‘[O]ptimum functioning or malfunctioning of the Public Service Commission … depends on the type and nature of the regime within which the institution operates.’. (Shahan, Asif (2008) Politics − Bureaucracy Relationship in Bangladesh: Consequences for the Public Service Commission.)
This obviously goes for most public institutions but is still a good reminder as we consider the controversy surrounding President David Granger’s diktat to the Police Service Commission ‘that there be no consideration of promotions for members of the Guyana Police Force … until further notice’(SN: 09/08/17). The president did this in spite of Article 226(1) of the Constitution, which states that ‘in the exercise of its functions under this Constitution a commission shall not be subject to the direction or control of any other person or authority.’
The Leader of the Opposition, Mr. Bharrat Jagdeo, even if being disingenuous and somewhat alarmist, expressed a general concern. ‘This is yet another vulgar and authoritarian attempt by the President to trample upon the independence and functional autonomy of a Constitutional Agency’ (Ibid). However, it appears to me that both the president’s action and Mr. Jagdeo’s worry have resulted from constitutional deficiencies which should be corrected in the next round of reforms.
According to Article 210(1) of the Constitution, the PSC must consist of ‘a Chairman appointed by the President acting after meaningful consultation with the Leader of the Opposition from the four members appointed by the President upon nomination by the National Assembly after it has consulted such bodies as appear to it to represent the majority of members of the Police Force and any other such body it deems fit’ and ‘the Chairman of the Public Service Commission.’
Article 212(1) of the Constitution gives the PSC the power to make appointments to any office in the Police Force of or above the rank of inspector, to exercise disciplinary control over persons holding or acting in such offices and to remove such persons from office. Article 212(3) gives the power to appoint and discipline police officers below the rank of inspector to the Commissioner of Police.
Firstly, if the intention of the drafters of the present Constitution was to establish an ‘independent’ Commission by making ‘the people’ as they express themselves in the National Assembly a check on presidential power, the above appointment relationship is defective. Formalism – including the requirement that the National Assembly consult – aside, what check or balance does it provide to require that the president choose as chairperson one of the four persons sent to him by the National Assembly when in our system the president/executive controls the National Assembly! The error resides in the fact that this formulation is based on the fiction of the separation of powers, which the 18th century French social theorist Baron Montesquieu believed existed in the Westminster system, and this is made worse by our ethnic labour stratification and the almost permanent nature of political alliance. Future Constitutional reform must seek to actualise separation of powers as much as possible.
Secondly, by writing to the PSC the President appears to have broken the Constitution but the intent of the specific rule that was broken is unsound. In 1946 White Paper no. 197, ‘Organisation of the Colonial Service’, the British government stated that self-government for its colonies was only possible if their public services were staffed by local people as far as possible. To accomplish this, among other things, the Paper recommended the establishment of a local public service commission ‘to advise’ governors on the selection and appointment of public officers. Since the time of the 19th century German sociologist Max Weber, efforts were being made to prevent partisan influence on the bureaucracy based on the notion of a hierarchically supervised and politically detached public service in which public servants are appointed and promoted on the basis of merit rather than party affiliation or contributions (SN: 27/02/2013). However, by the time the commissions were being established in the colonies the difficulty in distinguishing between making and implementing policy led to a reconsideration of this model and other approaches were adopted. For example, in some countries, appointment, transfer, promotion and other decisions relating to civil servants are made by politicians and result in two extremes: either partisan appointments are made to key strategic government positions and are often separated from the career civil servant positions by specific rules, or politicization is used to give jobs to friends of the party or parties in power and thus undermines the rationale, basis and efficiency of the public service.
At present Guyana is somewhere near the middle of the two extremes mentioned above although in theory our vision of the public service is still very much Weberian. The service commissions are essentially the personnel/human resource departments for the given areas of government; mainly intended to ensure that political bias does not determine employment and discipline. But managing bias is only one aspect of human resource management, which in turn is one part of management. If the service commissions are totally independent of government direction, it is unclear what mechanisms exist to ensure that they understand and implement human resource management approaches that are in keeping with the most efficacious implementation of the government departmental objectives. Does the government summoning them and insisting on specific approaches compromise their independence and autonomy? Perhaps the reform process should also seek to clarify this kind of relationship.
As we have seen during colonial times the commissions were advisory so the above difficulty did not arise but since then it has been overcome by political manoeuvres that further compromised the sought after independence of these institutions and the Leader of the Opposition was being disingenuous in his criticism of the government. Quite apart from the opportunities our Constitution provides for the ruling party to choose those whom they are comfortable with to sit on these commissions, the PPP/C and now the APNU+AFC, quite openly packed them with favoured party supporters. Perhaps Mr. Jagdeo wrongly believes that once the formality exists, ‘independence and functional autonomy’ are established!
Maybe in this context, it would have been better for President Granger to have met with the PSC and/or its chairperson rather than issuing an instruction and doing so without providing good reasons. However, by adopting the course he did and with the PSC buckling under his demand, which, according to reports the chairperson thought quite odd, the president helped to bring to our attention the fact that in both theory and practice our constitutional arrangements, which are intended to provide real checks on presidential/executive authority and effective mechanisms for personal policy-making by way of constitutional service commissions, are flawed.