Unexpected Developments...

In the world of grand illusions nothing exceeds like excess, and the truly memorable and magical spectacles demand much fanfare to call them into being and a grand flourish of a bow when they're complete. Yet for some reason our latest epic miracle happened in such secret it seemed to slither its way onto the national scene unnoticed, causing the British High Commissioner to almost spill his tea in dismay. How dare we not notice the greatest thing that has ever happened to us as a country? 

Well, first off, nobody told us it was happening, and secondly, even if we did know, even if we were all crammed into the same room where the decision was being made, we would have all left the room skeptical and underwhelmed, simply because we've been hoodwinked so many times before. In Trinidad & Tobago the rule of thumb where these grand gestures are concerned seems to be the grander the gesture the greater the scheme behind it so brace for the backlash.

How could we not be jaded when quite recently, after being told on one day that we were declared the Number One Tourism destination in the world, we find out the next day it was all an elaborate hoax, a con, and that what we bought instead were three greasy guys in a Romanian back room printing out 'awards on demand' that turned out to be not worth the paper they were printed on. In a land where Politicians and political appointees aren't just impersonating professionals by fraudulently claiming simple degrees, they're in fact faking complex multiple doctorates to the point where if one of them were to stand up in Parliament and declare himself the Grand Old Duke of Earl, would we be surprised?

Cynicism comes easy to a people when awards are meaningless and titles are doled out for the silliest of things. Party support and a lack of personal integrity appears to be all that is required to earn you a national award these days, and one wonders what the value of a bestowed Doctorate is to any individual when one knows how cheap and easy they are to come by?

In similar vein, this Developed Nation Status story seems to reek of a scheme of the highest order. If it was real, wouldn't there have had to have been a build up to it on a national scale? Wouldn't we have been anticipating the announcement like we were the presentation of the final four on the runway? Surely there would have been some momentum leading up to the auspicious day, from a national education plan over months to prepare us for the eventuality and culminating in hundreds of thousands of people cheering in the streets, or a parade on a special day with a catchy name like ' D-Day, From Arrival to Arrived' or something like that, where the unsealing of the envelope and the accompanying fireworks in the sky would have happened amidst thunderous applause, don't you think?

Instead, what we got was nothing, and today's release comes across as too much of an anti-event to be be of interest to the people. Ignore the irony that this change in status is being sold to us during a State of National Emergency brought on by unmanageable levels of unspeakable violence among the natives, massive thievery by corrupt politicians, drug and money laundering on a scale that has the world's attention, deep systemic failure on all levels in all systems of governance and an endemic poverty that rivals...well, undeveloped countries; pay no attention to those things and you can almost believe our Developed Nation Status to be plausible, almost.


To me this whole thing comes across as more of a letting go of us rather than a bestowing of glory, almost as if we had no say in the matter or as if we were going to end up here regardless of what we did. Based on today's announcement the deal appears done and dusted and where we are is where we are, for the first time in our history, left to our own devices, cut off from aid and developmental support. No matter how we feel about it we had better get our collective acts together fast, because like it or not, we're in the big leagues now.

The End of Innocence... (Broadcasting Sexually)

Ian Alleyne runs a video of an underaged, allegedly mentally disabled girl being raped on his evening show and is able to repeat it for days with nary a word from the producers, the station's management or the Telecommunications Authority of Trinidad & Tobago. Popular soca artiste Shurwayne Winchester is allowed to glorify and promote human trafficking and sexual slavery to sell a song and the stations run it without consulting the Broadcast Code and again, total silence from the Telecommunication Authority, begging the question as to their relevance. Is anyone over there even paying attention to what is being broadcast over the nation's airwaves? Who has authority and enforcement responsibility for these serious transgressions and where is that person at present? In the midst of a sexual identity crisis where children are killing themselves in confusion over who they are or where they're going and teachers 'sexting' their students naked pictures of themselves, now is not the time for those charged with overseeing what our children are exposed to as entertainment to abdicate their responsibility. We the people need to insist (at the very least) that senior management at the Authority be fired, that the licenses of the offending stations be suspended, and that the offensive material be removed from the air permanently.

The matter concerning Alleyne's 'rape for ratings' broadcast has already incensed a sufficient enough amount of right thinking people who are already calling on the powers that be to stop pussy footing with the issue and take serious action. In response, Mr. Alleyne has allegedly threatened to 'go after' his detractors for having the audacity to question him and I would like to ask if this is not a case of the tail wagging the dog? Is Mr. Alleyne not aware that the airwaves his show is broadcast on are in fact public property, to which the people have an inalienable right to question to what use they are put?

The Broadcast Code clearly states among its guidelines:

- “To ensure that children are neither harmed nor misled by the transmission of inappropriate and/or inaccurate material.
”

- “Broadcasters shall use appropriate scheduling to protect children from unsuitable material.”

- “Programmes which portray children in a sexual fashion are not acceptable, except where justified in the context of a dramatic or information programme dealing with the specific issue of sexuality, in which case the portrayal must be as limited as possible within the context of the particular programme and must in any event be inexplicit.
”

- “Broadcasters shall ensure that programmes that take incest or child abuse as their topic or themes shall provide suitable warnings prior to airing and shall be appropriately scheduled.”

- “Representations of sexual intercourse must not be broadcast unless there is a serious educational purpose. Any discussion or portrayal of sexual behaviour broadcast must be appropriately limited and inexplicit.
”



- “In reporting certain kinds of crime, such as sexual assaults or incidents involving children, the time of transmission and the need for protection of the children involved must be taken into account and the degree of explicit detail matched to the probable presence of children listening or viewing. Steps should be taken to minimize psychological trauma to children.”

The silence of the the Ministry of the People, the Ministry of Social Development and the Ministry of Gender Affairs as well as the major women and children's groups and even the Children's Authority on these gross violations is very instructive, and their failure to raise an alarm brings their collective value to society into question. We cannot say we are 'for' or 'against' a thing and when presented with that same thing stand mute or dumbstruck.

Much of what is being passed off as culture and entertainment is in fact the prostituting of our women and children for profit. We need a return to decency in public life in how we interact, in what we say and in what we do if we are to turn this situation around. Things are getting very dark now, and if a society is only as strong as the social contract which binds it, then the disturbing symptoms of the greater societal problems manifesting themselves at present suggests that we need to revisit that document and decide where we as a people want to go from here. Before it gets later still.

Occupy This...

The growing Occupy Wall Street movement that is spawning and multiplying around the globe must cause some concern for the current government of Trinidad & Tobago as, at some point, the people of this country are going to start asking serious questions at the level that they need to be asked and are not going to be satisfied with make believe answers. Our own version of a financial meltdown took place at the hands of some devious well dressed buccaneers whose modus operandi is rumored to be the norm not the exception, and still taking place in other Companies that might also qualify as being too big to fail. Systemically we are already deficit financing to absorb the initial blow and there can be no guarantees if another financial institution stumbles that the country will be able to afford propping it up, so why are we still taking stupid chances? Where is the legislation to rein in and control outsized Companies that by their size already present a danger to the economy?

The fraud and recklessness that necessitated the bail outs of both CLICO and the Hindu Credit Union MUST result in criminal charges being laid at the highest level including Central Bank and the Ministry of Finance as well as Executives and Managers of all Companies involved. Where possible the Accounting firm(s) that allowed the theft and cover ups to go unnoticed at the very least need to have their Charters revoked and their management charged with gross negligence and conspiracy to defraud if anything positive is going to come out of all this.

There is no excusing what took place and from the evidence I have seen what has been allowed to be exposed in the Commission of Enquiry is the proverbial tip of the ice berg. Questions need to be asked of then Prime Minister Patrick Manning what he knew and when, and criminal charges have to be brought against his Minister of Finance for using what amounted to insider information to secure her own investment while ignoring her sworn responsibility to the people of Trinidad & Tobago.

