Ausbert Regis, Commissioner of Police Claimant v Attorney General of Saint Lucia Defendant [ECSC]

• Jurisdiction: St Lucia
• Judge: WILKINSON J.,Rosalyn E. Wilkinson
• Judgment Date: 21 November 2011
• Judgment citation (vLex): [2011] ECSC J1121-3
• Court: High Court (Saint Lucia)
• Docket Number: CLAIM NO. SLUHCV 2010/0497
• Date: 21 November 2011

[2011] ECSC J1121-3

IN THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(CIVIL)

CLAIM NO. SLUHCV 2010/0497

Between:

Ausbert Regis, Commissioner of Police

Claimant

and

Attorney General of Saint Lucia

Defendant

WILKINSON J.

1 The Claimant filed an originating motion on June 10^th 2010, pursuant to section 105 of the Constitution1 and therein sought the following relief:

• 1. A declaration that the Cabinet of Saint Lucia has no authority to decide to recommend or decide that the Claimant should be transferred or removed from the office of Commissioner of Police of the State of Saint Lucia and therefore the decision of Cabinet is unlawful.

• 2. A declaration that the decision of the Cabinet of Saint Lucia is arbitrary, oppressive and manifestly unlawful and usurps the functions and powers of the Public Service Commission conferred by Section 94 of the Constitution.

• 3. An order that the purported transfer of the Claimant from the office of Commissioner of Police by Her Excellency, the Governor-General purportedly on the advice of the Public Service Commission is unlawful in that:

  • i. There can be no proper or lawful transfer of a Commissioner of Police to some other post in the Office of Prime Minister.

  • ii. The purported transfer contravenes provisions of Section 94 of the Constitution and the basic principles of fairness.

  • iii. The decision was premised solely or substantially on a decision of the Cabinet.

  • iv. The purported transfer is in substance and effect an unlawful removal contrary to the provisions of Section 94 of the Constitution.

• 4. A declaration that the purported recommendation of the Public Service Commission to Her Excellency, the Governor-General is null and void in that:

  • i. The Public Service Commission failed to properly exercise its discretion, fettered its discretion by considering the decision of Cabinet and/or took irrelevant considerations into account.

  • ii. The Public Service Commission acted under the dictates of the Cabinet;

  • iii. The Public Service Commission failed to act in accordance with basic principles of fairness;

  • iv. The Public Service Commission failed to act independently and impartially and in accordance with the provisions of the Constitution and the rule of law;

  • v. The Public Service Commission purported to transfer the Claimant from the Office of Commissioner of Police well knowing there is no equivalent post to which the Claimant could in any event be lawfully transferred.

  • vi. The purported transfer is in substance and effect an unlawful removal.

• 5. A declaration that the purported decision and recommendation of the Public Service Commission are arbitrary, oppressive and manifestly unfair.

• 6. An order that the Claimant has been unlawfully and unjustifiably deprived of the constitutional protection and security of tenure granted him by the Constitution and Laws of Saint Lucia.

• 7. An order or declaration that the Public Service Commission acted unreasonably and/or fettered its discretion and/ or failed to exercise its discretion in accordance with the law and, as a result the advice or recommendation given to the Governor-General is unlawful and null and void.

• 8. An order that the Claimant continues to be Commissioner of Police and is entitled to all emoluments, perquisites, styles and titles attaching to the office of Commissioner of Police.

• 9. Damages on the footing of aggravated damages.

• 10. Such further or other relief as the Honourable Court may deem fit.

• 11. Costs.

Issues

• 1. Whether pursuant to section 94 of the Constitution the power to remove a Commissioner of Police (hereinafter the "COP") includes the power to transfer him to some other position within the Public Service at the identical grade, grade 20.

• 2. If it were possible to remove by transfer the Claimant to some other position within the Public Service, whether he had a right to be heard before the Public Service Commission (hereinafter "the PSC").

• 3. Whether the Defendant has fulfilled its obligation by the production of sufficient evidence to show that the decision to transfer the Claimant from COP to Director of Special Initiatives (hereinafter "DSI") was based on grounds of national security and as such the Claimant was not entitled to be heard.

Issues

The evidence

2 According to a report compiled by the Ministry of Home Affairs and National Security the statistics on crime for the period January 2010 to June 2010, show all types of crimes were on the increase at Saint Lucia. At the weekend of May 22^nd2010, there were four (4) homicides. Following the spate of homicides, there was according to the witnesses public outcry at the state of crime at Saint Lucia.

