Former police commissioner Gary Griffith.
Was Gary Griffith properly appointed as acting Commissioner of Police by the Police Service Commission (PSC) on the cusp of the ending of his three-year contract as top cop?
Was the PSC required to send a list of nominees to the President for the acting commissioner’s position to be forwarded to the Parliament for approval, and should his appointment have been made only after the legislature approved Griffith’s nomination?
These are the questions that will be answered on Thursday when Justice Nadia Kangaloo gives her ruling on an interpretation claim filed by social activist Ravi Balgobin Maharaj who wants the court to declare that Griffith’s appointment to act was illegal and unconstitutional as it did not follow the procedure set out by the Constitution for such appointments.
On Monday, Kangaloo heard oral submissions from Maharaj’s lead attorney Anand Ramlogan, SC; the State, led by Douglas Mendes, SC, the PSC’s lead attorney Russell Martineau, SC, and Griffith’s attorney, Larry Lalla.
The PSC and Griffith were joined as interested parties in the claim and the former commissioner was present for the virtual hearing. He is currently out of the country and on leave as acting top cop after his September 17 suspension was revoked. Griffith was logged into the hearing under the name “Batman Gary.”
His three-year contract came to an end on August 16, and his acting appointment took effect one day later.
Ramlogan questioned why the commission sent a list of two names to the President for the acting position if it had the power to make the appointment without it going to the Parliament.
“Why was it necessary to submit more than one name? It is clear they knew that names would have to go to Parliament in the same way as appointing a substantive commissioner.
“The right way is to submit names and for the President to send it to the Parliament for approval.”
Ramlogan referred to President Paula-Mae Weekes’s response to the PSC’s letter. In it, she said clause 4 of the Legal Notice 183 of 2021 caused her some immediate concern but provided no guidance on her role other than to accept the list.
Clause 4 gives the PSC the power to submit to the President a list of suitably qualified people within the ranks of the police service, or someone who was on contract or whose contract ended, as nominees, to act in the office of commissioner or deputy commissioner pending the conclusion of the process to select a substantive top cop.
Ramlogan said there lay the “conundrum” since if the commission had the power to make an appointment there was no need to send a list of nominees to the President.
He said for it to have sent the list, it must have been acting in accordance with section 123 of the Constitution which mandates that the list must go to the Parliament for approval.
“They cannot say they just sent an ‘FYI’ (for your information) to Her Excellency.”
He said the wrong person in the office of the top cop “even for a day” can do so much damage, and it was for this reason such an appointment had to go to Parliament.
Ramlogan said in drafting Legal Notice 183, it was wrong for the Executive to take away the Parliament’s jurisdiction to appoint an acting commissioner.
He said in Griffith’s case, the PSC made the acting appointment taking away the Parliament’s power in breach of the principles of separation of power.
Ramlogan said it was “ironic” that the PSC was insisting that the police service could not operate with a deputy and thousands of officers in its ranks.
“They (the PSC) can be heard and function without members, but the police service cannot. Mr Griffith was no longer a member of the police service. How can you bring someone from the outside, someone under a deputy, to act as a commissioner?
“You can bring someone from the outside (on contract) but there must be the scrutiny of Parliament.”
Mendes in his submissions agreed with the position that all appointments, both acting and substantive, had to go to the Parliament for approval.
In his submissions, Martineau argued section 123 did not include an acting position.
In response to the positions by Ramlogan and Mendes, he said, “Could it mean every time you have to go to Parliament for a cop to act?
“Where the Constitution wants to talk about acting positions, it does so and section 123(2) does not apply to an acting commissioner.”
Martineau said the commission had the power to regulate its affairs and maintained Griffith’s appointment as acting commissioner was valid and the PSC followed the procedure set out by law.
He also asked the court to disregard the August 12 letter that went to the President.
Lalla, who agreed with the PSC’s position, said the legislature recognised it was important for there to be someone in the office of commissioner at all times. He said administrative efficiency and continuity were important.
“For years we operated with the presumption that the PSC could make an acting appointment but now, when Mr Griffith is appointed, something is wrong? It is untenable.”
He also addressed the “elephant in the room,” referring to statements made by the Prime Minister on Legal Notice 183.
Dr Rowley described the change in the law, which allowed someone whose contract had expired to act as top cop, as “an error” after a legal opinion from retired Caribbean Court of Justice judge Rolston Nelson conceded that the law which the PSC used to appoint Griffith to act was unconstitutional and invalid.
“You had something I have never seen where the prime minister says the State was wrong,” he said, as he urged the judge not to consider the statements of the prime minister.
Lalla insisted the Constitution was clear, section 123 dealt with substantive appointments, not acting.
He also said Griffith was no outsider but had gone through the approval exercise in 2018 when he was appointed commissioner.
Lalla said the PSC had wide discretion and when, on August 17, it extended his position until a substantive commissioner could be appointed, that act was covered by the Police Service Act.
“The PSC acted rationally and reasonably by asking the substantive office-holder to wait it out until it completed its section 123 exercise to select a substantive office-holder.”
After all the submissions were in, Kangaloo said she was sticking to the date she previously gave for the delivery of her ruling on October 14 – one day before the acting appointment of DCP McDonald Jacob as commissioner ends.
The imbroglio surrounding Griffith’s acting appointment, suspension, and revocation of the suspension, reached a boiling point when one-by-one the commission’s three members and its chairman, Bliss Seepersad resigned.
It is unlikely the President can appoint a PSC to approve any extension of the current office-holder, but Griffith has reportedly said he will be back in office by Friday.
He said after the PSC admitted his suspension was unlawful, he had agreed to “step aside” and go on voluntary leave to facilitate an investigation initiated by the PSC, headed by retired judge Stanley John, into allegations of corruption in the issuing of firearm user’s licences; and the police handling of an incident at sea involving Christian Chandler, the head of the police legal unit.