Sears Address to Parliament on the Police Act 2009

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comonHOUSE OF ASSEMBLY
DEBATE ON POLICE FORCE ACT 2009
4TH FEBRUARY 1009

ALFRED M. SEARS
MEMBER OF PARLIAMENT

Mr. Speaker, in March 2007 this Honourable House of Assembly unanimously passed the Police Service Act, 2007, after exhaustive consultation with the Police Force and civil society. The Police Service Act was assented to by the Governor General on the 3rd April 2007. That Act presented the Police Force as a more responsive, transparent, accountable and efficient to meet the challenges of local and transnational crime in The Bahamas. It required the Commissioner to present an annual Policing Plan and an Annual Report which was presented to this Honourable Parliament. That Act also provided for the civilianization of the Force; pensions of police officers, who die in the course of their duties, would go to their surviving dependents; prohibited deductions from the salary of injured officers; amongst other benefits.

With the change of Government in May 2007, the Cabinet only had to authorize the Minister of National Security to sign this Act for the law to come into effect. That, of course, was never done.
The Bill before us today incorporates, with few exceptions, the provisions of the Police Service Act. I therefore agree with about 95% of the instant Bill. However, I believe that the removal of the security of the tenure of the Commissioner of Police contained in Section 7 (2), is fatal to the constitutionality of the Bill.
Section 7 (2) of the Bill provides that:

“The person who is appointed as Commissioner of Police or Deputy Commissioner of Police shall occupy such office for a period of five years from the date of his appointment or such shorter period as determined by the Governor-General acting on the recommendation of the Prime Minister after consultation of the Leader of the Opposition.”

The importance of an independent and impartial Commissioner of Police in a democratic society was long recognized by the common law. Lord Denning, writing for the English Court of Appeal in the case R. v. Metropolitan Police Commissioner, Exparte Blackburn (1968) 1 All E.R. 763, defined the independence and impartiality of the Commissioner of Police, at common law, in the following terms:

“The office of Commissioner of Police within the metropolis dates back to 1829 when Sir Robert Peel introduced his disciplined Force. The Commissioner was a justice of the peace specially appointed to administer the police force in the metropolis. His constitutional status has never been defined either by statute or by the courts . . . I have no hesitation, however, in holding that, like every constable in the land, he should be, and is, independent of the executive. He is not subject to the orders of the Secretary of State, save that under the police Act 1964 the Secretary of State can call on him to give a report, or to retire in the interest of efficiency. I hold it to be the duty of the Commissioner of police, as it is of every chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and that honest citizens may go about their affairs in peace. He must decide whether or not suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought; but in all these things he is not the servant of anyone, save of the law itself. No Minister of the Crown can tell him that he must; or must not, keep observation on this place or that; or that he must, or must not prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone.”

In 1999 the Supreme Court of Canada in the case R. v. Campbell (1999) 1 S.C.R. 565 found that the Royal Canadian Mounted Police, in matters of law enforcement, are their own masters when they perform in “quasi-judicial” matters such as inquiries with regard to suspected offences, the arrest of persons, and the decision to prosecute. Justice Binnie held that;
“While for certain purposed the Commissioner of the RCMP report to the Solicitor General, the Commissioner is not to be considered a servant or agent of the government while engage in a criminal investigation. The Commissioner is not subject to political direction. Like every other police officer similarly engaged, he is answerable to the law and, no doubt, to his conscience.”

When The Bahamas became independent in 1973, this common law principle of independence and impartiality of the office of Commissioner of Police was given constitutional protection to ensure that the Commissioner of Police in an independent Bahamas is independent of the Executive and to maintain public confidence in the Commissioner carrying out “quasi-judicial” functions of law enforcement. Article 119 of the Constitution of The Bahamas provides that;
“Power to make appointment to the offices of Commissioner of Police and Deputy Commissioner of Police shall be vested in the Governor-General acting on the recommendation of the Prime Minister after consultation with the Leader of the Opposition.”

The Constitution also makes provision for the removal of the Commissioner and Deputy Commissioner of Police, in Article 120, in the following manner:

(1) “The Commissioner of Police and Deputy
Commissioner of Police may be removed from office by the Governor-General but shall not be removed except in accordance with the provisions of paragraph (2) of the Article.

