Notch one for good governance

THIS WEEK’S ruling by the Privy Council, that the Police Service Commission (PSC) has an obligation to call on INDECOM’s (the Independent Commission of Investigations) investigative capacities when deciding on the promotion of police officers against whom there might be question marks, is a positive development for the constabulary, even though the police force is unlikely to see it that way now. The police tend not to like INDECOM, which was established to probe allegations of misbehaviour against the security forces.

This case involved the PSC’s approach to the promotion, in 2010, of the now-retired senior superintendent, Delroy Hewitt, who had a reputation of being what Jamaicans call a tough, front-line crime-fighter.

The year before Mr Hewitt’s promotion was mooted, Jamaicans for Justice (JFJ) forwarded to the PSC – the constitutional body that takes disciplinary action against, and promotes, senior cops – 13 complaints against him, including 10 about fatal shootings by men under his command. Police investigators responded that while some of the shootings on the operations he led were controversial, Mr Hewitt himself wasn’t directly involved.

In November 2010, when Mr Hewitt was among 24 persons recommended by then Police Commissioner Owen Ellington for senior superintendent of police (SSP) positions, the PSC requested information about his involvement in fatal shootings, and the Bureau of Special Investigations (BSI), the police department that was responsible for probing such matters, reported 37. Five of these, including two in which Mr Hewitt was the shooter and team leader, were deemed justifiable homicides. The others were before the Coroner’s Court or awaiting rulings by the director of public prosecutions (DPP).

In the face of a direct interview and glowing recommendation from Commissioner Ellington, Mr Hewitt was promoted to act as SSP for three months. In April 2011, he was confirmed in the position. The DPP had reported that all the files involving officers, including Mr Hewitt, had been reviewed, with no recommendation for criminal or departmental charges.

By this time, INDECOM, the law for which was passed in 2009, was already in operation and JFJ, which had maintained its opposition to Mr Hewitt’s elevation, argued that the PSC should have conducted a full and thorough investigation into the nearly 30 complaints it had filed against the police officer when his promotion was being considered.

JFJ lost at the Full Court, but appealed. At appeal, the focus shifted, the Privy Council noted, “from requiring the PSC itself to conduct an investigation to requiring it to cause such an investigation to be undertaken, in particular, by INDECOM”.

IMPROVE DECISION-MAKING

While the Privy Council agreed that the PSC did have the power “to call for a report from INDECOM into allegations against any police officer whose promotion or discipline it is considering”, the question was “whether there is any duty, either at common law or under the Constitution, to make that or any other inquiry in order to properly inform itself before making a decision”.

Arguing the matter in the context of Jamaica’s constitutional guarantee of fundamental rights and freedoms, and common-law principles, such as equal protection for the law and protection from irrationality, unreasonable and arbitrary exercise of power, the Privy Council held, even though there was nothing in the commission’s regulations that it pursue this route, that “there is nothing in the statutory framework governing the PSC to contradict them. They are applicable in this case, irrespective of whether or not they have the status of a constitutional right”.

That the PSC failed to ask INDECOM to investigate the concerns raised against Mr Hewitt is now moot. But the obligation imposed by this ruling on how the PSC ought to proceed in such matters should improve decision-making without diminishing the authority of the commission.

Moreover, it is likely to coax the constabulary into taking greater care in selecting people for senior posts, leading to better outcomes. By our interpretation, the constitutional and common-law findings of this ruling are applicable to other areas of the public sector, which, if we are right, should lead to greater accountability on the part of agencies and, thereby, improved governance.

In this regard, we look forward to the court’s final declaration on its ruling, on which it has asked both parties involved, the Government, and the human-rights group, Jamaicans for Justice, for written submissions.