The recent appointment of Mr. Lincoln Corbette and Davidson Valerie to the Offices of Chief and Deputy Chief of Police respectively has once again forced upon us the vexing issue of abuse of authority and the continuing violation of our Constitution by the Prime Minister and President of Dominica that we must revisit.
The United Workers Party (UWP) has rightfully accused our highest ranking state officials of callous disregard for the provisions of the Constitution of Dominica, which they have sworn to uphold. The UWP has contended that the President made the appointments without “ascertaining that the provisions of Section 92 (1) of the Constitution were diligently and dutifully followed. The Leader of Opposition has stated that the President has heaped scorn on the Rule of Law in the Nature Isle by his unlawful and unconstitutional appointment.
The relevant provision reads: Appointment, etc., of police officers:
Section 92.(1) The power to appoint a person to hold or to act in the office of Chief of Police or Deputy Chief of Police and, subject to the provisions of section 93 of this Constitution, the power to remove the Chief of Police or Deputy Chief of Police from office shall vest in the President, acting in accordance with the advice of the Prime Minister, given after consultation with the Leader of the Opposition and the Police Service Commission. Note that the provision deals with both permanent and acting appointments and mandates that the Prime Minister must CONSULT with the Leader of Opposition. Therefore, prior to so appointment the President is expected to verify that the Prime Minister has acted in compliance with the Constitution. Any misunderstanding with regard to the meaning of the intent of the Constitution should be first benefit from judicial interpretation and guidance before the execution of function.
The comments of one social commentator were noted in which he questioned the rationale of the UWP’s concerns. He pondered on the correctness of the UWP’s conclusion and is of the view that the Opposition is incorrect in its claim. He contends that it is NOT unconstitutional to appoint the two senior police officials WITHOUT consultation. Rather, it is the issue of influence and not the authority that ought to be of concern, whatever that means in practical terms and recognizing that the Constitution itself mandates the need for such consultation, albeit without outlining how such consultation should take place. But like all other Constitutional provision, Section 92 is subject to judicial interpretation. Therefore, the characterization of the issue by suggesting that the same Constitution, which mandates consultation by the PM affords the President with authority to disobey it by not making it obligatory to follow the advice that he is given. This not exactly the case nor is it the issue in question and this interpretation is categorically rejected.
As an astute commenter, Mr. Bernard Alleyne stated in a Facebook post, “the Constitution stipulates that consultation should occur. Repeatedly however, the Leader of the Opposition has been INFORMED OF THE INTENTIONS of the PM OR THE EXECUTION OF ACTION of the Prime Minister, which is contrary to the requirements in law. Mr. Alleyne, has rightfully argues that ‘CONSULTATION’ must allow for input to be made by the Leader of Opposition, which would allow for agreement or disagreement by him and would respectfully afford him the opportunity to put on record, his reasons, whatever the decision, in verbal or written form”
In light of what seems to be a clear violation of the Constitution, many supporters of UWP have called for the party to take legal action against the administration, considering the fact that Skerrit and the President are bent on acting dishonorably contrary to the intentions of the framers of the Constitution nor the expectations of the spirit of the Constitution. Nevertheless, we must exercise caution in mounting legal challenge.
On this point, Bernard Alleyne is of the view that taking the matter to court might be completely futile, especially when we consider the ruling cited in the St. Lucia case, combined with the fact that even if the consultative process was followed and there was a difference of opinion, the PM could would still submit these very names for the positions.” However, this author does not think that a challenge is necessary futile for the reasons contemplated nor should we fail to acct because the final decision will remain unchanged. It is not the substantive final decision that is in question but the process of arriving at that decision.
One gets a sense that PM Skerrit and President Savarin are well briefed by his Senior Counsels on ways to continue his abuse of process, while remaining within the parameters of the law. The DLP leader seems well aware that even if they repeatedly violate the Constitution by failing to consult as per the constitutional provision, the very Constitution and its judicial interpretation offers them protection. Consideration is given to the 2002 St. Lucian constitutional motion brought by Martinus Francois against the Attorney –General, Sir Dennis Byron CJ, stated that where the Constitution provides that the Governor General/President performs a function in his own deliberate judgment, or in accordance with the advice of, or after consultation with any other person, THAT FUNCTION SHALL NOT BE INQUIRED INTO BY ANY COURT.
