TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

H.C.A. No. 1313 of 2000

BETWEEN

Caribbean Communications Network Limited Plaintiff

AND

The Attorney General of Trinidad and Tobago Defendant

Before the Honourable Mr. Justice Ventour

Appearances:

Mr. A. Fitzpatrick S.C., Mr. F. Hosein and Mr. Harrinanan instructed by Ms. Caroline Ramjohn-Hosein for the Applicant Dr. Ramsahoye Q.C., Ms. Amorer and Ms. Sharma instructed by Ms. N. Maharaj for the Respondent

JUDGMENT

By a Notice of Originating Motion filed on 29th May, 2000 the Applicant, Caribbean

Communications Network Limited is seeking from this Honourable Court the following reliefs:

(1) A declaration that the decision of the Honourable Prime Minister Basdeo

Panday made sometime prior to the 28th April, 2000 to omit the Applicant’s

proposal for a licence to provide a cellular telecommunication system

(hereinafter referred to as “a cellular licence”) from further consideration is

Page 1 of 56 unconstitutional, discriminatory, arbitrary, irrational, unreasonable, capricious,

affected by bias, null and void and of no effect, as it was done in contravention of

the Applicant’s rights guaranteed under sections 4(b) and 4(d) of the

Constitution;

(2) A declaration that the Honourable Prime Minister Mr. Basdeo Panday has, by

his actions in relation to the Applicant, denied the Applicant its constitutional

rights to the protection of the law, equality of treatment from a public authority

in the exercise of its functions;

(3) A declaration that the Applicant has been, is being, or is likely to be denied its

rights to equality of treatment from a public authority in the exercise of its

functions;

(4) Alternatively, a declartion that the decision of the Honourable Prime Minister

Basdeo Panday to refer the proposal of Open Telecom Limited for further

consideration for a cellular licence is unconstitutional, discriminatory, arbitrary,

irrational, unreasonable, capricious, affected by bias, null and void and of no

effect, and constitutes an infringement of the Applicant’s rights guaranteed by

sections 4(b) and 4(d) of the Constitution;

(5) Alternatively, a decalaration that the decision made sometime prior to 28th

April, 2000 by the Honourable Prime Minister Basdeo Panday to remove the

Applicant from the short list of candidates recommended by the Licences

Committee on Telecommunications and to substitute Open Telecom Limited in

its place for further consideration for a cellular licence is unconstitutional,

discriminatory, arbitrary, irrational, unreasonable, capricious, affected by bias,

null and void and of no effect and in breach of the Applicant’s rights guaranteed

by sections 4(b) and 4(d) of the Constitution;

Page 2 of 56 (6) Alernatively, a declaration that the aforesaid actions of the Honourable Prime

Minister Basdeo Panday amount to and/or are likely to amount to a violation to

the Applicant’s right to equality of treatment from a public authority in the

exercise of its functions in that the aforesaid actions deprive or are likely to

deprive the Applicant of the opportunity of having its proposal for a cellular

licence considered fairly and without discrimination and bias;

(7) A declaration that the Honourable Prime Minister Basdeo Panday has, by his

actions and decisions in relation to the Applicant in removing it from the

shortlist of candidates recommended by the Licences Committee on

Telecommunications and/or in omitting the Applicant’s application for a cellular

licence from further consideration, denied the Applicant its constitutional right

to the protection of the law, including the right to a fair and impartial and

unbiased determination of its said application in accordance with the principles

of fundamental justice;

(8) An order of certiorari to quash and/or set aside the said decisions of the

Honourable Prime Minister Basdeo Panday;

(9) An order prohibiting the Honourable Prime Minister and/or the Honourable

Minister in the Office of the Prime Minister Senator Lindsay Gillette from

furthe r participating in any decisions and/or deliberations relating to or in any

way connected with the Applicant’s said application for a cellular licence;

(10) A conservatory order directed to the Honourable Prime Minister Basdeo

Panday and the Honourable Minister in the Office of the Prime Minister

Senator Lindsay Gillette to stay all steps taken or to be taken consequent upon

the decisions referred to in paragraphs (1), (4) and (5) hereof and/or to stay the

Page 3 of 56 further processing of any proposals and/or applications for cellular licences until

the hearing and determination of the Notice of Originating Motion filed herein;

(11) Damages;

(12) Such further and/or other relief as the justice of the case may require, including

such orders, writs and directions as may be necessary or appropriate to protect

and enforce the fundamental rights and freedoms of the Applicant as

guaranteed by the Constitution.

And that the Costs of and incidental to this Notice of Originating Motion

be paid by the Respondent to the Applicant herein.

The grounds on which the application is based are clearly set out in the

motion filed by the Applicant. Five affidavits have been filed on behalf of the

Applicant herein. The first was sworn and filed by Mr. Craig Reynald the Chief

Executive Officer of the Applicant on 29th May, 2000. The second and third were

sworn and filed by the said Mr. Craig Reynald on 15th June, 2000. The fourth

affidavit was sworn and filed by Dr. St. Clair King an Electrical Engineer on 15th

June, 2000 and the final affidavit in support of the Applicant’s application was sworn

on 21st June, 2000 and filed on 23rd June, 2000 by Mr. Randolph Harris the Vice

President and Chief Technical Officer of Millicom International Cellular S.A. a

corporation incorporated in the United States of America. Four affidavits were filed

in opposition to the said application. They were all deposed to by Mr. Winston

Ragbir the Director of Telecommunications in the Telecommunication Division in

the Ministry of the Office of the Prime Minister. The first of the four affidavits was

sworn and filed on 9th June, 2000. The second and third affidavits were sworn and

filed on 21st June, 2000. The fourth was sworn and filed on 27th June, 2000.

The following facts are not in dispute:

Page 4 of 56 (1) Caribbean Communications Network Limited (hereinafter referred to as “the

Applicant”) is a public company incorporated according to the Laws of

Trinidad and Tobago and carries on, inter alia, the business of newspaper

publishing, television broadcasting and the provision of direct to home

satellite television;

(2) The Minister of Information Communication and Distance Learning in the

Office of the Prime Minister the Honourable Dr. Rupert Griffith (hereinafter

referred to as “the Minister”) who was the Minister responsible for

telecommunications, appointed by letter dated 9th October, 1998 a Licences

Committee to advise on the grant of licences, including special licences under

the Wireless Telegraphy Ordinance, Ch. 36 No. 2 (hereinafter referred to

as “the Ordinance”). The Licences Committee was headed by Dr. St. Clair

King a retired University Professor and an expert in telecommunication. The

Committee included three other members, namely, Dr. Ashton Parris, a

retired Professor of Electrical and Computer Engineering; Dr. John Prince an

Economist by profession who at the time was the Permanent Secretary in the

Ministry of Information Communication and Distance Learning and Ms. Tira

Green who was subsequently replaced by Ms. Clair Blake a representative

from the Office of the Chief Parliamentary Counsel.

(3) In or about February 1999 in pursuance of the Government of Trinidad and

Tobago’s commitment to liberalize the market for domestic voice telephony

via cellular technology the Director of Telecommunic ation in the Ministry of

the Office of the Prime Minister was asked by the Minister to formulate and

Page 5 of 56 cause to be published in the press a Request for Proposals (RFP) for a

cellular telecommunication service for Trinidad and Tobago;

(4) The RFP as published read as follows:

“Ministry of Information, Communications, Training and

Distance Learning

Request for Proposals (RFP).

Cellular Telecommunication Service.

The Ministry of Information, Communications, Training and Distance

Learning invites interested parties to submit proposals and application for licence(s) to provide a cellular telecommunication system. Proposal should meet the following criteria:-

(1) All proposals should be submitted by registered companies in Trinidad

and Tobago.

A copy of the re gistration certificate should be attached;

(2) Applicants (companies) should be owned by nationals with shareholding

of at least 51%, names of all shareholders, percent shareholding and

names of all Directors should be submitted;

(3) Proposals should contain financial structure, financing arrangement and

letters of Intent to finance from financial sources;

(4) Capital financing, if phase development show breakdown;

(5) Information on Market Study. Market share to be identified;

(6) Design of system should show coverage of all landmass areas and at least

10-20 miles offshore.

(7) Information on the administrative structure, staffing and operating

expenditure for the company for a three (3) year period.

Page 6 of 56 (8) Detailed engineering design showing cell coverage areas on a map of

Trinidad and Tobago and justification for choice and supplier of

technology. Points of interconnection to the national telephone network

to be identified.

(9) Proposed conditions for interconnection should be submitted. Successful

applicant(s) would be required to negotiate an interconnection

agreement with the incumbent operator. The Ministry will coordinate

this exercise.

Proposals should be submitted in Triplicate, letter size (A4) paper with

all supporting documentation on or before May 28th, 1999 4:00 p.m.

Hand delivered and addressed to the Director, Telecommunication

Division, Ministry of Information, Communications, Training and

Distance Learning, 17 Abercromby Street, Port of Spain.

Clarification on the above criteria if needed and technical information

regarding frequency spectrum, equipment standards, signalling,

numbering plans, coordination requirements can be obtained from the

Director, Telecommunications Division.

Only proposals in full compliance with the above criteria will be

considered.

All previous applicants for cellular licence should reapply.

Dr. John Prince, Permanent Secretary,Ministry of Information, Communications,Training and Distance Learning.”

(5) The deadline for submitting the proposals was originally fixed for 28th May,

1999 but was later extended to 30th June, 1999. Thirteen proposals were

Page 7 of 56 received by the Director of Telecommunications who on or about 7th July,

1999 made an evaluation of the proposals and submitted a report to the

Minister in which he stated that only three companies met the criteria set out

in the RFP and that the other ten companies had failed to satisfy the said

requirements. He ranked the three companies in the following order:

(a) Open Telecom Ltd.

(b) Caritel Ltd;

(c) T & T Digicell Ltd.

The Applicant, according to the evaluation undertaken by the Director of

Telecommunication did not qualify for further consideration.

