Police Service Commission was not properly constituted but decisions saved under “de facto doctrine”

Last Updated on Tuesday, 23 August 2022, 22:00 by Denis Chabrol

The High Court on Tuesday said the Police Service Commission (PSC) was not properly consulted because there was no Chairman of the Public Service Commission (PSC) but saved the  promotions and the appointment of a Mr Clifton Hicken as acting Police Commissioner under the de facto doctrine.

“In the interest of avoiding any unforeseen circumstances of my decision that the Police Service Commission is not properly constituted, I apply the de facto doctrine to save the actions of the Commission as currently constituted, ” Chief Justice Roxane George-Wiltshire said in her judgment. 

The Chief Justice agreed with Opposition Leader Aubrey Norton that without the appointment of a Chairman of the Police Service Commission , the Chairman of the Police Service Commission Pastor Patrick Findlay could not have properly held consultations with his Commission. 

She added that because the Police Service Commission was not properly constituted the consultations between the Chairman and the other members of the commission as well as any consultation between him and the President on the appointment of an acting Police Commissioner were unconstitutional. “As a consequence, it is hereby declared that any consultation between the President and the second respondent as of June 29 on the subject of the appointment of an acting Commissioner of Police is null and void and of no legal effect. As a consequence the invitation to the applicant to engage in meaningful consultation in relation to the appointment of Mr Hicken as acting Commissioner of Police cannot proceed until the second respondent as Chairman of the Police Service Commission can properly consult with the other members of the Police Service Commission,” she said

The Court declared that a Chairman of the Public Service Commission must be appointed.

She said the issue was whether the Chairman of the Police Service Commission could have properly consulted with all of the PSC members rather than some members.  “I’m still of the view that all of the members should be appointed so that the Chairman would have the opportunity to consult with each of them whether individually or as a group,” the Chief Justice said.

She said the PSC should have written to each of the Police Service Commission members indicating the intended date of the decision on the subject of the consultation, each member should have been afforded a reasonable opportunity to express a considered opinion and these should have been recorded, prepared and archived and the decision circulated.  The Chief Justice such a record should be kept as evidence and if any member of the commission could not have been consulted , that should also be recorded.

Despite the fact that the Police Service was not properly consulted, she said there was no evidence that it was aware of that up to June 29, 2022.