While Monteil and Duprey are the two most well known names and faces in what amounts to nothing more than a well established and nefarious gang, there are many others whose names are being protected and whose identities and the crimes are being shielded from the public. Obviously the concept of honor among thieves runs deep in white collar crime circles locally, but we the people must insist that all who were involved, all who knew and all who ought to have known must be at the very least dismissed from any positions of authority and banned from our financial industry for life. There are Bankers at the highest level who had to be fully aware of what was taking place and who were happy to do their part to gain their share. They too need to be exposed and shamed nationally and made to pay for their crimes. Thirty, forty and fifty million dollar payments do not hide well in mattresses, and the deposits and declaration forms for those transactions require scrutinizing by parties other than those who took bribes to look the other way.

It is patently obvious now that this was no small act of opportunity or a pilfering, but a grand conspiracy concocted and agreed to by many, happening over sufficient enough time to be considered racketeering at the highest level. We need the equivalent of a Special Prosecutor assigned to go after the guilty and bring them to justice, and we need this done with purpose so as to bring all into the net regardless of name, wealth and position. It is high time justice in this country focused on all offenders, especially those in positions of public authority and responsibility.

What is taking place in America and other places is discontent with the inequality in which justice is dispensed. As Martin Luther King said - "A riot is the language of the unheard."

The responsibility to the people must not be missed by this government nor the Director of Public Prosecutions; Examples have to be made at the highest level if confidence in any of our systems of leadership is ever going to re-emerge from this, and there must be a following of the money trail for each act of illegal enrichment. Wherever that trail ends the criminals and the criminally negligent together must be brought to justice and all of their ill gotten gains paid back to the people so that justice can finally be done. Anything else is talk, and we've had enough of that now.

DEVANT MAHARAJ v THE MINISTRY OF COMMUNITY DEVELOPMENT

EQUAL OPPORTUNTY ACT, 2000 EOC/0019/2009

DEVANT MAHARAJ - COMPLAINANT

and

THE MINISTRY OF COMMUNITY DEVELOPMENT - RESPONDENT

NOTIFICATION OF DECISION OF THE COMMISSION’S FINDINGS

INTRODUCTION

1. The Equal Opportunity Act 2000 (“the Act”) provides for the prohibition and elimination of discriminatory behaviour. Part IV of the Act created an Equal Opportunity Commission (“the EOC”) with the responsibility of receiving and investigating complaints of discrimination pursuant to S. 27 of the Act.

2. The complainant is a cultural activists of East Indian descent and a known oppose to the People’s National Movement the party which formed the government for the period of this complaint 2003 -2007. The respondent is the Ministry of Community Development (before May 2010 this Ministry was referred to as Ministry of Community Development, Culture and Gender Affairs) who was at all material times responsible for the disbursement scholarships to nationals of Trinidad and Tobago. The complaint is that the Ministry in disbursing over fifty millions dollars (50,000,000.00) in scholarship grants failed to advertise the existence of the fund thus denying the complainant the opportunity to apply for a scholarship.

THE COMPLAINT

3. By letter dated 3rd December 2009 the Complainant Mr Devant Maharaj submitted a complaint to the Equal Opportunity Commission (EOC) alleging discrimination against the Ministry of Community Development, Culture and Gender Affairs (as it was then known and hereafter referred to as “the Ministry”). These allegations concerned what he referred to as the “secret scholarships” being awarded by the Ministry during the years 2003-2007. He complained that he was denied the opportunity of applying for a scholarship by the Ministry contrary to S. 5 and 17 of the Act during this period.

4. The Complainant alleged that the Ministry, during the period in question, failed to publicly advertise the availability of its educational scholarships as well as the criteria used to award such grants. It was further alleged that the award of the grants was done without any apparent transparency and that the scholarships were not granted based on merit or necessity but rather were given to persons who had some sort of political connection to the ruling administration, i.e. the People’s National Movement (PNM).

5. The Complainant submitted a bundle of documents obtained from the subsequently requested several documents from the Ministry under the authority of the Freedom of Information Act 1999 (FOIA) regarding those persons who were awarded grants by the Ministry during the years in question. He claimed that based on the information he received he observed a pattern of discrimination by the Ministry relating to the granting of financial assistance to persons seeking to gain further education.

6. The Complainant indicated that, even though he wanted to further his education he was never allowed an equal opportunity to apply for Ministry funding and as such he requested that the Commission review the Ministry’s Financial Assistance Programme to determine if there was any evidence of discrimination.

7. His complaint is that he has been treated unequally with regard to the Ministry’s provision of goods, facilities and services, pursuant to s.17 of the Equal Opportunity Act 2000, without any proper justification.

STATUTORY FRAMEWORK 

8. The material provisions of the Act are as follows:-

For the purposes of this Act, a person (“the discriminator”) discriminates against another person (“the aggrieved person”) on the grounds of status if, by reason of—

(a) the status of the aggrieved person;

(b) a characteristic that appertains generally to persons of the status of the aggrieved person; or

(c) a characteristic that is generally imputed to persons of the status of the aggrieved person,

the discriminator treats the aggrieved person, in circumstances that are the same or are not materially different, less favourably than the discriminator treats another person of a different status.

Discrimination re: provision of goods and services 17. (1) Any person concerned with the provision (whether or not for payment) of goods, facilities and services to the public or a section of the public shall not discriminate against a person who seeks to obtain those goods, facilities and services—

(a) by refusing to supply the goods, provide the facilities or perform the services;

(b) in the terms on which he supplies the goods, provides the facilities or performs the services; or

(c) in the manner in which he supplies the goods, provides the facilities or performs the services.

17. (2) The following are examples of the facilities and services mentioned in subsection (1):

(a) access to and use of any place which members of the public or a section of the public are permitted to enter;

(b) accommodation in a hotel, guest house or other similar establishment;

(c) facilities by way of banking or insurance or for grants, loans, credit or finance;

(d) facilities for entertainment, recreation or refreshment;

(e) facilities for transport or travel;

(f) the services of any profession or trade, or any statutory authority or municipal authority.

(3) Nothing in this section applies to the provision of services the nature of which is such that they can only be provided to members of one sex.

9. The best guidance for how Commissions such as the EOC should function is that given by Neill L.J. in King v. Great Britain-ChinaCentre [1992] I.C.R. 516, 528–529. After reviewing the relevant authorities, he said: “From these several authorities it is possible, I think, to extract the following principles and guidance.

(1) It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail.

(2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption that ‘he or she would not have fitted in.’

(3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 65(2)(b) of the Act of 1976 from an evasive or equivocal reply to a questionnaire.

(4) Though there will be some cases where, for example, the non- selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the tribunal willlookto theemployerforanexplanation.Ifnoexplanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but, as May L.J. put it in North West Thames Regional Health Authority v. Noone [1988] I.C.R. 813 , 822, ‘almost common sense.’

(5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balanceof probabilities, bearing in mind the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case.”

EVIDENCE SUBMITTED BY THE COMPLAINANT

10. The Complainant submitted a list of scholarship awardees which he obtained from the Ministry of Community Development pursuant to a request made under the Freedom of Information Act 2000. This list is exhibited at Appendix A. It shows that approximately 925 awards of scholarships were made totalling $50,863,950.38 TT Dollars during the period 2003 to 2007 as follows:-

646 persons received funding 1 time 203 persons received funding 2 times 59 persons received funding 3 times 10 persons received funding 4 times 1 person received funding 5 times

11. The Commission reviewed the complaint as lodged by the Complainant together with the supporting evidence and decided that an arguable case existed which warranted an investigation into the allegations made by the Complainant. This decision was based on the fact that the supporting evidence as supplied by the complainant purported to show that approximately nine hundred (900) persons were granted scholarships without the existence of the scholarships ever being publicly advertised. This the Commission found to be remarkable.

