decision said, confirmed there was no handover entry in the arms book between Raper and the orderly officer on that day.
Raper was eventually charged with neglect to the prejudice of good order and military discipline for neglecting to conduct a proper handover of the detachment stores and disobedience to standing orders.
He was found guilty of the charges and was reprimanded. Sometime after, he was told of the recommendation to reduce his rank and dock his pay.
Raper petitioned the Defence Council, challenging the orders. This was was stayed pending the hearing and determination of his lawsuit.
In his claim, Raper’s attorneys Arden Williams and Mariah Ramrattan argued that the CDS did not have the legal authority to make the decisions and acted illegally since he did not have the authority from the Defence Council.
Williams argued there was no evidence the council had delegated that power to the CDS under the Defence Act and could not rely on the Defence (Enlistment and Service) Regulations as the latter was subsidiary legislation.
It was the CDS’s position that the act and regulations gave him the specific power to “reduce the rank of certain officers.”
Although she agreed that the act and the regulations did give the CDS the authority to make the decisions, the judge said in Raper’s case, the CDS did not provide evidence to explain why he took the decision he did.
“...While the defendant is empowered by law to reduce the rank of a warrant officer, non-commissioned officer or corresponding rank, his failure to provide any evidence explaining the matters he took into account means that there is no basis to find that the defendant directed himself properly in law.
“...I am therefore constrained to conclude that the defendant failed to apply the law and therefore acted illegally, unreasonably and irrationally when he decided to reduce the claimant’s rank.
“For the same reasons, the other decision of the defendant to reduce the claimant’s pay will also be without any basis.”
The CDS was represented by Stefan Jaikaran, Evanna Welch, Sanjiv Sookoo, Amrita Ramsook and Justay Guerra.
Marcelle also filed a similar lawsuit against the CDS after his rank was also reduced to corporal because of two military charges linked to the missing gun at Camp Omega. According to the evidence in that case, Marcelle was the orderly officer coming off duty at the camp when he allowed the storeman to leave early because of a family emergency.
In that case, adjudicated by Justice Devindra Rampersad held that even if the CDS’s decision to revert his rank was valid, this should have been returned to him after a six-month period which would not have affected his prospects for promotion.
Rampersad also found that without full and frank disclosure by the CDS on the decision-making process, the only evidence the court had before it was that the recommendation to reduce Marcelle’s rank was made by others not delegated with any decision-making power as he “seemed to have relied” on recommendations of others.
In both cases, the court ordered the CDS to pay the soldiers’ legal costs.