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Commentary by J. Emile Ferdinand QC on The Constitutional Role & Responsibility of the Police Service Commission & the Public Service Commission on February 22, 2016

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Commentary by J. Emile Ferdinand QC on

The Constitutional Role & Responsibility of the Police Service Commission & the Public Service Commission.

The Police Service Commission and the Public Service Commission (“PSCs”) in St. Kitts-Nevis, as in the wider Commonwealth Caribbean, have as their Constitutional purpose the protection of the Police Service and the Civil Service, respectively, from partisan political victimization, favouritism, patronage and manipulation. It is the PSCs, not the politicians, that are supposed to decide who gets hired and fired in the Police Force and the Civil Service.

The Constitution stipulates that:

“… the power to appoint persons to hold or act in offices in the Police Force (including the power to confirm appointments), the power to exercise disciplinary control over persons holding or acting in such offices and the power to remove such persons from office shall vest in the Governor-General, acting in accordance with the recommendation of the Police Service Commission:

Provided that before the Commission makes any recommendation to the Governor-General with respect to the appointment of any person to hold the office of Chief of Police or Deputy Chief of Police the Commission shall consult with the Prime Minister and if the Prime Minister signifies his objection to the appointment of any person to the office the Commission shall not recommend the Governor- General to appoint that person.”

Except where otherwise stated in the Constitution, the Police Service Commission

“shall, in the exercise of its functions under [the] Constitution, not be subject to the direction or control of any other person or authority.”

Similar Constitutional provisions apply to the Public Service Commission to those quoted above re the Police Service Commission.

Commonwealth Caribbean constitutional cases decided since political independence have clearly established that the British colonial concept of “dismissal at the pleasure of the Crown” is incompatible with the post-independence constitutional order. As Mr. Justice Odel Adams (of blessed memory) colourfully articulated in the Dominican High Court case Emanuel v Attorney General of Dominica, Suit No. 194 of 1989:

“ … the dying concept of dismissal at pleasure … however much it may have thrived and clings to life in  the wintry climes of the United Kingdom, must in the unyielding sun of the Eastern Caribbean receive little sustenance.”

Several other Court cases illustrate the challenges of bringing to practical realization the constitutional role of the PSCs in the region. The litigation has tended to focus on the need for the Service Commissions to ensure that the principles of Natural Justice are observed (especially the right to be heard) and for the Service Commissions to follow the procedures prescribed in their own governing rules and regulations.

Appointments to the PSCs

The general public seems unaware of the important role and responsibility vested in the Service Commissions by the Constitution. This is partly caused by Government not publicizing the constitutional function of the Service Commissions and making appointments to them quietly, buried in the Official Gazette. Additionally, the public is never told what qualifies the appointee(s) to serve on these Service Commissions.

Moreover, contrary to the Constitutional ideals, our political culture in St Kitts and Nevis appears inclined to regard political control of appointments to the Police Service and to the Civil Service as a prize of victory at the polls. This is not in keeping with the principles in our Constitution which are designed to yield a professional Police Force and a non-partisan Civil Service. Disregard of constitutional principles manifests itself too often in the appointment to PSCs, and thence into the public service itself by the PSCs, of partisan political operatives. Whether appointed by the Governor General in his own deliberate judgment or upon the recommendation of the Prime Minister, persons appointed to the Service Commissions should be individuals in whom there is a high degree of national consensus that they will be capable individuals who are motivated by a desire to see the Police Service and the Civil Service properly staffed and operating efficiently and impartially for the public good. If appointees to Service Commissions only have support from the governing political party or parties, and no support from the Opposition or from NGO’s, national consensus in their capabilities will likely be lacking.

