Motion to Accept or Reject PSC Nominations Postponed:
Exposed: Complete Disaster That Is the 2006 Recruitment Process ​

Yesterday, February 2, Parliament met to complete another step in the Recruitment Process for the appointment to the 2 top offices of the TT Police Service.
The Parliament, as required by section 123(5) of Constitution (amended in 2006 to create the present Recruitment Process) had a single decision to make: To Accept or Veto the nominations from the Police Service Commission (PSC).
Instead, of saying Yea or Nay to the nominees for Commissioner and Deputy Commissioner, Parliament postponed the decision.
Why? Because of another disastrous flaw in the Recruitment Process - created by the very Parliament by amending our nation’s Constitution.
The flaw: The process requires a Parliamentary decision, however if fails to provide for Parliament to be provided with sufficient information to make that decision on a proper informed and transparent basis.
This is what lies behind all the arguments given by the Prime Minister for the postponement of the decision.
However, he and the entire Parliament twists or turns the matter; However, the politicians and the media spin the issues and cast blame on each other or the PSC or the President, the FACT remains that the fundamental reason the decision was postponed is that the Recruitment Process instituted in 2006 is fundamentally and fatally flawed.
Listen, to the PM’s preamble and this FACT becomes obvious.

A LENGHTY AND UNNECESSARY DEBATE
Parliament was given veto power over the nominations of the PSC for the top posts in the Police Service, instead of the PM (who had that veto power under the 1962 and 1976 Constitutions) by the 2006 Constitution amendments.
Section 123(5) says:
“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.”
What the Constitution DOES NOT SAY is on what information the Lower House of the Parliament is to logically and properly decide whether to approve or reject (veto) the PSC nominations.
In an attempt to correct this obvious deficiency in the Recruitment Process created by it in 2006, this Parliament in 2015 (under THIS PM and Government) through an Order (published as Legal Notice No 218 of 2015) to give detailed direction to the very process said this:
“(3) With respect to the nominations submitted in accordance
with the procedure set out in section 123 of the Constitution, the
Commission shall also submit a dossier in respect of each candidate so
nominated.
(4) The dossier referred to in subclause (3) shall contain the
following:
(a) application of the candidate; and
(b) the biography or résumé of the candidate.”
In other words, Parliament decided in 2015 that ALL the information the PSC is to provide to the politicians in the Lower House to decide whether to accept or reject its (the PSC’s) nominations is 1) a copy of the nominees’ application and 2) the nominees’ biography or resume. THAT IS ALL!
So, according to section 123(5) of the Constitution and the Orders made under it (All approved by the Parliament) the ONLY INFORMATION that the Lower House requires to decide who the Commissioner and Deputy Commissioner are, is their Application Form and CV!
But, the very Lower House engaged in a lengthy and totally unnecessary debate in refusing to decide to accept or reject the PSC’s nominations by making an excuse that they did not have enough information about the “process” and about “matters in the public domain”.
The very Law, made by Parliament says all the information they are required to have is: An Application Form and a Curriculum Vitae of the Nominee.
All that we were forced to witness yesterday (on both sides) was an exercise in smoke and mirrors to hide from the population that Parliament had already decided the ONLY information that was required was already in their possession.

PARLIAMENT COVER UP
Let us examine the reasons given for the postponement of Parliament’s decision:
What the Prime Minister said:

• The Recruitment Process created by amending the Constitution in 2006 was “unacceptable”” cumbersome” “expensive” and “I recommended that we do away with it”. It is “like pushing a stone up a hill”.
• “We are not in a position to conclude this process to the satisfaction of the wider national community”
• “lack of confidence in the service and absence of trust between the service and the population”
• “As Prime Minister, I, like the man in the street in Couva, Cedros or Scarborough had to rely on what was published as speculation or inside information in the newspaper or on the television because the process allows me and my team, Government, no insight or involvement in this process.”
• “….when the process is closed, and it appears for the first time before me today…as against the background of all that has been said and all the disquiet…”
• “…for this House to proceed without answers to the questions that have been raised is for the House to proceed without appropriate information that is required for the House to act on it appropriately…”
• “…we are required, under law, to move forward with this process …come to this House for us to select a Commissioner of Police…in a time where the streets …are killing fields and the Police Service is in dire need of revolutionary leadership.”
• “In order to allow this House to make that decision in a way that will satisfy the population, it is my view that the House needs assistance….to have questions answered before the House proceeds any further.”

