File photo: NTA political leader and former police commissioner Gary Griffith.
IN less than two weeks, and unless an undertaking is given by the Prime Minister, the National Security Minister and the National Security Council (NSC), the High Court will give a date for its ruling on an injunction former police commissioner Gary Griffith is asking for to prevent the publication of the controversial firearm user’s licence (FUL) audit report in Parliament.
On Wednesday, the first hearing since Griffith received the court’s permission to challenge the decision of the prime minister, the members of his Cabinet who sit on the NSC and three police officers who signed the report came up before Justice Devindra Rampersad.
On October 28, Rampersad granted Griffith leave to pursue a judicial review claim challenging the legality of the setting-up of the committee to do the audit and its investigation.
Named in Griffith’s lawsuit are Dr Rowley; former attorney general Faris Al-Rawi; ministers Fitzgerald Hinds, Colm Imbert, Stuart Young and Marvin Gonzales, as members of the NSC; as well as retired police officers Wellington Virgil, Raymond Craig, and Lennard Charles, who formed part of the audit team.
On Wednesday, the judge was expected to hear submissions on Griffith’s injunction application as well as one for the disclosure of the names of everyone involved in the audit.
However, he has asked the parties to discuss the possibility of an undertaking not to publish the report until Griffith’s claim is determined.
“If no undertaking is given, then I will have to rule on the application,” he said.
At a virtual hearing, Griffith’s lead attorney, Avory Sinanan, SC, said his client took no comfort in an assurance from Young that there was no intention to lay the report in Parliament nor a danger of its being laid.
He also said statements by the AG that while there was no immediate intention to lay the report in Parliament, “it will go there eventually” left his client “nervous and concerned,” as the report was in the “political gayelle.”
However, he said his team – which also includes attorneys Larry Lalla and Vijay Birbal – to speak with attorneys for the other side, led by Senior Counsel Russell Martineau and Gilbert Peterson, “to tailor something comfortable to both sides.”
In his submissions, Martineau said, “as far as an undertaking is concerned…assurances have been given that it will not, under government authority or state authority, be published.”
The State was also told to put in another affidavit to address a suggestion that there were at least five other police officers involved in the audit, four of whom are unnamed and were allegedly appointed by the acting commissioner, and another whose name was disclosed as Brian Pierre. The three retired officers named in Griffith’s lawsuit and Pierre signed the report.
Griffith wants the names of the other four officers alluded to in Young’s affidavit, since Sinanan said the fact that only four signed did not exculpate the others from being involved in an “illegal and unconstitutional” act.
“The NSC is a sub-committee of Cabinet and Cabinet has no constitutional authority to direct any investigation.” He said without the statutory authority, Cabinet could not do what it did in setting up the audit committee and directing an investigation into the FUL process.
“The vires of this report is in question. This is the pit and gravamen of the complaint.”
In Martineau’s counter to some of the assertions made, he referenced newspaper “headlines” on the judge’s original order, but none in the same manner on the corrected order a day later.
“You see where the politics is?”
He was referring to published reports on October 29 on an order the judge granted the day before ordering Rowley and his ministers to appear in court.
On the same day as the newspaper reports, the judge issued a new order which indicated the first had been made in “error” and which said it was being corrected “by reason of the court inadvertently forwarding the incorrect version of the amended order for perfection.”
The new order did not include the summons for Rowley and his ministers.
Three days later, Attorney General Reginald Armour, SC, chastised the media for not reporting on the corrected order.
In his lawsuit, the former top cop wants the court to order the PM and his ministers to disclose the names of the members of the audit committee and grant declarations that the decision to commission the report infringed his rights and was illegal, unlawful and irrational, since they did not have the power to appoint the committee.
Griffith is also asking for the quashing of the report or any part of it that concerns him.
Griffith, who served as police commissioner from 2018-August 2021, said from his experience as a former national security minister, he knows neither the Prime Minister nor the National Security Council had the authority to appoint anyone to investigate the operations of the police service, so he was concerned about the legality of the audit committee’s appointment.
He also says he is concerned that the contents of the report and the process used by the committee were irretrievably tainted by bad faith and illegality because the Prime Minister has no power to appoint such a committee, and because of statements, Dr Rowley made after Griffith announced the launch of his political party and his decision to reapply to be top cop.
Griffith also fears publication of the report or any part of it would expose him to public ridicule, and, if laid in Parliament, would protect Rowley and the media by qualified or absolute privilege from defamation claims for damages.
The matter will come up again on November 18, when the judge will either sign off on an agreed position between the parties or say when he intends to rule on the injunction and disclosure application.