Prime Minister Keith Rowley. Photo by Sureash Cholai
In what some say is a first, the Prime Minister has been restrained by the court from laying any part of a controversial firearm user’s licence (FUL) audit report in Parliament.
“I believe it’s the first time a court has granted an injunction against a sitting Prime Minister,” one legal commentator said after Justice Devindra Rampersad granted the injunction to former police commissioner Gary Griffith on Tuesday.
Griffith has complained about the legality of the setting up of the committee by Dr Rowley and his National Security Council (NSC) to investigate the police firearms department licensing regime, its operations, and the issuance of FULs.
The former top cop, who held the post from 2018-2021, said he was concerned that the contents of the report and the process used by the committee – comprising retired police officers – were irretrievably tainted by bad faith and illegality because the Prime Minister had 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.
On October 28, Griffith was given permission to pursue his judicial review claim against Rowley, the NSC members, and the retired cops who made up the committee.
Griffith also feared 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.
In his ruling. Rampersad said he was satisfied there was a serious question raised in the claim to be tried.
“Does the extent of the section 75 power under the Constitution allow the Cabinet, through any of its different incarnations, in this case, the National Security Council, have the power to make inquiries or investigations into the conduct of the Commissioner of Police or other police matters having regard to the provisions of sections 122 and 123 of the Constitution?
“Of course, the Police Service Commission (PSC) has the statutory power to request reports on any matters relating to the management of the service. How that interplays with the section 75 power relied upon by these defendants is a matter for full consideration.”
Rampersad admitted he did not have sight of the report to determine, at a preliminary stage, if the setting-up of the audit committee “transgressed into the domain” of the statutorily and constitutionally comprised body (the PSC), which is intended to be insulated from the Executive.
However, he did say, “The force of the vehemence born out of this report, and expressed in public as alleged by the claimant, suggests that its premature presentation or production would have far-reaching effects in the public domain.
“The Honourable Attorney General seems to have agreed to defer laying the report until the persons about whom it relates have had an opportunity to have their say. That ought to be properly established before this court.”
He also held that Griffith’s position of a right to be heard on the contents of the report that relates to him aligned with the position of the AG, so “even on that ground alone, there is a serious question to be tried in relation to the report as it exists and stands at present.”
Rampersad was also critical of the failure of the State to give an undertaking not to publish the report or any part of it until Griffith’s claim was determined. This, he said, surprised and concerned him.
He referred to a letter to Griffith’s attorney by the director of the AG’s secretariat, Tenille Ramkissoon, which said although the audit report would be laid in Parliament “eventually,” doing so was not proposed “at this time.”
However, Rampersad said the letter, which was not written or signed by AG Reginald Armour, SC, himself, was “not given by him directly.”
The State has disagreed with the judge’s findings on this issue and has filed an immediate appeal.
In his ruling, Rampersad also said although the AG purpotedly gave the assurance, none was given directly in court by any of the defendants. There are 12 defendants in the case.
The judge also said, “Nevertheless reference was made in the submissions for the first to eighth defendants to the purported undertaking as a ground for the court to refuse such an order…
“Having regard to what is set out in the letter relied upon by the first to eighth defendants, the court wonders aloud the reason for the refusal.”
Rampersad again referred to Ramkissoon’s letter, dated August 31, saying it also suggested there was a valid issue that should delay the presentation or laying of the audit report until those affected had a right to be heard.
“Why then would the seventh defendant (the Prime Minister) refuse to give an undertaking to this court in circumstances where: they have not personally given the undertaking; the undertaking was not signed by the Honourable Attorney General himself; the Honourable Attorney General, having discussed the matter with the seventh defendant, was of the view that such an undertaking ought to be given; the matter is now before the court where such an undertaking can properly be given?”
Rampersad said when the matter of the undertaking came up before the court, he specifically asked senior counsel for the PM and his ministers if they would give one.
“He did not agree,” the judge said, pointing out that senior counsel had asserted, “We have given our undertaking by word – if we say so, that is so.”
“In such circumstances, the court still wonders – then why not say so to this court who has the conduct of the matter and is fixed with its determination?”
The refusal to translate the purported intention of the letter into an undertaking in court, “surprised” him.
“No valid reason has been proffered to this court in the circumstances of the said letter and its noble intention but its clear deficiencies in law and the fact that there may be doubts as to its efficacy and enforceability.
“The seventh defendant’s position was quite clearly announced by him as the claimant being one of his biggest mistakes. The matter is an obviously hot one for the political hustings should the need arise before this court rules on the validity of the report.
“As has been stated in the public domain, ‘politics has a morality of its own’ and the court ought not, responsibly, to allow any vagaries or doubts to prevail in a sensitive matter such as this.”
Rampersad further noted, “The court cannot take the chance that political expediency may conflict with judicial certainty. The court can already see the potential for conflict if the undertaking is not one that is given to the court in the course of its conduct of the case but left, instead, to an unsanctioned missive from an unknown third party.”
In his lawsuit, Griffith is seeking several declarations to have the decision to set up the FUL audit committee deemed illegal, while also quashing it or any part that concerned him during his tenure as commissioner.
It was submitted to the court that the audit committee was appointed by the NSC in response to an increase in gun violence and to allegations on the issue of FULs which “caused tremendous public disquiet.”
Griffith’s substantive judicial review claim comes up for hearing in the new year.
Named in Griffith’s lawsuit are Dr Rowley, former attorney general Faris Al-Rawi, ministers Fitzgerald Hinds, Colm Imbert, Stuart Young, Marvin Gonzales and retired police officers Wellington Virgil, Raymond Craig, Lennard Charles, and Brian Pierre – who formed part of the audit team.
Representing the former commissioner are Avory Sinanan,SC, Larry Lalla, and Ajay Babal. The State is led by Senior Counsel Russell Martineau, Kerwyn Garcia, Tenille Ramkissoon, Kendra Mark-Gordon, Nisa Simmons, and Chantell Le Gall.