by RAWLSTON POMPEY
While the undisclosed expended funds was necessary to seek redress for his ‘…Summary Suspension,’ it also helped to highlight certain procedural blunders collectively made by the Police Service Commission in the process. There now appears to be no end to the apparent foisted disciplinary troubles on suspended Commissioner Wendell Robinson. No sooner he had been forced to expend limited, but substantial resource for legal services, in mounting legal challenges to his summary suspension from office, before Belizean Judge with the Eastern Caribbean Supreme Court (ECSC), could have ‘…pocketed his pens; …gaveled his desk; … removed his gown; say good bye to Colleague, Justice Keith Thom; …packed his bag with niceties; …looked at his watch and rushed to the VC Bird International Airport (VCBI) to travel to his assigned jurisdiction-St. Lucia,’ Commissioner Wendell Robinson had been made to wonder where additional funds can be sourced for another legal tussle with the adequately ‘…State-resourced’ Police Service Commission (PSC).
As much as he possesses an appreciable high level of intelligence and the capacity to command, it had been made unmistakably clear that the Commission had exploited the innocence or ignorance of the newly Acting Commissioner of Police Atlee Rodney. Likened to many other citizens, including Dame Giselle Isaac who was forced into litigious mode by agencies of the State, for Commissioner of Police Wendel Robinson, ‘…It has been raining as it has been pouring.’ Except for teary eyes, it has been about indignation and frustration; …acrimony and misery as it has been costly for visitations to the Judiciary. Since he had been suspended, he has made his first public comment. This was prompted by a second ‘…Suspension Letter,’ reportedly delivered to one of his attorneys. Even so, he has neither lost his position, status as a member of the Royal Police Force of Antigua and Barbuda nor his remunerative entitlements [Sections 6 & 18: Police Act: Chapter 330].
Misapplication of Disciplinary Regulations specific o the ‘…Inspectorate; …Subordinate Police Officers and Constables’ had provoked litigation when applied to Commissioner of Police Wendell Robinson. Guided by his interpretative skill and a profound sense of reason, in his Decision, His Lordship, Justice Peter Godfrey Smith wrote ‘…The Regulations do not envisage the investigation of the Commissioner himself and have no provisions to deal with such an eventuality’ [Para. 28: ANUHCV: 2018/0202]. His Lordship continues ‘…It could mean that the Legislature intends a different regime for the disciplining of senior officers.’ Finally, he suggested the promulgation of Regulations by the Police Service Commission for the ‘…disciplining of police officers under its powers’ [Para.30]. This may have been a learning experience for ‘PSC’ attorney Dr. David Dorsett. This commentary looks at some of the blunders from (a) ‘…Malevolent Attitude; (b) …Procedural Errors; (c) …Constitutional powers and functions; and (d) …Decision of the Court.’
RESPONSIBILITY OF COMMISSIONER
Likened to all other ranks, the Commissioner of Police has membership status within the Police Service [Police Act: Chapter 330: Section 18]. His appointment is contingent upon constitutional approval of the sitting Prime Minister [CO: 1981: Section 105 (3)]. There is no security of tenure. For command and control, power resides with the Commissioner to initiate disciplinary actions against all members subordinate to him. However, he exercises disciplinary control over personnel below the rank of Sergeant [Section 6: Police Act: Chapter 330: & Section 105 (5): CO: 1981]. Though the Commission shall hear appeals for unfavorable decisions taken against personnel of the ‘Corporal and Constable rank,’ there is no correspondent-function. However, when it involves the Commissioner himself, the Police Service Commission shall determine procedures to exercise such control.
RESPONSIBILITY OF COMMISSION
One of the nation’s two Commissions, the Police Service Commission with a membership of seven people and multiple constitutional functions, has responsibility for, (a) ‘…Appointment of persons to hold offices in the Police Service; (b) …Exercising disciplinary control over personnel above the rank of Sergeant; and (c) …Approving recommended transfer of personnel’ [CO: 1981: Section 105 (1)]. Chaired by an erudite practicing attorney and former Acting Judge with the Eastern Caribbean Supreme Court (ECS) and reportedly advised by the Law Firm of ‘…Watt and Associates’ through a prominent attorney Dr. David Dorsett, the Commission appeared to found itself in ‘…Ship Street,’ attempting to crawl its way out of droppings of ‘…Procedural Effluence’ by suspended Commissioner Wendell Robinson, himself an attorney.
