There is a new process for the selection of the Police Commissioner.

The Government has revoked the controversial June 2021 Commissioner of Police (Selection Process) Order, as well as the 2009 Order, and has replaced them with a new revised Order, titled Legal Notice 277 of November 25, 2021 Commissioner of Police and Deputy Commissioner of Police (Selection Process) Order.

This new Order makes very clear the process for appointing someone to act as Commissioner of Police and the process for appointing a substantive Commissioner of Police. In both instances the nominations in respect of the two positions must come to Parliament for its approval.

The Order, which also provides for the appointment of an acting Deputy Commissioner of Police (DCP) and substantive DCP, also stipulates that these nominations receive Parliament’s endorsement.

The (November) Order includes words like “in accordance with” and “consistent with” Section 123 of the Constitution as it seeks to put in place a selection process enacted by way of subsidiary legislation that is fully compliant with the Constitution.

Paragraph four of the June 2021 as well as the 2009 Order were deemed by Justice Nadia Kangaloo in October to be inconsistent with the Constitution because they did not stipulate that the acting appointments for the position of Commissioner of Police had to come to Parliament.

The new Order also makes it clear that the acting Commissioner of Police must be a Deputy Commissioner of Police or an Assistant Commissioner of Police (ACP). It does not make provision for anyone on contract or who was previously on contract to act as Commissioner of Police, as the previous Order did, a provision which was widely thought to have been drafted to favour Gary Griffith, who had been on contract.

That provision is now repealed and there is no room for an acting commissioner on contract.

In short, there cannot be a recurrence of what happened in August when Griffith, who ceased to be a police officer when his contract expired on August 17 and was then appointed to act as Commissioner of Police because the Legal Notice gazetted in June, 2021 allowed for the appointment of someone “who was previously on contract” to act as CoP.

The Order of Merit List established by the Police Service Commission for persons to act as CoP must come from persons who are DCPs or ACPs. It is still possible, however, to have a substantive Police Commissioner who is on contract.

The new Order states that where the Commission of Police is or is likely to be 1) absent from Trinidad and Tobago; 2) on vacation leave; or 3) is unable by reason of illness or any other reason to perform the functions of the Commissioner of Police; or 4) the office of the Commissioner of Police is or is likely to become vacant, the Commission shall select the most senior officer on the Order of Merit List and submit that officer’s name to the President in accordance with the procedure set out in Section 123 of the Constitution.

And where the House of Representatives does not approve of the most senior officer on the Order of Merit List pursuant to Section 123 of the Constitution, subsequent nominations in order of merit may be submitted to the House of Representatives from the Order of Merit List only in accordance with the procedure set out in the Constitution.

For the purposes of acting appointments to the office of Deputy Commissioner of Police, the Commission shall establish and maintain an Order of Merit List, which shall list, in descending order of seniority, the officers who a) are holding or acting in the office of Assistant Commissioner of Police; and b) possess the qualifications and experience required for appointment to the office of Deputy Commissioner.

PolSC must consider combination of qualifications, experience

The (November) Order also sets out a procedure for someone to become a substantive Commissioner of Police which is slightly different from what previously obtained. The new (November) Order states that the Police Service Commission must consider qualifications and experience.

The previous (June) Order required the Commission to consider only qualifications. In the new (November) Order the overall experience of the candidate has to be weighted and the combination of qualifications and experience must be considered.

The new Order also states that the PolSC, in conducting the recruitment process for substantive CoP and DCP, must invite applications for the positions by advertising each vacancy in at least two daily newspapers circulating in Trinidad and Tobago on at least three days within a period of seven days.

There was no such requirement in the June Order that the Commission advertise these positions. That (June) Order simply stated that the “Commission shall conduct a recruitment process including inviting applications for the positions”. Advertisements were put optionally by the Commission then. It is now made mandatory.

The previous Order was gazetted on June 17, via Legal Notice 183 of June 2021, and it took the then Bliss Seepersad-led Commission less than two months to prepare the two Merit Lists for the substantive position of Commissioner of Police and an acting Commissioner of Police.

President Paula-Mae Weekes, in a newspaper advertisement, had indicated that the Merit List (for the substantive Commissioner of Police) had been submitted on August 11 and immediately withdrawn by the previous PolSC chairman, Seepersad.

The Merit List for the acting Commissioner of Police had also been submitted to the President at the same time.

There is also a change in terms of the sequence of submissions on the Merit List. Under the previous order the President was given the Order of Merit List.

But under this revised procedure, the Commission does not send the entire Merit List to the President. The Commission is only required to send the first name, and if that top candidate is not approved by the House of Representatives, the Commission then sends the next in line, in descending order, until a candidate is selected by the House of Representatives. .

Therefore, under the revised Order, the Police Service Commission maintains custody of the Merit List. This in fact had been the original procedure when the legislation was first passed.

Another difference is that this (November) Order states that the Order of Merit List will last for one year.

“For the purposes of this clause, this Order of Merit shall be valid for one year,” the Order states.

There was no such provision in the June Order.

The Order states that where the House of Representatives does not approve of the highest-graded candidate on the Order of Merit List, subsequent nominations in order of merit may be submitted to the House of Representatives from the Order of Merit List in accordance with the procedure set out in the Constitution.

It states further that where the Order of Merit List is exhausted without an appointment being made, the recruitment process shall recommence anew.

Both the June and November orders require the PolSC, in conducting its assessment of the candidates for the positions of CoP and DCP, to have regard to a Security and Professional Vetting Report and a medical examination report.

The new Order is subject to Negative Resolution of Parliament, which means that it passes automatically and to reverse it requires the tabling and passage of a motion to annul this secondary legislation.

In view of the revised Order, the question may arise whether a Merit List formulated under the previous Order remains relevant.

The last Commission collapsed without submitting the Order of Merit List to the President (in line with the June, 2021 Order).

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