INVESTIGATION CONDUCTED BY THE COMMISSION

12. Pursuant to the information supplied by the complainant in this matter the commission decided that an investigation should be conducted in relation to the allegation of discrimination made by the complainant. Set out below is a table showing chronologically how this investigation progressed. It outlines the information requested by the Commission and the information actually provided by the Respondent.

13. In this response the Ministry denied the allegations made by the Complainant that they failed to publicly advertise the availability of its educational grants and sought to explain the inception of the Community Development Scholarship Programme (“the CSDP”) and the process used to advertise and select grantees. According to the Ministry, a Technical Team was established within the Ministry to determine how to satisfy a spate of requests from various Community Based Organisations (CBOs) and Non-Governmental Organisations (NGOs) so that the youth of the community could be exposed to training and development in both traditional and non-traditional areas. No information was provided on the composition of this team and the terms of reference of the members.

14. The Ministry also indicated that this Technical Team recommended that “the Ministry establish a programme of scholarships that would focus on building human capabilities within the communities and which programme would not be tied to or restricted by the traditional criteria.”

15. The Ministry indicated that based on the recommendations of this Technical

Team, b. To the establishment of a Community Development Scholarships

Cabinet agreed by Minute No 421 of March 14, 2002, inter alia:

Programme (CSDP) under which bursaries would be awarded to young persons to undertake programmes of training and/or study in the traditional and non-traditional areas.

c. That the Ministry of Community Development and Gender Affairs, in consultation with CBOs an NGOs identify the criteria for the award of the bursaries; and

d. That the Scholarship Selection Committee be established within the Ministry of Community Development and Gender Affairs to make the appropriate selections and make recommendations to the Minister for the award of the bursaries.

16.The Ministry indicated that based on this Cabinet decision, a Scholarship Selection Committee was established comprising of the Honourable Eulalie James – Minister of State in the then Ministry of Community Development and Gender Affairs, Ms. Rosalind Khanhai-Trotman – Retired Public Officer, Ministry of Education and Mrs. Maureen Manchouk – President, NIHERST.

17. When questioned on the issue of method of publication of notices advertising the grants, the Ministry indicated that copies of the relevant brochures were sent to all Community Development Administrative District Offices. However when requested to provide evidence of this fact the Ministry was unable to do. The Ministry was unable to provide any information proving that the (CSDP) were actually advertised and publicised so that members of the public such as the Complainant could have accessed that scholarship fund and that forms were available from District Offices.

18. The Ministry indicated that the following was the criteria used to allocate funding:-

a. Applicants must be Trinidad and Tobago citizens; b. Programme of training must be of relevance to the country; c. Applicants and/or their households must provide evidence of

financial need in respect of the proposed programme of training; d. Only applications in respect of programmes of training at the post

secondary level were considered for assistance; e. New students were required to seek acceptance at approved

institutions in Trinidad and Tobago which offer the proposed

programme of training; f. Preference was given to programmes of training being offered by

local and regional training institutions; g. Preference was given to undergraduate as opposed to post-graduate

programmes of training; h. Applications for non-traditional areas of training were also

considered; i. Applicants had to provide evidence of ability to cover costs in

excess of the level of assistance recommended by the Selection

Committee; j. Programmes of training must be at approved institutions; k. Applicants were not to be in receipt of awards/ financial assistance

which covered the assistance being sought; l. Applicants had to demonstrate the ability and the required level of

commitment to successfully pursue the chosen programme of training until completion;

19. The Ministry also provided information in the form of a brochure entitled Guidelines for the Award of Financial Assistance [Studies] Programme. Included in this undated brochure were guidelines to be used in deciding on assistance to persons. It was stated as follows:-

e. Eligibility – The programme being pursued must be relevant to the needs of the communities of the country.

f. Value – Awards will be approved: To a maximum of twenty-five thousand dollars (TT$25,000.00) per annum for local programmes, to a maximum of two thousand, five hundred pounds (₤2,500.00) per annum for programmes in the United Kingdom, to a maximum of five thousand United States dollars (US$5,000.00) per annum for programmes in other countries. Awards above those specified may be considered, but only in exceptional cases.

g. Terms – Beneficiaries may be required to enter into an agreement with the Government of the Republic of Trinidad and Tobago to serve within their respective communities or the country for a designated period of time.

h. Applicants must submit a recommendation from, or an assessment by a Non- Governmental Organisation (NGO) or Community Based Organisation (CBO).

i. Each applicant must submit a covering letter detailing the reason/s why he/she should be considered for financial assistance.

20. The Ministry also stated that after an application is received it is reviewed by the Cabinet appointed Awards Committee. The Committee then makes recommendations to the Minister. The Ministry was also requested to provide copies of any agreements signed with persons receiving funding. In its response the Ministry stated “Given the low level of financial assistance (unlike the levels applicable to scholarships and bursaries) the matter of an Agreement was not pursued between 2003 and 2007.

Response dated October 1st 2010

21. The Ministry when asked to provide a justification as to why the amounts awarded exceeded the amounts stipulated in the brochure. They indicated that “in some cases circumstances are very extenuating and based on the merit of the information contained in the documents...” The Ministry was also asked to provide copies of all payment vouchers. To date the vouchers were not provided to this Commission. The Ministry was also asked to provide copies of the minutes of the meeting of the Scholarship/Awards Committee. It was indicated by the Ministry that such information was “not available”.

VISIT TO THE MINISTRY

22. The investigators of the Equal Opportunity Commission visited the Respondent Ministry on several occasions in an attempt to review the records of disbursements made to grantees for the period 2003-2007. The Commission requested that the vote books of the Ministry for that time be made available. However, the Commission was informed that these books could not be located at the Ministry of Community Development and were at the Ministry of Social Development. The explanation given was that everything had been handled at the Social Development ministry.

23. On inspection of one of the vote books the initial disbursement when it was allocated to the Ministry of Community Development in 2004 started at $28,864,000 TT Dollars and was increased to $35,000,000TT dollars in the fiscal year of 2005. In many instances of examining the payment vouchers versus the vote books that the investigators were allowed to see, there were financial discrepancies in the incremental amounts stated by the Ministry and the actual voucher payments as viewed by the investigators.

24. It should also be noted by the Commission that even though the scholarships fund was passed in parliament by the former regime (Peoples National Movement) in 2001 it was not until 2003 that funding allocations were made to the Ministry of Social Development to commence disbursement. In 2004, the responsibility of these grants fell within the purview of the Ministry of Community Development. As mentioned above, the initial funding amount totalled $28,864,000.00.An examination of the allocations as accounted for in Parliament by the then Minister Mrs. Joan Eulie Williams disclosed the following in tabulated format.

25. It should be noted that in many instances none of the figures match up to what the Commission was provided with from the Ministry. The Ministry figures do not correspond to the figures disclosed in Parliament by the then Minister. For the period 2002 there was no allocation. In 2003, the Ministry of Social Development was responsible for the first disbursement. In 2004, the allocation in vote book was $28,864,000.00. The headings are as follows:

Taken from Head: 55 Current Transfers and Subsides: 04 Sub: 005 Non Profit Intuitions

27 Non profit Institutions Further inconsistencies include the non correlation between voucher amounts and the figures provided for by the Ministry. Cited examples include:

a. Knolly Charles: Amount received on voucher #271 dated 1/12/05 $84,000.00TT

Information to the Commission $13,395.00TT

b. Natasha Simon: Amount received on voucher #270 of 1/12/05 $80,000.00TT

Information to the Commission $10,115.00TT

26. On inspection of the vote books it was observed by the investigators that the allocated fund was used to pay every imaginable expense from the scholarships grants to the following: community wardens, salaries, catering services, gardening services, rental of retained properties, rental of sound equipment, rental of stages, printing fees, publication fees and communication fees (TSTT etc).

