Philip LaCorbiniere or Ausbert Regis?

Soon after a public announcement two years ago that the island’s police commissioner had been transferred to another Grade 20 public service position, Ausbert Regis sued his employers on the following grounds: the transfer was illegal; it contravened the basic principles of fairness; it was premised on a Cabinet decision, and therefore was unlawful.
More to the point: “The Public Service Commission failed to properly exercise its discretion, fettered its discretion by considering the decision of Cabinet, took irrelevant considerations into account, and acted under the dictates of Cabinet.”
The suit also alleged that the PSC had failed to act “independently and in accordance with the provisions with the rule of law,” and had purported to transfer Regis from the office of police commissioner “knowing there is no equivalent post to which the claimant could in any event be lawfully transferred.”
At issue were the following considerations:
1) Does the Constitution authorize the transfer of a police commissioner to another public service position of similar grade? 2) Did the claimant have “a right to be heard before the PSC and 3) did the government fulfill its obligation by producing “sufficient evidence that the decision to transfer the claimant from Commissioner of Police to Director of Special Initiatives was based on grounds of national security?”
The government provided the court with statistics indicating that during the period January to June 2010 “all types of crime in Saint Lucia were on the increase.” Over the May 22 weekend there had been four homicides, resulting in a public outcry.   Subsequently, “a committee of permanent secretaries” had advised the government that “while only the homicides seemed to grab media headlines, all types of crime had increased, causing increased fear among the population.”
Several recommendations were made, including the installation of security lighting and cameras at appropriate locations, and “an overarching strategic policy under the leadership of the prime minister.”
The committee expressed concern about the deficiencies the police faced in the “area of a reliable communications system,” requested that the government allocate resources to a fingerprinting system, as well as a “re-allocation of vehicles since there had not been a new fleet since 2006.”
A May 4, 2010 home affairs memo to Cabinet requested the creation of a second deputy commissioner at Grade 19, so that here would then be two deputies with responsibility for Operations and for Corporate Services and Administration. Cabinet had decided on the abolition of one post of assistant commissioner of police, Grade 18, and “the creation and activation of one post of deputy commissioner of police, Grade 19.”
In the prime minister’s absence, on May 24 the acting prime minister convened “an urgent meeting” with the home affairs minister, the commissioner of police and other personnel. The following day the prime minister convened his own conference at his official residence. Also on hand were the home affairs minister with his permanent secretary, the Cabinet secretary, the police commissioner, ACP Vernon Francois, ACP Moses Charles, acting ACP Pancras Albert, and the director of finance.
At a “special meeting” the following day the committee of permanent secretaries’ memorandum and a brief dated March 18, 2010 were laid for the second time before Cabinet. It was agreed “within the structure of the prime minister’s office” to create and activate the post of Director Special Initiatives at Grade 20, with immediate effect, and to abolish one post of program manager at Grade 19 with effect from 1 July 2010.”
Among other decisions: Mr. Ausbert Regis, the commissioner of police, would be transferred to the post of Director of Special Services (Grade 20) in the office of the prime minister with effect from March 27, 2010 . . . The assistant commissioner of police Vernon Francois would be appointed acting police commissioner (Grade 20), with effect from May 27, 2010 to November 27, 2010.
Observed Justice Wilkinson in her written judgment: “Based on the job description presented by the Ministry of Public Services & Human Resource Development for the position of Director of Special Initiatives, the Public Service Commission designated the post as being that of ‘an office of a chief professional advisor pursuant to Section 87 of the Saint Lucia Constitution. The PSC agreed to tender advice to Her Excellency the governor general with respect to the transfer of Mr. Ausbert Regis . . . to the post of Director of Special Initiatives with effect from May 27, 2010.’ “
Still in the month of May the PSC informed the prime minister of its transfer recommendation. The prime minister expressed no objection to the “appointment/transfer,” therefore the PSC advised the governor general of the prime minister’s and its own support of her approval of the appointment/transfer. The governor general later informed Regis of the situation, in accordance with Section 87 of the Constitution. Her letter, dated 28 May 2010, was delivered to Regis’s home address.
Still another letter dated May 30, 2010 from the PSC advised the governor general that the PSC was in favor of her approval of Regis’ transfer, that the prime minister had been consulted, and that he had no related objection. The letter superseded that of May 28. The prime minister addressed the nation on the transfer that day.
At a follow-up press briefing the home affairs minister confirmed the prime minister’s decision to review and make changes in the police force in the interests of an enhanced services . . . The home affairs minister also confirmed the prime minister’s earlier admission that “Cabinet decided on the restructuring, including new management for the police force . . . to get improvement in its performance.” He added that the structure was on “a trial basis for six months.”
Under cross-examination Ausbert Regis “agreed there had been a spate of crimes at the beginning of 2010,” that a meeting had dealt with the need to prioritize resources, and that the abatement of crime and national security ought to be afforded the highest priority by the government. While he also agreed the prime minister’s office might have a role to play in combating crime, and that it was not solely the province of the police, Regis did not agree that a ministerial task force was the best weapon against crime. He had also expressed the view that there was need to cut the political divide in addressing crime.