(2) The Commissioner of Police of Deputy Commission of Police shall be removed from office by the Governor-General if the question of his removal from office has been referred to a tribunal appointed under paragraph (3) of this Article and the tribunal has recommended to the Governor-General that he ought to be removed form office.
(3) If the Prime Minister represents to the Governor-General that the question of removing the Commission of Police or Deputy Commissioner of Police from office ought to be investigated, then-

(a) the Governor-General acting in accordance with the advice of the Prime Minister shall suspend the Commission of Police or Deputy Commissioner of Police from performing the functions of his office, as the case may be;
(b) the Governor-General shall appoint a tribunal, which shall consist of a chairman and not less than two other members, selected by the Governor-General, acting in accordance with the advice of the Judicial and Legal Service Commission, from among persons who hold or have held or are eligible to hold high judicial office; and
(c) the tribunal shall enquire into the matter and report on the facts thereof to the Governor-General whether the Commissioner of Police or Deputy Commissioner of Police ought to be removed from office.

(4) If the question of removing the Commissioner of Police or Deputy Commissioner of Police from office has been referred to a tribunal under paragraph (3) of this Article, the Governor-General shall revoke any such suspension if the tribunal recommends to the Governor-General that the Commissioner of Police or Deputy Commissioner of Police should not be removed from office.”

Clearly, the Framers of our Constitution (Sir Lynden Pindling, Sir Orville Turnquest, Sir Kendal Issacs, Sir Cecil Wallace Whitfield, Sir Clement Maynard and Messrs. Arthur Deon Hanna, Norman Solomon, Loftus Roker, Garnet Lavarity) intended, through this elaborate process of removing the Commissioner or Deputy Commissioner of Police, to give the Commissioner of Police and the Deputy Commissioner of Police security of tenure and to protect the independence and impartiality of these offices from interference by the Executive.
Therefore, they should only be removed for cause, in accordance the constitutional process. However, in spite of these elaborate safeguards, the current Prime Minister has the dubious distinction of having succeeded in removing two Police Commissioners consecutively from office before they had reached the mandatory retirement age.
The Framers of our Constitution also entrenched, in Article 54 (2), the provisions dealing with the appointment and removal of the Commissioner and Deputy Commissioner of Police. To change these provisions, the Bill must be supported by two-thirds of the House of Assembly and the Senate and passed by the majority of the voters in a referendum.
Therefore, the Commissioner of Police is an independent constitutional officer acting with original, not Ministerially delegated, authority in respect of law enforcement decisions.
The Commissioner cannot lawfully be made subject to ministerial directions in this regard and is bound only by the duty to act lawfully himself in exercising his powers.
The Commissioner may not be subject to binding policy directions in respect of the enforcement of the criminal law in any particular are or type of offending. It is entirely a matter for the Commissioner to direct a law enforcement strategy in respect of types or places of crime.
It is not open to the Commissioner to refuse to enforce the criminal law in any aspect, but the Commissioner has a wide discretion on the chosen manner of enforcement in a particular instance.
The Constitutional position of the Minister of National Security in relation to the Commissioner is that the Minister may not direct the Commissioner in the Commissioner’s duty to enforce the criminal law either in particular cases or classes of case. The Minister may, however, impose binding requirements in respect of matters of administration not directly affecting the Commissioner’s duty to enforce the criminal law, such as imposing staff ceilings, approving spending proposals in non law enforcement areas.
Shami Chakrabarti, in the Police Foundation John Harris Memorial Lecture in England in 2008 entitled “A Thinning Blue Line? Police Independence Independence and the Rule of Law, described democracy as a machinery, with both fixed and moving parts. The moving parts are the Legislative and Executive branches of government which move and change with the public will through elections. On the other hand, the fixed parts are the Judiciary, the Police and the Public Commissions which uphold the enduring values of the rule of law which cannot be changed without compromising the Constitution.
For democracy to flourish, there must to be groups of independent professionals who are duty bound to enforce the rule of law, in a non-partisan manner and free from interference by the Executive.
That is why the Framers of our Constitution positioned the Police Commissioner under the will of the law rather than under the will of the Executive. The Police, like Judges, must serve and protect unpopular minorities and even those charged with heinous crimes, in an environment where political parties vie with each other to protect themselves as the toughest on crime and the public makes impatient demands for a quick fixes to complex social problems.
The Privy Council in the case Thomas v. Attorney General of Trinidad and Tobago (1982) AC 113,124, held that the Police Service Commission, like the Commissioner and Deputy Commissioner of Police, should also be free from executive interference in the in removal and discipline police officers below the rank of Assistant Commissioners of Police. Lord Diplock held that:
“The whole purpose of Chapter VIII of the Constitution which bears the rubric ‘The Public Service’ is to insulate members of the civil service, the teaching service and the police in Trinidad and Tobago from political influence exercised upon them directly by the government of the day. The means adopted for doing this was to vest in autonomous commissions, to the exclusion of any other person or authority, power to make appointments to the relevant service, promotions and transfers within the service and power to remove and exercise disciplinary control over members of the service. These autonomous commissions although public authorities, are excluded by section 105(4)© from forming part of the service of the Crown. Subject to the approval of the Prime Minister they may delegate their powers to any of their members or to a person holding some public office (limited in the case of the Police Service Commission to an officer of the police force); but the right to delegate, although its exercise requires the approval of the Prime Minister, is theirs alone and any power to delegate is exercised under the control of the commission and not on behalf of the Crown or of any other person or authority.”

