At­tor­ney Gen­er­al Faris Al-Rawi says the State plans to ap­peal the judge­ment of Jus­tice Na­dia Kan­ga­loo if an ‘er­ror’ in the rul­ing is not cor­rect­ed, par­tic­u­lar­ly as it de­clared that the en­tire Com­mis­sion­er of Po­lice and Deputy Com­mis­sion­er of Po­lice (Se­lec­tion Process) 2021 Or­der was in­valid, and not just para­graph 4.

In a state­ment is­sued late yes­ter­day, the AG said sec­tion 123 of the Con­sti­tu­tion has led to the set­ting aside of the Com­mis­sion­er of Po­lice and Deputy Com­mis­sion­er of Po­lice (Act­ing Ap­point­ments) (Se­lec­tion Process) (No. 2) Or­der, 2009, which per­mit­ted the Po­lice Ser­vice Com­mis­sion to make act­ing ap­point­ments with­out the ap­proval of the House.

Sec­tion 123 of the Con­sti­tu­tion, which was amend­ed in 2006, re­quires that the ap­point­ment of a per­son to act in the of­fice of the Com­mis­sion­er of Po­lice, could on­ly be un­der­tak­en af­ter fol­low­ing the pro­ce­dure spec­i­fied in sec­tion 123(2) to (5) of the Con­sti­tu­tion and in par­tic­u­lar, on­ly with the ap­proval of the House of Rep­re­sen­ta­tives.

He said the rul­ing now means that all act­ing ap­point­ments to the post of Com­mis­sion­er by the Po­lice Ser­vice Com­mis­sion since 2006 have al­so been made in vi­o­la­tion of the re­quire­ments of Sec­tion 123.

“The Court no­tably al­so found that the pro­ce­dure pro­vid­ed for un­der para­graph 4 of the Com­mis­sion­er of Po­lice and Deputy Com­mis­sion­er of Po­lice (Se­lec­tion Process) Or­der, 2021, was en­tire­ly con­sis­tent with the con­sti­tu­tion­al regime, but she con­clud­ed that since for this rea­son it was un­nec­es­sary to be ar­tic­u­lat­ed in an Or­der, it stood to be struck down. How­ev­er, the ac­tu­al Or­der is­sued by the Reg­is­trar of the Court in­clud­ed a de­c­la­ra­tion that the en­tire 2021 Or­der was in­valid, not just para­graph 4. That in­cludes para­graphs 1 to 3 which dealt with the pro­ce­dure for mak­ing sub­stan­tive ap­point­ments to the of­fice of Com­mis­sion­er. These para­graphs were not un­der chal­lenge in these pro­ceed­ings and none of the par­ties asked the Court to in­val­i­date them. We there­fore con­sid­er that the Reg­is­trar’s Or­der in­val­i­dat­ing the en­tire 2021 Or­der was made in er­ror. As a re­sult, we have sought clar­i­fi­ca­tion from the Court,” he said.

Al-Rawi said in the event that the court does not cor­rect the er­ror, an im­me­di­ate ap­peal will be launched to have that part of the court’s or­der in­val­i­dat­ing the 2021 Or­der, and that part on­ly, set aside by the Court of Ap­peal.

“Fur­ther­more, all the par­ties had agreed that para­graph 4 of the 2021 Or­der, which deals with act­ing ap­point­ments, is not in­con­sis­tent with her La­dy­ship’s rul­ing that sub­sec­tions 123(2)-(5) ap­ply to act­ing ap­point­ments, and no one asked that it be set aside. We there­fore con­sid­er that her La­dy­ship erred in in­val­i­dat­ing para­graph 4. We will there­fore be ap­peal­ing that as­pect of her Or­der in any event,” he said.

He not­ed that the Of­fice of the At­tor­ney Gen­er­al agreed with the rul­ing that sub­sec­tion 123(2)- (5) ap­ply to act­ing ap­point­ments and that Grif­fith’s act­ing ap­point­ment was in­valid be­cause it was not ap­proved by the House.

“But we dis­agree with her rul­ing that any part of the 2021 Or­der is in­valid. The ef­fect of Her La­dy­ship’s con­struc­tion of Sec­tion 123 is that the long-stand­ing prac­tice of the Po­lice Ser­vice Com­mis­sion, which has strad­dled var­i­ous changes of gov­ern­ment, will have to be ur­gent­ly re­con­sid­ered,” he said.

He ex­pressed hope that the Po­lice Ser­vice Com­mis­sion will be ur­gent­ly re­con­sti­tut­ed and that there will be “a ma­ture and sen­si­ble col­lab­o­ra­tion” in the House of Rep­re­sen­ta­tives in ap­prov­ing any act­ing ap­point­ment “which will now need to be un­der­tak­en as a mat­ter of ur­gency.”