A judicial decision that favored suspended Commissioner Wendell Robinson has shown that a ‘…CARICOM IMPACS’ team of investigators had made an apparent blunderous decisionwith debilitating consequences to the Commissioner. Given that which led to the investigation, the cause of his troubles, has been pending disciplinary charges. These have militated against his return to office. If anyone is to be vilified, then Executive Director and the assigned investigators, misguided as to the contrasting role they had played to the Agency’s Agenda, they may have unwittingly entangled themselves in an internal disciplinary mechanisms of a regional Police Service far removed from its operational strategies. Given the Court’s Decision, this might be more of a futuristic administrative and operational concern to Acting Commissioner Atlee Rodney and Executive Director of the Agency Major Michael Jones.
In benevolent mode,His Lordship referred to a proverbial quote in allowing an understanding of the Court’s view on the issue at Bar regarding the non-applicability of the ‘Police (Discipline) Regulations to a Commissioner of Police, whether or not active or suspended. Taking ‘…Judicial Notice’ of the Regulations applicability to ranks subordinate to the Commissioner,’ he delivered a decision favourable to Commissioner Wendell Robinson [October 26, 2018]. When Dr. David Dorsett insisted that the Regulations are applicable to the Commissioner, he said, ‘…To attempt to adapt the Regulations to include the Commissioner, would be to force it like Cinderella’s glass slippers unto a foot that cannot fit into it.’ He concluded that the Regulations are enforceable only by the holder of the office of Commissioner, quashed the suspension and ‘…ordered his immediate reinstatement [Paragraph 28: ANUHCV: 2018/0202].
RIDICULOUSLY BAD DECISIONS
Whether or not legally advised, for the seven-member Police Service Commission, its troubles began with a cluster of ‘Ridiculously Bad Decisions.’ This was evident when it foisted upon him the responsibility to investigate complaints reportedly made against Commissioner Wendell Robinson and channeled directly to the Commission that independently suspended him from the office of Commissioner [April 5, 2018 & October 26, 2018]. Then ‘…Procedural Drama’ began. There were surreptitious leaked reports to the media suggesting (i) …a secret rendezvous with Attorney General Steadroy ‘Cutie’ Benjamin; (ii) …It had shirked and shifted its responsibilities to the Attorney General thereby persuaded him to write a letter to Commissioner of Police Wendell Robinson; (iii) …Reportedly held an impromptumeeting with Prime Minister Gaston Browne.’
Though it may have been for reasons of courtesy in consideration of his constitutional discretion on appointment [Section 105(3)], sensing suggestions of interference, unhesitatingly and with candidness, he informed the media that it was the Commission that had extended an invitation to him; (iv) …A failed response by the Commissioner to the Attorney General, reportedly resulted in a hasty dispatch of the complaints back to the Chairman; (v) …now out of other referral options, the investigation was reportedly foisted on Acting Commissioner Atlee Rodney; (vi) …Then there was a request for an investigative team from CARICOM IMPACS; (vii) …Arrived, appointed and sworn as Special Constables; …provided with investigative Terms of Reference. For the suspended Commissioner, the ‘…Die is Cast.’ The time had come for ‘…Sober and Serious Decision.’ Anticipating the worst, yet hoping for the best, beleaguered Commissioner Wendell Robinson ensured that the Judiciary was visited upon the Attorney General and the 7-member Commission.
