Asked to show cause why proceedings for their removal should not be set in motion, the members of the Police Service Commission (PSC) have defended their decision to join a lawsuit mounted by opposition parliamentarian Ganesh Mahipaul over the budgets of constitutional bodies, saying that they were left with no choice as they were denied funds to access legal representation of their own.
In a joint response to Prime Minister Mark Phillips, the five members of the PSC stress that as an independent constitutional body the PSC has the right to participate in the Mahipaul action since it was adversely affected by the Appropriation Act of 2021 and the Fiscal Management and Accountability Act in 2021.
“The Commission’s involvement in the Mahipaul Action was the consequence of the Commission’s need for, and the Government’s failure to provide, financial means for the Commission to defend itself in court against the application of Senior Superintendent of Police Fazil Karimbaksh, which in turn emerged out of disciplinary proceedings initiated against the said Senior Superintendent following allegations of sexual harassment,” an affidavit submitted on behalf of the commissioners by attorney Selwyn Pieters explains.
The affidavit is part of a series of documents submitted to Phillips in response to a request that the PSC members, Paul Slowe, Michael Somersall, Clinton Conway, Claire Jarvis and Vesta Adams, show cause why an investigation towards their removal should not be launched.
The Prime Minister has claimed that since the Constitution provides that the Commission and its members must be free from actual, or perceived political bias, influence and interference and must at all times appear to be independent, impartial and autonomous, their joining the legal proceedings renders them in breach of those constitutional duties.
“Indeed both the public and members of the Guyana Police Force have complained that you are no longer perceived to be free from political bias, impartial, independent and autonomous,” he alleged in a letter to each of the commissioners.
The request that they show cause was sent to all five members of the PSC on June 1 and is the second such request sent by Phillips.
One week earlier, Phillips had demanded that Chairman Slowe and Conway show cause why the charges of fraud that had been recently leveled against them should not result in their removal from the Commission. The two men have since replied via an extensive dossier, which includes allegations that President Irfaan Ali attempted to interfere in the functioning of the Commission. Ali has denied these allegations.
‘Assault on integrity’
In response to the June 1 letter, Pieters on behalf of the PSC again accused the government and Ali of attempting to unconstitutionally and improperly remove the Chairman and Commissioners of the Commission because they refused to accede to attempts to intervene inappropriately in the staffing and management of the Guyana Police Force.
“This assault on the integrity and independence of the Commission began when [the Chair] and the Commission refused to promote certain individuals from the ranks of the Guyana Police Force in accordance with the unconstitutional demands of His Excellency the President,” he claimed.
In explaining the Commission’s decision to join the action, Pieters noted that following an investigation and legal advice the Commission decided to institute disciplinary charges against Karimbaksh.
In response, the Senior Superintendent on November 17, 2020, filed a Fixed Date Application for Administrative Orders, including an order in the nature of certiorari to quash the charges against him and an order prohibiting the Commission from taking further disciplinary action against him.
Initially, the AG’s office appeared on behalf of the PSC, filing an affidavit in defence on December 28, 2020 but on January 11, 2021 that defence was withdrawn in keeping with a 2018 CCJ ruling that that the Attorney General cannot represent non-state entities, be they public or private.
It then became necessary for the Com-mission to employ its own counsel and a letter was written to Finance Secretary Sukrishnalall Pasha seeking his approval for funds to be made available to the Commission to fund their defence.
In his response on January 28 Pasha noted that no provision was made in the Commission’s 2021 budget for legal fees.
“As you correctly pointed out, Constitutional Commissions, Government Ministries, and State Agencies’ historical practice is to utilize the Ministry of Legal Affairs and Attorney General’s Chambers. There has not been any change in this practice. As such, I recommend that you re-engage the Ministry of Legal Affairs and Attorney General’s Chambers for legal representation since it is the only viable option,” the Finance Secretary wrote.
Pieters explained that the refusal by the Ministry of Finance to provide the necessary funds effectively made it impossible for the Commission to hire external counsel for its defence in the matter which served as a catalyst for the PSC’s involvement in the Mahipaul action.
“Despite its successful defence in the matter [the Commission] remained concerned that the Executive branch of the government was able to control the Com-mission’s access to legal representation as it had in the aforementioned matter, first withdrawing the representation of the Attorney General’s Chambers and then refusing to allocate funding for the hiring of counsel… It was on this basis that the Commission decided to become involved in the application of Mahipaul, which addressed similar concerns as to Executive control over funds for Commissions and Constitutional Agencies,” the response concluded.
No legal basis
Addressing the specific claims made by Phillips, Pieters claims that there is still no legal basis for removing the PSC members from their post.
“This most recent attempt to remove Mr. Slowe and his fellow Commissioners from office, is even more preposterous than the first. The Notices disclose no legal basis for the proposed removal, cite no provision alleged to be violated, and refer to no misbehaviour or allegation of inability to discharge the functions of office on Mr. Slowe’s or any of the Commissioners’ part,” he stressed, before adding that reasonable members of the public, informed of all the circumstances, will not find that the Commission’s participation in court action undermines their confidence in the Commissioners’ integrity, impartiality or independence, or in the administration of police tribunal and administrative justice generally.