This principle of Separation of Powers, I submit Mr. Speaker, applicable also to the Commissioner of Police, will be breached if we were to remove the security of tenure of the Commissioner and Deputy Commissioner of Police, as contemplated by this Bill.
Why would the Government want to place the Commissioner of Police in a position where he needs to look to the Government of the day to extend his contract for another term? Why should the Commissioner of Police have to “sing for his supper” to Hubert Ingraham and Perry Christie, as Prime Minister and Leader of the Opposition respectively, in order to get an extension of his contract?
If I were ever to serve as Prime Minister of The Bahamas, I would want there to be a Commissioner of Police who would have the independence to investigate, arrest and prosecute me if I violated the criminal laws of this country. I would want there to be a Commissioner of Police who does not consider himself above the law or who immunizes his relatives from criminal prosecution when they commit criminal offences. I would want a Commissioner of Police who does not see P.L.P. or F.N.M. when carrying out his law enforcement duties, showing neither favouritism to any person nor should he become the victim of any partisan interest.
In recent times we have seen Ministers participating in law enforcement field operations, wearing bullet proof vests and engaging in sting operations. We have also seen senior Police Officers engaging in making public statements on matters of contested opinion rather than hard fact.
The warning of Shami Chakrabarti to Britian is relevant here: “Beware of the real dangers of continued constitutional cross-dressing … Those with guns and uniforms stay out of politics and politicians refrain from interfering with the operation and enforcement of the law.”
Now the Government wants this Honourable House of Assembly to amend the Constitution, by ordinary legislation, to remove this security of tenure attached to the office of Commissioner of Police and Deputy Commissioner of Police.
The Minister of National Security justified the proposed removal of constitutional security of tenure of the Commissioner and Deputy Commissioner of Police by saying that it is intended to boost the morale of officers in the Police Force and to increase their hopes of one day attaining high office in the force. He is quoted in the The Tribune of the 22nd January 2009 as follows:
“We believe that 10 years is long enough for any person to make a mark as Commissioner, or Deputy. We believe that we ought to keep the possibility of advancement fluid, so that other young persons on the Force can have opportunities.”

I support the call for greater mobility, accountability and fiscal prudence in the Police Force, but it must be done in accordance with the Constitution.
The delicate constitutional balance between an impartial and independent Police Commissioner in matters of law enforcement and the demand for accountability, transparency and fiscal prudence in the use of public funds will be fatally compromised by the removal of security of tenure from the Commissioner and Deputy Commissioner of Police in the manner proposed by the Government.
Mr. Speaker, I believe that Section 7 of the Bill, in purporting to remove the constitutional security of tenure of the Commissioner and Deputy Commissioner of Police, erodes the substance of the right of the Commissioner and Deputy Commissioner of Police not to be removed from office otherwise than provided for by the Constitution.
I therefore call upon the Government to reconsider its position with respect to removing the constitutional security of tenure of the Commissioner and Deputy Commissioner of Police.
After a national consultation, if the consensus is that it is in the national interest of The Bahamas to remove the constitutional security of tenure of he Police Commissioner and the Deputy, then the appropriate process is a formal amendment of the Constitution through two-thirds of both Houses of Parliament and Referendum.
If the Government persists in pursuing this unconstitutional course of action, then Fort Charlotte will have vote against the Bill.