(6) Prior to the formulation and publication of the RFP and by letter dated 9th

October, 1998 addressed to Professor St. Clair King and signed by Dr. John

Prince the Permanent Secretary in the Ministry of Information,

Communication, Training and Distance Learning Professor King was advised

of his appointment as Chairman of the Licences Committee appointed by the

Minister. The letter read as follows:

“Dear Professor King,

Licences Committee on Telecommunications

I wish to advise that the Honourable Minister of Information,

Communications, Training and Distance Learning has agreed to the

appointment of a Licences Committee on Telecommunications with Terms of

Reference as detailed at Appendix I and to your appointment as Chairman.

Page 8 of 56 The other members of the Committee are:

Professor Ashton Parris - Vice Chairman Electrical Engineering University of the West Indies St. Augustine

Dr. John Prince - Member Permanent Secretary Ministry of Information, Communications, Training and Distance Learning

Ms. Tira Green - Member Paliamentary Counsel Ministry of the Attorney General

Mr. Leo Young - Secretary/Member TechnicalAssistant Telecommunications Division

The Honourable Minister has also advised that a quorum, for

meetings shall be three (3) members of which one (1) must be the Chairman

or in his absence the Vice Chairman.

A list of outstanding applications for Licenses is attached at Appendix

II.

Please contact Mrs. Satie Jamraj-Marimuthu at telephone No: 627-

4032 to indicate when you propose to hold the first meeting.

Yours sincerely,

John Prince, Permanent Secretary, Ministry of Information, Communications, Training and Distance Learning.”

Appendix I referred to in the said correspondence was expressed in the following terms:

Page 9 of 56 “Terms of Reference of Licences Committee on Telecommunications

(i) To advise the Minister of Information, Communications , Training and

Distance Learning on all applications submitted to the Tele -

communications Division for licences for radio-telephones and similar

systems and those applications requiring the issue of Special Licences:

(ii) To liaise with and seek assistance from relevant external agencies,

such as the Solicitor General’s Department of the Ministry of Legal

Affairs, when necessary;

(iii) To hold meetings as required for the purpose of considering applications,

and to keep appropriate and detailed minutes of such meetings and

records of all decisions taken.”

(7) Following its appointment in 1998 the Licences Committee met and

considered several applications for licences i.e. radio telephone licence and

special licence including very small apperture terminal (VSAT) licence. The

Committee made recommendations to the Minister as to the grant of the

licences.

(8) In or about August of 1999 and subsequent to receiving the report from the

Director of Telecommunications the Minister met with the members of the

Committee and informed them that they were to undertake an evaluation and

assessment of the several proposals which the Ministry had received in

response to the RFP for cellular licences. The Minister indicated to the

Committee that he intended to retain and did in fact retain a foreign

consultant with extensive international experience and expertise to advise the

Page 10 of 56 Committee. The International Communication Union (ITU) recommended

Dr. Fritz Ringling as the foreign consultant and the Minister accepted the

recommendation. Dr. Ringling a past Consultant of the ITU was retained to

advise the Committee.

(9) At the request of the Minister the Licences Committee was provided with

written guidelines which were prepared by the Permanent Secretary and

entitled “Evaluation Procedure Re: Application for licence to provide

domestic cellular telephony in Trinidad and Tobago” (hereinafter referred to

as “the Evaluation Procedure”). This document sets out in some detail the

system established by the Ministry for the processing and evaluation of the

several applications made in respect of the RFP.

(10) The Licences Committee was also provided with a copy of the RFP as

published in the daily newspapers together with the thirteen cellular licence

proposals which were received by the Director of Telecommunications on

behalf of the Ministry. There is no evidence that the report of the Director of

Telecommunication was given to the Licences Committee for consideration

during their deliberations. The Committee met and worked continuously for

a period of two weeks. The methodology adopted by the Committee was that

each proposal was read individually by the Chairman Professor King,

Professor Harris, Dr. John Prince, the Permanent Secretary, and Dr. Ringling

the Foreign Consultant. Each made his own notes.

(11) The Licences Committee took care to ensure compliance of the Applicants

with the RFP and in fact was satisfied that all the Applicants had satisfied the

criteria set out in the RFP. The Licences Committee also applied the criteria

for the assessment of each of the proposals as set out in the Evaluation

Page 11 of 56 Procedure. Each criterion was given a weighting factor. The process was

completed around the middle August 1999 and the Committee was by then

ready to discuss the proposals.

(12) In the meanwhile Star Telecommunications Ltd. (STARTEL) had challenged

the decision of The Director of Telecommunication who had refused to accept

its proposal submitted on June 30, 1999 on the basis that it was submitted

after the 4:00 p.m. deadline on the schedule date (“the STARTEL action”).

During the proceedings an undertaking was given by the Respondents (the

Director of Telecommunications and the Minister) not to proceed with further

consideration of any of the cellular licence proposals which were already in

the possession of the Ministry until the determination of the STARTEL

action. As a result of the undertaking the Licences Committee ceased all

further consideration of the proposals although by then, individual assessment

of the proposals was already completed.

(13) Sometime in October of 1999 the Prime Minister had taken over the

responsibility for the Telecommunication portfolio. By letter dated 20th

October, 1999 the Chairman of the Licences Committee wrote to the

Honourable Prime Minister informing him of the work the Committee had

been doing with respect to the cellular licence proposals and the fact that the

Committee had been interrupted by the undertaking referred to in the

preceding paragraph. There was however no response from the Honourable

Prime Minister.

(14) On the 20th October, 1999 Mr. Lindsay Gillette was appointed a Government

Senator and a Minister in the office of the Honourable Prime Minister. On 4th

November, 1999 Senator Gillette held a meeting in his office with the

Page 12 of 56 members of the Licences Committee to discuss outstanding licences that were

to be approved. At that meeting the Permanent Secretary provided a list of

applications pending action by the Minister or the Cabinet. (See exhibit “St

CK 6”).

(15) On 9th March, 2000 the STARTEL action was finally determined and under

covering letter of 22nd March, 2000 the Chairman of the Licences Committee

submitted its report to the Honourable Prime Minister in his capacity as the

Minister responsible for Telecommunication. In the letter the Licences

Committee explained the methodology that was applied in the evaluation of

the proposals and the Committee even made suggestions and

recommendations for the implementation of competition in the cellular

telecommunication industry. The report which was signed by the Chairman

shortlisted three companies, viz. Caritel Ltd., T & T Digicell Ltd. and the

Applicant.

(16) Sometime between the 10th March, 2000 and 22nd March, 2000 the Prime

Minister engaged the services of Price Waterhouse Coopers (PWC) to

“review the evaluation process completed by the Director of

Telecommunications and that the criteria and assessment approach were fairly

and consistently applied.” (See letter dated 13th April, 2000 from PWC

addressed to the Prime Minister and exhibite d as “F”). PWC submitted its

report to the Honourable Prime Minister by letter dated April 13, 2000 in

which it stated, inter alia:

“……our conclusions are that the results of the Evaluation of the

Proposals reflect fairly the application of the Criteria used to assess the

Page 13 of 56 Proposals and that the three proponents, named below meet the criteria.

The Three Proponents are:

Open Telecom

Caritel Ltd.

T & T Digicell Ltd.”

(17) On or about 28th April, 2000 the Honourable Prime Minister at a function at

the Hilton Trinidad made a public announcement to the effect that he had

received recommendations from the consultancy firm of PWC for the award

of cellular licence to three companies which had submitted proposals in

response to the RFP and that it was proposed that licences be granted to them.

The three applicants named were Open Telecom Ltd., Caritel Ltd. and T&T

Digicell Ltd.

(18) On 16th May, 2000 the Applicant dispatched the following two letters:

(a) A letter to the Director of Telecommunication requesting him to

indicate in what way the CCN proposal failed to meet the requirement

of the RFP; and

(b) A letter to the Minister with the responsibility for

Telecommunications in the Office of the Prime Minister enquiring,

inter alia, whether the Applicant was or was not being considered as

one of the shortlisted proposers.

The Applicant requested a reply by 19th May, 2000. However, there was no

reply from the Minister responsible for Telecommunications in the office of

the Prime Minister but the Director of Telecommunications testified that he

was out of the country when the letter was received by his office and that he

did not return until after the deadline for the reply had expired.

Page 14 of 56 (19) The Applicant caused an independent evaluation of its proposal to be carried

out by Omnitel Ltd. an International Communications Consultant Corporation

based in Finland to determine whether the CCN proposal satisfied the

requirements of the RFP. The evidence confirm that Omnitel Ltd. had

extensive experience in the Telecommunications field with particular

emphasis on mobile communications systems throughout Europe, the Middle

East, Africa and Asia. The report which was exhibited as “CR 8” at

paragraph 20 of Craig Reynald’s affidavit filed on 29th May, 2000 confirms

that the Applicant had complied fully with all the requirements stated in the

RFP.

In addition to the above the Applicant has alleged that since June 1997 the Honourable Prime

Minister has adopted a hostile and antagonistic attitude towards it as demonstrated by several public statements made by the Prime Minister and directed to the Applicant. I shall refer to those statements in more detail at a later stage in this judgment.

As a consequence of the above, the Applicant states that it is fearful that it has been unfairly eliminated from further consideration for the grant of the cellular licence by the Honourable

Prime Minister and that the action of the Honourable Prime Minister is in breach of the

Applicant’s rights guaranteed under the Constitution.

Counsel for the Respondent has argued however, that the issue in these proceedings concerns the exercise of executive power which vest in the President who acts on the advice of the

Cabinet. He contends that the power to award licences is a statutory power which Cabinet has not yet exercised so there is no question of any breach of the Applicant’s rights under the

Constitution. In effect, Counsel is contending that the Applicant’s fears are more imaginary than real. Further, Counsel argues that the allegation that the Applicant was left out of a shortlist because of the Prime Minister’s prejudices or bias or political emnity could not be a

Page 15 of 56 substitute for compliance with the requirements of the RFP. In other words the Applicant has failed to comply with the requirements set out in the RFP and while it is true that the Prime

Minister was under no obligation to accept the advice of the Licences Committee or that of the Director of Telecommunication it was for the Prime Minister to take the advice and to reach his own conclusion before taking the matter to Cabinet for a decision in accordance with the provisions of the Ordinance.