ANALYSIS OF DATA SUPPLIED BY THE MINISTRY

APPENDIX D – MASTER LIST

27. The Ministry by letter dated 14th June 2010 provided a list of persons receiving scholarships. The Commission then produced a tabulated list as shown in Appendix D. This list covers the period 2003 – 2007. This list shows that 755 persons obtained funding amounting to approximately $34,896,201.51 TT Dollars. Appendix D sets out the various amounts spent on scholarships per year. The following can be seen.

2003 1,033,324.29

2004 2005 2006 2007

5,224,286.75 10,598,358.46 5,925,992.32 12,114,239.69

APPENDIX E - LOCAL PROGRAMMES vs FOREIGN PROGRAMMES

28. Provides information on the local and regional universities compared to foreign universities in relation to funds spent. The following was found:-

Local and Regional Universities - 3,538,095.79 191 persons

Foreign - 31,358,105.72 451 persons Local amounted to approximately 10% of all studies

APPENDIX F - UNDERGRADUATE vs POSTGRADUATE

29. Provides information on the funding provided for undergraduate compared to post graduate programmes

Undergraduate Programmes $30,299,794.71 - 87% Post Graduate Programmes $ 4,596,406.80 - 13%

APPENDIXG - LOCAL AND FOREIGN ABOVE AND BELOW $31,000 TTDS

30.Provides information funding provided for programmes below $31,000 TT (5000.00 USD) and programmes above 31,000.00 TTD

Total for Foreign Programmes under $31,000 TTD persons – 6%

Total for Foreign Programmes above $31,000 TTD persons -94%

Total for Local Programmes under 25,000 TTD persons – 47% Total for Local Programmes above 25,000 TTD – 53%

ANALYSIS OF INFORMATION OBTAINED.

16 $1,913,833.31 85 $29, 472,212.91 360

31. Several anomalies were seen to exist in the evidence submitted by the Ministry (refer to paragraphs 38-45 for full list of anomalies). The main discrepancy being the huge disparity between figures as submitted by the complainant which was obtained under the Freedom of Information Act and those which were submitted by the Ministry to the Commission upon request? The total funding paid out by the Ministry for the period 2003 to 2007 on the complainants list is $50,863,950.38 while the list of awardees received by the Commission obtained funding amounting to $34, 896,201.51. In this regard there seems to have been a reduction of over $15 million dollars in the list provided by the Ministry to the Commission. The Commission has prepared tables exhibited at Appendix H – K as follows :-

APPENDIX H – COMPARISON OF INFORMATION PROVIDED BY COMPLAINANT AND RESPONDENT – CONSISTENT INFORMATION

32. This table shows that of the complainant’s and respondent’s list 539 persons are on both lists all. It also shows that the amounts as received by each awardees are the same on both lists. These awards amounted to $ 30,300,689.89 TTDS.

$1,653,015.00 $ 1,857,140.29

151 39 persons

APPENDIX I – COMPARISON OF INFORMATION PROVIDED BY COMPLAINANT AND RESPONDENT – INCONSISTENT INFORMATION

33. This table shows 47 persons in which the amount stated as received by them in the Complainant’s list differs from that in the Respondent’s list. These differences in some cases are huge. The commission thus far has been unable to verify the correct figures since we have yet to receive the actual vouchers as was requested.

APPENDIX J – COMPARISON OF INFORMATION PROVIDED BY COMPLAINANT AND RESPONDENT – INFORMATION MISSING FROM COMPLAINANT’S LIST

34. This table shows that when compared 62 names are on the Respondents list which are not on the list provided to Commission

APPENDIX K – COMPARISON OF INFORMATION PROVIDED BY COMPLAINANT AND RESPONDENT – INFORMATION MISSING FROM COMMISSION’S LIST

35. This table shows that when compared 472 names are on the complainant’s list but are not on the list provided to the commission.

APPENDIX L – A COMPARISON OF PERSONS FOR WHOM THERE NO APPLICATION FORMS FOUND AND THOSE WHERE APPLICATION FORMS WERE FOUND.

36. The Commission found that of the total number of persons receiving scholarships the following information was obtained.

No Application forms - 47%

Application forms with address included – 49% Application forms with no address included – 4%

APPENDIX M - DISTRIBUTION OF FINANCIAL ASSISTANCE BY ELECTORAL DISTRICT – (based on existing application forms)

37. The Commission found that when it reviewed the addresses of persons where application forms were found persons applying for scholarships came from 26 constituencies. The top five (5) constituencies are as follows:-

San Fernando – 16.9% Port of Spain North/ St. Anns West – 11.4% Diego Martin West – 11.0% Arima – 8.6% Laventille East/Morvant – 5.9%

APPENDIX N – DISTRIBUTION OF FINANCIAL ASSISTANCE BY ETHNICITY

38. This table shows the amount of persons belonging to the same ethnicity as the complainant and who received funding. It shows that 7% of persons receiving funding were of East Indian descent whilst 93% were of non- indo Trinidadian origin. Whilst names may not always identify precisely ethnicity, reliance was placed on the methodology employed by the team in the La Guerre and Ryan report on Ethnicity and Employment Practices in Trinidad and Tobago 1992.

MINISTRY BREACHES

39. No record of Selection Committee meetings - The Commission was informed that there are no copies of minutes of any meeting of the Selection Committee or

any information regarding what would have taken place during the evaluation of applications.

40. Review of applications forms - From the period 2002-2005, there appears to have been no standardized application form utilized by applicants. Based on a review of the applications of persons requesting grants for the year 2002-2007, several claims of financial need and subsequent awards of financial assistance were identified as suspicious. This was for the following reasons: The applicants examined reveal several instances where applicants were granted financial assistance based on recommendations made from Government Ministers or Members of Parliament. Records also indicate that the vast majority of applicants who were granted financial assistance by the Ministry lived in constituencies ruled by the PNM Constituencies. See Appendix M. Set out in Appendix O are examples of the above mentioned cases:-

41. Criteria for award of financial assistance not adhered to - Awards granted over maximum amount as stated - The “Guidelines for The Award of Assistance under The Community Development Financial Assistance [Studies] Programme (Guidelines) provided by the Ministry to the Commission states that awards would be approved “to a maximum of twenty-five thousand dollars (TT$25,000.00) per annum for local programmes, to a maximum of two thousand, five hundred pounds (₤2,500.00) per annum for programmes in the United Kingdom, to a maximum of five thousand United States dollars (US$5,000.00) per annum for programmes in other countries. Awards above those specified may be considered, but only in exceptional cases.” However, on analysis the amounts granted to recipients of the CSDP provided by the Ministry shows that over 400 recipients for the period 2003-2007 received more than the amount specified in the Guidelines. The figures therefore raise the question of what constituted the “exceptional” circumstances referred to in the Guidelines that would have influenced the Ministry to award sums over the maximum amounts quoted.

42. No Agreements signed - The Ministry’s assertion that the matter of an agreement between the Ministry and successful applicants was not pursued because of the “low level of financial assistance” provided is misleading at best. An analysis of the list of recipients of financial assistance provided by the Ministry shows that over 400 persons received more than $31,000 TT dollars. There were also hundreds of persons receiving funding amounting to $100,000.00 TT dollars or more. In most cases, the entire tuition fee of the applicant was awarded and was in either British pounds or United States dollars. In comparison in relation to the Government Assistance for Tuition Expenses (GATE) Programme, even for the smallest sums, a person is required to sign an agreement with the Ministry of Science, Technology and Tertiary Education. It should be noted that the investigators have noted disbursements in Euro dollars, Caiman dollars, EC currency and Barbadian dollars.

43.Local vs Foreign Programmes - Additionally the Ministry indicated that preference would be given to local study progammes rather than foreign. It is noted in appendix E that 415 persons were granted awards for foreign studies while only 191persons were granted awards for local studies.

44. No method to monitor successful applicants - There were no methods of monitoring applicants to ensure that they successfully completed their listed programme of study or that on the completion of the programme they returned to benefit their community. The Commission requested information relating to the policies and procedures in place to monitor completion of the course of study. To date the Commission has not received a response.

