Astaphan: Cabinet like Judas at Last Supper

It was a three-day clash from January 5 to 9 between two Dominican heavyweight attorneys in St Lucia’s Civil High Court.  Queen’s Counsel Reginald Armour represented the Attorney General’s Chambers while Queen’s Counsel Anthony Astaphan represented Ausbert Regis.  Among those in attendance when the case started were Opposition Leader Kenny Anthony, former vice-chairman of the St Lucia Labour Party Claudius Francis, Attorney General Rudolph Francis and president of the Police Welfare Association, Martin James.

Regis lodged a suit against the Government of St Lucia on June 2, 2010 following a letter dated May 28, 2010 from the Governor General transferring him from the post as Commissioner of Police to a newly created position in the Prime Minister’s Office.

Regis, through his attorneys Astaphan and his juniors Peter Foster and Rene St Rose, challenged the decision by the Governor General Dame Pearlette Louisy and the Public Service Commission.  Additionally, Regis is questioning Cabinet’s role in the situation, alleging Cabinet dictated his transfer.  Astaphan concluded his client was a scapegoat for the crime situation at that time.

Regis was the only witness for the claimant.  Shortly after affirming on the first day of the trial, Regis refuted Prime Minister Stephenson King’s statement to the nation on May 30, 2010.  King had said, “Additional equipment, including vehicles and other facilities to support the work of the police, have also been provided. Generally, expenditure on national security has increased significantly. For this financial year, the proportion of the budget allocated to the Ministry of Home Affairs and National Security has increased to over $90 million on the recurrent side and over $18 million on the capital side, the highest ever over the last 10 years. Moreover, there has been a steady increase in the financial resources allocated to that Ministry since 2006.”

Regis told the court this statement is inaccurate.  According to him, when he served as commissioner, the Royal St Lucia Police Force was not given all the material and resources requested, particularly what he considered fundamental resources such as acquiring an automated fingerprint system, the installment of CCTV cameras in the city, an upgrade of the Force’s wireless communication system, additional vehicles and additional manpower.

In his examination in chief, Regis revealed he submitted a requested for 25 motor vehicles in the April 2010/2011 budget to replace the approximately 40 vehicles that had been decommissioned since 2006, which was the last time the police received a new fleet of vehicles-during the preparations for Cricket World Cup.  In April 2010, the Taiwanese Government presented the RSLPF with five vehicles as a gift.  Regis told the court, to date none of the Force’s requests have been implemented.

In cross examination Regis accepted the statement put to him by Armour that the requests made to augment and strengthen the RSLPF may not have been addressed because the prioritization and allocation of resources to the Force is dependent on the capacity of the relevant ministry and government involved.

Regis attended a meeting with the Committee of Permanent Secretaries on March 10, 2010 to apprise the body of the challenges facing the RSLPF.  Following that meeting, a confidential memorandum to the Prime Minister was issued stating that national security should be afforded the highest priority in the upcoming budget.

Regis agreed 2010 began with a violent spate of homicides within the first two months and many criminal activities went unreported.  He agreed in principle that people lived in fear.  Further, Regis agreed the crime situation at the time did not spring up suddenly and long term measures needed to be subscribed to in order to address the problem.  One of the recommendations coming out of the March 10 meeting was for an overarching strategic group to be implemented for policy direction in national security because there needed to be a strategic approach in dealing with crime.  Regis agreed policy can work if all ministries harness their resources and in doing so, the PM’s Office may play an integral role.  However, Regis told the court the Committee meeting did not deal with a ministerial task force on crime and he does not support such an organization because of the inherent political divide it creates.  Responding to a statement put to him in cross examination, Regis agreed the efficiency of the ministerial task force could benefit from policy guidance by someone of his experience.

Armour submitted the job description of the Director of Special Initiatives with responsibility for security.  This post was one of a chief professional advisor required to advise the prime minister on national security initiatives, facilitate a government wide security service, advise the PM on security points and formulate strategies for government ministries, among other tasks.  Armour ascertained Regis was appointed because he is the best man for the job as he has acquired extensive experience since 1983 when he first joined the Force and into his latter years as Police Commissioner. Regis refuted stating that the position of DSI is a non-functional post.  Armour hit back with “Having not turned up for duty, how do you know it is a non-functional post?”

Said Regis “I held [my statement] true at the time.  It was my assumption at the time.”

Regis was appointed to the DSI post on May 27, 2010 and has to date not showed up for duty.  He disclosed his medical documents as part of the civil case and it was not raised as an issue.  A memorandum from the Ministry of Public Service on June 11, 2010 outlined the Terms and Conditions of DSI.  Regis had not seen this document until after he gave his affidavit on June 14, 2010.  The memo was sent to the PM’s Office.