So, after his litany of complaints about “no insight or involvement in the process” and the need for the House to act appropriately, the PM then suggested that the decision be postpone to “have questions answered”.
The Opposition Leader, for her part, also added:

• “the office of the Commissioner is so important ..a very integral part of our democracy…”
• “in 2007, …Parliament changed the Constitution...powers were taken away from the Police Service Commission and given to the Commissioner”
• “Given the plentitude of powers of the Commissioner…it is imperative that the process…to arrive at any nomination…and for us to hope that that process must have been transparent it must have been fair …preclude any taint of interference…”
• “There have been all kinds of allegations in the public domain…not everything in the public domain is true But it is not for us to judge the truth of whatever the allegations are….it is for us to …ensure there was a transparent process, there was due process…to get the best candidate….”
• “For us to determine issues of fact and law…this Select Committee will be able to do it.”
• “There are issues relating to a quorum. There are issues of fact…”
• “This Select Committee can help us to get information, documentation, evidence …concerning method, process…the criterion that was utilized by the ..Commission.”
• “We must ensure that ..no compromise in the process….persons are raising questions about whether they applied for the post or did not apply for the post….was it lawful..was it intra vires the process that should have been followed”
• “…issues ..concerning the Police Complaints Authority sending documentary evidence to the ..Commission…was it properly sent. That is a question of law”
• “…then there are all kinds of stories about one nominee being close to a member of the …Commission..that raises a whole issue of bias…”
• “We must thank the media for exposing certain allegations…we’ve seen an exposes with respect to two of the nominees..”.

So, the Opposition Leader agreed to the postponement and appointing a Parliamentary Committee to deal with issues of fact and law regarding the Selection Process, to “judge the truth of whatever allegations” contained in “all kinds of stories” “persons are raising” and “certain allegations” in “the media” “exposes with respect to two of the nominees…”. and so on.
Well, here is the House of Representatives which, under law, as the PM puts it, is to make a decision whether to accept or veto nominations with information contained in the nominees’ Application Forms and Biographies and Resumes, as required by Law made by the same Parliament.
But, this House sets up a Select Committee to consider things other than what the Law requires to be given to the House to make that decision.

CROSSING THE LINE OF SEPARATION OF POWERS?
Worse, the Committee of the same House is to “determine matter of law and fact” according to the Opposition Leader.
This House is now seeking to go beyond what its own Law regarding the Selection Process (the Constitution it changed in 2006 and the Order in LN 218 of 2015 that it approved) to decide matters that ought properly to be determined by a Court of Law and not the Legislature.
Courts decide matters of Law and Fact.
Courts decide if actions of a Service Commission are intra vires the Law and process established by the Order approved by Parliament.
Courts decide if a Service Commission act fairly and without bias.
The Parliamentarians are to decide, based on the dossier the PSC is required to supply the House, if they accept or reject the nominations of the PSC for the post of Commissioner and Deputy Commissioner, and nothing else.
For Parliament to do or try to do more would be stepping outside of its role set out in the Constitution and the subsidiary legislation made under section 123 of the Constitution.
For Parliament to decide things suggested in the House for the Select Committee to do “to have questions answered before the House proceeds any further” as the PM suggested, means that the House is taking onto itself the role of the Judiciary.
If any candidate thinks that there any bias against him, or anything improper or unfair done by the PSC in arriving at its nominations, he can approach a Court for Judicial Review of the decision.
If any candidate thinks that any of his Constitutional rights have been or are about to be violated by the PSC, the Selection Process or otherwise, he can approach a Court on Constitutional Action.
Thanks to Reginald Dumas, if any citizen thinks that there is anything that violates the Constitution in this business of the Selection of a Commissioner and Deputy Commissioner of Police, he can, in the public interest, approach a Court on Constitutional Action.
For Parliament to take on the role of deciding those matters for itself, as it is attempting to do, is in my view, crossing the line and violating the Separation of Powers which is a principle of our Constitution and our Democracy.

