CoP's extension goes to Privy Council

POLITICAL and social activist Ravi Balgobin Maharaj has received conditional leave to take to the Privy Council his challenge of the Government's move to extend the term of office of Police Commissioner Erla Harewood-Christopher in 2023.

Justices of Appeal Mark Mohammed, Maria Wilson and Ronnie Boodoosingh granted Maharaj’s conditional leave application on June 10.

On May 8, Appeal Court judges Prakash Moosai, Mark Mohammed, and James Aboud dismissed Maharaj’s complaints in his appeal after High Court judge Ricky Rahim dismissed his case in January.

In the lawsuit, Maharaj challenged a Cabinet decision to extend Harewood-Christopher's term by a year under Section 75 of the Police Service Act, before she reached retirement age on May 15 last year.

The legislation empowers the President to extend the term of a first-division officer who is due to retire, if it is in the national interest to do so. Police officers can receive two further one-year extensions based on annual performance reviews.

Maharaj's legal team led by Senior Counsel Anand Ramlogan contended the provision was inconsistent with Section 123 of the Constitution, which gives the Police Service Commission the power to recommend the appointment or removal of the Police Commissioner and deputy commissioners of police (DCPs) to be approved by the House of Representatives.

In their written ruling, the Appeal Court judges held that section 75 empowered an extension of the years of service of the commissioner after he or she reached the mandatory retirement age. They also held there was no inconsistency between sections 75 and 123, so the former was not void.

“At the time that the 2023 Extension Order was made the CoP had not reached the age of retirement and was already duly appointed to that office approximately three months earlier,” the judges said in their written decision.

They noted when the PSC recommended Harewood-Christopher’s appointment, and the Parliament approved the recommendation, both were aware of when she would reach retirement age.

It said the PSC, at the time, did a “rigorous screening process,” putting her at the top of its order of merit list and the Executive, through the President, granted a lawful extension.

“Relevantly, there is no constitutional provision that prohibits a CoP from continuing in that office after his or her attainment of the mandatory age of retirement."

They also noted that a lawfully appointed commissioner who was given a one-year extension did not enjoy any freedom from an adverse appraisal of the PSC during that term.

“Tthe Constitution does not empower the PolSC to perform any functions relative to granting, denying, or approving extensions of time of persons serving in the office of CoP.

“Indeed, the section is devoid of any mention of the concept of extensions. In the absence of such a demarcation, it is well within the constitutional remit of the President, acting on the advice of the Executive, to extend the years of service of the CoP...

“The PolSC has no constitutional power to extend the term of years of an officer in the position of CoP. In so doing, we find that neither arm impermissibly trespasses on the other’s constitutional jurisdiction.”

They also held that section 75 did not violate the separate of powers principle.

However, Rahim was faulted for his finding that the power to extend the commissioner’s term of office did not reside solely with the political directorate, but was subject to presidential discretion.

“Under Section 75(a) of the Police Service Act, the President must act on the advice of the Cabinet and has no independent executive discretion under the Constitution,” was the finding of the Court of Appeal.

On May 15, Harewood-Christopher received a second one-year extension from the Cabinet based on a "good" performance review by the PSC while it continues its ongoing exercise to recruit a CoP.

Maharaj was also represented by Jayanti Lutchmedial, Kent Samlal, Natasha Bisram, Robert Abdool-Mitchell, and Vishaal Siewsaran.

The Cabinet was represented by Russell Martineau, SC. Rishi Dass, SC and Vanessa Gopaul represented the AG’s Office.