Here in St Kitts & Nevis there has been under the previous Labour/NRP Government, and continues to be under the new Team Unity Coalition, a constitutionally improper practice of the Prime Minister being asked to indicate whether he approves of particular individuals being promoted to Police ranks below that of Deputy Chief of Police. This practice (carried out by both PM Douglas and PM Harris) is wrong and ought to stop. It politicizes, rather than professionalizes, the Police Force. The Constitution only permits the Prime Minister to veto appointments to the posts of Chief of Police and Deputy Chief (now referred to as Commissioner of Police and Deputy Commissioner of Police). If it was permissible for the Prime Minister to have veto powers re any lower ranks, the Constitution would have so stated.

At this time when the need to reduce crime must be a national priority in our country, practices which promote professionalism in the Police Force should be followed, and those which tend to politicization of the Force ought to cease. To this end, PM Harris ought to break with the practice of his predecessor, which he has so far carried on, of involving himself in approving or disapproving of intended promotions within the Police Force below the rank of Deputy Commissioner.

Other Possible Reforms

In terms of other concrete suggestions for improving governance in this area, there ought to be meaningful prior consultation by Government with the parliamentary Opposition and civil society (ie. Public Service Associations and non-governmental organizations) before appointments to PSCs are made. When made, such appointments should be loudly and publicly announced, with a declaration of their constitutional importance, rather than being left to be discovered merely by those few persons who read the Official Gazette. We the public should be told of the qualities or qualifications that justify each appointee to any PSC.  This will help to take us along the path which leads away from appointments to the PSCs being viewed as partisan political plums/“spoils of war” and reduce appointments of square pegs in round holes.

I wish to make it clear that this Commentary is not in any way criticizing the individuals recently appointed to the Police High Command. I have known Commissioner Queeley and some of the other newly-appointed officers for many years, and I have every confidence that they will give their all and seek to make  a difference. But it is not just up to the new Police High Command to reduce crime. Their efforts will only succeed if they receive support from the lower ranks and the general public, and no interference by politicians in staffing and operational matters.

Secretariat Support

If the Service Commissions’ operations are not given appropriate budgetary and secretariat support they will be doomed to fail to live up to their constitutional promise. PSCs cannot be expected to operate without access to sound legal advice, skilled and experienced human resource recommendations and proper secretarial services. Where these essential supports are lacking, no one should be surprised if PSC’s operate as mere rubber stamps doing the bidding of the Government of the day.  However,  to operate in such a manner is to fail in their Constitutional responsibility.

More Specialized Commissions

The idea that a single Public Service Commission can be “all things to all persons” is completely unrealistic in modern societies with increasing degrees of specialization. To my mind, as part of our constitutional reform, there needs to be separate Public Service Commissions each with distinct responsibility for:

  • the Judicial and Legal Services;
  • the traditional Civil Service;
  • the Police Service;
  • the Teaching Service;
  • the Health Service; and
  • Perhaps for Statutory St Kitts and Nevis lack the last three.

Reforms are Needed Urgently

This matter of the PSCs is crying out for governance improvement. There is public cynicism at the protection afforded by the Service Commissions and yet politicians have been known to express frustration at the lack of responsiveness in the PSC mechanism. One former Caribbean Prime Minister was said to have described the Civil Service as “an army of occupation” that elected politicians meet upon assuming office! As is often the case with constitutional mechanisms which provide checks and balances, they cannot be expected to please all of the people all of the time. Still, if the Service Commissions did not already exist we would have to  invent them, or some similar mechanism to attain their constitutional objectives. PSCs need to urgently improve  their public  relations and engage in more public education about their important constitutional role, responsibilities and functioning.

PM Harris should lead by example and publicly abandon the unconstitutional bad habit of his predecessor who ought never to have been involved in approving Police appointments other than the Commissioner and Deputy Commissioner. PM Harris should also ensure that the Team Unity Government improves how PSC members are selected and function. If the Government continues to operate as before, it should not be surprised if the crime crisis also continues.

EMILE FERDINAND, Q.C., LL.B. (UWI), LL.M. (Cantab.) 22 February 2016

anh

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