DEREK ACHONG

The Cab­i­net is free to de­cide whether or not to grant Po­lice Com­mis­sion­er Er­la Hare­wood-Christo­pher a fi­nal one-year ex­ten­sion when she cel­e­brates her 62nd birth­day on May 14, next year.

De­liv­er­ing a judg­ment, yes­ter­day morn­ing, five Law Lords of the Unit­ed King­dom-based Privy Coun­cil dis­missed the fi­nal ap­peal in a law­suit chal­leng­ing the con­sti­tu­tion­al­i­ty of the pre­vi­ous ex­ten­sions giv­en to her.

In the ap­peal, po­lit­i­cal and so­cial ac­tivist Ravi Bal­go­b­in Ma­haraj claimed that his law­suit was wrong­ly dis­missed by High Court Judge Ricky Rahim and the Court of Ap­peal, ear­li­er this year.

The Law Lords found that the case was prop­er­ly de­cid­ed by the lo­cal courts.

“For all these rea­sons which are sim­i­lar to those giv­en by the Court of Ap­peal, sec­tion 75(a) of the 2006 Act is not un­con­sti­tu­tion­al and there is noth­ing un­law­ful in the de­ci­sion of the Pres­i­dent to ex­tend the ser­vice of the Com­mis­sion­er be­yond her nor­mal re­tire­ment age,” La­dy In­grid Sim­ler said.

In the law­suit, Ma­haraj chal­lenged a de­ci­sion tak­en by the Cab­i­net to ex­tend Hare­wood-Christo­pher’s term by a year un­der Sec­tion 75 of the Po­lice Ser­vice Act, be­fore she reached re­tire­ment age on May 15, last year.

The leg­is­la­tion em­pow­ers the Pres­i­dent to ex­tend the term of a first di­vi­sion of­fi­cer, who is due to re­tire if it is in the na­tion­al in­ter­est to do so.

Po­lice of­fi­cers can re­ceive two fur­ther one-year ex­ten­sions based on an­nu­al per­for­mance re­views.

Ma­haraj’s le­gal team led by Se­nior Coun­sel Anand Ram­lo­gan con­tend­ed that the pro­vi­sion is in­con­sis­tent with Sec­tion 123 of the Con­sti­tu­tion, which gives the PolSC the pow­er to rec­om­mend the ap­point­ment or re­moval of the Po­lice Com­mis­sion­er and Deputy Com­mis­sion­ers of Po­lice (DCPs) to be ap­proved by the House of Rep­re­sen­ta­tives.

They point­ed out that the con­sti­tu­tion­al process sought to en­sure that there is no po­lit­i­cal in­ter­fer­ence.

In re­sponse to the case, lawyers rep­re­sent­ing the Cab­i­net re­lied on an af­fi­davit from Di­rec­tor of Per­son­nel Ad­min­is­tra­tion Corey Har­ri­son, who serves as sec­re­tary for the PolSC.

In the doc­u­ment, Har­ri­son claimed that the PolSC was aware of Hare­wood-Christo­pher’s age and the pos­si­bil­i­ty of her re­ceiv­ing an ex­ten­sion when she was first ap­point­ed in Feb­ru­ary, last year, af­ter act­ing in the post pre­vi­ous­ly.

He al­so point­ed out that sim­i­lar ex­ten­sions were af­ford­ed to for­mer po­lice com­mis­sion­ers James Philbert and Mc­Don­ald Ja­cob.

Af­ter the case was re­ject­ed by the Ap­peal Court in May, Hare­wood-Christo­pher re­ceived a sec­ond ex­ten­sion.

In her judg­ment, La­dy Sim­ler ruled that the leg­is­la­tion did not in­ter­fere with the PolSC’s re­mit.

“Al­though since the amend­ments made in 2006, the Po­lice Ser­vice Com­mis­sion has had ex­clu­sive pow­er (sub­ject to neg­a­tive res­o­lu­tion of the House of Rep­re­sen­ta­tives) to ap­point, pro­mote, re­move from of­fice and ex­er­cise dis­ci­pli­nary con­trol over those hold­ing the of­fices of Com­mis­sion­er and Deputy Com­mis­sion­er, it is not, and nev­er has been, charged with re­spon­si­bil­i­ty for set­ting the terms and con­di­tions of ap­point­ment un­der which the Com­mis­sion­er and Deputy Com­mis­sion­er serve,” she said.

“Its ju­ris­dic­tion has nev­er been mod­i­fied to in­clude es­tab­lish­ing a re­tire­ment age or any mech­a­nism for ex­tend­ing ser­vice be­yond that age,” she added.

While she ad­mit­ted that ex­ec­u­tive in­ter­fer­ence with the ap­point­ment and re­moval of the com­mis­sion­er would be un­con­sti­tu­tion­al, La­dy Sim­ler not­ed that set­ting the terms of ser­vice of po­lice of­fi­cers in­clud­ing the com­mis­sion­er was with­in the do­main of the ex­ec­u­tive and Par­lia­ment.

She al­so ruled that the Pres­i­dent was oblig­ed to act on the ad­vice of Cab­i­net in de­cid­ing whether it was in the na­tion­al in­ter­est to ex­tend Hare­wood-Christo­pher’s term af­ter she reached com­pul­so­ry re­tire­ment age.

In a press re­lease is­sued, yes­ter­day, At­tor­ney Gen­er­al Regi­nald Ar­mour, SC, hailed the out­come.

He said that by con­sec­u­tive­ly re­ject­ing the case the lo­cal and for­eign courts af­firmed the ac­tion tak­en by Cab­i­net.

“The State’s suc­cess at each stage of the lit­i­ga­tion, from the ini­tial hear­ing to this coun­try’s high­est recog­nised court of ap­peal, demon­strates and con­firms that Cab­i­net act­ed con­sis­tent­ly with the law and in the na­tion­al in­ter­est to ex­tend the ser­vice of Mrs Er­la Hare­wood-Christo­pher as Com­mis­sion­er of Po­lice,” he said.

“The ju­ris­dic­tion of the Po­lice Ser­vice Com­mis­sion over the Com­mis­sion­er of Po­lice was in no way com­pro­mised by the ac­tion tak­en, and so, re­mains in­tact, and will con­tin­ue to be re­spect­ed,” he added.

Ma­haraj is­sued his own press re­lease ex­press­ing dis­ap­point­ment.

“Through­out the rul­ing, the Lords of the Privy Coun­cil main­tain that there is a sep­a­ra­tion of pow­ers and in­de­pen­dence with­in the Po­lice Ser­vice, but in their con­clu­sion find that the Pres­i­dent is ob­lig­at­ed to con­form to the will of the Cab­i­net as a re­sult of the short­com­ings of the leg­is­la­tion and the fail­ure of Par­lia­ment to recog­nise and up­date these de­fi­cien­cies,” Ma­haraj said.

“As such, this na­tion is forced to con­tend with a Com­mis­sion­er and a Po­lice Ser­vice that con­tin­ues to fail in their du­ty to pro­tect our cit­i­zens on a dai­ly ba­sis,” he added.

Ma­haraj was al­so rep­re­sent­ed by Adam Ri­ley and Mo­ham­mud Jaa­mae Hafeez-Baig.

Cab­i­net was rep­re­sent­ed by Dou­glas Mendes, SC, and Gabrielle Gellineau. Rishi Dass, SC, and Vanes­sa Gopaul rep­re­sent­ed the AG’s Of­fice.