Doubts whether PSC properly constituted

THE EDITOR: For several months during the Police Service Commission (PSC) deliberations and decisions on appointing a Commissioner and Deputy Commissioners of Police, the PSC, as publicly revealed, had only four appointed members from which a quorum was drawn to consider the appointments.

This matter attracted public concern since the Constitution required five appointed members before a quorum can be properly drawn. The question therefore arose in public and also in the recent report of the Special Select Committee (SSC) of Parliament. This, in my view, is a matter that requires serious attention for the present and the future.

The recent report of the SSC established to consider and report on the process followed in relation to the notifications pursuant to Section 123 of the Constitution included a section – Preliminary Points Section B – entitled “Whether the PSC was properly constituted.”

The legal opinion (February 20) from the Office of Parliament states that while “the PSC did not have the required number of members as mandated by Section 122 of the Constitution … the PSC can in fact conduct the business of the commission with fewer than five members, given that the PSC is quorate with three members by virtue of Section 129(2) of the Constitution.”

I now submit, with respect, that this opinion needs further examination:

1. In terms of composition, the PSC is far different from other service commissions, in the particular sense that (1) while Section 122(1) of the Constitution states that the PSC “shall consist of a chairman and four other members,” Section (3) further states that the President shall, after consultation with the Prime Minister and Opposition Leader, nominate persons who are qualified and experienced in the disciplines of law, finance, sociology or management to be appointed as members of the Police Service Commission.”

2. This strictly means that it is not merely a matter of numbers. Given the serious duty of considering the qualifications, integrity, experience etc of the candidates for commissioner and deputy, the stipulation of specific criteria for PSC members must be fulfilled as constitutionally mandated, and in fairness to the candidates.

3. The PSC during a decision-making period did not have five members constitutionally appointed. It was deficient by having four. In other words, it was not yet constitutionally alive to appoint a quorum.

4. A quorum is a product, a derivative of a properly constituted body, and in the PSC case, containing five members with the stipulated qualifications.

5. This was not a case where all five members were constitutionally appointed, and one or two were absent for whatever reasons, in which case the quorate principle (Section 129(2)) could apply. Section 129(2), as a procedural provision, assumes the PSC constitutionally complete.

6. The definition of the Police Service Commission is precisely stated in Section 122(3) of the Constitution. Subsequent reference to the PSC must fall within this definition. A procedural provision (Section 129(2)) for a quorum (3) from four members violates Section 122(3).

7. The PSC was therefore not properly constituted.

As PSC chairman, I had discussed such a situation with a few learned professionals, previously with then PSC member, the late attorney Addison Khan, and recently with Reginald Dumas who agreed with the above. In fact, whatever the outcome, this seems a matter for further interpretation.

PROF RAMESH DEOSARAN (emeritus)
,
former chairman, PSC