Are the Criteria of the RFP satisfied by the Applicant?

I would like first of all to consider the issue of the Applicant’s alleged failure to comply with the requirements of the RFP. The evidence has shown that the Director of

Telecommunications found that the Applicant did not comply with the RFP in relation to the following requirements, viz.

(i) Applicants should be owned by nationals with shareholding of at least 51%,

names of all shareholders, percent shareholding and names of all Directors

should be submitted.

(ii) Proposals should contain financial structure, financing arrangement and

letters of intent to finance from financial sources;

(iii) Design of system should show coverage of all land mass, areas and at

least 10-20 miles offshore;

(iv) Proposed conditions for inter connection should be submitted.

The Director of Telecommunications in his testimony made it quite clear that in carrying out his evaluation of the thirteen proposals he was not concern with the political differences or enmities and that he did the evaluation “purely on merit” and further that he “caused no company to be prejudiced by political or extraneous considerations of any kind.” See in this regard paragraph 38 of Mr. Ragbir’s affidavit filed on 9th June, 2000. However, it appears that the Director of Telecommunication was under the mistaken impression that the Licences

Page 16 of 56 Committee was appointed by the Minister sometime after he (the Director) had evaluated the proposal and had submitted his report to the Minister. The truth is as the evidence discloses the Licences Committee had been appointed by the Minister sometime in October, 1998 and had been considering several applications for licences at one time or another including special licences and the Committee had been making recommendations to the Minister as to the grant of such licences.

The testimony of the Director of Telecommunications that the Licences Committee was appointed after he had submitted his report to the Minister reveals in my view either a serious lack of communication among top officials within the Ministry or that the Director of

Telecommunication is not being truthful to the Court. I feel compelled to ask the question why is it that such an important technical advisory committee, appointed by the Minister since October, 1998 and which performed such an important function in the granting of licences within the Ministry was not known by the Director of Telecommunications. Is it that the Minister chose not to inform the Director of Telecommunication of the appointment of the Committee and if so why. Was there any communication at all between the Permanent

Secretary who himself was a member of the Committee and the Director of

Telecommunication? If there was, did the Permanent Secretary ever inform the Director of

Telecommunication of the existence of such a Committee prior to evaluation of the proposals undertaken by the Director of Telecommunication?

It appears from the evidence that the Director of Telecommunication has a major role to play in the proper functioning of the Ministry and if I am to believe his testimony that he was not aware of the appointment of the Licences Committee even though one of its members was the Permanent Secretary within the very Ministry in which the Director of

Telecommunication functions then to put it at its lowest there is cause for concern.

Page 17 of 56 After having received the report from the Director of Telecommunications in July 1999 the

Minister then convened a meeting with the members of the Licences Committee at his office sometime in early August 1999. The Committee under the Chairmanship of Professor St.

Clair King was mandated to evaluate and assess the cellular licence proposals. The

Committee was provided with the Evaluation Procedure which document sets out specific guidelines as to the methodology to be adopted and followed in the evaluation exercise.

It is important to refer to the Evaluation Procedure exhibited as “St CK 3” in paragraph 10 of

Professor St. Clair King’s affidavit filed on 15th June, 2000. That document expressly recognises the commitment of the Government of Trinidad and Tobago under the Treaty with the World Trade Organisation to liberalise its market for domestic voice telephony via cellular technology and proceeds to identify five stages which the applications were to undergo in the evaluation process. They are in summary, as follows:

Stage 1

The processing of the applications were to be done by the Director of Telecommunication with the assistance of his technical staff. This procedure is to ensure that basic requirements of the RFP as advertised are adhered to by the applicants.

Thereafter the applications would be referred to the Permanent Secretary with a covering note. In the note the Director of Telecommunication is to identify those applications that have satisfied the basic requirements and those that have not. The Permanent Secretary is then mandated to refer all applications received from the Director of Telecommunications to the Licences Committee which is responsible for evaluating the application for telecommunications licences. The Committee is referred to in the document as a Standing

Technical Advisory Committee (STAC) headed by Professor St. Clair King as the Chairman.

Stage 2

Page 18 of 56 At this stage certain criteria were established for the evaluation process by the Committee.

The Committee was to establish a transparent matrix detailing the evaluation criteria that are to be applied in assessing the bids. Details of the criteria were to address certain areas:

(a) Financial capacity to underwrite the capital and recurrent expenditure of the

Project proposal;

(b) Projected capability to generate market share, as indicated in market analysis

provided by the company;

(b) Operational plan in terms of providing universal service;

(c) Engineering design and use of technology identified;

(d) Establishment and operational structure over the medium term;

(e) Technical and economic details for inter connection agreement.

Also the Committee was to develop a weighting system as per the area identified above ie. decide the relative importance of the areas and the number of points which will be awarded accordingly.

The document goes on to state that the financial and technology capacity supported by feasible inter connect plans to enhance universal service are areas that would be accorded important weight. In addition particular emphasis ought to be placed on the technology.

Given the rate of change in technology, advantage would be given to cutting edge technology which will ensure delivery of quality services that are needed to support the advancement of day to day activities in distant communities, as well as encourage growth in critical economical pursuits such as electronic commerce.

State 3

At this stage the members of the Committee are to undertake a collective evaluation based on their independent judgment of the criteria agreed upon. Each member is asked to sign a declaration form making known his/her association with any of the applicant. No doubt this

Page 19 of 56 is to avoid or minimise any allegation of bias or perception or bias. Each member is to sign his/her own evaluation sheet and master sheet. The Chairman is to prepare and submit to the

Minister a comprehensive report to be signed by each member of the Committee. The Report is then to be submitted to Cabinet.

Stage 4

At this stage the Minister is to prepare a draft licence subject to Cabinet directive and the draft would be forwarded to the Chief State Solicitor for preparation of the final licence.

Stage 5

In the interest of transparency, unsuccessful applicants are given the opportunity to file for review of their application within two months after receiving communication from the

Ministry. There is also a procedure established for the resolution of interconnection disputes.

The system established by the Ministry to process and evaluate the applications received by the Director of Telecommunication indicate, in the view of this Court, the significance which the Minister had attached to the exercise. The five stages which the evaluation process had to go through bear testimony to that. The evaluation procedure sets out a very limited role for the Director of Telecommunications. He had to ensure that certain basic requirements of the

RFP were adhered to by all the companies who had submitted proposals. The evidence before the Court indicate that he (the Director) did much more than he was required to do.

He evaluated each application and proceeded to rank the successful applicants in accordance with the requirements of the Evaluation Procedure. But during cross-examination the

Director of Telecommunication testified that he had not been given a copy of the Evaluation

Procedure and therefore he was unaware of its existence.

According to the Evaluation Procedure the evaluation of the proposals and the ranking of those companies that were found to have satisfied the requirements of the RFP would be undertaken by the Licences Committee and not the Director of Telecommunication. On this

Page 20 of 56 issue the credibility of the testimony of the Director of Telecommunication was called into question and I am once again compelled to ask why would the Minister who, on the evidence, clearly recognised the importance of the role that had to be played by the Director of Telecommunication not make available to the Director a copy of such an important document as the Evaluation Procedure.

It was the Director of Telecommunications who was asked by the Minister to formulate and caused to be published in the press the RFP. It was the Director of Telecommunication who met and discussed with the representatives of the company matters in connection with the

RFP. It was the Director of Telecommunications who had to process the applications to ensure that certain basic requirements of the RFP were adhered to. Why then did the

Minister and/or his Permanent Secretary not see it necessary to ensure that the Director of

Telecommunications be provided with a copy of the Evaluation Procedure so that the

Director would be made aware of the role he had to play in the process?

The Evaluation Procedure comprehensively sets out the role of the Director of

Telecommunications and his technical staff, that of the Permanent Secretary and of the

Licences Committee. If I am to believe the testimony of the Director of Telecommunications then once again the Minister must accept respons ibility for what transpired as a consequence.

The truth is that the Director of Telecommunications went beyond the role set out for him in the Evaluation Procedure. He not only assessed the applications received in response to the

RFP to ensure compliance with the RFP but he went on to evaluate and to rank them and make recommendations as to which of the 13 companies in his view were to be considered for the award of cellular licences. On the evidence it appears that the Director of

Telecommunications knew that the Minister wanted to have the successful companies rank yet his evidence under cross-examination was that he was not aware of the existence of the

Evaluation Procedure established within the Ministry.

Page 21 of 56 The Licences Committee’s report was submitted to the Prime Minister under covering letter of 22nd March, 2000. The Committee confirmed that all the applicants had complied with the

RFP but shortlisted 3 of the 13 applicants for further consideration of the grant of cellular licences. The three applicants were:

(1) Caritel Ltd.

(2) T&T Digicell Ltd.

(3) CCN.

The Licences Committee’s report showed the shareholding of the three (3) companies as follows:

(1) Caritel Ltd.:

(a) Neal & Massy ………………..80.5%

(b) Motorola Inc. ...……………….19.5%

(2) T & T Digicell Ltd.:

(a) CL Financial ……………….…51%

(b) ESAT Relays ………………….49%

(3) CCN

No shareholding for CCN was reported.

However, despite the failure of the report to expressly state the percentage of shares in the

Applicant which were owned by nationals the Applicant did set out on page 14 of its proposal document in very specific terms the percentage shareholding of its major shareholders. The evidence led by Mr. Craig Reynald confirmed that the Applicant was more than 51% locally owned and therefore did satisfy the requirement on shareholding of the RFP. In fact I agree with the testimony of Mr. Randolph Harris elicited from cross-examination that the RFP does not in fact state that the percentage shareholding by nationals in the Applicant had to be shown.

Page 22 of 56 The evidence of The Director of Telecommunications further showed that the Applicant did not comply with the RFP in relation to financial arrangements which were required to be in place or committed before a licence is granted to an applicant. The Director of

Telecommunications was clearly not satisfied with the fact that the Applicant said it would raise 130% financing. As the Director saw it that was not what was required by the RFP and he went on to state that what was required by the RFP was that each applicant was to disclose sources of finance, commitments and letters of intent.

