Privy Council upholds extension of Police Commissioner’s term

Lady Ingrid Simler. - Photo courtesy the Privy Council

THE Judicial Committee of the Privy Council has ruled that the one-year extension of the Police Commissioner’s service, granted by the President on the advice of the Cabinet in 2023, was lawful and constitutional.

In a decision on December 19, Lady Ingrid Simler, who sat on activist Ravi Balgobin Maharaj’s appeal in October, ruled that the extension mechanism under the Police Service Act does not breach constitutional principles or usurp the Police Service Commission’s (PSC) powers.

Maharaj’s appeal challenged the validity of the extension and sought to nullify the decision.

However, the Privy Council board dismissed the appeal, affirming that the President acted under section 75(a) of the Police Service Act, which allows for such extensions in the national interest.

Lords Hodge, Lloyd-Jones, Hamblen, and Stephens also presided over the appeal.

Under the Police Service Act No. 7 of 2006, the mandatory retirement age for the CoP is 60.

Section 75(a) of the act permits the President to extend the commissioner’s service for up to three years in one-year increments, provided it is deemed in the national interest.

The dispute arose when Commissioner Erla Harewood-Christopher, who was appointed on February 3, 2023, reached the retirement age of 60 on May 15, 2023.

On May 4, 2023, the Cabinet advised the President to extend her service for a year, a recommendation that was accepted and formalised through a gazetted notice on May 12, 2023.

A year later, on May 13, 2024, Harewood-Christopher’s service was extended for a further year to May 15, 2025.

Maharaj initiated judicial review proceedings, arguing the extension was unconstitutional. He contended that the power to extend the commissioner’s service was essentially an appointment, a function reserved for the PSC under the Constitution.

He also argued that the President should have exercised independent judgment under section 80(1) of the Constitution rather than acting solely on Cabinet’s advice.

Justice Ricky Rahim dismissed Maharaj’s claim in January 2024, holding that extending a commissioner’s service was distinct from making a new appointment.

The Court of Appeal upheld this decision in May 2024, clarifying that section 75(a) of the act and section 123 of the Constitution addressed separate matters.

The Court of Appeal also rejected Maharaj’s argument that the President was required to act independently of the Cabinet, saying section 80(1) of the Constitution obliges the President to follow the Cabinet’s advice in such matters.

In its ruling, the Privy Council said its reasons were “similar to those given by the Court of Appeal,” in that section 75(a) of the 2006 Act “is not unconstitutional and there is nothing unlawful in the decision of the President to extend the service of the commissioner beyond her normal retirement age.

“The order is therefore lawful. The board accordingly dismisses this appeal,” the judgment said.

In deciding the appeal, the law lords reasoned that section 75(a) of the act did not usurp the PSC’s constitutional powers as it pertained to extending the tenure of an incumbent commissioner rather than appointing a new one.

“Extension of service and appointment are fundamentally different,” the judgment said. “Section 75(a) simply lengthens the tenure of an existing appointee under prescribed circumstances without interfering with the PSC’s constitutional role.”

They also held the Cabinet was best positioned to assess the national interest and advise the President accordingly, while emphasising that the extension mechanism did not violate the principle of separation of powers or compromise the commissioner’s independence.

“The Constitution does not itself prescribe either the retirement age or the process for extension of service of the commissioner. This represents a clear constitutional choice…These are clear and deliberate constitutional choices that must be respected,” Lady Simler said.

“The Police Service Commission has no constitutional or other power vested in it to set terms and conditions of service, whether as to the duration of the contract or to extend the term of the commissioner beyond a compulsory retirement age.

“Again, this deliberate constitutional choice must be respected. In these circumstances, it is well within the constitutional mandate of the legislature to enact legislation dealing with a mechanism for the extension of service.

“The two provisions with which this appeal is concerned, section 123 and section

75, vest power to act in different arms of the state in respect of different functions, but with neither trespassing impermissibly on the other.

“Accordingly, the fact that there is executive involvement in the decision to extend the service of the commissioner cannot by itself violate either principle.

“To seek to impose the wider protection for which the appellant contends is not to uphold the provisions of the Constitution but impermissibly ignore the deliberate constitutional choices that have been made.”

Simler said the Constitution provided important constitutional safeguards for the commissioner’s independence and that of police officers.

“The PSC must exercise its powers of appointment and removal free from interference or influence of any kind by the executive and the executive must refrain from interfering directly or even indirectly in the exercise of the PSC’s powers of appointment and removal.

“In the board’s view, the PSC continues to enjoy its exclusive jurisdiction to appoint, promote, remove and exercise disciplinary control.

“It remains an independent and fully functioning body sufficient to protect the rights and interests of its appointees and to insulate them from political influence or interference: its members are independently appointed by the President after consultation with both the Prime Minister and Leader of the Opposition and are themselves protected from political interference with their appointments.”

The judgment also said the President was obliged to act on Cabinet’s advice in deciding whether it was in the national interest to extend Harewood-Christopher’s service by a year beyond her retirement age.

At the High Court, the State said the Cabinet's decision to extend Harewood-Christopher's service was based on the fact that she had only been top cop for three and a half months when she reached the age of 60.

It was also submitted that the PSC had taken no disciplinary action against her, and the national interest was a major factor in the police service's having her as the substantive commissioner for more than three and a half months, given that the office had been without a substantive office-holder for two years.

Maharaj was represented by Anand Ramlogan, SC, Adam Riley and Mohammud Jaamae Hafeez-Baig, instructed by Freedom Law Chambers.

The Cabinet was represented by Douglas Mendes, SC, and Gabrielle Gellineau. Rishi Dass, SC, and Vanessa Gopaul represented the AG’s office.