Did The President Just Appoint An Acting IGP?

Originally written on 30 January 2009

Did I read that Prez-Prof JAM has appointed an acting IGP?

I generally find that this government is a tad slow on some issues, and I have assumed that it is because this President is a more deliberative person than some past leaders. But I expect that in that deliberative process, more attention will be paid to the law.

Section 10(2) of the Police Service Act says that “The Inspector-General shall be appointed by the President acting in consultation with the Council of State by virtue of paragraph (e) of clause (1) of Article 70 of the Constitution.”

The President’s power of appointment, is subject to the mandatory condition precedent of consultation with the Council of State. That is what Article 70(1)(e) says, as confirmed by section 10(2) of the Police Service Act.Is there a Council of State in place? If not, whom did the President consult with?

Yes, yes, I can see the response that "this is only an acting position." Yeah, right. So a President can simply avoid the condition precedent by keeping the person in an acting position forever? Thankfully, this does not have to remain in the realm of arguments. Section 12 of the Interpretation Act states as follows “(1) Where an enactment confers a power to appoint a person to an office, whether for a specified period or not, the power includes… (b) power, exercisable in the manner and subject to the limitations and conditions applicable to the power to appoint,… (ii) to appoint a person to act in that office, generally or in regard to specified functions, during the time that the authority in whom the power of appointment to the office is vested considers expedient. (2) A reference in an enactment to the holder of an office shall be construed as including a reference to a person for the time being appointed to act in that office as respects the functions of the office generally or the functions in regard to which the appointment is made.”

So, heads or tails or in-between, the President cannot, by law, appoint any person to be substantive or acting IGP without consultation with the Council of State.

This position becomes even more serious if one considers article 195(1) of the Constitution, which provides as follows “Subject to the provisions of this Constitution, the power to appoint persons to hold or to act in an office in the public services shall vest in the President, acting in accordance with the advice of the Governing Council of the service concerned given in consultation with the Public Services Commission.” The Police Service is a public service under the Constitution.

So if we read article 70 together with article 195, the mandatory conditions precedent increase. He must also seek the advice of the Police Council, which is the governing council of the police service. The last time I checked, that council is not in place. That advice must itself be given in consultation with the PSC.

Mr. Prez-Prof, can we just read the law before we act? That is what you taught me in school, and so I am only humbly bringing this to your remembrance, just in case you have forgotten...