The great PSC pappyshow

Repeated debates over the functions of the Police Service Commission (PSC) continue to look like a soap opera, never-ending and with unintended consequences.

And once again, the distinguished chairman and four members of the PSC could be forgiven if they wonder what’s next with these legal notices. They directly affect the PSC’s constitutional functions with such twisted repetition that even the public should wonder what will tomorrow bring to the PSC and the process of selecting and appointing a CoP and DCP.

Given what has happened before and last Tuesday’s debate over UNC senator Wade Mark’s motion to annul two legal notices (Nos 277, 278 of 2021) and Attorney General Faris Al-Rawi’s explanations regarding the appointment of CoP and DCoP, it now boils downs to two basic questions: how independent really is the PSC? When will the political bickering and tinkering over the PSC, its functions and the police service end?

Amazingly, Legal Notice No 277, with Stuart Young’s inclusion of “seniority” as an additional criterion, was approved by Cabinet and published on November 25. Apparently, within a few hours AG Al-Rawi’s Legal Notice dated November 26 swiftly removed “seniority.” Why? Did Cabinet approve this? Is Al-Rawi smarter than Young? Does the PSC have a view on this?

The PSC membership includes a group of experts in various fields to handle such matters. Mark described these two notices as a “recipe for chaos and confusion.” It is really the constitutional amendments to section 123 (via Act No 6 of 2006) that are really the source of past and present “chaos and confusion,” with more to come. Mark promised to take this matter “up to the Privy Council.”

Widespread suspicions recently arose over the infamous Legal Notice No 183, which curiously stated that whenever a vacancy arises in the offices of CoP or DCP, the PSC “may submit to the President a list of suitably qualified persons from amongst the ranks of the Police Service, including those on contract or previously on contract, as nominees to act” in such offices (Section 4). The court knocked down this section and its accompanying procedure as being superfluous. Important parliamentary time, taxpayers’ money and a “caught in the middle” PSC were again unduly involved.

And questions were again publicly raised in and out of Parliament: “Where did this ‘on contract’ come from, and why?” It appeared unduly particularised and under whose hands?

Opposition Leader Kamla Persad-Bissessar cleverly inserted a lawyer's phrase. She said the new amendment promoted by AG Al-Rawi looked too “ad hominem,” as if crafted to suit one candidate. Whispers identified a “certain candidate,” one, according to subsequent events, that should have pleased Ms Persad-Bissessar. The PSC collapsed.

Anyhow, it came down to a matter of public trust. And this after Legal Notice No 218 of 2015 too was previously knocked down by the court for seemingly usurping the “independence” of the PSC. That rejected legal notice stated: “The Commission on the request of the Minister of National Security shall, in accordance with section 20A(1)(c) of the Central Tenders Board Act, contract an appropriate local firm to conduct a recruitment process including inviting applications” for CoP and DCoP.

Not only were the PSC and its important function was thrown under the political bus, but government resisted logical reasons from the opposition as to why this “political interference” was unconstitutional. Soon after this judgement, former PSC chairman, the late Kenneth Lalla, SC. said: “The ruling of the High Court may be reasonable grounds for reviewing the facts and circumstances which led to the abolition of the former PSC in 2006.”

In 2013, former head of the public service Reginald Dumas called the structure and processes of the PSC “a bureaucratic nightmare.” The late attorney Dana Seetahal SC, called it a “complex, convoluted system.” In 2011, as PSC chairman, I described it as “a tangled web” and took my case to the then Prime Minister for a review.

During the recent debate on nominations for the PSC, the PM, noting the undue complexity of the process, wondered if the UNC would support a review. Facing the “mess” in that debate, AG Al-Rawi indicated that he had already begun “a draft bill” for review. During last Tuesday’s debate on Mark’s motion, Agriculture Minister Clarence Rambharat also wondered if the UNC would be willing to sit and talk about a review. And the tireless and unstoppable Wade Mark promptly expressed UNC’s willingness to do so.

Well, what are we waiting for?

We continue to quibble among the trees and not see the forest. We should stop treating the PSC as a mere pappyshow. You cannot call it “independent’ in one breath, say you want “no political interference” and then have its nominations politically turned upside down. During the debate in 2006, PM Patrick Manning said he would see how the elaborate 2006 amendment worked and make any changes required as things moved along. The Constitution is organic, they said.

Well, the time has reached and it’s either government brings forward a proposal or the UNC presents a motion.

The word “independent” carries a mighty powerful meaning, that is, “not depending on authority or control,” “not depending on another person for one’s opinion,” “not depending on something else for its validity, value, etc.”

So in our democracy, how “independent” can the PSC really be?

A review will therefore require much thought. For example, the 1976 Constitution allowed for a PM veto on several senior public officials, including the CoP and DCP, as recommended by the then PSC. This veto could be seen as constitutionally and democratically proper since the PM attains that position as the result of a free and fair election and is directly accountable to both Parliament and the population.

However, it was and still is the severe mistrust that the people have over elected politicians that triggered the fear of the PM's veto.

And that is why the twisted, suspicious pieces of legislation that AG Al-Rawi, wittingly or unwittingly, brings to Parliament continue to arouse fear and mistrust, thus causing the public to prefer the “independence” of the PSC. Can a review deal with such circumstances?

Now the rapidity and impositions brought upon the PSC by these government legal notices (orders) raise another big issue. They make it look as if the PSC is a sub-committee of Cabinet and not constitutionally independent. Of course, the Constitution does provide for such orders, but over the years, they have been whittling down, politically turning and twisting the “independent” PSC powers into the government’s own image and likeness. A kind of pappyshow, really.