45. No connection to Non-Governmental Organisations or Community Based Organisations - The Guidelines state that applications must be accompanied by, inter alia, a “written recommendation or assessment from an NGO or CBO. Another section of the Guidelines requires that “An indication of the area/s in which the applicant has made a contribution in the community must be specified.

An NGO or CBO must confirm the applicant’s involvement.” However, none of the copies of applications reviewed by the Commission contain any such recommendations. Furthermore, there was no evidence presented to suggest that any NGOs or CBOs were involved in any aspect of the CSDP.

46. Awards based on “Financial Need” – The criteria as set out by the Ministry stated that applicants must provide evidence of financial need. However the information obtained showed that there were instances where applicants were awarded grants not based on financial need but based on recommendations from then Ministers of Government and even from the Prime Minister himself. This was especially during the period in question. The following are such instances. It is also interesting to note that the following names were not provided to the Commission by the Ministry, instead these were names found by the investigators upon their visit to the Ministry. Examples include:

a. In 2004 Adanna Joseph received $25,600.00 to pursue a BA in Public Relations Cooperative Education Route Programme at MountSaintVincent University.SheisthedaughterofBrigadier Peter Joseph. A note attached to the Interview sheet of the Ministry stated the following “Does not qualify under needy. However some assistance is recommended.” Additionally, attached to his application form was a note from the then Prime Minister Patrick Manning on the Prime Minister’s official stationary with the words “Hon. Joan Yuille Williams. Please assist.” The note also included what purports to be Mr. Manning’s signature and the date 04.10.24.

b. Kariym McHoney was awarded $50,400.00 in 2005 and $63,200.00 in 2006. The remarks/recommendations column of the Interviewsheetstatedthefollowing “Familyisnotreally financially stressed; Father is Commissioner of Prisons, mother 

teacher. Does NOT qualify under needy. However, some assistance is recommended”

47. No Advertisement of Financial Assistance Studies Programme - No evidence was provided to substantiate the Ministry’s assertion that the awards were sufficiently advertised and made available for all nationals during the period in question. For instance, the Ministry maintained that it sent Guidelines to eight Community Development Administrative District Offices but have been unable to locate any correspondence that would have been sent to provide information to those at the District Offices responsible for distributing said brochures. It would have been a suitable best practice for the Ministry to publish or advertise the existence of the scholarship as is the norm for scholarship programmes.

48. Additionally based on the review of the documents completed, none of the applicants requesting funding mentioned seeing a brochure or an advertisement relatingtotheavailabilityofgrantsattheMinistry. On the contrary, as previously stated, several of the applicants seemed to have been referred either by a Member of Parliament or a Government Minister. The remaining applicants appear to have been trying to gain financial assistance without actually being aware whether such assistance was available.

49. Having regard to all of the information the Commission has been provided with The Commission is of the view that the entire process of awarding financial assistance was not conducted fairly, legitimately and/or with the intention of allowing all eligible persons an equal opportunity to access the financial assistance for education from public funds.

APPLICABLE LAW

50. The Complainant in this matter brings his claim of discrimination to the Equal Opportunity Commission (EOC) pursuant to the Equal Opportunity Act (EOA)

2000. This act allows persons to lodge complaints of discrimination based on certainprohibited grounds of discrimination. The prohibited grounds of discrimination include, race, ethnicity, sex, religious belief, marital status and geographical origin.

51. A claim for discrimination can be brought under certain recognised categories such as, employment education, provision of goods and services and accommodation. The applicant in this case complains that he was discriminated against by the state and more specifically the Minister and the Ministry of Community Development. His complaint centres on the provision of scholarships to certain individuals whilst he was denied the opportunity to obtain such a scholarship. He alleges that the failure of the Ministry to award him a scholarship would have prejudiced his career opportunities. Additionally a financial strain would have been placed on him to spend his money to become competitive 

with other individuals who were granted scholarships.

52.The complainant brings his claim pursuant to S. 5 and 17 of the Equal Opportunity Act 2000 (EOA) on the grounds of his race and ethnicity. This complaint on the facts can be categorised under the provision of goods and services.

53. In establishing discrimination a complainant must show that they were treated less favourably than someone of a different status and that this difference in treatment was because of the complainant’s relevant status at the time. S. 5 of the EOA provides

S.5 For the purposes of this Act, a person ("the discriminator") discriminates against another person ("the aggrieved person") on the grounds of status if, by reason of—

j. the status of the aggrieved person;

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k. a characteristic that appertains generally to persons of the status of the aggrieved person; or

l. a characteristic that is generally imputed to persons of the status of the aggrieved person,

the discriminator treats the aggrieved person, in circumstances that are the same or are not materially different, less favourably than the discriminator treats anotherperson.

S. 5 EOA

54. The test of causation used in S.5 in the EOA is expressed as ‘on the ground of’ and ‘by reason of’ for discrimination complaints. In the Australian case of Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452 per Hodges J. it was stated that it is a general rule of statutory construction that where the legislature uses the same words, or essentially the same words, in different provisions, the intention is that those words should have the same meaning.

55. There are at least two ways in which courts and tribunals in Australia with whose anti discrimination legislation Trinidad’s own Act is closely mirrored have interpreted the phrase ‘on the ground of’ in relation to complaints of discrimination. The first is the ‘but for’ test or objective approach and the second is the true basis or real reason test or subjective approach. One of the differences between the two tests is that the ‘but for’ test is an objective or strict liability test where the motives or intentions of the alleged perpetrator are not relevant: Bernardi G, “Direct Discrimination in the Disability Discrimination Act”, The Australian Law Journal, vol 76, p 512 at 514. When applying the ‘true basis’ test, the decision maker may have regard to the perpetrator’s motives and intentions: Purvis v State of New South Wales (2003) 217 CLR 92 at 163.

56. The ‘but for’ test. When applying this test the decision maker asks whether ‘but for’ the particular attribute (sex, race, disability etc) the person would have been subjected to the treatment or conduct. A simple illustration of this test is provided by the case of Haines v Leves (1987) 8 NSWLR 442. In that case the Court of Appeal held that a complaint of sex discrimination by a female student at a single sex school was substantiated because she was not given access to the same subjects as a male student attending a nearby single sex school. The Court said that ‘but for’ the sex of the female student she would not have been treated less favourably than the male student was treated. The lack of any intention or motive to discriminate was held not to be relevant.

57. In IW v City of Perth (1997) 191 CLR 1, both Toohey and Gummow JJ saw some utility in the ‘but for’ test where the alleged discriminator is not an individual but a collection of individuals or a corporate body. In that case, the High Court was considering the disability discrimination provisions of the Equal Opportunity Act 1984 (WA) .The City of Perth Council rejected an application for planning approval for a drop in centre for people with HIV. Of the 25 members of council who voted, 13 voted against the application and 12 voted in favour, so that a change in one of the negative votes would have changed the outcome. Of the 13 councillors who opposed the drop-in centre, five were found to have voted on the basis of the ‘AIDS factor’. The majority (Brennan CJ, Dawson, Gaudron, McHugh and Gummow JJ) rejected IW’s submission that the Council had discriminated against him on the ground of his impairment and dismissed the appeal. Toohey and Kirby JJ dissented. Toohey J said at p 31 that as long as the discriminatory factors were one ground for the decision, even if not the principal ground, the decision would contravene the legislation. His Honor added at p 32 that while the ‘but for test’ has been rejected as a definitive test for causation, it may provide some guidance in circumstances where, as in this case, a corporate body is the decision maker “In the present case each Councillor in the majority determined the outcome by the vote he or she cast. If one or more of these Councillors voted on an impermissible ground, whether or not that was

“the dominant or substantial reason” (s 5) that vote determined the outcome because the result would have been different ‘but for’ the vote of that Councillor”.

