Article 41 – THE EFFECT OF THE RULING ON ACTING APPOINTMENTS TO THE OFFICER OF COMMISSIONER OF POLICE
By: Makesi Jerome
Attorney-at-Law
Martin Anthony George & Co.
Attorneys-at-Law
On 15th October 2021, the Honourable Madam Justice Nadia Kangaloo gave her ruling in Maharaj v the Attorney General of Trinidad and Tobago CV2021-03106, regarding the acting appointments of both Mr. Gary Griffith and Mr. McDonald Jacob as the Commissioner of Police of Trinidad and Tobago. The Honourable Judge concluded that both of these appointments contravened Section 123 of the Trinidad and Tobago Constitution and as a result, for the very first time since our Independence on 31st August 1962, our twin isle was, and even up to the time of this writing, continues to be, without a substantive, or even an Acting Commissioner of Police at the head of the Trinidad and Tobago Police Service.
Section 123 of the Trinidad and Tobago Constitution reads:
(1) The Police Service Commission shall have the power to—
(a) appoint persons to hold or act in the office of Commissioner and Deputy Commissioner of Police;
(b) make appointments on promotion and to confirm appointments;
(c) remove from office and exercise disciplinary control over persons holding or acting in the offices specified in paragraph (a);
(d) monitor the efficiency and effectiveness of the discharge of their functions;
(e) prepare an annual performance appraisal report in such form as may be prescribed by the Police Service Commission respecting and for the information of the Commissioner or Deputy Commissioner of Police; and
(f) hear and determine appeals from decisions of the Commissioner of Police, or of any person to whom the powers of the Commissioner of Police have been delegated, as a result of disciplinary proceedings brought against a police officer appointed by the Commissioner of Police.
(2) The Police Service Commission shall nominate persons for appointment to the offices specified in subsection (1)(a) and section 22(1) of the Police Service Act, 2006 in accordance with the criteria and procedure prescribed by Order of the President, subject to negative resolution of Parliament.
(3) The Police Service Commission shall submit to the President a list of the names of the persons nominated for appointment to the offices of Commissioner or Deputy Commissioner of Police.
(4) The President shall issue a Notification in respect of each person nominated under subsection (3) and the Notification shall be subject to affirmative resolution of the House of Representatives.
(5) The Police Service Commission shall appoint the Commissioner or Deputy Commissioner of Police only after the House of Representatives approves the Notification in respect of the relevant office….”
In giving the ruling in Maharaj v the Attorney General of Trinidad and Tobago(supra) the Honourable Justice Nadia Kangaloo Ordered:
1) It is declared that upon the true construction of Section 123 of the Constitution of the Republic of Trinidad and Tobago, the procedure for the appointment of a person to the office of Commissioner of Police and Deputy Commissioner of Police set out in Section 123(2) to (5) applies to the appointment of persons to act in the Office of Commissioner of Police or Deputy Commissioner of Police at any time when the office of Commissioner of Police or Deputy Commissioner of Police is vacant or the holder thereof is unable (whether by reason of absence or infirmity of mind or body or any other cause) to perform the functions of that office.
2) It is declared that the appointment of Mr. Gary Griffith to act as Commissioner of Police from 18th August, 2021 is void and unconstitutional as being contrary to Section 123 of the Constitution.
3) It is declared that the Commissioner of Police and Deputy Commissioner of Police (Acting Appointments) (Selection Process) (No. 2) Order, 2009 is unconstitutional and void being contrary to or ultra vires the provisions of Section 123 of the Constitution.
4) It is declared that the Commissioner of Police and Deputy Commissioner of Police (Selection Process) Order, 2021 is unconstitutional and void being contrary to or ultra vires the provisions of Section 123 of the Constitution.
The Learned Judge later amended parts of her said Order but that’s another discussion entirely.
In this interpretation claim, the Claimant asked the Court to determine -:
- if the Police Service Commission was required to send to the President, a list of nominees for the acting Commissioner of Police position,
- should the said list have gone to the House of Representatives for approval, and
- should the acting appointment have only been done after the Parliament approved said nomination.
