The Invisible Hand

GOPIO President Devant Maharaj was bypassed for promotion to the position of Secretary to Board of Directors in favour of Ms Phyllis Borde. He complained that there was some sort of political conspiracy to railroad his career and that the invisible hand of the political almighty was inside the cookie jar. The High Court granted a declaration that he was treated unfairly, contrary to the principles of natural justice and the regulations that govern the NLCB.
 
 Discrimination and political victimization are very difficult to establish. Maharaj is a prominent Hindu activist and has recently declared his support for Winston Dookeran’s party. He has been vindicated. Sadly, his case is neither exceptional nor unique.
 
 The material facts were that Ms Phyllis Borde’s substantive position was that of Auditor II (Range 42). Maharaj was the Marketing and Public Relations Officer (Range 46) and therefore senior to her. Maharaj was therefore bypassed in favour of a junior officer. I pause to point out that there is nothing wrong with this. Promotion should not be based on seniority but merit and ability and Maharaj was well qualified for the promotion. Political prejudice and bias however, should never be allowed to infect and taint the promotion process. In this case, Borde’s promotion was virtually secretly orchestrated at Maharaj’s expense.
 
 The fact that the Board of the NLCB is appointed by the ruling party means that employees should be protected from political interference in their careers. The Service Commission ‘is meant to be a virtual iron curtain separating the careers of these officers from the political directorate’.
 
 Mr Louis Lee Sing, Chairman of the NLCB board strongly recommended Ms Borde for the promotion. In the words of the court, he was “the worst choice” to pen such a recommendation because ‘the danger exists, whenever a political appointee gets involved in promotions or appointments that the iron curtain of insulation from political interference will be (or appear to be) lifted.’
 
 The court criticized the Service Commission for secretly meeting to make the promotion without even advertising the post as required by law or notifying Maharaj as the most senior eligible candidate that it was about to fill the vacancy so that he could apply for same. It blindly accepted Lee Sing’s ‘influential’ recommendation and unceremoniously bypassed Maharaj. The court also criticized the Commission for failing to disclose copies of all the letters that Lee Sing had written to it concerning Maharaj saying the reasons given by the Commission were ‘not impressive’.
 
 In criticizing the role of the politically-appointed board, the court said “the clear favourite of the Chairman and probably the other non-executive board members was Ms Borde. Unconscious influences are sometimes very powerful. The will of the non-executive board might find its way into the independent conference room. There is no gainsaying the fact that a politically appointed chairman speaks with the weight of higher authorities that may be perceived as the most powerful in the land. The weight of his recommendation is now out in the open.’ The invisible hand was revealed.
 
 Justice Aboud, in a paragraph that is likely to be referred to and quoted by many other judges for a long time to come concluded with the following words:
 
 “It is the duty of the Commission to scrupulously, if not slavishly, follow the regulations. They are designed to keep national politics out of the boardroom but not to the extent that the Commission should be blind to “office politics”. These officers are intended to serve the statutory authorities regardless of which political party has appointed their Chairman and board. In some cases, their interventions are meant to keep a welcome check on the politically appointed board by advancing the objects and aims of the statutory authority whether it is politically correct or not to do so. The Board will have its mandate from politicians, but that is a mandate to chart the policy of the authority. It is not a mandate to micro-manage the organization or to interfere in the careers of its officers. Likewise, there is no role for national politics in the conduct or action of these officers….Too often we import politics into places where politics has no place, and I regret to say that, despite all that has been said, or left unsaid, that national politics is oxygenating the events that has brought these parties to my court.”
 
 The court concluded that the decision-making process used to appoint Ms Borde was flawed and that Maharaj was justified in complaining that he was the victim of unfair treatment.
 

By Anand Ramlogan 2007-08-17

 Next Week: Unveiling Unfairness