WHY ALL THIS?
Why is Parliament doing all of this?
Why is Parliament attempting what the Leader of the Opposition admits is an ‘unprecedented step’?
The reason is that the interference with the powers of the Police Service Commission and giving a “plentitude of its powers to the Commissioner” (Opposition Leader) and creating an “unacceptable, cumbersome and expensive” Selection Process (Prime Minister) all done when the Parliament tinkered with the Constitution and the Police Service Act in 2006 created a totally flawed and unworkable situation for the management of the Police Service.
It is the completely confused thinking of the Parliament in doing what it did in 2006 that has created the situation in the Police Service that the Prime Minister said yesterday “is in dire need of revolutionary leadership.”
Both the PM and Opposition Leader were part of the Parliament which unanimously made those changes. But, they both accept no responsibility for the mess that exists.
So, speakers on the motion to set up the Select Committee ended up in that unnecessary debate, trying to blame either the PNM or the UNC for the changes they all passed in 2006.
One MP who was also there in 2006 said yesterday “..there was this zeal to see our Parliament go in the direction, for better or for worse, of the American Congressional system where a sub-committee of the American Congress would meet to discuss appointments and so on and quiz…(nominees)”.
What Oropouche East MP admits is that in 2006, the politicians changed our Constitution to try and make something happen that is proper in an entirely different Constitutional arrangement in another country.
The Leader of Government Business, wound up the debate by quoting from the Order for the Selection Process and did not include the changes made to that Order by the Court in 2016 in the Haridath Maharaj case.
This only compounds the issue of the Parliament refusing to accept responsibility for the matter and going so far as to misrepresent what the law in fact is. That may be excusable for talkshow hosts and opinion columnists. Certainly not for a senior member of Parliament and Government.
This is the nana of the matter, as a colleague used to say.
The heart of the problem is that Constitutional change was made for expediency, and not as part of an overall and considered change to our Governance arrangements.
The fact that the entire Parliament agreed to this unacceptable, cumbersome and expensive process and unleashed a managerial and performance disaster on the Police Service does not change the nature and effect of what was done in 2006.
The real need in our failing governance system is for a thorough and comprehensive overhaul, a democratic renewal of our political and electoral processes and governance arrangements.
What we are reaping now is the whirlwind of disaster generated by sowing the wind with ad-hoc piece-meal Constitutional change which was really for the self-serving aims of politician of strengthening their hand in determining the holders of public service office.
What was decided yesterday will only make it worse.     (3 February 2018)

On Friday, February 2 the Parliament is to debate whether or not to exercise its Power of Veto of nominees for the posts of Commissioner and Deputy Commissioner of Police submitted to it by His Excellency the President.
These nominations have been made by the Police Service Commission (PSC) and submitted to the President in accordance with section 123 of the Constitution (as amended in 2006).
Since the PSC submitted its nominations for both posts to the President, there has been a flurry of media activity purporting to question the validity of the nominations made by the PSC.
On the eve of Parliament meeting to decide whether or not to veto those nominations, a daily newspaper reports that the Prime Minister wrote to the Opposition Leader seeking a meeting to discuss the nominations.
Why? Well, the PM suggested “Given what is now awash in the public domain….”.
The Opposition Leader refused.
What exactly is “awash in the public domain”?
Various opinions are being expressed suggesting that the PSC has somehow violated its mandate as contained in the “THE COMMISSIONER OF POLICE AND DEPUTY COMMISSIONER OF POLICE (SELECTION PROCESS) ORDER, 2015” which set out the selection process to be used by the PSC for appointment to the 2 most senior offices in the Police Service.
This Order by the President made under section 123(2) of the Constitution was approved by Parliament and published as Legal Notice No. 218 of 2015 and dated 14 December 2015.
In the opinions “awash in the public domain” various commentators, talkshow hosts and a variety of supporters of the PNM or UNC have been vigorously chastising the PSC and some even making reference to Legal Notice No. 218 of 2015.
One radio station’s hosts have chosen to repeatedly read particularly paragraph 3 of that Legal Notice, and on Thursday afternoon, one talkshow host boldly suggested that PSC was only to take the “short list” created by KPMG {the firm hired by the PSC to ‘assist’ it in the selection process) and without its own assessment, submit that to the President.

WHO APPOINTS THE COMMISSIONER AND DEPUTY COMMISSIONER?
The Republican (1976) Constitution of this country was amended in 2006 unanimously by the entire Parliament and section 123 (as amended) says WHO appoints the Commissioner and Deputy Commissioner.
Section 123(1) says:-
(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);”.
The PSC appoints both the Commissioner and Deputy Commissioner!!!
The PSC has again recently appointed Mr. Williams to act in the office of Commissioner, isn’t that so. No one questioned the PSC’s authority to do so.
Section 123(5) says:-
“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.”.
The power of veto was removed from the PM (in the 1976 Constitution) and given to the Parliament.
So why is the PSC’s power to appoint both officers (subject to Parliament not vetoing their nominations) being questioned by those who are suggesting that KPMG and not the PSC is the authority to decide who is to be nominated to hold those offices?
The PSC’s power to appoint was also made subject to Parliament’s veto when the Constitution was amended in 2006 as part of what was called reform of the Police Service.
Both the Constitution and Police Service Act were amended.

THE 2006 POLICE REFORM HAD MESSED UP THE MANAGEMENT OF THE POLICE SERVICE
The Police Service Reform of 2006 was initiated by PM Manning and his administration.
It followed the famous complaint by a former Commissioner, Jules Bernard, that the failure of the Police to deal with the rising murder toll and crime situation was because the CoP was a “toothless bulldog”.
So, the Constitution and Police Service Act were amended (with Opposition support) to give the ‘toothless bulldog’ some teeth.
Section 123A(1) of the Constitution was changed to say that “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.”.
The Commissioner was given power to appoint, transfer, promote, discipline and remove thousands of police officers.
These powers which the PSC had in relation to ALL police officers were given to the Commissioner and the PSC remained with the power to appoint, promote, discipline and remove ONLY the Commissioner and Deputy Commissioner (section 123).
THE PSC, and ONLY the PSC HAS THE CONSTITUTIONAL POWER TO APPOINT THE POLICE COMMISSIONER AND THE DEPUTY
I have argued since 2006 that this tampering with the management structure created a mess of the management of the Police Service. (See http://wherewegott.blogspot.com/2016/04/crime-and-failure-of-police-service.html.)
I am even firmer in my view at this time.

