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.”