The Claimant also asked for declarations to declare Mr. Griffith’s appointment to act as Commissioner of Police illegal and unconstitutional based on the procedure to appoint an acting Commissioner of Police.
Justice Kangaloo pointed out that anyone who acts as Commissioner has the same powers as the substantive office holder, and the Police Service Commission had the power to appoint someone to hold the office or act but had to submit names to the President for the House of Representatives to approve, before doing so. The Honourable Judge said it made for a seamless process for the appointment to the post of Commissioner of Police and therefore ruled that Section 123 of the Constitution was clear as it related to both acting and substantive appointments insofar as they must both go through the same process of submitting the names to the President, who must in turn then submit the names to the Parliament, which must then approve the chosen candidate, before an appointment can be made, as a substantive office holder as Commissioner of Police, or even for an Acting appointment as Commissioner of Police.
Justice Kangaloo also indicated that the fact that there were acting appointments which had been previously done without the Parliament’s approval, this did not mean that the process set out under the Constitution did not apply. Although the Claimant’s original claim did not challenge the 2009 order, which gave effect to Mr. Jacob’s appointment, it was raised by the Defendant, who submitted that both orders must be declared invalid as the Police Service Commission was expected to act in accordance with the law for all acting appointments.
In response to the Defendant’s position, the Court noted while the Legal Notice 103 of 2009 gives the Police Service Commission the power to appoint a deputy commissioner to act as commissioner and Legal Notice 183 of 2021 allowed for someone who was on contract, or whose contract had ended, to be appointed, the Honourable Judge indicated, before any acting appointment can be made, the process found in Section 123 of the Constitution must be followed. The meant that, even for an Acting appointment, the Police Service Commission must submit, to the President, a list of names of persons nominated for the Acting appointment to the post of Commissioner of Police. Once the President receives the said list, the President shall issue a Notification in respect of each nominee and the said notification shall be subject to affirmative resolution of the House of Representatives. Thereafter, the Police Service Commission shall appoint the Commissioner of Police or Acting Commissioner of Police as the case may be.
With the Court’s ruling that Mr. Griffith’s term as Acting Commissioner was unlawful and with Mr. Jacob’s stint as Acting Commissioner which expired on 16th October 2021 also being deemed unlawful, the Police Service will remain without a substantive Commissioner of Police or even an Acting Commissioner of Police for a while, until there is a Police Service Commission to commence the procedure found in Section 123 of the Constitution.
WHAT IS THE EFFECT OF THERE BEING NO SUBSTANTIVE COMMISSIONER OF POLICE OR EVEN AN ACTING COMMISSIONER OF POLICE?
As a result of the Courts’ Orders in Maharaj v the Attorney General of Trinidad and Tobago CV2021-03106 and the fact that there is no properly appointed Police Service Commission the powers of the office of the Commissioner of Police are now left in a state of limbo.
The powers of the Commissioner of Police are found in Section 123A of the Trinidad and Tobago Constitution. The said section reads:
123A. (1) Subject to section 123(1), the Commissioner of Police shall have the complete power to manage the Police Service and is required to ensure that the human, financial and material resources available to the Service are used in an efficient and effective manner.
(2) The Commissioner of Police shall have the power to—
(a) appoint persons to hold or act in an office in the Police Service, other than an officer referred to in section 123(1)(a), including the power to make appointments on promotion and to confirm appointments;
(b) transfer any police officer; and
(c) remove from office and exercise disciplinary control over police officers, other than an officer referred to in section 123(1)(a).
(3) The functions of the Commissioner of Police under this section may be exercised by him in person or through any police officer of or above the rank of Superintendent acting under and in accordance with his general or special instructions.
(4) In the performance of his functions under this section the Commissioner of Police shall act in accordance with the Police Service Act, 2006 and the regulations made thereunder.”
