Re­cent rev­e­la­tions in the pub­lic do­main have in­di­cat­ed that the Po­lice Ser­vice Com­mis­sion used the doc­trine of ne­ces­si­ty to ap­point Gary Grif­fith as Act­ing Com­mis­sion­er of Po­lice in Au­gust 2021.

It ap­pears that their rea­son was based on the fact that the Com­mis­sion was “un­clear” about the le­gal ba­sis for mak­ing the ap­point­ment.

The doc­trine of ne­ces­si­ty is usu­al­ly ap­plied in cas­es of con­sti­tu­tion­al break­down and not in cas­es of le­gal un­cer­tain­ty. Pub­lic bod­ies ought to seek le­gal ad­vice when­ev­er they are faced with such un­cer­tain­ties.

One does not know whether the Po­lice Ser­vice Com­mis­sion sought le­gal ad­vice be­fore they de­cid­ed to in­voke the doc­trine of ne­ces­si­ty. Ac­cord­ing to a pub­lished minute from the pro­ceed­ings of the Com­mis­sion about its de­ci­sion to ap­point Grif­fith to act, the fol­low­ing is stat­ed:

“In ar­riv­ing at its de­ci­sion, the Com­mis­sion agreed that it would in­voke the Doc­trine of Ne­ces­si­ty to jus­ti­fy the ap­pli­ca­tion of Le­gal No­tice 103 of 2009, which pro­vid­ed for the Com­mis­sion to ap­point per­sons to act as Deputy Com­mis­sion­er of Po­lice and Com­mis­sion­er of Po­lice to­geth­er with Clause (4) of Le­gal No­tice 13 of 2021, which widened the pool of per­sons to in­clude con­tract of­fi­cers.”

The Com­mis­sion’s min­utes go fur­ther to state as fol­lows:

“In this re­gard, the Com­mis­sion con­sid­ered the pro­vi­sion of the Con­sti­tu­tion and both Le­gal No­tices in its de­ci­sion-mak­ing process.”

The Com­mis­sion was clear­ly in­tent on hav­ing Grif­fith in the po­si­tion of Com­mis­sion­er of Po­lice (ei­ther sub­stan­tive­ly or act­ing) and would have been pre­pared to do so notwith­stand­ing the let­ter that they had re­ceived from the Prime Min­is­ter, at an ear­li­er time, which in­di­cat­ed his loss of sup­port for Grif­fith.

This is­sue of the doc­trine of ne­ces­si­ty adds an­oth­er lay­er to the un­usu­al cir­cum­stances as­so­ci­at­ed with this ap­point­ment. The ar­gu­ment sur­round­ing the doc­trine of ne­ces­si­ty does not seem to have been plead­ed dur­ing the pro­ceed­ings be­fore Madam Jus­tice Kan­ga­loo in the in­ter­pre­ta­tion mat­ter brought by Ravi Bal­go­b­in Ma­haraj.

The pub­lic has been told that the Mer­it List that was sub­mit­ted to the Pres­i­dent was re­called by the Com­mis­sion al­most as soon as it had been sub­mit­ted in Au­gust 2021. The mys­tery re­mains un­re­solved. The Pres­i­dent can of­fer no ex­pla­na­tion and nei­ther did the Com­mis­sion. All that has been sworn are the con­tra­dic­to­ry af­fi­davits of Corey Har­ri­son, Act­ing Di­rec­tor of Per­son­nel Ad­min­is­tra­tion, (in the Bal­go­b­in mat­ter) and He­len Warn­er, Act­ing Deputy Di­rec­tor of Per­son­nel Ad­min­is­tra­tion (in the Anand Rame­sar ju­di­cial re­view mat­ter).

The Act­ing DPA Har­ri­son said in his af­fi­davit as fol­lows:

“A list of nom­i­nees was sub­mit­ted to Her Ex­cel­len­cy on Au­gust 12, 2021. There was no de­lay by the Com­mis­sion in car­ry­ing out its ex­er­cise giv­en the date of is­suance of the 2021 Or­der. It was done in less than two months.”

Har­ri­son’s sub­or­di­nate, He­len Warn­er, said in her af­fi­davit, the fol­low­ing:

“The Po­lice Ser­vice Com­mis­sion has with­held sub­mis­sion of the Mer­it List to the Pres­i­dent af­ter at­tempt­ing to do so be­cause of cer­tain se­cu­ri­ty con­cerns that came to its at­ten­tion.”

There was ob­vi­ous­ly con­fu­sion in­side the DPA’s of­fice. The con­tra­dic­tion be­tween these two of­fi­cers in two dif­fer­ent le­gal mat­ters, un­der oath, has at­tract­ed ze­ro at­ten­tion in of­fi­cial cir­cles by way of any clar­i­fy­ing re­sponse. Why?

The Pres­i­dent said that she re­ceived a Mer­it List which is con­sis­tent with Har­ri­son’s af­fi­davit and to­tal­ly in­con­sis­tent with Warn­er’s af­fi­davit. How can the of­fice of the DPA be per­mit­ted to re­main un­ac­count­able for these con­tra­dic­tions?

Throw­ing the doc­trine of ne­ces­si­ty in­to this mix on­ly con­firms that the Com­mis­sion want­ed Grif­fith at all costs. How­ev­er, there was no con­sti­tu­tion­al break­down of any form, but there was le­gal un­cer­tain­ty.

There is a rich body of le­gal prece­dents on the doc­trine of ne­ces­si­ty. One branch in­volves the doc­trine of “state ne­ces­si­ty” and the oth­er in­volves the doc­trine of “rev­o­lu­tion­ary le­gal­i­ty”. The lat­ter would not have ap­plied here. How­ev­er, the essence of the “state ne­ces­si­ty” cas­es rests up­on the phi­los­o­phy that “ne­ces­si­ty ren­ders valid the il­le­gal”. This was es­tab­lished in the case of At­tor­ney Gen­er­al of Cyprus v Mustafa Ibrahim (1964 Cyprus Law Re­ports 195). Be­fore that, the case of Fed­er­a­tion of Pak­istan v Maul­vi Tamizud­din Khan (PLD 1955 Fed­er­al Court 240) took a sim­i­lar line.

It ap­pears that the doc­trine of ne­ces­si­ty was not ar­gued be­fore the courts as a de­fence by the Com­mis­sion and Jus­tice Kan­ga­loo’s judg­ment has not been ap­pealed.