Judge's order amended – AG disagrees with court's CoP ruling

A MINOR amendment has been made to the judge’s order which initially invalidated Legal Notice 183 of 2001, which sets out the procedure for selection of a commissioner of police.

However, the State, through Attorney General Faris Al-Rawi, says it does not agree with Justice Nadia Kangaloo’s ruling that any part of the 2021 Order was invalid.

The 2021 Order shortened the process for the Police Service Commission by removing the mandate to advertise the post internationally.

The new constitutional provision, by paragraph 4, also allowed the commission to submit to the President a list of suitable candidates from among the ranks, including anyone on contract or who had been previously employed on contract, to be nominated to act as commissioner and/or deputy, pending the appointment of a substantive office-holder.

Initially, the judge had struck down the entire 2021 Order in her ruling on Thursday. However,  attorneys wrote to her seeking clarification.

The Attorney General in a release said counsel for the State and the PSC sought to save that portion of the 2021 Order that committed the PSC to shorten the procedure for the selection of a commissioner.

An amended order was issued late Thursday by the Registrar striking out only paragraph 4 of the 2021 Order.

The original paragraph 4, which admittedly caused President Paula-Mae Weekes some “immediate concern,” allowed for contract officers, or those whose contracts had expired – as was the case with former commissioner Gary Griffith – to be considered to act as top cop. The PSC was expected to send the names of nominees to the President. However, Weekes pointed out when she received the list of two names – Griffith’s and deputy Commissioner McDonald Jacob - it did not confer on her any role, function, power, or authority, other than to receive the list.

She also said the notice provided no guidance to her on what she was supposed to do with the two names on the list.

In the judge’s amended order, striking out clause 4, said it was superfluous in light of the procedure set out in section 123 of the Constitution for the selection of a commissioner which requires the PSC, for both substantive and acting positions, to send the nominees to the President who is expected to notify the Parliament for the House of Representatives for approval.

To be clear, the Office of the Attorney General agrees with her Ladyship’s ruling that subsection 123(2)- (5) apply to acting appointments and that Mr Griffith’s acting appointment was invalid because it was not approved by the House. But we disagree with her ruling that any part of the 2021 Order is invalid.

Kangaloo also invalided a 2009 Order which allowed for the PSC to appoint a deputy commissioner to act as top cop without approval of the Lower House.

This means that all acting appointments to the post of commissioner by the Police Service Commission since 2006 were in violation of section 123, including Jacob’s acting appointment which came to an end on Friday, leaving the police service without a commissioner.

National Security Minister Fitzgerald Hinds on Thursday said Jacob will continue at the helm.

"…While there is a vacancy in the post of CoP, deputy Commissioner of Police Mc Donald Jacob, by virtue of his being the most senior police officer in the TTPS, remains in charge of the said police service from this substantive office, until such time as a CoP is appointed in accordance with the now settled law," Hinds said.

An appeal of Kangaloo’s ruling is expected as the Attorney General, in his statement on Thursday, said it was considered that the judge erred in invalidating paragraph 4.

“We will therefore be appealing that aspect of her Order in any event.”

The release said the Office of the AG agreed with the judge’s ruling that Griffith’s acting appointment was invalid because it did not get the approval of the House.

“The effect of Her Ladyship’s construction of section 123 is that the long-standing practice of the Police Service Commission, which has straddled various changes of government, will have to be urgently reconsidered.”

The release also said it was hoped that the PSC will be urgently reconstituted and that there will be a mature and sensible collaboration in the House of Representatives in approving any acting appointment which will now need to be undertaken as a matter of urgency.

Two names have already been sent by the President to the House to reconstitute the PSC which collapsed last month amidst controversy surrounding Griffith’s acting appointment on August 18, shortly after his three-year contract ended, and his subsequent suspension one month later. His suspension, which lasted only a couple days, was revoked by the PSC which admitted it acted illegally, and was followed by the resignation of the commission’s members and its chairman, Bliss Seepersad.

There is no word on when the House will debate the President’s nomination of retired Appeal Court judge, Justice Judith Jones, and management accountant Maxine Attong, to reconstitute the PSC. A third member is still needed for a quorum. A recommendation of former JLSC member, attorney Ernest Koylass, SC, was objected to by the Opposition Leader who raised concerns of his alleged political affiliation to the ruling PNM.

Kangaloo had been asked by social activist Ravi Balgobin-Maharaj to interpret the law as it related to the appointment of an acting commissioner and determine the legality of Griffith’s appointment.