58. Kirby J went further saying at p 64, that the ‘but for’ test was the ‘correct test’. In Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44, the Tribunal when considering a complaint of victimisation, adopted the ‘but for’ test for causation set out by Kirby J. At [43], the Tribunal made the following observation: Kirby J considered this broad issue of causation in IW v City of Perth (1997) 191 CLR 1 at 62-64 when discussing the terms of the West Australian Equal Opportunity Act 1984. We adopt his language: it is sufficient if the unlawful reason, that is the fact that the complainant had lodged complaints of race discrimination, “had a real causative effect in the sensethatbutforits presencetheactcomplainedofwouldnothaveoccurred” [Emphasis added.]

59. The ‘true basis’ test. Two years after the Tribunal handed down its decision in Sivananthan, the High Court had another opportunity to consider the test of causation in relation to complaints of discrimination. In Purvis v State of New South Wales (2003) 217 CLR 92 (Purvis), a student with brain damage was excluded from a high school because of aggressive behavior including hitting and kicking. The majority (Gleeson CJ, Gummow, Hayne, Heydon and Callinan JJ) decided the appeal in favour of the State of New South Wales on the basis of the differential treatment or comparator element of discrimination (less favourable treatment than the treatment the perpetrator gave or would have given to a person without that attribute). Although interpreting the words ‘because of’ rather than ‘on the ground of’ the majority of the High Court explained that the accepted test for causation in the context of anti-discrimination legislation is to ask why the aggrieved person was treated as they were. The focus is on the ‘true basis’ (per Gleeson CJ at 102), ‘genuine basis’ (Gleeson CJ at 102), or the ‘real reason’ (McHugh & Kirby JJ at 144) for that treatment.

60. In a joint judgement with McHugh J, Kirby J re-visited passages in IW v City of Perth (1997) 191 CLR 1 referring to the ‘but for’ test at p 143. It is true that statements of Toohey J and Gummow J in IW v City of Perth might appear to support a "but for" test in discrimination cases. Kirby J, after referring to the "reasons for the conduct of the alleged discriminator", said that the "but for" test applied by the House of Lords in James and by this Court in Banovic and Waters was "the correct test". In IW v City of Perth, however, the references to the "but for" test were expressed in relation to a decision of a corporate body that was made by its Councillors casting votes. The weight and course of authority no longer accepts that the "but for" test is the accepted test of causation in the context ofanti-discrimination legislation. That is because that test focuses on the consequences for the complainant and not upon the mental state of the alleged discriminator.

61. The majority in Purvis (Gummow, Hayne and Heydon JJ) did not refer to the ‘but for’ test. Their Honours adopted the ‘true basis’ test and emphasised that the motive or intention of the alleged perpetrator may be relevant. For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed “because of” disability. Rather, the central question will always be – why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it “because of”, “by reason of”, that person’s disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression “because of” (at p 163).

62. In Purvis it was stated the question a Tribunal should ask when addressing the causation element of direct discrimination is whether the person’s sex, race, disability, etc (including the extended definitions of those grounds) is at least one of the ‘real’, ‘genuine’ or ‘true’ reasons for the treatment. For that to be the case,

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that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment.

63. In the UK case of Chief of West Yorkshire Police v Khan [2000] I.C.R 1169 which involved a claim at an employment Tribunal of unlawful racial discrimination by the chief constable. On the issue of whether motive is required in proving discrimination. It was stated in Khan that Section 1(1) (a) of the Race Relations Act of 1976 requires the discrimination to have been “on racial grounds.” Section 2(1) of the Act of 1976 requires the victimization must be “by reason that ...”

64. The equivalent provision to section 1 of the said UK Race Relations Act of 1976 is section 1 of the UK Sex Discrimination Act 1975. That section requires the discrimination to be “on the ground of her sex” (section 1(1) (a). Section 4 of the Sex Discrimination Act 1975, which is the equivalent of section 2 of the Act of 1976, and requires the victimization to be “by reason that the person victimized has” done the protected act.

65. Our legislation contains provisions that are similar to that of both the UK Race Relations Act 1976 and the Sex Discimination Act 1975. Section 5 of the EOA 2000 provides “For the purposes of this Act, a person (“the discriminator”) discriminates against another person (“the aggrieved person”) on the grounds of status if, by reason of”. Section 6 of the Act requires victimization must be “by reason that”. Therefore in relation to discrimination our S.5 requires the aggrieved person to prove that by reason of the relevant status he was treated less favourably. The issue then is to what extent is the aggrieved persons required to prove the cause of the discrimination under the EOA.

66.An analysis of the UK authorities may assist in this regard. In Reg. v. Birmingham City Council, Ex parte Equal Opportunities Commission [1989] A.C. 1155 and James v. Eastleigh Borough Council [1990] I.C.R. 554 the House

of Lords confirmed earlier authorities which had held that it was not correct to construe the phrase “on the ground of her sex” as referring to the alleged discriminator's reason for taking the action of which complaint is made. The question is objective and not subjective. As Lord Goff of Chieveley said in the Birmingham City Council case, at p. 1194: “There is discrimination under the statute if there is less favourable treatment on the ground of sex, in other words if the relevant girl or girls would have received the same treatment as the boys but for their sex. The intention or motive of the defendant to discriminate, though it may be relevant so far as remedies are concerned ... is not a necessary condition of liability; it is perfectly possible to envisage cases where the defendant had no such motive, and yet did in fact discriminate on the ground of sex.

67. In James v. Eastleigh Borough Council [1990] I.C.R. 554, which turned on the fact that the retirement age for men was 65 and that for women was 61, with the consequence that a 61-year-old man was treated less favourably than his wife who was of the same age, Lord Bridge of Harwich, at p. 568a , identified the question and the answer as being “‘Would the plaintiff, a man of 61, have received the same treatment as his wife but for his sex?’ An affirmative answer is inescapable.”

68. In the same case Lord Goff said, at p. 576: “I incline to the opinion that, if it were necessary to identify the requisite intention of the defendant, that intention is simply an intention to perform the relevant act of less favourable treatment. Whether or not the treatment is less favourable in the relevant sense, i.e. on the ground of sex, may derive either from the application of a gender-based criterion to the complainant, or from selection by the defendant of the complainant because of his or her sex; but, in either event, it is not saved from constituting unlawful discrimination by the fact that the defendant acted from a benign motive. However, in the majority of cases, I doubt if it is necessary to focus upon the intention or motive of the defendant in this way. This is because, as I see it, cases of direct discrimination under section 1(1)(a) can be considered by asking the

simple question: would the complainant have received the same treatment from the defendant but for his or her sex? This simple test possesses the double virtue that, on the one hand, it embraces both the case where the treatment derives from theapplicationofagender-basedcriterion,andthe case where it derives from the selection of the complainant because of his or her sex; and on the other hand it avoids, in most cases at least, complicated questions relating to concepts such as intention, motive, reason or purpose, and the danger of confusion arising from the misuse of those elusive terms.

69. In Nagarajan v. London Regional Transport [1999] I.C.R. 877. This case involved the Act of 1976 and section 2(1) of the Act. The House of Lords held, that a finding of direct discrimination on racial grounds under section 1(1) (a) of the Act of 1976 did not require that the discriminator was consciously motivated in treating the complainant less favourably. It was sufficient if it could properly be inferred from the evidence that, regardless of the discriminator's motive or intention, a significant cause of his decision to treat that complainant less favourably was that person's race.

70. This was because no proper distinction could be drawn between the terms “on racial grounds” in section 1(1) (a) and “by reason that” in section 2(1) of the Act of 1976. The discriminator need not have realized that he had in fact been motivated by his knowledge of the complainant having previously sought to enforce her rights under the Act.

