Dear Editor,

I READ Peeping Tom’s article “what a Thing!” (KN Wednesday, August 16). So, he/she wants to be sarcastic, cynical. As I read it, I experienced an irresistible urge to use words not mentionable in your letter column. If the anonymous “Peeping Tom” feels so strongly about this matter of the highest constitutional significance, then let him/her emerge from behind his/her veil of anonymity, write a letter for publication in the letter column, affix his/her name, and no reader would be any wiser as to whether he/she is “Peeping Tom” or not.

Editor, what is particularly nauseating, is that for the “Peeping Tom” types of this country, the safety and security of the present Head of state (President David Granger) is not a matter of the highest NATIONAL SECURITY concern; it is for them, a nuanced “red herring”! How politically banal and myopic can they be? So, for them, the disputatious scope of the PSC’s appointment function takes precedence!

Readers, just stop and think! So, what is his/her argument? What does Peeping Tom know about “legal precedent”? Does this person know about the legal principle of RATIO DECIDENDI as being that aspect of a precedent that is binding? (ie the reasoning that underlies or informs; the principle in the court’s decision)? Did this person stop and thought about whether the “legal precedent” of which he writes raised and concerned issues of NATIONAL SECURITY; and EXECUTIVE PREROGATIVE in the field of national security and so might be easily distinguishable from the present matter. And what does this Police Service Commission, which does not even seem capable of knowing that it has no power/function or jurisdiction to appoint any Deputy Commissioner of Police (article 211) know about unconstitutionality or constitutional illegality! And, if per chance “Peeping Tom” is a lawyer, he/she is invited to read the case of Council of Civil Service Unions (1984) 3 WLR 1174 (HL) before writing his/her next diatribe. Peeping Tom is on a wild fishing expedition when he writes about some “excuse” for the government’s decision. There are so many intelligence based factors on which a policy national security decision could, ex hypothesis, be based. Peeping Tom like the rest of us, is not privy to them!

So, I turn to the main point or thrust of this letter. It is not for the Leader of the Opposition; The Police service Commission; the Peeping Toms, the Christopher Rams, the Ralph Ramkarrans of this country to decide on what are the national security concerns of this government. It is not even for the courts. It is solely and exclusively (both as a matter of constitutional theory, and case law authority) the purview and responsibility of the government-of-the-day. And no amount of dislike or fetish for criticism of this government can change the constitutional and political reality that the government of the day is headed by President Granger.

Those who are responsible for national security matters are recognized by constitutional law as being the sole judges of what that national security requires. That is the government of President Granger. It is the government alone that has responsibility for national policies. The PSC has its limited constitutional function “to appoint” (Recall the “Budget Cut” case 2012 and the limitation on the Assembly’s power “to approve” in Chang, CJ (ag) ruling). No right thinking constitutional lawyer (or even judge) would be bold enough to argue the proposition that that limited power/function is greater than, and outweighs, or overrides the governmental business of national security. And contrary to the popular misconceptions of the Peeping Toms, the words in article 8 of our Constitution Viz the Constitution is the supreme law… “does not only mean a reference to the two hundred and thirty two (232) articles (including article 226 (1) of which so much fuss is made). This constitution” is all those articles plus the doctrines (to the undoubted extent to which they have survived) such as executive prerogatives. Executive prerogatives exist, by sheer implication, just as another classic: the doctrine of separation of powers.

Turning now to the letter. As a legal document, the letter sent by the Honourable Minister of State to the PSC has to be (as all legal documents must be as was done in the analogous local case of Nobrega (1969) GLR 552 (PC)) constructed as to it true purpose and content; and assuming, as one must, that the Minister of State (being himself a lawyer) was well aware of what article 226 (1) means, then on one possible view of that letter, it was intended to be a notice to the PSC that he, the Minister, had been directed by President Granger (as the constitutional alter ego of the government) to notify, by letter, the PSC of the government’s policy decision (as employer) that no police appointments by the PSC be made until further notice; and that the PSC was to be guided accordingly. If that policy works to the disadvantage of some, so be it. That does not make it unconstitutional. There is no constitutional opprobrium taken for the greater good of the President’s security, if coincidentally a few be disadvantaged.

Let Peeping Tom show if he/she could, how this legal letter was incapable of such an interpretation/ construction. Limited autonomy must yield to that greater national policy in the exercise of prerogative. I need not even advert to the non-justiciability of this national security matter. Suffice it to say the PSC should as a matter of sheer commonsense, do the sensible thing: give effect to the government policy decision.

It is futile to argue that because the government cannot direct the PSC as to which individual officer should, or should not be appointed (article 226(1)), that limited constitutional disability means that the government, as employer, cannot have a general policy of an appointment freeze. The point here is (in spite of how some might wish to disavow it; or discredit it as allowing for politicisation in the appointment of police officers) is that the function, or power “to appoint” can become futile because, if ex hypothesi, budgetary considerations compels that there be no further increase in public sector spending, requiring an expenditure-freeze decision by the government, the Service Commissions (including the PSC) could not disregard or ignore the Minister of Finance policy directive in the exercise of executive prerogative to that effect, and go ahead and still make appointments which increases public expenditure. By like reasoning, the PSC’s function of appointment can become futile on national security ground, or reason (which there is no legal duty to disclose to the PSC if in government’s opinion disclosure would be injurious). And it is a matter of some considerable curiosity whether an additional (albeit a secondary) reason for the appointment freeze decision was to prevent the plainly unconstitutional proposed appointment by the PSC of an Assistant Commissioner to the rank of Deputy Commissioner!
Regards
Maxwell E. Edwards
(Former Senior Magistrate)