The requirements of the RFP with respect to financing appears to be clear. It states that:

“Proposals should contain financial structure, financing arrange ments and letters of intent to finance from financial sources.”

A careful examination of the applicant’s proposal at pages 195 through 221 highlights in elaborate and detailed language what appears to be the Applicant’s financial structure and financial arrangement with respect to the proposal. There is also the letter of intent from

Ericsson which company has by the said letter committed itself to provide finance for the project. I have seen nothing in the Applicant’s proposal which would suggest that the

Applicant has failed to comply with the requirements of the RFP with respect to financing.

The other area of disagreement had to do with the requirement of the RFP that the design of system should show coverage of all landmass areas and at least 10 to 20 miles offshore. The

Director of Telecommunications testified that the Applicant’s proposal related only to populated areas and not to all the landmass areas and the 10-20 miles beyond as was required by the RFP.

Under cross examination the Director of Telecommunications did not come over as convincing as one would have expected having regard to the evidence deposed in his affidavit filed on 9th June, 2000. In fact I believe that the disagreement may have resulted from a genuine misreading of Exhibit “A” an enlarged technically drawn map of Trinidad

Page 23 of 56 and Tobago which was put into evidence by consent. The interpretation of the map given in evidence by both Professor St. Clair King and Randolph Harris led me to conclude that the

Applicant has in fact satisfied the requirement of the RFP as it relates to coverage of landmass and at least 10 to 20 miles offshore.

They were, of course, other areas of disagreement, like for example, proposals for interconnection agreement, market study and technology just to name a few, but according to the testimony of the Director of Telecommunications, while he was not comfortable with the position adopted by the Applicant, those matters were not why the Applicant was not shortlisted.

After assessing the evidence on the issue of the RFP I am not at all satisfied that a finding of fact of whether or not the Applicant did comply with the requirements of the RFP is necessary in determining whether the Applicant’s rights guaranteed by the constitution have been violated. Neverthe less, if in fact such a finding is necessary I do not hesitate to hold on the evidence presented to the Court that the Applicant did satisfy the requirement of the RFP.

Is the Hononourable Prime Minister’s decision justiciable?

I consider it necessary that before examining the evidence to determine whether there is bias, actual or apparent, on the part of the Honourable Prime Minister the Court should first determine whether the decision of the Prime Minister made on or about the 28th April, 2000 for the three named companies to be further considered by Cabinet for the award of cellular licence is justiciable. Counsel for the Respondent has argued, rather forcefully in my view, that the decision and/or recommendation of the Prime Minister is not justiciable since the power to grant cellular licence is a statutory power which the Cabinet has not yet exercised.

Counsel has identified the issues as follows:-

(1) Whether Constitutional redress under and pursuant to section 14 of the

Constitution is available in connection with executive procedures which

Page 24 of 56 were adopted by the State’s Ministers prior to awards by the President

acting on the advice of Cabinet of cellular licences and before such

awards were considered by the Cabinet or made on its advice.

(2) Whether decisions made by Ministers or their Advisers prior to

consideration of awards of cellular licence by Cabinet are justiciable

under Section 14 of the Constitution as distinct from justiciability

under the rules of Administrative Law which applies Judicial Review

Proceedings to challenge executive action.

(3) Whether in the event constitutional redress is available in respect of

(1) or (2) above a contravention of 4(b) and 4(d) of the Constitution

has been established in relation to those procedures.

I consider it necessary to bring to the fore at this stage the undisputed documentary evidence tendered by the Respondent (following upon a request for discovery made by the Applicant) to the effect that Cabinet by Minute dated July 7, 1992 took a decision that “the authority for granting licences to operate wireless transmitting systems be delegated to the Prime

Minister.” See exhibit tendered and marked “C”. I understand this Cabinet Minute to mean that the Honourable Prime Minister is duly authorised by Cabinet to constitutionally advise the President, in accordance with Section 80(1) of the Constitution, to award cellular licences to those persons whom the Prime Minister selects or recommends. In effect the Prime

Minister being the Minister responsible for telecommunications, is either the Minister who decides who he would recommend to Cabinet for the grant of a cellular licence or the

Minister who actually determines who will be granted a cellular licence. In either case the

Prime Minister is under an obligation to exercise that power reasonably, fairly and without bias or discrimination.

Page 25 of 56 The grant of a wireless licence is governed by the provisions of the Ordinance. In particular, section 3 sub section 1 states:

“No person shall install or use in the Colony any wireless apparatus unless

he is in possession of a valid licence in that behalf granted to him either in

accordance with regulations made under this Ordinance or in accordance with

sub section (2) of this section, or otherwise than in conformity with the terms

and conditions specified in his licence.”

The section quoted above identifies two types of licences. The first type is issued in accordance with the regulations made under the Ordinance and which is contained in the

Schedule to the Ordinance. The other type granted in accordance with sub section (2) of section 3 is the Special Licence which will necessarily include cellular licences to be issued by the Governor in Council. With constitutional change coming as it did in 1976 the

Governor in Council became the President acting on the advice of the Cabinet or a Minister acting under the general authority of Cabinet in accordance with section 80(1) of the

Constitution. Section 80(1) states:

“In the exercise of his functions under this Constitution or any other law, the

President shall act in accordance with the advice of Cabinet or a Minister

acting under the general authority of Cabinet.”

I have found on the evidence that it has been the established practice for the Minister responsible for Telecommunications to make recommendations to Cabinet based on the advice which he has received from STAC and its successor Committee, the Licences

Committee. It would seem from the evidence that any advice or recommendation which the

Minister receives from the Director of Telecommunications is usually passed to STAC or the

Licences Committee, for further consideration. On the evidence before me it is therefore the

Minister responsible for Telecommunications who has the power to decide which of the

Page 26 of 56 several companies that have responded to the RFP are to be submitted to Cabinet for consideration of the grant of a cellular licence. By exercising that power the Minister responsible effectively excludes several applicants from being considered by Cabinet.

Indeed, it is a power which the Minister must not exercise arbitrarily, that is, according to his own fancy. Counsel for the Respondent has argued, quite rightly in my view, that the

Minister is not bound by the advice or recommendation of either the Licences Committee nor that of the Director of Telecommunication.

However, it would appear to this Court that once the advice or recommendation is accepted by the Minister he then takes it to Cabinet and assumes full responsibility for the decision. It is then the Minister’s decision which the Cabinet has to consider. In the case where the

Prime Minister is the effective licensing authority he’s empowered to advice the President to grant the relevant licences. See in this connection Cabinet Minute exhibited as “C”.

Whether the decision or advice of the Minister to recommend the three companies to Cabinet as the ultimate decision maker for consideration of the award for cellular licence is justiciable or not would depend to a considerable extent, in my view, on the nature of the decision made and whether that decision is likely to be adopted by the ultimate decision-maker, who, in the instant case is the Cabinet. For example, in Lewis’ Judicial Remedies and Public Law (2nd

Ed. 2000) the le arned author states at page 127 paragraph 4 – 035:

“The Courts will also review advice where this advice is likely in practice to be

followed by the final decision maker. The Courts have quashed an opinion of

a Minister that development of land was desirable, which, although not binding

on a local planning authority was likely to be followed by them (see R –vs -

Worthing Borough Council and the Secretary of State for the Environment, ex-

parte Burch (1983) 49 P & CR 53). Similarly, the Courts have granted

certiorari to quash an advisory opinion of a Committee set up to advise a local

Page 27 of 56 housing authority on an application for accommodation for an agricultural

worker as the advice was likely to be followed (see R –vs - Agricultural Dwelling-

House Advisory Committee for Bedfordshire, Cambridgeshire &

Northamptonshire, ex-parte Brough (1987) 282 EG 1542)”

In that case of ex-parte Brough at page 1546 Hudson J. said:

“In my judgment, particularly when one is considering the procedural impropriety or otherwise by which a decision of this nature – that is one which is not finally determined – can be subject to judicial review, one has to pay great regard to a consideration which appears in a sentence of de Smith at page 234: -

‘The degree of proximity between the investigation and an act or

decision directly adverse to the interest of the person claiming

entitlement to be heard may be important’.

I think that is right. Merely because the decision to give advice or the advice

itself, is not finally determinative of a question is not in my view the determining

factor. I think it is important to look at all the facts and see in general terms

what part that sub-decision, if I can coin a phrase, plays in the making of the

decision as a whole but where that advice is sought by the determining

authority from a Committee of whose decision the authority is required by

statute to take full account and where there is some evidence that in practice the

advice is – to put it no higher – highly likely to be followed, then I think it would

be wrong to allow the proceedings to go further and require the Applicant to

wait until the decision of the local authority is made against him, if it is, before

attacking that decision on the basis that the material upon which it was based

was flawed.”

Page 28 of 56 Adopting the reasoning of Hudson J. it would appear that the decision or recommendation of the Minister responsible for telecommunication would be subject to constitutional review if on the evidence it is found that there are breaches of fundamental rights as enshrined in the

Constitution. It seems to me that it would be unjust to allow the matter to go further and require the Applicant to await the final decision of the Cabinet before taking action. The decision of the Honourable Prime Minister effectively precludes the Applicant from further consideration by Cabinet for the award of a cellular licence and if that decision is found on the evidence to have violated the Applicant’s constitutional rights then the Applicant is, in my view, entitled to invoke the jurisdiction of the Court under Section 14 of the Constitution.

It is highly unlikely that Cabinet will not accept the recommendation of the Honourable

Prime Minister. It is not expected that Cabinet will itself engage in an evaluation of the proposal to determine whether or not the recommendation and/or decision of the Honourable

Prime Minister will be accepted.

I have carefully examined the cases cited by Counsel for the Respondent in support of the proposition that the decision of the Prime Minister in the circumstances described above, is not justiciable.

The case of R -vs- Secretary of State for Health, ex parte Imperial Tobacco Ltd. (1999)

QBD decided on 21st December, 1999 upon which Counsel relie s in support of his submission involves an application for judicial review made by the Tobacco Company for a declaration that a report of the Scientific Committee on Tobacco and Health (SCOTH) which was addressed to the Government Chief Medical Officer and/or Secretary of State for Health and was published on 11th March, 1998 by the Department of Health.

