What Justice Kangaloo's ruling means for appointing an acting CoP

Never before in the country's history has there been so much uncertainty on the process to appoint a Commissioner of Police (CoP).

Thursday's court ruling on an interpretation summons governing the process to appoint someone to act as CoP has provided clarity on one important issue – the House of Representatives must approve any candidate recommended by the Police Service Commission (PSC).

There have been numerous attempts to change the process for the appointment of a CoP and deputy commissioners of police over the years all aimed at making the process simpler and insulated from political interference.

Now that President Paula-Mae Weekes has found two suitable candidates – retired judge Judith Jones and management consultant Maxine Attong – to be considered as members of a new PSC there seems to be a semblance of certainty on the way forward. A third candidate must be found for a quorum to make the PSC effective.

Once approved, the new PSC members first order of business would be to appoint an acting CoP but that can only be done if Parliament approves new subsidiary legislation governing the process.

That would mean the Attorney General will have to table a new legal order which will make it mandatory for the PSC to submit an Order of Merit list for acting appointments to the President who in turn must transmit it to the House of Representatives for approval.

This is in keeping with the ruling of Justice Nadia Kangaloo who struck down the previous process as prescribed in the Commissioner of Police and Deputy Commissioner of Police (Acting Appointments) (Selection Process) Order of 2009 as unconstitutional as it is contrary to Section 123 of the Constitution.

Section 123(1)(a) of the Constitution gives the PSC the power to appoint a substantive of temporary CoP or deputy commissioner and Sections 123(2) to (5) spells out the procedure which mandates the PSC to prepare a list of suitable candidates and submit it to the President who in turn shall prepare a notification for each candidate and submit same to the House of Representatives.

Only after the House of Representatives approves the notification can the PSC appoint the office-holder to the substantive or temporary position.

Justice Kangaloo also examined a clause in yet another legal order governing the process to appoint a CoP or deputy commissioner which was approved by the Government on June 17, which for the first time created a new category of a potential candidate – someone who was "previously on contract" to be appointed to act as CoP of deputy commissioner pending the filling of the vacancy by a substantive office-holder.

She ruled that paragraph four of the 2021 Order was unnecessary in light of her ruling on the legality of 2009 Order and similarly should also be struck out.

Simply put, the PSC has to follow the same procedure to appoint an acting CoP or deputy commissioner by following the process as though it was appointing a substantive office-holder.

Her ruling rendered the PSC's decision to appoint Gary Griffith to act on August 17 and the subsequent appointment of Deputy Commissioner McDonald Jacob to act as CoP after Griffith was suspended on September 21, which was later rescinded by the PSC, as void and unconstitutional.

Her ruling affected every single decision of the PSC since 2009 – including the acting appointments of James Philbert (2007-2010), Stephen Williams (2012-2018), Griffith (August 17- October 14, 2021) and every single acting deputy commissioner during the 12-year period.

In so far as to not nullify the actions of those officers who were illegally appointed to act, the judge referred to two legal principles – de facto officer principle and the doctrine of necessity – to preserve their actions and decisions.

This is a matter the Attorney General will have to consider to prevent legal challenges to actions taken by those office-holders since 2009, and another option will be to pass special legislation, with the Opposition's support, to validate the actions of the acting CoP's and deputy commissioners, legal sources said.

Opposition Leader Kamla Persad-Bissessar is questioning the validity of Jacob's appointment as deputy commissioner, who both the Prime Minister and the Minister of National Security has said is in charge of the police service in the interim, but legal sources referred to Section 22 (1) of the Police Service Act which permits the PSC to appoint on contract a person who is not in the police service to the rank of CoP of deputy commissioner for any specified period.

Jacob whose nomination was approved by the House in April was appointed by the PSC as deputy commissioner. He signed a contract with the Ministry of National Security to serve for three years, a year ahead of his official retirement from the service. He is the only substantive deputy commissioner appointed since Williams officially retired in 2019.

The vacancy of an acting CoP and two acting deputy commissioners in charge of administration and operations will no doubt burden Jacob's responsibility and the other members of the police executive in keeping the organisation functioning effectively.

Among the responsibilities which will remain untouched in the absence of an acting CoP are the granting of firearm user's licences, the appointment and termination of trainees, the appointment of an independent management consultant for the Promotion Advisory Board, administering the award fund, issuing departmental orders, establishing administration and operational units of the police service, assignment of officers, transfer of officers and the issuance of standing orders and service orders.

The PSC's lead attorney had argued, in the case before Justice Kangaloo, that the prolonged process of seeking parliamentary approval for the temporary appoint an acting CoP or acting deputy commissioner did not apply as that would undermine section 123(a) and "the Constitution does not contemplate having the State be without someone to perform the crucial and unique functions of CoP."

Russell Martineau SC submitted "leaving the office of CoP open for indefinite periods would amount to a dangerous undermining of the fundamental constitutional powers of the CoP."