Citing particular provisions of the Constitution, the judge supported the claimant’s position that he had a right to proceed before the court in the manner that he had. As for the PSC, the Constitution provided that in the exercise of its function the commission “shall not be subject to the direction or control of any other person or authority.” The provisions did not apply in relation to the office of chief elections officer; the office of the DPP, the director of audit.
A major consideration for the court was “whether the PSC acted independently as it is duty-bound to do, or whether it was influenced, as alleged, by the prime minister or the Cabinet. As the court understands the authorities,” said the judge, “the principle is that the PSC is entitled to take advice. Even if someone tells the PSC who to transfer or to appoint, the PSC at the end of the day must exercise its own initiative.”
The judge further cited the laws governing the appointment and removal of the commissioner of police.                 According to Section 94 (1): “The power to appoint a person to hold or act in the office of commissioner of police and, subject to the provisions of Section 96, the power to remove the commissioner, shall vest in the governor general acting in accordance with the advice of the Public Service Commission— provided that before the commission tenders advice to the governor general with respect to any person to hold the office of commissioner, the commission shall consult with the prime minister and if the prime minister signifies his objection to the appointment . . . the commission shall not advise the governor general to appoint that person.”
The judge noted that certain public officers can be removed only for their demonstrated “inability to exercise their functions in office or misbehavior.” It was also “noteworthy that for such officers there is a fixed retirement age.” But no such features were attached to the appointment or removal of the commissioner of police.
Regis had also insisted, “having regard to all the circumstances,” that he ought to have been given an opportunity to be heard before the PSC. After citing various precedents, Justice Wilkinson considered the defense claim that “due to issues of national security arising they had to act with urgency and this did not permit the giving of the claimant a hearing before he was appointed DSI.”
The plea of national security was not novel, the judge pointed out. Besides, “when the defense of national security is put up it cannot be a mere bald statement without more; there must be evidence before the court to support it . . . The decision to create the post of DSI seems to have come from nowhere. Up until May 25, 2010, the day before the Special Cabinet meeting, it was not
under discussion by any of the permanent secretaries, and it was not a recommendation at the meetings chaired by either the prime minister himself or the acting prime minister immediately after that fateful weekend . . . There was nothing particularly illuminating in the Cabinet minutes or the minutes of the PSC . . . to suggest the claimant himself was in some way a threat to national security or that he failed to appreciate that rising crime was a threat to Saint Lucia and national security. It all therefore seems contrary to say he [the commissioner] is part of the hub dealing with national security but at the same time, for reasons of national security, we did not give him a hearing before transferring him from commissioner of police to DSI. These days connection is a single phone call or e-mail away.”
As for the defense’s claim that it needed to act with urgency to avert “imminent crisis,” the judge noted that “nothing of this nature was laid before the court and the evidence is that the claimant had not up to the date of trial, some seven months after his appointment, taken up the post of DSI. The court was not informed of any alternative urgent measures taken to cover his absence from the post of DSI. The court is not convinced that the threshold to demonstrate national security or the urgency of the situation has been achieved . . . There was nothing before the court that led to the belief that there were any complaints by anyone about the claimant’s performance as commissioner of police. For these reasons, the court finds the defendant has failed in its defense of national security and that the claimant ought to have been given a hearing before the PSC.”
The court also found that it was quite in order to remove the claimant from the post of commissioner police. Moreover, it was “difficult for the claimant to assert that the PSC was influenced by the Cabinet to make the decision that it did to remove him as commissioner.”
Finally the court declared the decision to transfer and appoint the claimant as Director of Special Initiatives null and void. 2) The claimant was entitled to, and continued to be, the commissioner of police, entitled to all emoluments, perquisites, styles and titles attached to his office. 3) Costs to the claimant to be agreed or application made for an order of the court.
I have been reliably informed that the court also awarded $40,000 damages to Ausbert Regis, whose legal representative on the occasion was the singular Anthony Astaphan S.C.
Trinidad & Tobago’s Reginald Armour appeared for the attorney general’s office.
It turns out that Regis never returned to his regular office at Bridge Street, Castries, despite the court decision. There has been no official explanation for his apparent change of attitude regarding the job of police commissioner—if indeed he had any say concerning his return. The government recently announced, with scant details, his transfer to the recently created new position of Special Advisor on Security in the office of the prime minister, not to be confused with Philip LaCorbiniere’s long established security portfolio.
By all accounts Regis has not actually started work—at any rate, from an office at Government Buildings.
Meanwhile Vernon Francois’ immediate future remains cloudy. Whether his already thrice-extended six-months stint as acting police commissioner will be further lengthened is unclear. As if further to muddy the waters, there is the related issue of the U.S. Embassy’s revocation of a visa issued a controversial senior member of the force. While the acting police commissioner has publicly acknowledged the revocation—which he suggested was a possible blot on the department’s image—the officer at the center of the controversy has not been officially identified. Neither the precise reasons for the embassy’s action, which is not to say the general public has not been speculating on all counts.
More on this unfolding security-related drama next week!

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