THE PSC STANDS ACCUSED OR DOES IT? - THE POLITICAL CON​ TO BEAT ALL

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

Other Important Documents

1. Legal Notice 218 of 2015
2. The Tender Notice of the Police Service Commission for the Firm to assist it in the selection process
3. The judgment in CV2016-01218 – Haridath Maharaj v the AG and the PSC
4. the Guardian article on the Judgment of 15 July 2016