Said Regis, “I never received the letter.  On the day I was supposed to assume office, I took ill.  I had to be hospitalized.  I was on medication.  I could not amend the affidavit.  I never called the PS to ask about the post because I was on sick leave.  A director in the public service is a Grade 18 position so I assumed my post was a Grade 18.”  Regis accepted his assumptions were flawed because as Commissioner he was at a Grade 20 salary.  DSI also carries a Grade 20 salary.  Armour argued Regis was not demoted but rather laterally transferred.

On August 22, 2010, Peter Foster sent a letter to the Solicitor General Raulston Glasgow requesting information to do with the date of the discussion of Regis’ transfer, participants of that discussion, documents pertaining to the discussion, the authority who made the decision to transfer and the reason for the transfer.

On September 1, 2010 Glasgow responded, a correspondence Regis admitted he never saw. Glasgow gave the date of discussion as May 26, 2010, participants as Cosmos Richardson and Phillip Dalsou, the authority for transfer as the Governor General of St Lucia in accordance with the Public Service Commission and the reason for transfer as the need to address escalating crime, the need to strengthen the RSLPF and the need to equip the PM’s Office with an expert on security.

Asked Armour, “Can you suggest to this court, from the knowledge of competencies of the personnel in the Police Force, someone better qualified than you for the post?

Answered Regis, “I cannot suggest anyone.”

As the trial progressed, the first witness for the defense was Permanent Secretary in the Prime Minister’s Office, Cabinet Secretary and Chairman of the Committee of Permanent Secretaries Cosmos Richardson.  Astaphan, on the second day of the trial, threw a quip in Richardson’s direction.

“Mr Parliamentary Secretary. . .” began Astaphan.

“Cabinet Secretary,” Richardson corrected.

“Oh sorry Mr Cabinet Secretary! I didn’t mean to demote or laterally transfer you,” responded Astaphan.

Astaphan harped on the fact Regis’ qualifications dealt more with operational training as opposed to policy training.  Richardson refuted says the very position of Commissioner of Police, by nature, deals with policy.

Additionally, Astaphan asked whether he, Richardson, followed the April 2010 Senate Budget Debate.  Richardson admitted he had not.  Astaphan went on to tell the court Minister for National Security Guy Mayers has praised the RSLPF immensely in his address stating from 2009 to 2010, the RSLPF has engaged in strategies to reduce crime resulting in successful operations. In that Senate debate, Mayers commended the RSLPF for the increase in detection rate of crime and the reduction in burglaries and motor vehicle theft.  Astaphan stressed the RSLPF was functioning as efficiently as it could under the circumstances at the time.

Richardson was able to give a chronology of the events leading up to Regis’ transfer. Several Cabinet meetings were held prior to Regis’ transfer.

May 6, 2010: a second post of Deputy of Commissioner of Police was created even though the original post had remained vacant for two years since the retirement of Deputy Commissioner of Police Hermangild Francis in 2008.

May 23-24, 2010: There was an upsurge of violent crime with three murders over the two-day period. Deputy Prime Minister Lenard Montoute called an urgent Cabinet meeting on May 24 and invited Regis.  Montoute requested a patrol strategy to fight the upsurge of crime in the nation.

May 25, 2010: Regis presented this plan to the Prime Minister and the rest of the Cabinet. The Permanent Secretary in the Ministry of Home Affairs issued a memorandum with recommendations on combating the rising crime situation in the country.  Richardson drafted the PM’s national address on the escalating crime situation.

May 26, 2010:  Richardson and the Permanent Secretary in the Ministry of Public Service Phillip Dalsou met before the Cabinet meeting to discuss the creation of and possible candidates for the position of DSI.  Richardson drafted the DSI’s job description in the PM’s Office that day along with Dalsou. There were three candidates in mind.  No supporting documents of this meeting were forthcoming.  Astaphan argued that no such meeting ever took place.  Also on that day, following Richardson and Dalsou’s meeting, Cabinet met.  Regis’ strategy was approved in principle by Cabinet.  In the minutes of that Cabinet meeting, no one expressed the need to have a post of DSI nor was there any reference to Cabinet consulting on the draft job description. The Cabinet Task Force on Crime and Security was formed.

May 27, 2010:  Dalsou prepared a memorandum on crime outlining the recommendations stemming from his discussion with Richardson a day earlier.  The recommendations were different from the earlier memorandum from the PS in Home Affairs. Regis’ transfer became effective following a meeting of the Public Service Commission the day after.

May 28, 2010: The Public Service Commission held an emergency meeting on this day to discuss the post of DSI, Ag Police Commissioner and the two Deputy positions.  Three candidates were submitted for the DSI post-Regis, Pancras Albert and Moses Charles. However, there was no job appraisal for Moses Charles. Regarding the police posts, only one candidate’s name was submitted per post.  The Public Service Commission asked Dalsou at this meeting whether there were additional candidates.  The Commission’s secretary, Leanna Calderon, testified Dalsou said “yes there were but these are the best suited for the job.” The Governor General Dame Pearlette Louisy issued Regis’ first transfer letter along with letters to Vernon Francois who was appointed Ag Commissioner.  Pancras Albert and Moses Charles were to be his deputies.

