Common sense and transparency

The case of Jamaicans for Justice v Police Service Commission & Anor (Jamaica) [2019] UKPC 12, decided on March 25, 2019 at the Privy Council (PC) has very strong lessons for Trinidad and Tobago. It is directly related to issues of , and has bearing on the reluctance of President Paula Mae Weekes to divulge information on the selection process and the names of judges selected for higher office. It is also applicable where police officers are to be appointed/promoted when they have charges (accusations) against them.

The case (found at http://www.bailii.org/uk/cases/UKPC/2019/12.html) is summarised below, adapted from the judgment:

“The issue in this case is what steps the (Jamaican) Police Service Commission (PSC), which is charged with deciding upon the appointment and promotion of police officers, should take to inform itself about officers recommended for promotion who have been involved in fatal incidents before making its decisions. In particular, is there a duty to ensure that allegations of extra-judicial killings against such an officer are fully and independently investigated before accepting a recommendation that he be promoted?

Jamaicans for Justice (“JJ”) is anon-governmental, non-partisan human rights organisation. It challenged the PSC on the promotion of police officer Superintendent Hewitt under the grounds that there were complaints of unprofessional conduct against Superintendent Hewitt, including complaints of fatal shootings by officers under his command.

The purpose of setting up the (Police Service Commission) PSC, along with the other public service commissions provided for in the Constitution, is to insulate the Jamaica Constabulary Force (JCF) (and other public office holders) from political influence (Thomas v Attorney General of Trinidad and Tobago [1982] AC 113). [This is directly applicable to Trinidad and Tobago as well.]

The PC (called “the Board”) in the judgment noted the following:

• It is clear to this Board that the PSC, like the JCF… and other organs of the State, must exercise its functions in a manner which is compatible with the fundamental rights of all persons, including the right to life, the right to equality before the law and the right to due process of law.

• The Board is also disposed to accept that the right to equality before the law, like the right to the equal protection of the law, affords every person protection against irrationality, unreasonableness, fundamental unfairness or the arbitrary exercise of power. These are, in any event, fundamental common law principles governing the exercise of public functions. As there is nothing in the statutory framework governing the PSC to contradict them, they are applicable in this case irrespective of whether or not they have the status of a constitutional right.

• While the level of serious violent crime in some parts of Jamaica was a grave concern, there was also a grave concern, both nationally and internationally, that the police, or some members of the JCF, were overly inclined to take the law into their own hands in dealing with it, thus risking violations of the right to life, to due process of the law and to equality before the law of the people involved. Superintendent Hewitt was involved, as team leader, in a large number of fatal incidents. No independent investigation of these incidents had taken place. Such an investigation might reveal a different picture from the very summary table of incidents with which the PSC had been provided. It would serve to put the statements of the Commissioner, and of Superintendent Hewitt himself, as to his effectiveness in fighting crime, into context. The final decision would still be that of the PSC, but there was a reasonable prospect that a properly informed PSC might have made a different decision.”

The Privy Council found in favour of Jamaicans for Justice. In other words, there is a duty to fully and independently investigate a police officer whose behaviour has been questionable in the line of duty, before deciding to promote him.

Now apply that principle to the Trinidad and Tobago Police Service (“TTPS”), the Police Complaints Authority, and Gary ‘one-shot, one kill’ Griffith. And to the President denying access to information regarding the (secretive) selection of judges – where is the transparency? Can the public be really certain that the persons so selected do not have cause for investigations into their backgrounds? Lack of transparency led to inappropriate appointments to the Integrity Commission, Police Service Commission, the Judicial and Legal Services Commission, the Judiciary… And I can go on and on…

It takes the Privy Council to direct officeholders into following what ought to be common sense.