Prominent Queen’s Counsel and former attorney general Karl Hudson-Phillips has hinted at possible legal action challenging the validity of the Police Service Commission (PSC), if Parliament confirms President Anthony Carmona’s nomination of former independent senator James Armstrong and Roamar Achat-Saney to the Commission.
The PSC nominations have been tabled before the House of Representatives and are scheduled to be considered soon. If approved by way of affirmative resolution it would result in Armstrong and Achat-Saney becoming members of the Commission, which is responsible for appointments, dismissals, promotions and appraisals of the top hierarchy of the Police Service.
In a letter to Attorney General Anand Ramlogan dated September 26, 2013, Hudson-Phillips said he was instructed by his client, Reginald Dumas (former head of the Public Service and diplomat) to convey his “serious concerns and reservations as a citizen that the nominations by His Excellency of Dr James Kenneth Armstrong and Mrs Roamar Achat-Saney do not comply with the letter and spirit of the requirements of Section 122 (3) of the Constitution”.
The President, after consultation with the Prime Minister and the Opposition Leader, is required to nominate to the PSC persons who are both qualified and experienced in one of the disciplines of law, finance, sociology and management.
Hudson-Phillips stressed that a proper reading of the relevant provisions (of Section 122) indicates that nominees must be in a position to show that they are both qualified and experienced in one of the prescribed discrete disciplines (of law, finance, sociology or management).
He added that qualification alone in a particular discipline will not be sufficient unless it is reinforced by experience. In addition, experience in one of the disciplines without being qualified in it will not satisfy the requirement, Hudson-Phillips stated.
“I am instructed that the curricula vitae of both Dr James Armstrong and Mrs Roamar Achat-Saney demonstrate that they do not satisfy the requirement of Section 122 (3) of the Constitution and are therefore not eligible for appointment as members of the Police Service Commission,” Hudson-Phillip stated.
He noted that the curriculum vitae forwarded with his nomination by the President shows that Dr Armstrong is a development planner, highly qualified in urban and regional planning, environmental design and architectural/int-Design.
“However, there does not appear to be any evidence that the impressive scholastic record of Dr Armstrong includes his being qualified and experienced in either of the required disciplines of law, finance, sociology or management,” Hudson-Phillips stated.
He said the same can be said of Mrs Achat-Saney who for many years until 2011 was “a distinguished principal of the Fyzabad Secondary School”.
She obtained the Legal Education Certificate on September 7, 2012 and was called to the Bar on November 15, 2012, “less than one year ago”. “Practice of the law for less than one year cannot, on the most generous assessments, be described as her being experienced in the law,” the Queen’s Counsel stated.
“I am therefore instructed by my client that the nominations of Dr James Kenneth Armstrong and Mrs Roamar Achat-Saney were made per incuriam by His Excellency the President,” Hudson-Phillips stated. (Per incuriam literally means “ through lack of care” and is used to refer to a judgment of a court which has been decided without reference to a statutory provision).
“Should these nominations be approved by affirmative resolution of the House of Representatives, my client will take such steps as he may be advised to ensure compliance with Section 122 (3) of the Constitution of the Republic of Trinidad and Tobago,” he added.
Attorney General Ramlogan yesterday confirmed he had received the letter from Hudson-Phillips on behalf of Dumas. “I have written to his Excellency on the matter. But I do not think it appropriate to say anything further,” he said, declining to answer questions on whether the Commission would be properly constituted if the nominations are confirmed.
The Government which has the majority in the House of Representatives has a critical role in determining whether the nominations are confirmed or not.
Sources said the President’s position is that one can have experience without certification and that this experience can render a person sufficiently able to meet the requirements of the law. This, notwithstanding the fact that the universally accepted objective criteria for assessing whether someone is an expert are usually a combination of qualification and experience, a principle which was applied by the President when he appointed an “energy expert” and a “financial expert” on the Independent bench in September.
The President forwarded four nominations to the House of Representatives for consideration. The other persons nominated are attorneys Martin George and Addison Khan, whose term of office expired on July 2013 (along with former members Kenneth Parker and Deborah Cheeseman).
Armstrong and Achat-Saney are meant to replace Parker and Cheeseman. Chairman Ramesh Deosaran’s term has not yet expired.
Section 122 (3) reads as follows:
The President shall, after consultation with the Prime Minister and Leader of the Opposition nominate persons, who are qualified and experienced in the disciplines of law, finance, sociology or management, to be appointed as members of the Police Service Commission.