3 From the uncontested evidence of the four (4) witnesses, a useful chronology of some factual events at 2010 is made and follows:

• • Wednesday March 10^th 2010 — Committee of Permanent Secretaries meeting to which the Claimant was invited, he attended and he made recommendations on matters necessary to curb the rise of crime at Saint Lucia and these recommendations were included in the Committee's brief.

• • Thursday March 18^th 2010 — Committee of Permanent Secretaries sent a brief on crime to the Prime Minister. The Minister to Home Affairs and National Security subsequently laid the brief before Cabinet on May 6^th 2010. The brief was titled "National Security Issues". It stated that while only the homicides seem to grab media headlines that all types of crimes had increased causing fear in the population. It was causing social, economic and other negative consequences such as a negative impact on tourism. The Committee asked for national security issues to be accorded the highest priority by Government. There were requests for such matters as a review of processes and procedures to assess vulnerability and risk exposure, for resources to be made available to take such initiatives as the installation of cctv and alarm systems, an audit be undertaken of the Ministries as to their own arrangements either with private security firms or through direct employment of personnel as some had no security, introduction of a command structure similar to that at Barbados, review of the accessibility to certain Government buildings, installation of security lighting and cameras at appropriate locations, and for there to be an overarching strategic policy under the leadership of the Prime Minister. The brief also called for preparation of a national plan, cooperation between all Government ministries and agencies because a factor had been the administrative boundaries that exist between them, and recognition that there was an interdependence of policies and so forth. The Committee expressed concern about the deficiencies faced by the Police Force in the area of a reliable communication system, requested resources to be allocated for a fingerprinting system and asked for the reallocation of vehicles for the Police, as there had been no new fleet since 2006.

• • Tuesday May 4^th 2010 — Memo to Cabinet from the Minister in the Ministry of Home Affairs and National Security requesting the creation of a 2^nd Deputy Commissioner of Police (hereinafter "DCOP") grade 19 position, so there would be two (2) DCOPs — one (1) with responsibility for operations and one (1) with responsibility for corporate services/administration.

• • Thursday May 6^th 2010 — Cabinet meeting was held and passed conclusion 382 of 2010. It read:

  "382. REQUEST FOR CREATION OF THE POST OF DEPUTY COMMISSIONER OF POLICE WITHIN THE ROYAL SAINT LUCIA POLICE FORCE

  Cabinet considered a Memorandum dated 04^th May 2010 submitted by the Ministry of Home Affairs and National Security and approved the following within the organization structure of the Royal Saint Lucia Police Force, Ministry of Home Affairs and National Security:

  • 1. The abolition of one post of Assistant Commissioner of Police, Grade 18; and

  • 2. The creation and activation of one post of Deputy Commissioner of Police, Grade 19."

• • Friday May 7^th— Friday 21^st May 2010 — No events.

• • Saturday May 22^nd— Sunday 23^rd May 2010 — four (4) homicides occurred over this weekend.

• • Sunday May 23^rd 2010 — The Prime Minister is absent from the State and the acting Prime Minister is the Minister for the Public Service and Human Resource Development, Social Transformation, Youth and Sports.

• • Monday May 24^th 2010 — The Acting Prime Minister convened an urgent meeting with the Minister of Home Affairs and National Security, the Claimant as COP, and other persons.

• • Tuesday May 25^th 2010 — The Prime Minister convened a meeting at his official residence. Present were the Prime Minister, Minister and Permanent Secretary of the Ministry of Home Affairs and National Security, the Cabinet Secretary, the Claimant, ACP Francois, ACP Charles, ACP Albert (Ag.), the Director of Finance and others.

• • Wednesday May 26^th 2010 — Special Cabinet Meeting convened — Committee of Permanent Secretaries memorandum and brief dated 18^th March 2010 laid before Cabinet again, (it was before Cabinet on May 6^th 2010). Certain Conclusions 204 and 205 were made. Cabinet conclusion 204 states that the Cabinet considered a submission and agreed to the following within the structure of the Prime Minister's Office:

  "204. CREATION AND ABOLITION OF POST

  Cabinet considered a submission and agreed to the following within the structure of the Office of the Prime Minister.

  • 1. The creation and activation of the post of Director, Special Initiatives at Grade 20, with immediate effect; and

  • 2. The abolition of one (1) post of Programme Manager at Grade 19, with effect from 01^st July 2010.

  205MINISTERIAL TASKFORCE ON CRIME

  Cabinet approved the following:

  • 1. The creation of a Ministerial Taskforce on crime and security comprising the following:

    • a) Prime Minister (Chairman)

    • b)Minister for Social Transformation

    • c)Minister for Home Affairs and...