In the debacle, there are at least two serious bones of contention.’ Both involved his suspension from office for, (i) ‘…Complaints the Commission deemed serious and inimical to discipline and morale within the Police Service;’ and (ii) …Pending disciplinary charges of Discreditable and Oppressive Conduct.’ While the former had been judicially determined, the latter, the result of a second letter of suspension, could also result in visitation to the Court for judicial review. This course of action had prompted eminentAttorney, Sir Richard Cheltenham to take serious issue with the Police Service Commission over the ‘…Double Suspension.’ Moved by concern for his client’s interests, he expressed umbrage over that which many have concluded represents a ‘…malevolent attitude’ of the attorney-led seven-member Commission.
In language that its members understand, Sir Richard Cheltenham wrote ‘…The Commission’s conduct in this matter continues to be oppressive, arbitrary, unreasonable and unconstitutional’ [OMG: November 3, 2018]. In the disciplinary saga, there are three critical factors (i) ‘…his career; (ii) …his tenure as Commissioner; and (iii) …image and reputation.’ These are all interrelated and remain of grave concerns to the beleaguered Commissioner. Justices are always mindful of these. They know that ‘…futuristic consequences’ often impact negatively on the ambitions of persons. This is so, whether or not persons are holding or had held positions of prominence. Given acute judicial consideration, High Court Judge, His Lordship Justice Peter Godfrey Smith, in the Court’s Decision wrote, ‘…I think the Court can take ‘…Judicial Notice’ of the obvious fact that the case has attracted huge publicity and has been regularly featured in the newspaper and on television news’ [Para. 50].
DARKNESS AND DESPAIR
Where there is light, people facing adversities are likely to see a way out of ‘…Darkness and Despair.’ Conversely, where there is hope, there is life. Relate these to the experiences of Commissioner Wendell Robinson, he may have been given just a mere ‘…Flicker of Light’ and ‘…Glimmer of Hope’ after the presiding Judge provided him with breathing a sigh of relief. As he continues to face additional difficulties, disciplinary proceedings in respect to charges of ‘…Discreditable and Oppressive Conduct,’ looms. Ironically, these have resulted from a sanctioned investigation by his subordinate, Acting Commissioner Atlee Rodney. Thus, equally as much as the Commission may have given him reasons to believe it was hell-bent in ending a successful career and tenure of longevity, he also appeared hell-bent in taking on the challenges posed by the blunder-stricken Commission.
His previous suspension came as a result of written complaints the Commission had received from three of his subordinates who accused him of conduct likely to bring discredit to the reputation of the Police Service or prejudicial or inimical to discipline. He contended that the Commission had gravely misinterpreted the Regulations; …misguided and misdirected itself by misapplying Regulations to him that have been specific to ranks subordinate to himself. Having successfully challenged the suspension, he has been placed in contemplatory mode for further litigious action. His legal team, headed by internationally recognized and illustrious ‘…Sir Richard Cheltenham with assistants ‘…Shelly-Ann Seecharan and Cosbert Cumberbatch’ They had seemingly acquitted themselves exceeding well.
The team had barely left the Court’s precinct, when he was again served with a second ‘…Letter of Suspension,’ purportedly signed by the Secretary to the Commission. Likened to a fleeting glance at an escaped convict dashing for his liberty, before Commissioner Wendell Robinson could say ‘…Jesus Wept,’ he was weeping as darkness suddenly appeared, turning a brightened day into night, while his dream became a ‘…day mare.’ Now under disciplinary consideration, his hope of an immediate return to office had been dashed; …his desire of continued enjoyment of the novelty associated with the office of Commissioner had been shattered; while his tenure remains in the office of the Commission, ‘…Dancing Limbo.’ For instance, mere hours after the quashed Suspension, a bolt of lightning struck. It occurred on a different date; …in the same place; …on the same person; for the same reasons and with the same consequence.
