Three years after being sent on administrative leave, Commissioner of Police Darwin Dottin must wait to find out if he will retain his position.
The Court of Appeal today reserved judgment in the Dottin’s case against the Police Service Commission (PSC) which had recommended to Governor General Sir Elliott Belgrave to send the top cop on early retirement.
Dottin was sent on leave effective June 17, 2013 “in the public interest”, but his lawyers led by Queen’s Counsel Elliott Mottley in partnership with Queen’s Counsel Leslie Haynes want the Court of Appeal to order a mandatory injunction that Dottin “remain in office as Commissioner of Police, pending hearing of his substantive case”.
But attorney for the PSC Alrick Scott pleaded with the three-member panel of appellate judges today, to reject Dottin’s application and order him to pay them costs.
Deputy Solicitor General Donna Brathwaite who appeared for the Governor General declined to speak. However, after listening to arguments from Mottley, Haynes, and Scott, Chairman of the tribunal Chief Justice Sir Marston Gibson announced that they would reserve judgment in the case.
In arguing his client’s case for a judicial review during a more than three-hour presentation, Mottley contended that the laws of Barbados, including the Constitution, did not embrace the concept of administrative leave, neither did the Constitution give the Governor General any authority to send home anyone on his own.
Mottley drew from the findings of the High Court and “admission” by the Solicitor General that the concept of administrative leave did not exist in law.
“There is no issue to be tried. Therefore there is no balance of convenience because the Governor General has no power or authority to place anyone on administrative leave. If there is no issue to be tried and if there is no concept known in law as administrative leave, then the Commissioner of Police must be reinstated . . . must remain as Commissioner of Police,” contended Mottley.
He also submitted there that was no provision in law to retire the commissioner “in the public interest” and argued that his client was not afforded an opportunity to defend himself before the PSC took the decision to remove him. This, he insisted, was a breach of the principles of natural justice.
The senior attorney urged the Court of Appeal to therefore declare the actions of the PSC and the Governor General as illegal, null and void and of no effect.
But in response, Scott promoted the function of an appellate court in granting an injunction. He contended that an appellate court could not grant a “fresh” injunction unless the trial judge in the lower court made an incorrect decision in law or if the decision was particularly outlandish.
He pointed out that the appellant had not shown either, that the trial judge did not apply the principles of law or erred in law. As far as Scott was concerned, the Court of Appeal could not now exercise discretion on its own by granting Dottin the relief he was seeking.
He also rejected Mottley’s contention that there was no public interest to consider and that there was no serious issue to be tried when it came to national security.
The PSC is concerned that the island’s national security could be jeopardized if Dottin, having regard to a breakdown in relations with the Royal Barbados Police Force (RBPF), was reinstated.
Scott also listed a number “serious issues to be tried”, which he argued should more properly be answered at the trial stage.
These included, whether leave could be justified in law and if the principles of natural justice were breached.
In reply, Haynes argued that outside of the case of the eight per cent cut in public servants salaries in 1991, this case was the most important.
“This case has serious implications for the way Government is run. It makes way for any Government who has a difficulty with the Commissioner of Police or any civil servant, except judges, the Director of Public Prosecutions (DPP) or the Auditor General, to send him home on administrative leave ‘and say it is wrong, but don’t send him back,’” the Queen’s Counsel contended.