May 29, 2010: Regis received the correspondence.

June 1, 2010: A second correspondence from the GG superseded the first.

June 2, 2010: Regis received the second correspondence. By this time he had already filed a civil suit against the government.

Dalsou’s evidence supported that of Richardson.  Dalsou told the court he did not read Richardson and the Secretary to the Public Service Commission’s affidavits before he prepared his own.  However, his affidavit proved otherwise.   In paragraph 33 of his affidavit it read, “I have read the affidavits of Cosmos Richardson and Leanna Calderon . . . ”

Astaphan told the court prior to Regis’ transfer, Cabinet gave no indication it was dissatisfied with Regis’ performance although there was public outcry for Regis’ resignation over the airwaves.  In fact, Astaphan argued Regis continued to work in good faith with Cabinet on matters of national security till late May 2010.

In his closing submissions, Astaphan referred to the Cabinet collectively: “Cabinet put Ausbert Regis in the Prime Minister’s Office to make a mockery of him. The Cabinet of Ministers was like Judas Iscariot at The Last Supper. But I am in no way equating Mr Regis with Jesus. I am simply saying, they sat with him, and ate with him, then used him as a scapegoat for the current crime situation.”

Responding to the defense argument that Regis was the best suited candidate for the DSI job, Astaphan made a point of asking Dalsou whether Regis was best suited for Commissioner and Dalsou agreed.  Astaphan asked the court why would the best candidate for commissioner be removed from the Force, the sole entity responsible for public protection, leaving it in the hands of men less qualified than Regis, to be relocated to an advisory position in the PM’s Office?  He concluded should the PM need advising on matters of policy and national security, the Commissioner is just a phone call away.

Regarding the claimant’s second allegation of Cabinet’s involvement in the transfer, Astaphan brought to the fore that neither Richardson nor Dalsou, in their affidavits, addressed Cabinet’s involvement in the decision-making process.

Referring to the Prime Minister’s address when he stated Cabinet took a decision to immediately re-organize the Police Force in order to enhance effectiveness, efficiency and mobility, Astaphan concluded that statement is tantamount to a confession.  Astaphan advanced his case with the PM’s words in that address, “In any organization, leadership and the ability to inspire, to motivate others, is a pre-requisite for the successful discharge of its functions. It is clear from the comments both in the wider society and from within the force itself, that there has been an erosion of confidence in the current leadership. Therefore, government has decided that it is time to revisit the current leadership of the Royal Saint Lucia Police Force, in preparation for a new beginning.”

Astaphan interpreted the excerpts of the PM’s speech to mean Cabinet had a hand in Regis’ transfer.  He compounded it with Guy Mayers’ press conference to introduce the new management of the Force.  At that conference, Newsspin host Timothy Poleon asked whether Regis’ transfer is someone passing the buck?  Mayers responded, “It was felt, and the prime minister did mention it, it was discussed in Cabinet, the restructuring on the Royal St Lucia Police Force. After six months, Cabinet will decide to go from there.”

Astaphan argued the Public Service Commission based its decision for transfer under Section 87 of the St Lucia Constitution which is titled Appointment ETC of Permanent Secretaries and Certain Other Public Officers but did not consider Section 94 which deals specifically with the Police Force, outlining the Force is institutionally separate from the rest of the public service.  Section 94 does not express or imply any constitutional power to transfer an appointed police officer to a post in the public service.  He furthered argued no common law has the right to transfer the Commissioner of Police.  A transfer has to be by statutory or constitutional power.  There are no provisions in the Police Act for such a transfer neither is there a Civil Service Act in St Lucia upon which the government can justify its decision.

However, Armour refuted that the Staff Orders places the police and fire officials under the category of Public Servant.  In 2.16 of the Staff Orders under Liability of Transfer, provisions are made for the lateral transfer of public service officials.  As far as the defense’s argument was concerned, Armour relied on cases from the United Kingdom as well as within the Caribbean region to justify that the process by which Regis was transferred was manifestly lawful.  Further, Armour told the judge courts are circumspect in second guessing decisions made by the Executive on matters of national security. Justice Wilkinson ordered both the claimant and defense to file their closing submissions by January 21, following which she will pass judgment.

Still questions remain, whether Regis wins or loses his suit, what will happen?  Should he lose, will he take up the position as Director of Special Initiatives? Should he win, will he be returned to the helm of the RSLPF?  As far as Attorney General Lorenzo Rudolph Francis is concerned, he is extremely confident with the government’s case and the job of DSI is still Regis’, win or lose.