Even as the Court had quashed the previous suspension, he was not installed back into office’ [October 26, 2018].’ What was he to hand over? If this is not a ‘…Comedy of Errors’ then what is? This had provoked angst among the legal team. Having independently initiated disciplinary action against Commissioner Wendell Robinson, the ‘.PSC’ had found itself on a Street where ships never sailed.’ Call it what you will, but for this commentary, it is ‘…Ship Street.’ In the litigious proceedings instituted by him against his suspension, attorney for the Police Service Commission Dr. David Dorsett had attempted to maneuver his way off ‘…Ship Street.’ Sensing a messy slip, the presiding Judge wittily guided him away from it. Guiding the attorney and members of the Commission in attendance, he advised regularization of the ‘PSC’s ‘…own procedure using constitutional powers conferred by Section 99 (12), read with Section 104 of the Constitution’ [CO: 1981].
COMEDY OF ERRORS
What now boggles the mind is the repetitive contents of the first ‘…Letter of Suspension.’ Packed with ‘…Comedic errors; …intrigues and absurdities.’ The second letterwas reportedly dispatched to the substantive holder of the office of Commissioner Wendell Robinson. Reportedly, there were carbon copies (cc), including one reportedly dispatched to his Deputy and Acting Commissioner, Atlee Rodney. It absurdly, states ‘…You are to, immediately upon receipt of this letter hand over the command of Royal Police Force of Antigua and Barbuda and the Fire Brigade and such articles and things under your control while serving as Commissioner of Police to Deputy Commissioner of Police Atlee Rodney’ [October 26, 2018]. Given the benefit of ‘…un-doubtful forgetfulness,’ the membership had not remembered that it had previously suspended the Commissioner earlier in the year [April 5, 2018].
When attorney for the Police Service Commission, Dr. David Dorsett appeared before His Lordship, Justice Peter Godfrey Smith, he may have caused him to entertain circumspection that he was himself laboring under illusions that the Court had misinterpreted the Police (Disciplinary) Regulations. He had submitted that the Police (Discipline) Regulations cover every member of the Police Service from Constable to Commissioner. His Lordship held an opposite view stating that ‘…It was the Commissioner who received complaints and delegate authority to his subordinates to investigate such complaints.’ This will have been constitutionally and statutorily supported [CO: Section 105 (5) & Section 4: Police Act: Chapter 330].
The presiding Justice made and noted several ‘…Interesting Observations.’ These include (a) …The suspension is ‘until the Commission decides otherwise.’ This he determined was indefinite; (b) …The nature of the action warranted by the complaints is not stated’ [Para. 9]. There are three other areas of serious concern. Firstly, it was the Commission that had received the complaints from personnel subordinate to the Commissioner; …Secondly, it was the Commission that had removed him from office; …Thirdly, the disciplinary charges laid against him are consequential of investigations conducted by a three-man investigating team from the Trinidad and Tobago-based organization ‘…CARICOM IMPACS.’ Apart from the Court’s ruling and ‘…passenger missed-flight,’ it may have been for this reason, that further serving of charges had been aborted.
Speaking to the contentious issue then under ‘…Judicial Review, ensuring that the attorney was reasonably guided, His Lordship opined ‘…The Commissioner was informed of his suspension but would have had no idea of what was to come next and what procedure was to apply; …This I think, offends the most elemental requirements of fairness and is dispositive of this issue’ [Para. 44]. Likened to the Constitution that provides for informing persons ‘…arrested or detained to be informed orally and in writing as soon as reasonably practicable…of the reason for his detention’ [CO: 1981: Section 5 (2)], a similar provision is contained in the ‘…Police (Discipline) Regulations.’ Thus, after a designated investigator, completes his investigation, he may decide to charge the offending member. The Regulations State, ‘…The investigating officer shall, as soon as is practicable enter on a discipline form the offence with which the member is to be charged and such particulars as will leave no doubt as to the precise nature of the alleged offence’ [Section 4 (5): Police (Discipline): Chapter 330]. His Lordship was evidently aware of this Regulation.
The apparent vitriolic actions initiated and its subsequent behavior towards him. These have won him more empathy after the favorable judicial decision handed down in the High Court of Justice, thereby exposed the Commission as a body composed of members whose value might be seen numerically for a quorum or majority-decisional votes.’ It may now be seen as a foregone conclusion that the Police Service Commission seemed hell-bent in keeping Commissioner Wendell Robinson permanently away from the American Road Headquarters office. That which supports such assertions was the judicial exposure of the Commission’s shoddy handling of the ‘…Disciplinary Debacle,’ provoking anger and public ridicule. These may have been among other reasons that the Commission has been seen as a blunder-making disciplinary body.