  • Connie

    There is a line concerning the Watergate scandal, “when the president does it, it is not illegal.” The Ingraham administration has been creating new laws and governing on this premise. This Bahamas is under the thumb of a man who seems to believe that because he is PM is can do what it likes, regardless of the constitution, maybe that is why he closed the constitutional reform office because a review and updating of the supreme laws of the Bahamas would hinder him in what he is trying to do. This is not a partisan problem if laws are going to continue to be change in conflict to what the constitution says then this is a national problem and is able FNM/PLP you say and I say.

    The leader of the country is supposed to set the tone for the nation so why are we surprised that people are acting antagonistic towards one other and that people think that they can do as they please as long as they are not caught. I think we have out grown leadership such as Hubert Ingraham can provide and need to now look elsewhere whether that is to the PLP or the real FNM. Mr. Ingraham has somehow outlived his self date and we are paying the price. I heard Mr. Ingraham say the he can make the hard decisions, that is not the only mark of a good leader it does not come close if you make decision that turn out to be dead wrong. George Bush dubbed himself “the decider” and look at the deeep ditch that ran the Americans into.

  • Elcott Coleby

    The Police Act 2009 may be unconstitutional

    Dear Editor
    I refer to Juan McCartney’s article that appeared in the 27th January 2009 edition of the Nassau Guardian under the heading, PM: Criticism of police chief term limit “nonsensical”.

    According to the article, The Prime Minister was apparently questioned about a claim made by the Honorable Member for Fox Hill that “the government’s intention to set a five year term limit may require an amendment to the post”. The PM’s response is as follows:

    “For the same reason why it is possible for me to appoint someone to be commissioner of police (COP) – who I have imposed a retirement age upon and he must go at that age – is the same reason that a term limit wouldn’t be offensive to the constitution”

    What I found interesting about the PM’s answer was that he never referred to the provisions of the constitution to support his argument. Our 1973 Independence Constitution is very clear about the process by which the security of tenure and independence of the COP can be changed. Article 119 outlines the statutory appointment of the Commissioner and Deputy Commissioner of Police, Article 120 outlines discipline, and Article 54 clearly states that changes to these statutory provisions would require a two-thirds majority in both chambers of Parliament and a referendum to the people. In my view, any attempt to circumvent these constitutionally mandated processes must be challenged in a court of law.

    The initial intent of the framers of our supreme law was to free the COP from political interference in the execution of his duties that have serious implications for national security, internal security, and public safety. The quality of social order and the level of civility are determined to a great extent by the ability of the police to administer justice without fear, favor, or interference.

    Another apparent conflict with the constitution is found in section 109 of the Police Act that deals with audits and accounts. This section allows the commissioner to hire an outside accounting firm to audit the accounts of the Police Force. The Auditor General has a statutory mandate to audit any and all government accounts, including the Police Force. The guidelines and enforcement of this mandate are outlined in the Financial Administration and Audit Act and the Financial Regulations of 1975. If the government cannot satisfactorily explain the legality of this provision, then the judiciary will have to.

    I turn my attention to section 60(3) of the act which states that “the commissioner may summarily administer a reprimand or severe reprimand to any police officer for minor misconduct”. This is fair in my estimation, but section 62(d) creates the conflict and controversy. This section states that “provided that if any contracted officer feels himself aggrieved by any conviction or any punishment imposed by an officer other than commissioner, he may appeal within forty-eight hours in writing to the commissioner who shall allow or dismiss the appeal and may vary the punishment”

    The problem with this section is that the commissioner appoints the Internal Disciplinary Tribunal that tries the officer, makes recommendations to commissioner, who enforces discipline on the officer. If the officer disagrees with the punishment, his or her recourse is the very commissioner who imposed the punishment. It appears that the commissioner is the judge, jury, prosecution, and the appellate judge and therein exist the conflict.

    For what it’s worth, the position of Senior Assistant Commissioner of Police falls away when and if this Act comes into force. I don’t know what this means for the head of the Grand Bahama division of the Police Force.

    I reiterate that the Bahamas is a country of laws, not men. If a politician can usurp the authority of the constitution on a whim, then why have a constitution? This bill is half baked, adversarial, and controversial and could create a constitutional crisis if allowed to become law. Lovers of democracy and the prevalence of the rule of law must oppose this bill in its present form. Amen.

    Yours etc.;
    ELCOTT COLEBY