THE BIG FLAW IN THE ACCUSATIONS AGAINST THE PSC
Those who are accusing the PSC of some violation of its authority, of lack of transparency and sundry other wrongdoing are basing their allegations on the text of Legal Notice 218 of 2015, the President’s Order.
What they conveniently are leaving out is the fact that the text of that Order was changed by the Court in High Court Matter No. CV2016-01218 – Haridath Maharaj v the AG and the PSC in which the constitutionality of the Order in Legal Notice 218 of 2015 was questioned.
The Court gave its ruling in that matter on 14 July 2016, a full 18 months ago.
The Guardian newspaper on 15 July 2016 reported:
“Al-Rawi responds
Responding to judgment at the weekly post-Cabinet press briefing at the Office of the Prime Minister, St Clair, yesterday, Attorney General Faris Al-Rawi, who piloted the order, said the judgment was not a defeat for the Government but rather a legal victory as the court upheld the independence of the PSC. 
Al-Rawi also claimed the judgment would not affect the recruitment procedure that has already been initiated.” 
The Court ruled that in several respects the Order setting out the selection process was indeed infringing on the Constitution and some parts were struck out altogether and Paragraph 3 d was amended.
The Order, as amended by the Court, reads:
“The selection process for appointment to the offices of Commissioner of Police and Deputy Commissioner of Police shall be conducted in the following manner:
(a) the Commission shall contract an appropriate local firm (hereinafter referred to as “the Firm”) to conduct a recruitment process including inviting applications for the positions;
(b) ;
(c) the Firm shall ensure that the candidates are subjected to the best practice security vetting and recent professional vetting;
(d) the Firm shall submit to the Commission–
 (i) the results of its assessment process AS MANDATED AND CONTRACTED BY THE COMMISSION ;
(ii) a report on its assessment of the entire assessment process; and
(iii) in respect of the candidates referred to in subparagraph (i), the following documents:
(A) application of the candidate;
(B) biography or résumé of the candidate;
(C) assessor’s scores;
(D) assessor’s feedback;
(E) medical examination report; and
(F) Security and Professional Vetting Report;
(e) the Commission shall then take into account all information on the candidates and thereafter establish an Order of Merit List; and
(f) the Commission shall select the highest graded candidate on the Order of Merit List and submit that candidate’s name to the President in accordance with the procedure set out in section 123 of the Constitution.”.
The Order, as amended by the Court’s decision:

1. Ensures that the process is triggered by the PSC and NOT the Minister of National Security or any other member of the Executive
2. Ensures that the firm (KPMG in this exercise) does not take away the PSC’s discretionary power to decide who the short or final list candidates. There is NO short list.
3. Ensures that the PSC ALONE exercises its Constitutional power to decide the Order of Merit List.
4. As AG Al Rawi said then “the court upheld the independence of the PSC”.

THIS IS THE PROCESS THAT THE PSC IS REQUIRED TO FOLLOW.
The changes in the contents of the President’s Order on the selection process has been kept away from the public.
What is “what is now awash in the public domain” according to the PM, is a misguided and misinformed set of accusations against the PSC based on the totally false premise of the unaltered and standing Order of the President in Legal Notice 218 of 2015.
Based on the Court’s ruling, which Government has not challenged, that Legal Notice should have been amended and gazetted and made public in the same manner that the original was.
Instead, to suit the purposes of the PNM and its administration, the false or ‘fake’ Order on how the selection of the Commissioner and Deputy Commissioner was to be conducted by the PSC continues to be presented as legitimate.
The insinuations by some pro-PNM talkshow hosts and propagandists that the PSC is involved in some sinister plot or conspiracy is totally ludicrous.
If there is any plot it is that of the Government which has kept the changes to the President’s Order which THEY passed in Parliament, away from the public’s attention.
Is it part of their strategy for appointing who the Government wants as Commissioner?
There is no need for all this subterfuge, with their Parliamentary majority, the ruling party can veto all nominees on the Merit List until the one they want comes up.
The Politicians, in the Legislature (Parliament) – really the Executive (Government) – by the 2006 Police Service Reform and particularly the amendments to the Constitution have guaranteed that they really decide who the top Cop and his Deputy are.
This is a travesty of the highest order.
The worst aspect of it is that it was perpetrated by both sides of the isle.
 
1 Februrary 2018