Judge rules PM's 'administrative silence' breached permanent secretary's rights

A High Court judge has ruled that the prolonged failure of the Prime Minister to respond to recommendations from the Public Service Commission (PSC) to process his acting appointment to deputy permanent secretary amounted to an unconstitutional breach of the senior public officer’s rights.

Justice Westmin James upheld a constitutional claim brought by retired public officer John Edwards against the Attorney General, finding that the Prime Minister's repeated non-responses to PSC consultations unfairly blocked Edwards’ career progression and violated his rights to the protection of the law and equality of treatment.

He awarded Edwards $250,000 in damages.

Edwards, a former Director of Human Resources at the Ministry of National Security, retired compulsorily in October 2013. He claimed that between 2010 and 2013, he was repeatedly recommended by the PSC to act in the senior office of Deputy Permanent Secretary (DPS) but was unable to do so because the Prime Minister failed to indicate whether she objected, as required under Section 121 of the Constitution.

Edwards was eventually assigned to act in the Ministry of the People in August 2013, after the Prime Minister finally indicated she had no objection to his acting appointment a month later. However, he was unable to assume the position, as he had already proceeded on pre-retirement leave, the same day the PM’s non-objection was issued. He remained on pre-retirement leave until compulsory retirement in October that year.

Relying on information later obtained through Freedom of Information Act (FOIA) requests, Edwards contended that three recommendations sent to the Prime Minister in 2012 received no response at all, while other officers were cleared to act within weeks or months. He argued that this administrative silence prevented him from acting in the higher office before his retirement, caused him distress and humiliation, and deprived him of potential career and financial benefits.

The Attorney General resisted the claim, arguing, among other things, that it was brought too late, that Edwards had alternative remedies, and that no constitutional breach had occurred.

Justice James rejected the State’s argument that the claim should be dismissed for delay, despite it being filed more than a decade after some of the events complained of occurred.

The judge accepted Edwards’ explanation that he did not become aware of the true reason for his non-appointment – the Prime Minister’s non-response – until 2022, following FOIA disclosures. The court also took into account Edwards’ pursuit of redress through the Equal Opportunity Commission and his evidence of severe financial hardship that prevented earlier litigation.

“This is not a purely private grievance dressed in constitutional clothing,” the judge said, noting that the claim raised serious issues about constitutional governance and accountability.

“The claimant provided more than a ‘bare bones’ explanation and provided a cogent account of why proceedings were not commenced earlier.

“Furthermore, the court is satisfied that this case involves special features that defeat any suggestion that the claim is an abuse of process. The claim raises a novel and important constitutional question: whether prolonged administrative silence by the Prime Minister can operate as a de facto veto under Section 121.

“The resolution of that question transcends the Claimant’s individual circumstances and engages broader public interest considerations. Therefore, interrogating the legal implications of such administrative silence is a matter of great public importance that outweighs the mere lapse of time.”

Central to the ruling was the court’s finding that the Prime Minister’s failure to respond to PSC consultations amounted to arbitrary and irrational conduct.

Justice James held that while Section 121 gives the Prime Minister a veto over certain senior appointments, that power must be exercised rationally, independently and fairly, without unreasonable delay.

“In this case, the Prime Minister did not respond to the commission in relation to the first three requests and issued a non-objection on the fourth request, coinciding with the claimant’s commencement of pre-retirement leave.”

By remaining silent, the Prime Minister effectively imposed a “de facto veto” without reasons, thereby paralysing the PSC’s constitutional function, the judge ruled.

He also ruled that the sustained failure to respond treated the claimant unfairly and permitted Edwards’ career progression to be obstructed indefinitely without explanation.

“The court holds that the failure of the Prime Minister to respond to the three requests of the Public Service Commission (PSC) for non-objection treated the claimant unfairly, and that it was both arbitrary and irrational.

“The Prime Minister’s sustained failure to respond amounted to administrative silence that effectively paralysed the commission’s constitutional function. Under Section 121 of the Constitution, the Prime Minister is required to state whether he or she objects to a proposed acting appointment.

“By remaining silent, the Prime Minister prevents the commission from effecting the appointment, as the PSC is constitutionally incapable of acting without a response.

“The court finds that this conduct was arbitrary and irrational, in that it permitted the claimant’s career progression to be obstructed indefinitely without explanation, contrary to the rule of law and the requirements of procedural fairness.

“The Prime Minister's decision to remain silent following the objections from the Minister of Sport was also unfair because it represented a total failure to exercise the independent judgment required by Section 121 of the Constitution,” the judge noted.

He added, “While the Prime Minister is entitled to consult with relevant ministers, the ultimate constitutional mandate to state whether an objection exists remains the Prime Minister’s alone, and the Prime Minister cannot simply surrender this function to a subordinate or use their objection as a shield for total inaction, especially since there is no evidence that the Prime Minister even accepted the recommendation of the minister.

“If the court were to allow administrative silence to create a de facto veto, it would enable the executive to circumvent the legal requirements.”

The court also found that the silence was selective and discriminatory, pointing out that other officers named in the same PSC correspondence received timely “no objection” responses, while Edwards did not.

Justice James concluded that Edwards’ constitutional rights under Section 4(b) (protection of the law) and Section 4(d) (equality of treatment by a public authority) were breached.

The court found no objective justification for treating Edwards differently from similarly circumstanced officers and noted that the Prime Minister eventually signalled no objection to his appointment only on the day he proceeded on pre-retirement leave — too late for him to assume duty.

“This selective administrative silence resulted in a de facto veto that stymied the claimant's advancement while facilitating that of his peers. This selective non-response constituted differential treatment.”

While the court rejected Edwards’ claims for loss of acting allowances, salary, and pension benefits as speculative and unsupported by the evidence, it accepted that he suffered non-pecuniary harm, including distress, anxiety, and humiliation.

Edwards was awarded $100,000 in compensatory damages, inclusive of aggravated damages, for distress and inconvenience; and $150,000 in vindicatory damages to mark the seriousness of the constitutional breaches and to deter similar conduct by public authorities.

“This case concerns serious violations of the claimant’s constitutional rights under Sections 4(b) and 4(d). Vindicatory damages are therefore appropriate…The conduct disclosed in this case amounted to a de facto veto of the Public Service Commission’s recommendations through sustained administrative silence. Such conduct undermines constitutional governance, frustrates the proper functioning of independent constitutional bodies, and is inimical to the rule of law.

“The court cannot condone the arbitrary and unfair exercise of constitutional power revealed by the evidence.”

The State was also ordered to pay statutory interest at five per cent per annum and Edwards’ legal costs. Execution of the judgment was stayed for six weeks.

In closing, the judge noted, “To permit this administrative silence would be to allow the Prime Minister to avoid the accountability demanded by the law, as it would block a promotion without the burden of providing the rational basis or transparency required by the court for an explicit objection.”

He warned that such conduct undermines the rule of law and the independence of constitutional bodies like the Public Service Commission.

Leon Kalicharan and Akshay Boodram represented Edwards. Russell Martineau, SC, Janique Mitchell and Murvani Ojah Maharaj represented the Attorney General.