The gravamen of the Applicant’s case was that fairness demanded that the Applicants be consulted and be given an opportunity to make representation in rela tion to the SCOTH report before the decision to publish. The Court found on the evidence that the report was a

Page 29 of 56 part of a continuing participating decision making process which went on after the publication of the report and continued in all the stages leading up to the White Paper itself and beyond. In the circumstances the Court found that the giving of advice to the Secretary of State generally, or in the particular circumstances of the report, did not amount to a proper function which was susceptible to judicial review.

On the facts of the ex parte Imperial Tobacco Ltd’s case I believe that this Court would have arrived at the same decision if the Applicant, in the instant case, had sought to challenge the decision or recommendation of the Licences Committee or that of the Director of

Telecommunication. The giving of advice to the Minister responsible for telecommunication by either of those two bodies would not have been justiciable according to the reasoning applied by Mr. Justice Hidden in the ex parte Imperial Tobacco Ltd. case. Further, it would appear that the decision of the report was far too removed from the ultimate decision of the

Government in its White Paper or its health policy to be considered as highly likely to be followed. I consider that the facts of that case are materially different from the instant case and therefore not applicable.

The other case upon which Counsel relies is that of R –vs- Secretary of State for the Home

Department, ex parte Saleem (1999) QBD decided on 6th March, 1998. The Applicant sought leave of the Court to apply for judicial review to quash the decision of the Secretary of State for the Home Department dated 5th September, 1997 to notify the Department of

Social Security that the Applicant’s claim to asylum had been recorded as determined. The majority of the Court of Appeal held that the determination was justiciable but that there was no basis for challenging its validity. The application was dismissed. The dissenting view of

Hobhouse, LJ. was that the decision was not justiciable and it is this dissenting view which

Counsel has commended to this Court. The learned Justice of Appeal argued that:

“….. a decision entered upon a file but otherwise unacted upon and

Page 30 of 56 uncommunicated to the affected party ought in principle to have no

greater status than as a step in the decision-making process.”

Even if this Court is tempted to adopt the reasoning of Hobhouse, LJ. the facts of that case do not apply to the instant case in which the Honourable Prime Minister made public his intention to recommend to the Cabinet that the shortlisted companies named by the Director of Telecommunication in his report to the Minister be awarded cellular licences.

I believe I have addressed the issue raised by Counsel at (1) above and to some extent the issue raised at (2). However, with respect to the second issue I agree with Counsel for the

Respondent that if there is a violation of the rules of Administrative Law the decision arrived at can be challenged by way of judicial review proceedings. But if at the same time the decision infringes the constitutional rights of the Applicant then there is no reason why the

Applicant ought not to be allowed to invoke the jurisdiction of the Court for redress under section 14 of the Constitution. In fact Section 14(1) of the Constitution expressly provides that the right to apply for redress thereunder is “without prejudice to any other action with respect to the same matter which is lawfully available.” See Ramesh Lawrence Maharaj – vs- AG (No. 2) (1978) 30 WIR 310 PC at page 319 (per Lord Diplock); Smith –vs - L. J.

Williams (1980) 32 WIR 395 at page 347 (per Kelsick, J A.). Also in the case of Rees – vs- Crane & others (1994) 43 WIR 444 the Judicial Committee considered and determined the question of the Applicant’s rights to be heard under both a claim in respect of breach of protection of the law under section 4(b) and a claim under Order 53 for unlawful administrative action. This Court is therefore not disposed to stymy the rights of the

Applicant which the Constitution has so generously bestowed upon it.

The Prime Minister’s conduct – actual and/or apparent bias?

I now wish to look at the evidence as it relates to the allegation of bias against the

Honourable Prime Minister.

Page 31 of 56 Counsel for the Applicant has submitted that the Honourable Prime Minister has by his public utterances shown actual bias against the Applicant and he further submits that a decision will always be struck down if actual bias on the part of the decision maker is proved.

Counsel also contends that the public utterances of the Prime Minister are sufficient of themselves to meet the “real danger of bias” or “real possibility of bias” tests to establish apparent bias and will invalidate any act or decision taken by the Prime Minister in respect of the Applicant. In support of his contention Counsel relies on the following authorities:

(1) Re Gooliah & Minister of Citizenship & Immigration (1967) 63 DLR (2d) 224

(Deportation order quashed because hearing officer showe d actual bias).

(2) R –vs - Gough (1993) AC 646 at page 661G:

(3) O’Reilly –vs- Mackman (1983) 2 AC 237 at 276 E;

(4) R –vs - Inner West London Coronor, ex-parte Dallaglio (1994) 4 AER 139 at

151J and 162 A-B;

(5) Tata Cellular –vs- Union of India (1996) 1 LRC 342;

(6) The learning in D. Smith, and Jowell, Judicial Review of

Administrative Action (5th Ed.) p.525 –535.

Counsel for the Respondent has submitted that bias on the part of the Prime Minister cannot easily be assumed and refers to the case of Rees –vs - Crane (1994) 1 AER 833, in support of the proposition. Counsel also argued that both the Applicant and the Prime Minister are free to voice hostile opinions about the way the government is carried on and about the way the media houses are perceived to be operating. And he contends that such conduct on the part of the Prime Minister cannot constitute bias. Rather, he says, that is the essence of constitutional democratic government.

From the evidence it is clear that the Honourable Prime Minister assumed the responsibility for telecommunications in the month of October 1999. Whatever his reasons were for taking

Page 32 of 56 away the portfolio from the incumbent Dr. Rupert Griffith at the time that he did is not a matter over which the Court should speculate. In fact, I would say that it is the Prime

Minister’s constitutional right to re-shuffle his Ministers as he thinks best and in accordance with the powers vested in him under Section 76 of the Constitution.

With the new Minister responsible for telecommunication Dr. King did what this Court considered to be the proper thing. He wrote to the Prime Minister by letter dated 20th

October, 1999 informing him of the work that the Committee had been doing and of the intervening interruption due to the STARTEL action. The Prime Minister did not acknowledge nor respond to the Chairman’s letter but it would seem from the evidence that the Prime Minister proceeded to engage the services of PWC to undertake an independent review of the evaluation process which was done by the Director of Telecommunications.

There is no specific evidence as to when the services of PWC were engaged and I have noted, in particular, the fact that neither of the two pieces of correspondence from PWC to the Prime

Minister (letters dated 23rd March and 13th April, 2000) referred to any date when the instructions from the Prime Minister were received. There appear to be no correspondence on the matter emanating from the Prime Minister to PWC. In fact, none was tendered into evidence.

The terms of reference to PWC were limited to a review of the evaluation process applied by the Director of Telecommunications and PWC had to confirm that the process was fairly and consistently applied. In their letter of March 23, 2000 to the Prime Minister, PWC proposed that the review exercise would be done in two stages. The first stage was to review the evaluation process completed by the Director of Telecommunications and that the criteria and assessment approach were fairly and consistently applied. However, in the event that there were material and significant differences which were irreconcilable then PWC recommended

Page 33 of 56 that they will proceed to stage 2 which will involve a complete appraisal and evaluation of the proposal. In the events that followed stage 2 was not implimente d.

In order to proceed with the review PWC requested from the Prime Minister certain information which they considered material for the purpose of carrying out the exercise. In particular, they required an assurance that the information provided will be complete.

Among the information requested were the following:

(1) Evaluation approach and any documents regarding the Process used to

perform the Evaluation;

(2) Any Reports or submissions by third parties regarding the development/

construction of the RFP;

(3) Any reports by third parties on the evaluation undertaken ; and

( ) Any other information germane to the evaluation as may be required.

Despite this request from PWC the only documents which were sent to PWC were:

(i) The report of the Director of Telecommunications dated 7th July, 1999 together

with attachments consisting of three evaluation documents for T&T Digicell Ltd.,

Caritel Ltd. and Open Telecom Ltd.;

(ii) The proposals received from the 13 companies in response to the RFP.

(See the affidavit of Winston Ragbir sworn and filed on 21st June, 2000).

It was therefore clear that the evaluation procedure established by the Permanent Secretary at the request of the then Minister was not forwarded to PWC. No doubt, that document would have shown that it was not the Director of Telecommunication responsibility to undertake an evaluation of the proposals submitted in response to the RFP. PWC would have seen that a technical Committee was established for that purpose. In addition, the report of the

Committee was at the time in the possession of the Honourable Prime Minister having been sent to him by letter of March 22, 2000. That report too was not forwarded to PWC. The

Page 34 of 56 evidence tendered has shown that PWC was only allowed access to the Director of

Telecommunications despite the fact that the Minister himself, the Permanent Secretary within the Ministry and the technical staff of the Telecommunication Division would have had some contribution to make in the review exercise. Also of some significance is the failure of the Director of Telecommunications to provide PWC with a copy of the evaluation documents for the ten (10) applicants who are alleged to have failed to meet the requirements of the RFP. In the absence of such documents PWC would not have been in a position to determine whether “the criteria and assessment approach were fairly and consistently applied” with respect to those ten (10) applicants. It appears then that the information provided to PWC was certainly not comple te as they had requested, but nevertheless they submitted their report to the Prime Minister on 13th April, 2000 in which they acknowledged that “the evaluation of the proposals is the responsibility of the Director of

Telecommunication” and that their responsibility was simply to review the evaluation, and that the criteria defined in the Request for Proposals were consistently applied in the evaluation. In the Report PWC said:

“Within this context and based on the Request for Proposals, the

Proposals, the Evaluation Work sheets and the best of information

and explanations provided to us by the Director of Telecommunication,

our conclusions are that the results of the Evaluation of the Proposals

reflect fairly the application of the Criteria used to assess the Proposals

and that the three proponents named below, meet the criteria. The three

proponents are:

Open Telecom

Caritel Ltd.

T&T Digicell Ltd.”

Page 35 of 56

PWC was very careful to stress that:

“…..we have relied upon the accuracy of information supplied to us and

have not sought independent verification thereof. As such, we do not

accept responsibility or liability for the impact on the Evaluation of

any inaccuracies that may exist, or othe r information that may have

come to our attention had we performed such additional work.”