Therefore, as it currently stands, various aspects of the Police Service now remain in limbo such as the granting of Firearm Licenses and permission to host public marches. Additionally, administrative actions such as promotions, appointments, transfers, and disciplinary proceedings are now placed on hold as there is no substantive Commissioner of Police, nor even an Acting Commissioner of Police. Mr. Jacob, as the Deputy Commissioner of Police, has indicated that he will continue to lead the Police Service as necessary from his substantive office of Deputy Commissioner of Police and as the current highest-ranking officer in the TTPS. However, the job description for the post of the Deputy Commissioner of Police indicates that the incumbent performs work under the general guidance of the Commissioner of Police and in accordance with the law. Furthermore, by virtue of Section 123A (3) of the Constitution, the Commissioner of Police can delegate his powers to another officer above the rank of Superintendent. Therefore, regarding the powers granted to the Commissioner of Police by virtue of Section 123A of the Constitution, the Deputy Commissioner can only exercise the powers therein under delegated authority from the Commissioner of Police. Those powers cannot be delegated if there is no substantive or Acting Commissioner of Police in Office to delegate same to him. Furthermore, the Commissioner of Police is the sole individual who was designated as the Accounting Officer of the Police Service with the responsibility and authority to sign off on bills, payments, approvals, outstandings, receipts, and all such other Financial matters. To avoid any financial bottleneck within the TTPS, on 16th October 2021, one day after Justice Kangaloo’s Judgement, the Finance Minister issued a release appointing Mr. Mc Donald Jacob as the Accounting Officer for the Police Service under Section 2 of the Exchequer and Audit Act, Chap. 69:01 and Regulation 3 of the Financial Regulations, with effect from 15th October 2021. The effect of this release grants the Deputy Commissioner of Police the power to control and oversee the financial aspect of the Police Service, which is a power usually granted to the Commissioner of Police only by virtue of Section 123A of the Constitution.
Conversely, on 03rd November 2021, the Trinidad and Tobago Guardian newspaper published an article regarding a request made by the organizers for ‘Drive for Progress’ to host a public gathering. In the said release, Guardian Media noted that the Trinidad and Tobago Police Service quoted, Section 112 of the Summary Offences Act Chap 11:02 which states “no person may organize, lead or take part in any public march unless a permit has been issued in respect thereof by the Commissioner of Police”. The said release surprisingly, went on to say “or in this case, the most senior officer of the Trinidad and Tobago Police Service”. It must be noted that there has been no legislative amendment to change the Summary Offences Act to grant the “most senior officer” in the TTPS, the powers of the Commissioner of Police to grant permission for marches and the said section makes no reference to same. The begs the question, can the Trinidad and Tobago Police Service by a Press Release effectively change legislation without Legislative intervention from Parliament? And the simple answer is NO, since legislative amendments do not fall within the remit of the Police Service but instead, this power is vested in the House of Representatives.
Due to the lack of a substantive Commissioner of Police, or even an Acting Commissioner of Police, some folks in the Police Service may think that certain powers vested in the Commissioner of Police, may automatically transfer to the “most senior officer of the Police Service”, or devolve onto Mr. Mc Donald Jacobs as the substantive Deputy Commissioner of Police and as the most senior officer within the TTPS. This is definitely not the case. Without the said delegated authority, the powers granted to the Commissioner cannot be impliedly vested in another officer or simply devolve onto the next “most senior officer” within the TTPS unless legislative amendments are made. Therefore, on the face of it, the Trinidad and Tobago Police Service currently do not have the legal right to grant persons the ability to hold public marches in protest as there is currently no Commissioner of Police.
It is clear that many of the functions granted to the office of the Commissioner of Police cannot be fulfilled without a substantive Commissioner of Police or even an Acting Commissioner of Police in place as officeholder; unless of course, there are significant amendments to the existing Legislation. In order for the Police Service to run efficiently and to avoid the curtailment of the citizens of Trinidad and Tobago’s constitutional rights, it is imperative that someone is appointed to the Office of Commissioner of Police, whether as an Acting Appointment or substantively, to hold the post of Commissioner of Police.
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