71. In his speech, Lord Nicholls first of all considered the position under section 1(1) (a) under the Act of 1976 and then turned to section 2. He said, at p. 886a-d: “‘On racial grounds' in section 1(1) (a) and ‘by reason that’ in section 2(1) are interchangeable expressions in this context. The key question under section 2 is the same as under section 1(1) (a): why did the complainant receive less favourable treatment? The considerations mentioned above regarding direct discrimination under section 1(1)(a) are correspondingly appropriate under

section 2. If the answer to this question is that the discriminator treated the person victimized less favourably by reason of his having done one of the acts listed in section 2(1) (‘protected acts’), the case falls within the section. It does so, even if the discriminator did not consciously realize that, for example, he was prejudiced because the job applicant had previously brought claims against him under the Act.

72. On the facts the question then becomes whether the reason the less favourable treatment towards the Complainant was because of his race. The above mentioned authorities seem to toggle between a subjective approach or objective approach. The former searches for a justification for the treatment, while the latter applies a strict liability test. In HCA No. S 2065/2004 between Sanatan Dharma Maha Sabha et al vs. The Attorney General of Trinidad and Tobago (Trinity Cross matter). Jamadar J sitting in the High Court stated “In my opinion ... it is unrealistic to have an entirely objective test. I would therefore frame the test as subjective – objectivity in order to capture the idea that it is not either one or the other but a synthesis of both”.

73. Applying firstly the ‘but for’ test, the information obtained by the commission reflects that approximately 7% (about 47 persons) receiving scholarship grants were of East Indian descent. This inherent trait would therefore have placed the Complainant at a disadvantage ab initio. Therefore it seems highly probable on the evidence before the Commission that but for his ethnicity he would not have been so disadvantaged and would have had a greater chance of obtaining a scholarship had he been of a different ethnicity.

74. Secondly in applying the subjective approach, the Ministry was asked to provide a response to the allegations that they discriminated against the complainant. In their response they simply indicated that the scholarships were advertised, but no evidence could be found of such advertisements. It could therefore be reasoned that the Ministry’s inability to inform the complainant and others about the

scholarship fund resulted in a direct exclusion of the complainant from ever knowing and being able to apply for a scholarship. On the facts the Ministry provided no justifiable reason as to why the complainant was excluded from applying for a scholarship.

PROVISION OF GOODS AND SERVICES

75. S. 17 EOA makes it unlawful for a person concerned with the provision of goods, facilities and services to the public to discriminate against a person in the way in which the goods are distributed. This section makes it clear that the provision could be for payment or non payment. S. 57 provide that this Act binds the State; therefore by extension the reference to person would include the State. The Complainant alleges that he was discriminated against because of his race and ethnicity in not being awarded a scholarship.

76. In determining the meaning of ‘service’ the Australian case of AB v Registrar of BD & M 2001 FCA 1740 is useful. Heerey J stated “service involves an act of helpful activity or the supplying of any... activities, required or demanded (Macquarie Dictionary) or the action of serving, helping, or benefiting, conduct tending to the welfare or advantage of another. Altering the Birth Register was an activity.... The carrying out of that activity would have conferred a benefit on the applicant. The Registrar, because of the terms of the BDM Act declined the request to carry out that activity. This was the refusal of a service. An activity carried out by a government official can none the less be one which confers a benefit on an individual”.

77.On appeal in this matter Black CJ agreed with Heerey J’s findings. He concluded that applying a purposive interpretation of the word service, the alteration of a person’s sex on their birth registration comes within the meaning of that term. Therefore in determining whether there has been a violation of the Act, it is necessary to consider the intention, purpose and effect of the relevant section.

The issue then becomes what is the true purpose of S. 17. In an analysis of the EOA 2000 it can be seen that the Act was created to work alongside the Constitution of Trinidad and Tobago in order to prevent instances of discrimination. This Act therefore requires that actions of individuals inclusive of the state are based on the principles of equity and fairness. S. 5 places a general prohibition on discrimination relating to all four categories inclusive of the provision of goods and services.

78. In Palgo Holding Pty Ltd v Gowans (2005) 221CLR 249 Kirby J summarised the principle as follows: - “Purposive interpretation: the first principle holds that a purposive and not a literal approach is the method of statutory construction that now prevails. A search for the grammatical meaning still constitutes the starting point. But if the grammatical meaning of a provision does not give effect to the purpose of the legislation, the grammatical meaning cannot prevail. It must give way to the construction which will promote the purpose or object of the Act”. Lord Diplock in an extra judicial statement in IRC v Ayreshire Employers Mutual Insurance Association Ltd 1949 1 All ER stated that “if the courts can identify the target of parliamentary legislation their proper function is to see that it is hit not merely to record that it has been missed. Brennan CJ and Mc High J in IW v City of Perth (1996) 191 CLR 1 outlined the appropriate approach to statutory construction; they stated that “beneficial and remedial legislation is to be given a liberal construction. It is to be given a fair, large and liberal interpretation rather than one which is literal or technical”. They were of the view that Equal Opportunity Acts are remedial and beneficial in nature.

79. From the above analysis it is arguable that the Ministry was indeed providing a service. Receiving a scholarship can amount to a benefit capable of granting an advantage to the beneficiary.

THE COMPARATOR

80. The Complainant indicated that his comparator Mrs. Laurel Lezama was similarly circumstanced to him; he alleged however because of her ethnicity she was awarded a scholarship whilst he was not. To prove discrimination it must be shown that the state in providing a grant to citizens treated the complainant less favourably than they did someone of a different status.

81. The Complainant in this case provided evidence of a comparator. In choosing a comparator the comparison must be like with like. The term relevant circumstances was discussed in the case of Shamoon v Chief Constable of the RUC [2003] ICR 337 here a superintendent relieved inspector Joan Shamoon of her appraisal duties. She brought a claim of sex discrimination using as comparators two male inspectors who had not been relieved of their appraisal duties. Her difficulty was that no complaints had been made against these inspectors and she had not proved that she had been treated less favourably than a male inspector would have been, had he received complaints, and the HL dismissed her claim. In choosing a comparator the relevant circumstances must be materiallythesameineachcasefor thecomparison.

82. In Amnesty international v Miss B Ahmed [2009] ICR 1450 (EAT) the employment appeal Tribunal stated “In our judgement the hypothetical comparator here is any similarly or identically qualified applicant as the Claimant, with the same level of experience who was of non-Sudanese ethnicity. Skin color is irrelevant in our view as is current nationality, given the facts that we found. The relevant circumstances in our judgement call for a straightforward comparison with a hypothetical comparator, so that the difference between the claimant and the comparator is only the difference of ethnic origin. We find that this is the hypothetical comparator that best fits the facts of the case. Further, any other more sophisticated form of hypothetical comparator raises difficulties”.

83. In Civil Appeal No. 143 OF 2006 the Public Service Commission vs Denis Graham the Commission in 1997 decided to promote thirteen officers to the rank of Superintendent, Graham was one of the officers considered for promotion. Counsel for Graham submitted all the officers including Graham were then equal in rank, i.e. Assistant Superintendent, and all the officers including Graham were recommended for promotion. The only difference that arose on the evidence was that Graham at one time had criminal charges brought against him. Mendonca JA stated “The question therefore is whether that is a relevant circumstance so that the other officers were not appropriate comparators”.... On the evidence in this case it is certainly arguable that the fact that Graham was at one time subject to criminal charges is not a relevant circumstance as to differentiate him from the other officers. It is therefore arguable that the other officers were appropriate comparators.

84. In proving discrimination against the Ministry, it was alleged by the complainant that the Ministry discriminated against him on the basis of their omission to advertise the Ministry’s provision of scholarships to individuals. On investigation of this allegation the Commission found that the Ministry did not publish or advertise the fact that scholarships were being provided to individuals. In comparison the Commission has noted instances where scholarship by the Ministry was published. The Commission upon reviewing application forms obtained from the Ministry found that most persons who applied for scholarships did so with the recommendation of a government minister or other politician or known supporter of the Government at that time. An inference can therefore be made that persons who obtained scholarships did so on the basis of their affiliations and or relations with the governing party at the time.