Considering the failure of the Honourable Prime Minister and/or the Director of

Telecommunication to provide PWC with the information which I have identified above it would seem reasonable to question the accuracy of the PWC’s report.

I have noted with interest some of the comments made by PWC in their appendix to the

Report submitted to the Prime Minister. I need to highlight in particular one such comment which I consider to be very relevant to the issue at hand. Under the rubric, “Breadth on

Range of Expertise to Evaluate Proposals” this is what PWC had to say in the report:

“Proposals of this nature are both complex and costly to prepare. A broad

range of experience is necessary to develop all the criteria required and to access

the responses. In this instance, the evaluation was carried out by an individual

and for reasons of security of information the individual had no opportunity to

discuss issues. Based on the nature of proposal request, the range of expertise

required can be defined and selected early, to ensure a more robust application

of the Evaluation Process.”

No doubt, the individual to whom PWC referred must have been the Director of

Telcommunications and implicit in the comment is the criticism that the Government should not be relying on an individual evaluation of the proposals which are so complex in nature.

In fact PWC recognised the need for a broad range of experience to develop all the criteria

Page 36 of 56 and to assess the responses. Moreover, PWC suggested that the range of expertise required should be defined and selected early in order to ensure a more robust application of the evaluation process. Credit must therefore be given to the Minister who had seen the need to appoint the Licences Committee with a broad range of experience and expertise to ensure a robust application of the evaluation process.

Why then did the Honourable Prime Minister choose to go to Cabinet with the recommendation of an individual as oppose to that of the Licences Committee. It must not be overlooked that the only difference between the two reports was that the Applicant was shortlisted in one report (the report which the Prime Minister chose not to accept). It would seem that the Honourable Prime Minister was of the view that by securing an independent review of the evaluation process undertaken by the Director of Telecommunications some element of legitimacy or credibility would be attached to the report. But we must not forget that the accuracy of the PWC report has been questioned in this Judgment and I wish to add that no blame is being ascribed here to PWC.

The unchallenged evidence before this Court is that the Honourable Prime Minister had publicly announced on or about 28th April, 2000 that he had received recommendation from

PWC for the award of cellular licences to three (3) of the applicants to the RFP and that it was proposed that licences be granted to them. With the greatest of respect I have read the report of PWC very carefully and I have not been able to discern any such recommendations.

In fact PWC was quick to point out in their report that the evaluation of the proposals was the responsibility of the Director of Telecommunications and that their respons ibility was simply to review the evaluation process to ensure that the criteria defined in the RFP were consistently applied in the Evaluation. PWC found that the three (3) Proponents named in the Report met the criteria. Clearly PWC was unable to state whether any of the other ten

(10) Proponents had met the criteria principally because they had not received from the

Page 37 of 56 Honourable Prime Minister nor from the Director of Telecommunications any evaluation documents with respect to those (10) proposals for the purpose of carrying out their review.

Dr. King testified that it was the established practice with respect to applications for telecommunications licence (not including cellular licence) that the Director of

Telecommunications would receive and consider the applications and make recommendations to the Minister who would then send the application and the recommendations to the Licences Committee for its consideration. The Director of

Telecommunications denies in his testimony that there was any such established practice within the Ministry. However, the documentary evidence exhibited as “St. CK 3” and “St.

CK 7” seem to support the view expressed by Dr. King.

It appears therefore that the Minister has always had the advice of the technical committee when considering applications for licences before he makes his recommendations to Cabinet.

According to the evidence of the Director of Telecommunications the Government had appointed a Committee as far back as 1991 to deal with broadcasting licences. There is no evidence as to when the work of that Committee ended but in October 1994 Dr. St. Clair

King was appointed as a member of a Standing Technical Advisory Committee (STAC).

That Committee was appointed by the Minister in the Office of the Prime Minister with responsibility for telecommunications with the approval of Cabinet. Terms of reference of

STAC were as follows:

(i) To advice the Minister in the Office of the Prime Minister with responsibility

for telecommunications on all applications submitte d to the

telecommunications division for licences for radio-telephones and similar

systems and those applications requiring the issue of Special Licences;

Page 38 of 56 (ii) To liaise with and seek assistance from relevant external agencies, such as

the Solicitor Ge neral’s Department of the Ministry of Legal Affairs, when

necessary;

(iii) To hold meetings as required for the purpose of considering applications and

to keep appropriate and detailed minutes of such meetings and records of all

decisions taken.

There were three other Members appointed to STAC. Mr. Winston Ragbir the Director of

Telecommunications was appointed Chairman of the Committee; the Deputy Director of

Telecommunications Ms. Mala Guinness and Mr. Gilbert Alexander the Technical Assistant in the Telecommunications Division of the Office of the Prime Minister. The Members of

STAC were appointed for a period of two years and when the life of STAC expired in 1996 no Committee was appointed to replace STAC until October 1998 when the Minister appointed the Licences Committee with identical terms of reference as that of STAC. Dr.

King says that the Licences Committee was appointed with the approval of Cabinet but the

Director of Telecommunications denies that there was any such approval from Cabinet.

There is no direct evidence coming from the Applicant to establish whether the Licences

Committee had the blessings of Cabinet. However, it would indeed be surprising if the

Minister with responsibility for Telecommunications would take such an initiative on such an important issue as cellular licences without first seeking the approval of his Cabinet colleagues.

Nonetheless, it has been accepted by both sides that the Licences Committee was appointed by the Minister to evaluate the several proposals and to make recommendations to the

Minister. But the establishment of that Committee appear to have troubled the Director of

Telecommunications somewhat. He appeared to this Court to have been uncomfortable with the fact that the Minister appointed a Technical Advisory Committee to advise on

Page 39 of 56

the grant of licences without he (the Director) being a member of that Committee or even to head the Committee in keeping with his self-imposed status as the Chief Adviser to the

Government on telecommunication matters. Not being a member of the Licences Committee this is what the Director of Telecommunications had to say at paragraph 37 of his affidavit filed on 9th June, 2000.

“The Standing Technical Advisory Committee does not have the expertise

to deal with licences for broadcasting, cellular services, data communications

or satellite communications. I conduct the evaluations for these myself and

if necessary I seek assistance from the Minister in order to recruit experts

from the Private Sector.”

However despite the Director’s indictment of the Licences Committee Dr. King, as a witness, impressed this Court as a true expert in the field of telecommunications. It is indeed ironic that the Director of Telecommunications admitted during cross-examination of not being aware of the qualifications of the members of the Committee but nevertheless he was prepared to testify under oath that the Committee did not possess the necessary expertise.

Notwithstanding, the practice followed by the Ministers responsible for telecommunications to first receive the advice and/or recommendation of STAC or of its successor Committee

(the Licences Committee) before going to Cabinet did not appear to meet with the approval of the Honourable Prime Minister who chose not to be the beneficiary of such advice and/or recommendations. Instead, he chose to rely on the recommendations of the Director of

Telecommunications and it is because of the Prime Minister’s conduct in so doing and the

Page 40 of 56 fact that he had made public utterances showing hostility against the Applicant that Counsel for the Applicant has argued that the Prime Minister has acted with bias against the

Applicant.

Quite apart from the Prime Minister’s public utterances Counsel has referred to other factual incidents in support of his allegation of bias against the Prime Minister:

(1) The acceptance of Mr. Ragbir’s recomme ndation and the rejection of the

Licences Committee’s shortlist in circumstances where:

(a) the two reports differ only to the extent that Mr. Ragbir

recommended Open Telecom Ltd. and the Licences Committee

shortlisted the Applicant;

(b) the Licences Committee was the usual type of technical committee

upon which the Minister responsible for telecommunications has

relied on for advice and that was the procedure that had been

established and relied upon in the past for the purpose of

granting “Special Licences” under the Ordinance;

(c) the evaluation procedure laid down for the Licences Committee and

which was complied with was transparent and fair and appealable

whereas the procedure adopted by Mr. Ragbir was closed; and

(d) the PWC Report relie d solely upon information supplied to it by

Mr. Ragbir and did not consider the ten proposals not recommended

by him;

(2) The fact that Minister Gillette is a member of the Government and the

Cabinet headed by the Prime Minister and it was Minister Gillette in his

Page 41 of 56 previous capacity as Chairman of Open Telecom Ltd. who signed the

Company’s proposal.

I have already analysed the Honourable Prime Minister’s conduct in selecting the recommendation of the Director of Telecommunications as distinct from the recommendation of the Licences Committee. The second incident referred to by Counsel in support of the allegation of actual bias has to do with the fact that Minister Gillette is a member of the

Government and the Cabinet headed by the Prime Minister and that it was Mr. Gillette in his previous capacity as Chairman of Open Telecom Ltd. who signed Open Telecom’s proposal.

I must admit that I had some difficulty at first trying to appreciate the relevance of that argument in relation to the allegation of bias against the Prime Minister. After some deliberation I understood Counsel to be arguing that the Prime Minister had shown a preference for selecting Open Telecom Ltd. because Mr. Gillette had signed the proposal in his capacity as Chairman of the Company and that he (Minister Gillette) was now a Minister of the Government and the Cabinet headed by the Prime Minister. I cannot accept that argument. The evidence shows that Open Telecom Ltd. was shortlisted by the Director of

Telecommunications long before Mr. Gillette’s appointment as a member of the Government and of the Cabinet. There is no evidence before this Court challenging the integrity of the selection of Open Telecom Ltd. by the Director of Telecommunications and the fact that the

Company was not shortlisted by the Licences Committee is of little moment. There is no evidence that Minister Gillette has been part of any decision making body involving Open

Telecom Ltd. a company with which the Honourable Minister has been so closely associated

(and probably still is) and I don’t expect that he will ever be so involved (I can put it no higher than an expectation) while being a Minister of Government.

Page 42 of 56 The Prime Minister’s Public Utterances – actual bias?

I now wish to examine the Prime Minister’s public utterances which Counsel has contended demonstrate actual bias against the Applicant. This evidence has not been challenged by the

Respondent. The Applicant has alleged that

(1) in delivering his speech at the Indian Arrival Day Celebrations at

Chandargore on 29th May, 1997 the Prime Minister referred to Ken Gordon

the Chairman of the Applicant as a psuedo-racist a person who uses race to

look after himself and who wants to maintain the monopolistic advantage

over his competitors in the media.