Though he may not necessarily be crucified, Commissioner Wendell Robinson shall bear the burden of an earthly Cross. This has been the experience of many other colleagues with members in the Association of Caribbean Commissioners of Police (ACCP). Force to litigate, he had sought ‘…Judicial Review’ against a decision by a ‘Police Service Commission’ that appeared to have shown scant regard to a basic, but fundamental principle called ‘…Natural Justice or Right to be Heard.’ Given the recent favorable Court Decision, Media reports have quoted him saying, ‘… I am actually disappointed that the ‘PSC’ flaunt the decision of the High Court and suspend me again on the basis that I have been charged for offences under the disciplinary Regulations which do not apply to me’ [ANR: October 29, 2018]. In the law, though ‘…removed from active duty in superintending; …commanding and controlling the Police Service, Wendell Robinson has neither lost his position as Commissioner, nor status as a member of the Royal Police Force of Antigua and Barbuda [Sections 6 & 18: Police Act: Chapter 330].
His Lordship Peter Godfrey Smith may have exhibited just that. Even without a legal practice, those that enforce law not only know that ‘…All are equal before the law,’ but also ‘…All are entitled without any discrimination to equal protection of the law’ [Article 7]. He may have detected an intention by the attorney to provoke ambivalence that his judgment would be compromised by arguments and submissions that appeared farfetched.’Clearly intent on ensuring that justice was manifestly appeared to be done, His offering of unsolicited, but helpful advice to the Respondent’s attorney, appeared to have made his presiding role more clearly ‘…Understood and Appreciated; by the Claimant as well as the Respondent.’ He appeared to have stayed above the fray, thereby eliminating any suspicion, or suggestion of perceived misdirection to himself as to exhibit evidence of bias or impartiality. Consequently, he appeared to have left the litigating parties with ‘…an Unchallengeable Manifestation’ of a fair hearing and equitable dispensation of justice.
Framers of the Constitution anticipated that some attorneys may ignore the basic principle of ‘…Natural Justice.’ They also anticipated that some may develop a mentality, consistent with the behavior of Kangaroos. They anticipated that if the ends satisfies the means, unscrupulous attorneys would advance arguments that would be entertained in ‘…Kangaroo Courts.’ Either attempting to inspire an understanding or instill sense of the non-applicability of the Regulations to the Commissioner of Police, His Lordship prudently and gently suggested, ‘…It could mean that the Legislature intends a different regime for the disciplining of senior officers’ [Paragraph 30].What may have been very clear was that His Lordship had shown no inclination to ‘…operate; …preside or to accord indulgence, whether or not craved of the Court to any attorney displaying ‘…Kangaroo Mentality’ in his Court.
BREACHES OF NATURAL JUSTICE
From litigants’ conversations and from the Court’s Decision, it was clear that Dr. David Dorsett had disregarded that fundamental principle of equality before the law as contained in the ‘…Universal Declaration of Human Rights’ [UDHR: 1948]. Whether by ignorance or inadvertence, outside the tenets of ‘…democracy with respect for human rights, worth and dignity, ‘…Breaches of Natural Justice’ often occurred, particularly in (a) …Kangaroo Courts; (b) …presided by Kangaroo Judges; and (c) …with arguments advanced or submissions by attorneys.’ Ludicrously, the ‘PSC’s attorney, though respectful with his submissions sough to impress the Court that (i) ‘…The language and intendment of Section 16 is plain that there is no need for any investigation prior to suspension or to consult with the Commissioner; (ii) …Regulations 16 expressly excludes the duty to act fairly in the sense in giving a police officer to be suspended prior opportunity to be heard; (iii) …The Court must pay due respect to the language and structure used by parliament, rather than to preconceptions of what its objectives could or should have been; (iv) …There is no requirement that the Applicant (Wendell Robinson) be accorded natural justice at the suspension stage when the ‘PSC’ was responding to a situation that demands immediate action; and (v) …There is no implied right in the scheme of the Regulations and in Section 16 that a police officer be heard prior to suspension’ [Police Act: Chapter 330].