85. The Constitution of Trinidad and Tobago places a duty on the State to treat all citizens in an equal manner and not to discriminate against anyone. The EOA 2000 also places a duty on the State not to discriminate against persons based on certain prohibited grounds. On the facts therefore what is important and pertinent to this matter is the entitlement of all persons to participate in the process of obtaining a scholarship and which included all persons having an equal opportunity or chance to obtain a scholarship. Therefore no person should be placed at a disadvantage. Inherent in placing all persons on an equal footing in relation to the distribution of resources is that fact that all persons so entitled should have known of the fact the scholarships were being distributed.

86. The Commission have found no evidence to support the statements of the Ministry that the existences of scholarships were advertised. Therefore it would seem that the Complainant and others who did not have knowledge of this existence were indeed placed at a disadvantage and would not have had an equal chance of obtaining a scholarship as compared to someone who knew of the existence of the scholarships. The Commission also observed that for those who did apply for scholarships attached to the application forms were usually letters of recommendation from a politician belonging to the ruling party at that time.

87. In ensuring that all interested persons were on an equal footing it was necessary for all persons to have known about the scholarship fund and thus being able to apply for a scholarship. Each citizen of Trinidad and Tobago are and should have been eligible to be considered for a scholarship.

88. In the distribution of state resources a special duty is placed on the state to ensure that resources are being distributed equitably. The preamble to the Constitution states “where as the people of Trinidad and Tobago .... respect the principles of social justice and therefore believe that the operation of the economic system should result in the material resources of the community being so distributed as to subsume the common good”. This must be read in conjunction with S. 4(d) which provides for the right to equality of treatment from any public authority, this would include the distribution of state resources.

JURISDICTION OF THE EQUAL OPPORTUNITY COMMISSION

89. The Equal Opportunity Act 2000 which had been passed by a simple majority of both Houses of Parliament, extended that protection by prohibiting discrimination by any person on grounds of, inter alia, sex, race, or disability in relation to employment, education or the provision of goods and services. Part VI of the Act set up an Equal Opportunity Commission with the power to refer complaints, with the consent of the complainant, to a new Equal Opportunity Tribunal, set up by Part VIII of the Act.

90. The Act did not vest judicial power in the Commission but rather such power exists with the Tribunal. The Commission therefore is not equipped with the power or jurisdiction to hear, determine or make pronouncements or findings in relation to a complaint lodged with the Commission. Instead the jurisdiction of the Commission extends so far as only to make a finding of fact that enough factual information exists which makes the complainants case an arguable one.

91. Once established the Commission can recommend that the matter be conciliated. It is noted that the conciliation process itself is voluntary. Furthermore the Commission can file a claim with the Tribunal if consent is received from the complainant. The commission pursuant the Act does not have the jurisdiction or power to make any finding as to discrimination. All matters relating to finding in law can only be determined by the Tribunal.

92.This is in keeping with the principles of separation of powers, since the Commission is effectively an administrative body performing an executive function. The purpose of equipping the Commission with investigatory powers

was so that information can be obtained to determine factually whether a person is acting or has acted in a manner which can result in discrimination. It is then for the Tribunal to determine whether discrimination existed and to make a finding as such. The Commission therefore was primarily set up as a fact gatherer, and to assist complainants in obtaining information that they themselves would be unable to obtain.

93. In Australia a system of Anti-discrimination legislation was set up to deal with complaints of discrimination. The system was one similar to that of the EOA 2000 in relation to the existence of a Commission to investigate instances of discrimination. However the difference in this regard was the Australian Commissions’ actually conducted hearings, made findings as to discrimination and awarded damages.

94. However in the case of Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 the High court of Australia ruled that the Commission by performing these functions were usurping a judicial function in breach of the Australian Constitution. This prompted Parliament to amend the legislation, eventually to allow the commission only to conduct investigations and facilitate the conciliation process. All powers relating to hearings and awards were repealed.

CONCLUSION

95. On the evidence submitted it is clear that the Ministry did have established approved criteria as to the requirements to be satisfied for a person to be able to obtain a scholarship. From the information supplied by the Ministry it is clear that the intention and purpose of the Community Development Scholarships Programme (CDSP) was intended for availability to all citizens of Trinidad and Tobago. There was no indication by the Ministry that a criterion existed to prevent certain individuals from applying.

96. On the facts submitted therefore no criteria existed which would legally exclude the complainant. However it seems the act of not advertising the existence of the CDSP may have had the effect of excluding the complainant which resulted in the Complainant being treated in a less favourable manner than his comparator.

97. Additionally on the facts the Ministry proceeded to award scholarships, without advertising to the public at large or without having a standardised application form. On an analysis of the information obtained it was found that the Ministry by granting scholarships in the format that existed acted in breach of their own criteria. In fact even the existence or operation of the Scholarship Selection Committee is uncertain, since there were numerous instances mentioned above where the Prime Minister at the time or some other government official wrote to the Minister recommending a person for financial assistance. The Commission was also told that there were no minutes of the said Committee.

98. It can be reasoned that the effect of the procedure adopted by the Ministry in distributing scholarships under the CDSP had the effect of a disadvantage upon a significant proportion of the population who were of East Indian ethnicity inclusive of the complainant. This is evidenced by the fact that approximately 7% of persons receiving scholarships were of East Indian ethnicity.

99. The existence of such CDSP therefore had the continuing effects of denying, limiting, restricting or inhibiting the complainant and others like him from being able to participate in the processes linked to the award of a scholarship under the CDSP and thus access, the advantages, benefits and opportunities available to other equally comparable members of society who participate in the processes linked to and who were successful in gaining the advantages, benefits and opportunities derived from receipt of a scholarship under the CDSP.

100. On the basis of all the information obtained the onus was placed on the Respondent to show whether some legitimate, objectively purposeful and reasonable justification existed that would offset the discriminatory effects of the CDSP. On the facts the Ministry was unable to provide any reason albeit a justifiable one explaining why the complainant was excluded from the group of persons receiving scholarships.

101. The Commission considers that the complainant in this matter did provide enough evidence for an inference of discrimination to be made out against the Ministry. The Commission is also of the view that based on the evidence supplied the Ministry did not provide a reasonable justification as to why the applicant was not granted a scholarship. The Commission also noted that in the circumstances the applicant was placed in a disadvantageous position from the start by not having knowledge of the existence of a scholarship fund.

102. Though the Complainant is one person in a class of persons who are of East Indian ethnicity the effect of the Ministry not advertising the existence of a scholarship fund but allowing persons of other ethnicity did in impose a disadvantage upon a significant proportion of the population inclusive of the complainant.

103. Additionally on the issue of time limit pursuant to S. 30(3) of the Equal Opportunity Act 2000 the Commission it is stated may in exceptional circumstances accept a complaint made more than six months after the act of discrimination. The Commission accepted this complaint as one falling within exceptional circumstances. Although the subject matter of the complaint was within the period 2003-2007 the Equal Opportunity Commission was only appointed in April 2008 and only became operational in January 2010. Complainants therefore could not have had their matters investigated until the year 2010.

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104. The Commission has also taken note of the fact the there was undue delay in the appointment of the Commission since the Equal Opportunity Act 2000 was proclaimed in 2001. The complainant in this matter did lodge his complaint before the Commission was operational and on that basis the Commission accepted the Complainant’s complaint.

105. In the circumstances the Commission has considered that pursuant to S. 35 of the Act the subject matter of the complaint may be resolved by conciliation and recommend that this matter be submitted for conciliation.

106. Additionally it is also recommended that a forensic audit be conducted by the appropriate authority in relation to the disbursements of funds to persons.

Dated 19th July 2011

_______________________________ Emeritus Professor John La Guerre Chairman Equal Opportunity Commission