(2) at a speech given by the Prime Minister at Mid Center Mall, Chaguanas on 8th

November, 1998 during celebrations to mark the commemoration of the

United National Congress (UNC) third anniversary in office the Prime

Minister declared that the Government was in a state of war with the media

and he called upon the supporters of the UNC to target racist supporters and

“to do them before they do us” and called for a boycott by the UNC and its

supporters of the Applicant’s media houses and for the entire population to do

likewise.

(3) a speech given by the Prime Minister at North Eastern College, Sangre

Grande on 3rd February, 2000, at a meeting of the supporters of the UNC in

which the Prime Minister accused the Applicant’s group of companies of

declaring war on his Government. He described the Applicant’s newspapers

publishing company and television station as one of the greatest enemies of

the Government, and that the Applicant has declared virtual war and called

upon his supporters to defend themselves. He called for a boycott of the

Applicant’s newspaper publications and a boycott of those who advertise in

Page 43 of 56 the Applicant’s publications. He called on his supporters to organise than

never before to fight “the mother of all battles”, the war that had been

declared by the Applicant.

(4) a speech given by the Prime Minister at La Joya Auditorium, St. Joseph on 8th

February, 2000 at a meeting of UNC supporters in which he said that the

Government was being attacked in the newspapers and singled out the

Applicant’s newspaper the Express as being bias and prejudiced.

In his submissions Counsel for the Respondent has argued that the Prime Minister has a legitimate right to defend himself and his party (the UNC) against political attacks from anyone including the Applicant. While I agree that there is nothing wrong with the Prime

Minister criticising those who he believes are his enemies or the enemies of his Government it is inconceivable that having demonstrated publicly the degree of hostility he harbours for the Applicant the Honourable Prime Minister will then so soon thereafter seek to sit in judgment or be part of a decision making body which involves the Applicant. If justice is to be done or appear to be done it would seem to this Court that the Honourable Prime Minister ought to have done everything in his power (and I dare say he had the power to do so) to ensure that the process of selection for the award of cellular licence remains uncontaminated whether from bias or any other procedural improprieties. In short, given the Prime Minister’s publicly declared hostility for the Applicant and its Chairman the Prime Minister in my respectful view ought not to have participated at the time that he did in any decision making process involving the Applicant. This is so, particularly in view of the fact that the Licences

Committee had in its report to the Honourable Prime Minister as the Minister responsible for

Telecommunications recommended the Applicant for consideration for the award of the cellular licence.

Page 44 of 56 In the final analysis the Court has to ask itself whether having regard to all the circumstances there was actual bias and/or whether there was a real danger of bias on the part of the Prime

Minister as the Minister responsible for Telecommunications in the sense that the Prime

Minister may have unfairly regarded with disfavour the case of the Applicant for a cellular licence.

In my view the language used by the Honourable Prime Minister in his public utterances betrays an attitude of mind towards the Applicant of unbridled hostility. He made no pretence nor did he attempt to conceal his dislike for the Applicant in his public speeches. At times the language he used in describing the Applicant was impassionate if not inflammatory.

Such prejudice or pre-disposed position could easily have affected his decision to look with disfavour on the Applicant and therefore exclude the Applicant from further consideration by

Cabinet or by the Prime Minister himself for the award of a cellular licence.

When one carefully considers the language used by the Prime Minister to describe the

Applicant together with the circumstances surrounding the acceptance of the recommendations of the Director of Telecommunications as against that of the Licences

Committee with respect to the selection of the companies for consideration for the award of cellular licences this Court holds the view that the Honourable Prime Minister was not only motivated by actual bias but that there was a real danger or a real possibility of bias resulting from the Prime Minister’s action. This Court believes that the Honourable Prime Minister whether consciously or not was predisposed or prejudiced aga inst the Applicant for reasons unconnected with the merits of the Applicant’s application for a cellular licence.

The law as it relates to the issue of bias is now clearer than it has ever been before. The issue falls for consideration into three classes. There is actual bias, apparent bias and direct pecuniary interest. Where the decision-maker has a direct pecuniary interest in the matter under consideration the law presumes bias. Pecuniary interest is not relevant in the instant

Page 45 of 56 case. The cases have shown that where a decision is contaminated by bias the Court will not hesitate to set aside that decision in the interest of procedural fairness and more importantly to maintain public confidence in the decision making process. This is what Lord Goff had to say at page 659 in the case of R –vs - Gough (supra):

“But there is also the simple fact that bias is such an insidious thing that, even

though a person may in good faith believe that he was acting impartially, his

mind may unconsciously be affected by bias.”

Again at page 661 the learned Law Lord continued:

“Of course, if actual bias is proved, that is an end of the case; the person

concerned must be disqualified. But it is not necessary that actual

bias should be proved; and in practice the inquiry is directed to the

question whether there was such a degree of possibility of bias on the part

of the tribunal that the Court will not allow the decision to stand.”

I agree with Counsel for the Applicant (and the authorities do support the view) that actual bias is a state of mind, a pre disposition or prejudice against an individual which can manifest itself as personal hostility. But I also with respect, agree with the argument of Lord Goff (as quoted above) that invariably it is not necessary to prove actual bias. Once it could be established on the evidence that there is a degree of possibility of bias on the part of the decision maker then the Court will not allow the decision to stand. The Canadian Court of

Appeal in the case of Re Gooliah (supra) was quick to quash a decision of the Special

Inquiry Officer on the basis of actual bias in circumstances where on the evidence it was found that the Officer had acquired a point of view on the case that was unfavourable to the

Applicant and that he brought that point of view in the handling of the case in the form of preconception, prejudgment, partiality and bias. See also the case of Tata Cellular (1996)

(supra).

Page 46 of 56 Prior to the decision of the House of Lords in the Gough’s case there were conflicting authorities as to the test to be applied to impugn a decision on the ground of apparent bias.

Some of the authorities seem to favour a test of whether a reasonable person might reasonably suspect bias on the part of the decision maker while others held the view that the test is whether there was a real danger of bias by the decision maker. The conflict was authoritatively resolved by the unanimous decision of the House of Lords in the Gough’s case which favour the real danger of bias test. At page 670 of the decision Lord Goff expresses the principle this way:

“I prefer to state the test in terms of real danger rather than real likelihood, to

ensure that the Court is thinking in terms of possibility rather than probability

of bias. Accordingly, having ascertained the relevant circumstances, the Court

should ask itself whether, having regard to those circumstances there was a real

danger of bias on the part of the relevant member of the Tribunal in question in

the sense that he might unfairly or regard (or have unfairly regarded) with

favour, or disfavour, the case of a party to the issue under consideration by

him….”

Lord Woolf expressed a similar view at page 671 when he said:

“In particular, I agree that the correct test to adopt in deciding whether a

decision should be set aside on the grounds of alleged bias is that given by

Lord Goff, namely, whether there is a real danger of injustice having

occurred as a result of the alleged bias.”

The principle enunciated in the Gough’s case was subsequently applied by the Court of

Appeal in the case of R –vs- Inner West London Coroner, ex parte Dallaglio [1994] 4

AER 139 where the Court, on an application for judicial review quashed the decision of the decision-maker on the basis that the real danger of bias had affected the decision in the sense

Page 47 of 56 of having caused the decision-maker, albeit unconsciously to weigh the competing contentions and so decide the merits unfairly.

Counsel for the Applicant has submitted that the decision of the Honourable Prime Minister to recommend to Cabinet that the three companies be awarded cellular licences is contaminated by bias both actual and apparent and therefore procedurally improper. He has further submitted that such procedural unfairness infringes the rights of the Applicant enshrined under section 4(b) and 4(d) of the Constitution and entitles the Applicant to invoke the Court’s jurisdiction under Section 14 thereof.

The Constitution

I now want to turn my attention to the provisions of the Constitution alle ged to have been violated by the Respondent.

The Republican Constitution of Trinidad and Tobago recognises by section 4, inter alia, the following fundamental human rights and freedoms namely –

(4) the right of the individual to equality before the law and the protection

of the law;

(d) the right of the individual to equality of treatment from any public

authority in the exercise of any functions;

Section 4(b) of the Constitution embraces in my view two concepts of fundamental justice:

(1) Equality before the Law; and

(2) Protection of the Law.

By their nature it would seem that both these concepts can arise in a particular case.

Section 4(b) – Protection of the law

I will first address the concept of “the protection of the law”. Counsel for the Applicant has submitted that the Applicant’s right to “the protection of the law” to which it is entitled by

Page 48 of 56 virtue of Section 4(b) of the Constitution invokes the rule against bias which is among the several principles of fundamental justice referred to in section 5 (2)(e) of the Constitution.

Section 5(2)(e) of the Constitution provides that Parliament may not deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations. In support of his submission Counsel relies on the reasoning of the Judicial Committee of the Privy Councel in the case of Thornhill – vs – the Attorney General (1979) 31 WIR 508.

In the Thornhill’s case the Privy Council after identifying the rights and freedoms recognised and declared in section 1 of the 1962 Constitution (section 4 of the Republican Constitution) expressed the view that section 2 of the 1962 Constitution (section 5 of the Republican

Constitution) merely gives particular examples of conduct by the executive which will infringe the rights enshrined by section 1 of the Constitution. At page 512 of the Judgment the Judicial Committee said:

“….. but section 2 also goes on to give, as particular examples of treatment by

the executive or judiciary which would have the effect of infringing those rights,

the various kinds of conduct described in paragraphs (a) to (h) of that section.

These paragraphs spell out in greater detail what is included in the expression

“due process of law” to which Thornhill was entitled under section 1(a) as a

condition of his continued detention and “the protection of the law” to which he

was entitled under Section 1(b).”