BASTION OF HOPE
Those that lead evidence or advance arguments or attempt to provide irrational interpretative, but flawed reasoning, know that the meticulous and inquisitive Justice often poses questions for primarily two reasons (i) …Clearing up ambiguities and (ii) …Testing interpretative skill and powers of reasoning.’ Attorneys shall not only endeavor to serve the interests of clients, but also to assist in the administration of justice. Justices need no reminder or unsolicited advice or suggestion or prompts. Attorneys, however, may attempt, judiciously and persuasively, yet with appropriateness and respect in matching the interpretative skills and/or intellect of presiding Justices. Even so, they shall avoid slippery slopes that could bring them close enough for the descending wrath of rebuff. Invariably, they may avail the respectful attorney of indulgence in advancing relevant arguments on the issue at Bar. However, there is a time when intolerance may intervene, prompting Justices to urge ‘…Will you please move on?’ Even so, as far as practicable Justices shall at all material time, endeavor to avoid travesties or perverseness, removing with immediacy of any such appearance. More particularly, they shall not only shall see themselves as mere administrators of justice, but also to promote the Court as the ‘…Bastion of Hope.’
Framers of the region’s Constitutions anticipated that membership on some Commissions might not only be subjected to exploitation, but may also act against the best interest they were appointed to serve. Some will be appointed membership on the ‘…Public Service Commission,’ while some will be on the ‘…Police Service Commission.’ While some members will show that they are endowed with reason and conscience, others will display insensitivity and irrationality. Framers also anticipated that membership so exploited might act against the best interest of those they were appointed to serve. Experience has shown that some had created organizational rifts, while other caused disaffection among rank and file members and created cliques. These have always been bad for ‘…discipline; …morale; …organizational stability; …command and control.’ These are reflective of human nature and realities of developed organizational culture. These are bad for public confidence, support and cooperation.
OPINIONATED AND JUDGMENTAL
These came after more than a six-month agonizing journey through a disciplinary tunnel paved with malevolence and with obstacles of blunderous procedural actions, subjecting him to despair humiliation and frustration with silent cry of despair. Admitted to the Bar, he was subsequently assigned to the Office of the Director of Public Prosecution (DPP) and tasked with prosecutorial duties at the Criminal Assizes. One of his mentors and immediate supervisor was the DPP Cosbert Cumberbatch. In his Decision, His Lordship expressed the view that the Commission had not only acted hastily and irrationally, but was also become ‘…Opinionated and Judgmental.’ He cited the Commission’s response to the complaints, when it states, ‘…These complaints are deemed by the Commission so serious as to warrant its consideration and action as they are inimical to the discipline and morale within the Royal Police Force of Antigua and Barbuda’ [Para. 46].
The suspension of Commissioner appeared rather unique. This was so for reasons of the particular complaints. That which appeared to have provoked complications was the obvious lack of procedural knowledge by Chairman Kelvin John, an attorney and his 7-member Commission. This was also compounded by its abdication and foisting of the investigation upon the Commissioner’s subordinate and Deputy Atlee Rodney. Constitutionally, however, the Police Service Commission is empowered to remove members of the Police Service from office [Section 105 (1); CO: 1981]. Even so, misapplying established procedural guidelines for ranks subordinate to him offer no claim to legitimacy of action or show justifiable reasons for both suspensions. Further bringing upon itself additional difficulties was his second suspension on pending charges that appeared expediently and egregiously laid by Special Constables, one of whom a Military personnel’ from ‘…CARICM IMPACS,’ on behalf of his Deputy Atlee Rodney, acting in the capacity of Commissioner of Police. The question is ‘…Where does the Commission go from here?