Josine Johnson and Another v Attorney General of Trinidad and Tobago

JurisdictionUK Non-devolved
CourtPrivy Council
JudgeLORD RODGER
Judgment Date14 December 2009
Neutral Citation[2009] UKPC 53
Docket NumberAppeal No 0042 of 2009
Date14 December 2009

[2009] UKPC 53

Privy Council

before

Lord Rodger

Lord Walker

Lady Hale

Lord Collins

Lord Kerr

Appeal No 0042 of 2009
Josine Johnson
Yuclan Balwant
and
The Attorney General of Trinidad and Tobago

Appellant

Sir Fenton Ramsahoye S.C.

Alan Newman Q.C.

Anand Ramlogan

(Instructed by Bankside Law)

Respondent

Peter Knox QC

(Instructed by Charles Russell LLP)

LORD RODGER
1

The first appellant, Josine Johnson, is a female police officer. She is divorced, but has a grown-up son. The Police Service Commission Regulations ("the Police Service Regulations") apply to her. They were originally made in 1962 under section 102 of the Constitution of Trinidad and Tobago 1962 ("the 1962 Constitution"). Regulations 51 and 52 provide:

"51. (1) The Commission may terminate the appointment of a police officer on grounds of inefficiency as a result of a number of adverse reports.

(2) Where the Commissioner makes a recommendation in writing that the appointment of a police officer should be terminated on grounds of inefficiency, the police officer shall be informed in writing of such recommendation and shall be given an opportunity to make representations thereon.

(3) Where a police officer makes representations under subregulation (2), the representations shall be forwarded in their original form to the Commission by the Commissioner together with such comments as the Commissioner thinks fit.

(4) The Commission may, upon application of the police officer or on its own motion, cause an investigation to be made before making a final decision.

52. The Commission may terminate the appointment of a female police officer who is married on the grounds that her family obligations are affecting the efficient performance of her duties and the procedure for the termination of such appointment shall be in accordance with regulation 51(2), (3) and (4)."

2

The second appellant, Yuclan Balwant, is a female employee of the San Fernando City Corporation. She is not married. The Statutory Authorities Service Commission Regulations ("Statutory Authorities Regulations") apply to her. The Regulations were originally made in 1968 under section 6 of the Statutory Authorities Act. Regulations 57 and 58 provide:

"57. (1) The Commission may terminate the appointment of an officer on grounds of inefficiency.

(2) Where a Head of a Statutory Authority makes a recommendation in writing that the appointment of an officer should be terminated on grounds of inefficiency, the officer shall be informed in writing of such recommendation and shall be given an opportunity to make representations thereon.

(3) Where an officer makes representations under subregulation (2), the representations shall be forwarded in their original form to the Commission by the Head of the Authority with such comments as the Head of the Statutory Authority thinks fit.

58. The Commission may terminate the appointment of a female officer who is married on grounds that her family obligations are affecting the efficient performance of her duties and the procedure for the termination of such appointment shall be in accordance with regulation 56(2), (3) and (4)."

It is unnecessary to examine the terms of regulation 56(2), (3) and (4), since they are purely procedural and are not in issue in these appeals.

3

The appeals arise out of the appellants' applications to the High Court for redress by way of originating motion under section 14 of the Constitution of the Republic of Trinidad and Tobago ("the Constitution"), which was enacted in the Schedule to the Constitution of the Republic of Trinidad and Tobago Act 1976 ("the Act"). The appellants first seek a declaration that regulation 52 of the Police Service Regulations ("regulation 52") and regulation 58 of the Statutory Authorities Regulations ("regulation 58") are null and void under section 2 of the Constitution because they unfairly discriminate against women in contravention of section 4(b) and/or (d) of the Constitution. They further seek a declaration that, pursuant to section 5(1) of the Constitution regulations 52 and 58 are to be construed as severed from the respective Regulations on the ground that they are inconsistent with section 4 of the Constitution.

4

Best J dismissed the application and the Court of Appeal (Warner, Kangaloo and Mendonca JJA) dismissed the appellants' appeal from that decision.

5

The affidavit made by Josine Johnson includes the following paragraphs:

"6. I am presently involved in a stable, serious relationship. I have been considering the question of marriage but am deterred by the fact that if I did in fact re-marry, I would be at a great disadvantage because of regulation 52. I would very much like to re-marry but do not wish to be liable to or in jeopardy because of regulation 52.

7. I do not wish to create an additional possible ground of termination by virtue of marriage. I am a family-oriented woman and would want to devote time to my family obligations. I have thus far chosen to remain unmarried or divorced because I do not wish to be subject to the possibility of an additional ground of termination which does not apply to unmarried woman [sic] police officers."

6

The affidavit by Yuclan Balwant is in identical terms, apart from the substitution of regulation 58 for regulation 52 at the end of para 6, but not where regulation 52 first appears in that paragraph. Both affidavits refer to re-marrying in para 6 but to having chosen to remain "unmarried or divorced" in para 7. Plainly, the affidavits have been drafted by a lawyer and are not well crafted to reflect the actual position of each of the appellants. That said, the defendants did not apply to cross-examine the officers on the affidavits and their thrust is clear: the officers say that their decision as to whether to marry or remarry is affected by the fact that, if they do, they will become vulnerable to an additional ground for having their appointment terminated – under regulation 52 and regulation 58, respectively.

7

In that situation there is no room for the argument that, since the two officers are actually unmarried, regulations 52 and 58 do not apply to them and so the proceedings are premature. It is sufficient that the regulations affect the appellants, as female officers, when deciding whether or not to marry; male officers are not similarly affected when deciding whether or not to marry. There is therefore discrimination on the ground of sex, which would usually contravene section 4 of the Constitution.

8

Despite the ingenious argument presented by Mr Knox QC on behalf of the State, the Board has indeed no doubt that the regulations are discriminatory. He submitted that, so far from providing for an additional ground for dismissing a female officer, the regulations were designed to make plain (for the avoidance of doubt) that it is not a complete bar to dismissal on grounds of inefficiency under regulations 51(1) and 57(1) that the inefficient performance of the officer's obligations is caused by her family obligations. In other words, the provision was inserted simply to counter the anticipated argument by a female officer that she was performing her duties inefficiently only because of her competing family obligations. If the provision was limited to female officers, this was simply because, back in the 1960s, no one would have anticipated that a male officer would ever raise such a point.

9

The Board cannot accept the argument. If regulations 52 and 58 had really been designed simply to deal with the application of regulations 51(1) and 57(1), then their substance would surely have been included in some sub-paragraph of those regulations. Instead, they appear as separate regulations...

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