Lord Millette did not express a dissimilar view when he delivered the majority decision of the Privy Council in the case of Thomas & Hilaire –vs - The Attorney General, PC 60 of

1998 where the Learned Law Lord said:

“…. ‘due process’ of law is a compendious expression in which the word “law”

does not refer to any particular law and is not a synonym for common law or

Page 49 of 56 statute. Rather it invokes the concept of the rule of law itself and the universally

accepted standards of justice observed by civilised nations which observe the

rule of law … the clause does give constitutional protection to the concept of

procedural fairness.”

In the view of this Court it will be very surprising indeed if the expression “the protection of the law” does not give the same constitutional protection to the concept of procedural fairness. The Judicial Committee of the Privy Council was of a similar view when it held in the case of Rees –vs - Crane (supra) that the protection of the law to which a High Court

Judge is entitled under the Constitution included a right to be heard by the Judicial and Legal

Service Commission before the Commission decided whether to represent to the President under section 137 of the Constitution that the question of the removal of the Judge from office should be investigated. Clearly, it would seem therefore, that procedural unfairness could lead to a violation of the right to the protection of the law enshrined in the Constitution.

The rule against bias must therefore be a requirement of procedural fairness. In the well known text of Judicial Review of Administrative Action (5th Ed.) by de Smith, Woolf and

Jowell, the learned authors had this to say at page 521:

“Procedural fairness demands not only that those whose interest may be

affected by an act or decision should be given prior notice and an adequate

opportunity to be heard. It also requires that the decision maker should

not be bias or prejudiced in any way that precludes fair and genuine

consideration being given to the arguments being advanced by the parties.

Although perfect objectivity may be an unrealisable objective, the rule

against bias thus aims at preventing a hearing from being a sham or ritual

or a mere exercise in “symbolic reassurance”, due to the fact that the

decision maker was not in practice persuadable. The rule against bias is

Page 50 of 56 concerned, however, not only to prevent the distorting influence of actual

bias, but also to protect the integrity of the decision making process by

ensuring that, however disinteresting the decision maker is in fact, the

circumstances should not give rise to the appearance or risk of bias.”

In the view of this Court the application of the rule against bias is primarily to preserve the integrity of the decision making process. If therefore on the evidence it is found that the decision of the executive is contaminated by bias then the person who is directly and adversely affected by the decision is entitled to seek redress before the Court on the basis that his constitutional right to the protection of the law has been or is being violated.

Section 4(b) – Equality before the Law

In the case of Smith –vs- L.J. Williams (1980) 32 WIR 359 Justice Bernard (as he then was) examined in particular detail sections 4(b) and 4(d) of the Constitution. Material from both the American and Indian jurisdictions were carefully analysed by the learned Judge in arriving at an appreciation and a better understanding of the equal protection clause of our

Constitution. The Judge quoted from Basu’s “Shorter Constitution of India” (1976), (7th

Ed.) where the author interpreting Article 14 of the Indian’s Constitution relating to denial of equality before the law or the equal protection of the law says at page 29 that:

“2. Equal protection means the right to equal treatment in similar circumstances

both in the privileges conferred and in the liabilities imposed by law:

Shrikishan –vs- Rajastan (1955) 2SCR 531, State of West Bengal –vs- Anwar

Ali Sarkar (1952) SCR 284 at page 320: (1952) 39 AIR 75. In other words

there should be no discrimination between one person and another if as

regards the subject matter of the legislation their position is the same:

Chiranjit Lal –vs- Union of India (1950) SCR 869.”

Page 51 of 56 The learned author goes on to argue that equality before the law may be denied not only where the legislation itself is discriminatory but where the public official seeks to administer a non-discriminatory law in a discriminatory manner. But there is a caveat. The intention of the public official is relevant in circumstances where his administration of a non- discriminatory law is being challenged. In other words the Applicant’s right to equality before the law would not be affected unless it can prove that the public official’s conduct was actuated by mala fides or by hostile intentions.

There is therefore a presumption of bona fides on the part of public officials in the execution of their public duties. That presumption though diffic ult to defend at times, is, in my respectful view, both necessary and sensible if the machinery of government is to operate without unnecessary interruptions. That presumption of regularity in the conduct of public officials must be rebutted in order to establish a violation of the right to equality of treatment and the burden of proof rests squarely on the person aggrieved to establish mala fides in the administration of the law. This is how Justice Bernard expressed the principle at page 411in the L.J. Williams case:

“In so far as official acts are concerned, the nub of the matter is, in my view,

that the section both guarantees and is intended to ensure that where parties

are similarly placed under the law they are entitled to like treatment under

that law. However, there is a presumption of regularity in the acts and

conduct of officials. Consequently, the burden of proof is upon the aggrieved

party to establish mala fides in the administration of the enactment. Of course,

mala fides particularly in cases of this sort is not normally expressed. However,

it can be and is usually to be implied from overt acts. In this connection it is not

necessary, in my view, to prove an “evil eye” although I do not doubt that in

some cases the evidence may be such that the act complained about can be seen

Page 52 of 56 to transcend both the concept of the “unequal hand” and an“evil eye” at the end

of the day.”

Although I have found on the evidence that the Applicant is as similarly circumstanced as the three (3) companies which the Honourable Prime Minister has decided to recommend to

Cabinet for further consideration for the award of cellular licence, the Applicant, on the evidence before me, has not been awarded like treatment under the law. See Matadeen –vs -

Pointu (1998) 3 WLR 18.

I have found that the conduct of the Honourable Prime Minister as the Minister responsible for telecommunications in taking the decision he did to exclude the Applicant from further consideration by Cabinet for the award of a cellular licence was deliberate and unjustified having regard to all the circumstances. In my view the Applicant has proved mala fides and has therefore rebutted the presumption of regularity.

It is no answer to say, as Counsel for the Respondent has sought to do, that it is the Prime

Minister as the responsible Minister who must put the proposals to Cabinet and that no one else can do it and that the doctrine of necessity applies. That argument suggest that the incumbent Dr. Griffith was not qualified to put the proposals to Cabinet hence the reason why the Prime Minister took over the portfolio at the time that he did. I cannot accept that argument. The doctrine of necessity may only be invoked in circumstances where no substitution is possible since no one else may be empowered to act. But the Honourable

Prime Minister has the power to appoint any Minister as the Minister responsible for telecommunications. Moreover, under section 80(1) of the Constitution any Minister may be authorised to effectively determine applications for such licences.

Section 4(d) – The right of the individual to equality of treatment from any public authority in the exercise of any functions:

Page 53 of 56 It is trite law that a natural person can be a public authority. This view was expressed by Lord

Diplock at page 516 in the decision of Thornhill –vs- The Attorney General (1979) 31 498 and also that of Bernand J. at page 412 in the case of Smith –vs- LJ Williams (1980) 32

WIR 395. Given the duties and responsibilities of the Prime Minister in his capacity as the

Minister responsible for telecommunications I hold that the Honourable Prime Minister is a public authority for the purpose of section 4(d) of the Constitution. I am also satisfied from the evidence presented to this Court including the evidence of the Prime Minister’s public utterances and from the Prime Minister’s conduct as a whole that the treatment of the

Applicant was unfair and discriminatory.

This Court and by extension the Judiciary would be failing in its duty if it turns a blind eye to procedural unfairness practiced by public officials which may affect the fundamental rights of the citizens. In the L. J. Williams case Bernard J. expressed a similar view in very simple but forceful language. At page 412 the le arned Judge said:

“…. the right to equality before the law and the right to equal treatment

to my mind are among the most important of the fundamental guarantees. They

touch every nook and cranny of the citizenry. They are designed among other

things to strike down “curry-favour” and other unfair practices on the part of

those who manage and/or operate the wheels of Government and quasi

governmental organs under particular laws. The protections or safeguards

extend to all (rich or poor), the le ast deserving as well as the most virtuous.”

That is language which I am pleased to adopt because I believe that all acts of unfairness by public officials in their dealings with members of the public ought to be discouraged.

The law requires them to be fair. Having regard to all the circumstances and applying the law as I understand it I hold that the Honourable Prime Minister as the Minister

Page 54 of 56 responsible for telecommunication acted with bias both actual and apparent against the

Applicant and has therefore infringed the Constitutional rights of the individual to equality before the law and the protection of the law and to the individual’s right to equality of treatment by a public authority in the exercise of its functions entrenched in section 4(b) and 4(d) of the Constitution.

Declarations and Orders:

In the premises this Court would grant the following Declarations and Orders:

(1) A Declaration that the decision of the Honourable Prime Minister Basdeo

Panday made on or about 28th April, 2000 to omit the Applicant’s proposal

for a licence to provide a cellular telecommunication system from further

consideration by Cabinet is unconstitutional, discriminatory, unreasonable,

affected by bias, null and void and of no effect as it was done in

contravention of the Applicant’s rights guaranteed under section 4(b) and 4(d)

of the Constitution;

(2) A Declaration that the Honourable Prime Minister Basdeo Panday has, by his

actions in relation to the Applicant, denied the Applicant its constitutional

rights to the protection of the law, equality before the law and to equality of

treatment from a public authority in the exercise of its functions;

(3) A Declaration that the Honourable Prime Minister Basdeo Panday has, by his

actions and decisions in relation to the Applicant in removing it from the

shortlist of candidates recommended by the Licences Committee on

Telecommunications and/or in omitting the Applicant’s application for a

cellular licence from further consideration, denied the Applicant its

constitutional right to the protection of the law, including the right to a fair

Page 55 of 56 and impartial and unbiased determination of its said application in accordance

with the principles of fundamental justice;

(4) An Order of certiorari to quash and/or set aside the decis ion of the

Honourable Prime Minister Mr. Basdeo Panday made on or about 28th April,

2000 to exclude the Applicant from being further considered by the Cabinet

for the award of a cellular licence;

(5) An Order prohibiting the Honourable Prime Minister Basdeo Panday as the

Minister responsible for telecommunication from further participating in any

decision and/or deliberation relating to or in any way connected with the

Applicant’s said application for a cellular licence.

(6) Damages if any are to be assessed by a Judge in Chambers and are to be paid

by the Respondent to the Applicant.

(7) The Respondent will also pay the Applicant’s costs of the motion to be taxed

which costs I hereby certify are fit for senior and junior Counsel.

Dated this 28th day of September, 2000

S. Ventour Judge

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