By its ordinary and legal definition, consultation is what it is. One consults with or tenders informed advice to another. However, there is no obligation for the recipient of the counsel to accept it. He/she makes a decision as per his constitutional/ legal authority. What is important is ensuring that the mandatory consultation takes place as stipulated in the appropriate manner and at the right stage of the decision making process.
Reference is made further to the judgment of 28 April 2014 in the ECSC appeal case in Antigua and Barbuda-ANUHCVAP2013/0026 between The Hon. Gaston Bowne, the Leader of Opposition then et al AND The Constituencies Boundaries Commission and others. The case concerned the elections of 2009 and the appointment of a Constituencies Boundaries Commission pursuant to section 63 of the Antigua and Barbuda Constitution Order 1981. There was a requirement for the Minister to act after consultation with the Leader of the Opposition. The appellants appealed the decision of the trial judge on various grounds including whether there was proper interpretation of section 64(2) of the Constitution and thus whether there existed ‘an urgency’ which, as the appellants put it, ‘justified the abrogation of the Commission’s obligation to properly and adequately consult.’ The appeal was allowed on the ground that CONSULTATION WAS INADEQUATE. The other grounds of appeal were dismissed.
Essentially, the court held that a decision making body/person/office is required to provide to persons with whom it mandated to consult such information, in clear terms, as to what the proposal is and why it is under positive consideration. The decision making body or person ought to furnish enough information to enable persons be consulted to make an intelligent response. The obligation, although it may be quite onerous, goes no further than this. In this regard, the Commission’s obligation was to consult with the appellants on the changes being proposed to existing constituency boundaries and why the changes were being proposed. The Commission was obligated to disclose enough information to be able to let the appellants make an intelligent response.
The principles of fair consultation have been settled in law for many years. In the case of Moseley, the Supreme Court endorsed the long standing Sedley principles formulated in 1984 by Stephen Sedley QC in argument in R v Brent LBC ex p Gunning (1985) 84 LGR 168 (subsequently approved by the Court of Appeal in R v Devon County Council ex p Baker  1 All ER 73 and many other cases including Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts (2012) 126 BMLR 134, where Arden LJ described the Sedley criteria as a ‘a prescription for fairness’ in consultation.
Accordingly, in order for any consultation to be fairly and legally conducted, a public body/person must ensure inter alia that;
*the consultation must be at a time when proposals are still at a FORMATIVE stage;
* the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response;
* adequate time is given for consideration and response; and
* the product of consultation is conscientiously taken into account when finalizing the decision.
The Supreme Court in Moseley went a stage further. It decided that a consultation concerning a Council Tax reduction scheme required that consultation takes place not only on its own proposals but should allow for the provision of a full briefing, outlining all possible alternative options that the decision-maker ought to consider and the reasons for their consideration acceptance or rejection. The principle that a public body/person must consult on proposals which it has, itself, rejected has radical implications. This judgment has changed the legal landscape and the courts are still wrestling with what this all means.
Therefore, in the process of exercising his constitutional duties of consulting with the Leader of Opposition, PM Skerrit has failed to provide him with sufficient, relevant and appropriate information on the matter on which consultation ought to have taken place in order for him to advise properly on the matter. Furthermore, this information must be made available in the formative stage of the process-not at the end of the process. Simply writing to the PM to inform him of the appointment is not consultation.
As Mr. Alleyne has rightly stated, “Yes, the President may have the power to execute his responsibility in his own deliberate judgement, of appointment following the undertaking of proper consultation. However, the wording is with reason. The wording of the Constitution is with specific intent to encourage respectful, constructive and statesman-like dialogue so as to ensure that despite differences of opinion, ideology, approach etc., politicians and parties would, by following the rules, operate within an environment and with a spirit of cooperation, seeking always the greater good of the nation and its people.”
Of course, following that process, the PM is entitled to make his own decision. But as Alleyne has argued, “in order to satisfy the spirit of the word CONSULTATION in law, it would have to allow for interaction/communication. This does not necessarily demand a face to face meeting. The procedure as currently practiced by the PM and endorsed by the President fails to satisfactorily constitute CONSULTATION”.
We cannot ague against this. The Skerrit doctrine of No law, No Constitution cannot continue to reign supreme in Dominica.