By Joannah Bharose October 4, 2000

Is this prisons officer a victim?

THE Constitution guarantees equal treatment for all races in this country. We even sing about it in our national anthem but our laws do not facilitate the racial equality enshrined in our Constitution.

Equal rights lawyer, Anand Ramlogan, who has almost single-handedly challenged the system so far, said our laws are impractical and do not facilitate justice for victims of racial discrimination.

"Because of this I am often forced to manipulate inside the law and cases are often treated as discrimination and nothing more," he admitted.

Of all the cases he has had in recent years he has had to look for novel ways of dealing with them in the courts.

"They all complained very bitterly about the open racial discrimination they have had to deal with. The first person who came to see me was a prison officer, Joseph Narsiah.

"He complained that junior officers kept getting promoted ahead of him all the time," Ramlogan said.

Miraculously two days before the judicial review action in court Narsiah was promoted. The application for judicial review had to be withdrawn.

Ramlogan, a San Fernando-based lawyer, said: "After that I filed three other actions and all three prison officers whether by coincidence or design happened to be of East Indian descent and were also promoted within weeks of their court dates.

Ramlogan said his clients have all said there is a rank beyond which an Indian prison officer cannot rise in this country.

To date the most significant instance of racial discrimination involves 52-year-old Dougnath Rajkumar, who enjoys the dubious distinction of being the longest serving, but yet the most junior prison officer in the history of the service.

Rajkumar was never promoted for 32 years, since he entered the service on October 1, 1968 and saw officers who were junior to him promoted ahead of him all the time. A fellow officer who started at the same time as Rajkumar rose to the rank of Deputy Commissioner of Prisons.

Although Rajkumar won his initial case for discrimination by the PSC, the Court of Appeal overturned that decision because the Constitution bars any interference by the courts into the PSC.

The Privy Council has since granted Dougnath leave to appeal the process.

Ramlogan only feels disgust for the ouster clause, which insulated the PSC from any court action for far too long.

Ramlogan said: "No other institution or office in our country is beyond judicial scrutiny except the PSC. Even the Prime Minister is subjected to external forces. If the people don't like you they vote you out. Even the President changes. But no one can interfere with the Services Commission. Even the UK did away with the last of its ouster clauses in 1958 and what is the problem with our country?"

And he added: "Because of this Rajkumar is still at the lowest rung in the prison service after almost four decades of service."

In Rajkumar's case, Justice Anthony lucky described the matter as "as one which cried out for justice".

Since the controversial case caught the public's attention Government has removed the ouster clause, to allow judicial review of the decisions taken by the PSC.

That clause was removed from the Constitution earlier this year. which now helps government employees challenge decisions by the Public Service Commission.

The clause was originally intended to give the commissions "independence" in the appointment of Government officers.

But it evolved into a barrier to justice and has been often labelled as "dictatorship by constitution".

Ramlogan insists that it is a step in the right direction but said that a lot more is needed if victims of racial discrimination are to get justice.

He explained that the laws on racial discrimination are also impractical and do not encourage justice for victims.

Under the Constitution the victim is required to prove not just inequality but differential treatment.

Ramlogan said: "You have to go beyond that and must prove two persons in similar circumstances with differential treatment by the decision maker actuated by malice." It is almost impossible to prove malice unless someone confesses, according to Ramlogan.

It is almost a no win situation and that is why the Privy Council's decision in Rajkumar's case could be a turning point for racial discrimination laws in this country.

Ramlogan said there is no justice at the moment for racial discrimination and he is forced to come up with innovative ways of dealing with cases under the broader issue of discrimination.

"Theoretically and constitutionally we are guaranteed equality but we have no real redress in court." Ramlogan added: "The high evidential threshold makes it impossible for justice to prevail."

It is often said that justice is blind but when it comes to colour there seems to be no justice in Trinidad and Tobago.

Not a single case for racial discrimination has ever survived the rigours of the legal system in this country and based on recent court decisions handed down this is not likely to change in a hurry.


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