Despite a court ruling which stated that President Irfaan Ali acted unlawfully in the suspension of members of the former Police Service Commission (PSC), Reverend Patrick Findlay and Attorney General Anil Nandlall both maintain the President acted in law when he appointed the new PSC last year.
The adamant stance by the Attorney General and Findlay, who now heads the commission, notwithstanding, the way forward regarding the duties to be executed by the commission, remains unclear.
Findlay, in a brief comment to this newspaper, when asked for an update on the work of the commission, disclosed that currently no work was being done.
In March, following a move to the court by former PSC chairman Paul Slowe, Justice Gino Persaud ruled that Presi-dent Ali had acted unlawfully and ultra vires of the constitution in suspending Slowe and several commissioners. They had all been appointed under the David Granger-led administration.
On May 19, 2021, Slowe had been charged with the offence of conspiracy to defraud. Prime Minister Mark Phillips then had a letter sent to him demanding that he show cause as to why he (the PM) should not advise the President that the question of his removal as chairman of the PSC be investigated. On May 31, 2021, Slowe submitted his response to the Prime Minister.
On June 1, 2021, show-cause notices were issued to members of the commission asking them to explain in writing why the Prime Minister should not advise the President to initiate investigations into their removal as members of the PSC. In a letter dated June 15, 2021, the Prime Minis-ter advised the President that the question of removal of Slowe as chairman of the PSC should be investigated. In the last paragraph of that correspondence, the Prime Minister also advised that Slowe be suspended. On June 16, 2021, by way of a letter, Slowe was suspended from his constitutional post by the President, who claimed to be acting pursuant to Article 210 (3) of the Constitution.
The other members of the PSC were also suspended. They then instituted proceedings against the President, the Commis-sioner of Police, the AG, and others. As a result of immunity, the President was subsequently removed from the proceedings but it was ruled that the case would proceed.
According to the judge, the suspension of the PSC members from constitutional office on June 16, 2021, proved tantamount to a removal from office since the Tribunal (the quasi-judicial body) res-ponsible for recommending to the President such removal from office envisaged by article 225(3) of the Constitution (the removal process) was never constitutional.
Slowe’s lawyer had argued in court that the suspension was ultra vires the Constitution and particularly Article 225. Justice Persaud noted that the Attorney General placed heavy reliance on the charges that were instituted against Slowe and another member of the PSC as justification for their suspension. The judge said the AG further contended that the power to suspend was the preserve of the President and because of the peculiar circumstances of the President’s power under Article 225 (6) could not be nullified by the absence of a duly constituted JSC.
“… Mr Slowe has not been convicted of any charges. At the time when he was suspended, he was entitled to that presumption. The mere institution of charges cannot amount to ‘misbehaviour’ proper except and until the person has been adjudged as guilty by a competent tribunal. Therefore, to act in reliance of charges cannot be a basis to justify the President’s unconstitutional conduct,” Justice Persaud asserted.
“The suspension of the chairman and other members in the absence of a JSC and constituted Tribu-nal was a nuclear response by His Excellency, the President. The suspension proved permanent and tantamount to a removal from office without due process. The Constitution imbued the President with no power to suspend in the absence of a Tribunal and in doing so he acted ultra vires the Constitution and unlawfully. A condition precedent to the executive power to suspend is the referral to and establishment of the tribunal.”
On Friday, both Findlay and Nandlall told this newspaper that the ruling has no impact on the functionality or work of the commission. Findlay pointed out that his appointment was not unlawful and Ali rightly did it in accordance with laws of Guyana. Nandlall echoed similar sentiments and pointed out that the appointment was cleared by the judgement of Chief Justice (Ag) Roxane George.
Following the appointments of the chairpersons of both the Police Service Commission and the Integrity Commission, Opposition Leader Aubrey Norton had mounted a legal challenge. However, Justice George ruled that the unanimous approval of the members of the Police Service Commission by the National Assembly, in addition to the CVs provided, in her view, represented sufficient information and reasons for the appointment of Findlay
“My conclusion is that in the absence of the chairman of the Public Service Commission, this Police Service Commission was not properly constituted,” Justice George said.
When asked, Findlay said he was unaware of the issues raised in the public domain by commissioners Clinton Conway and Slowe. They both indicated that the commission was acting in violation of the court’s ruling.
Conway, in a Letter to the Editor of this newspaper published on April 11, wrote: “The not lawfully and duly constituted Police Service Commission is performing several constitutional functions ultra vires the order of the Chief Justice. There are too many instances whereby persons have displayed blatant contempt for the ruling of the courts in Guyana and nothing is done to correct this sad state of affairs. The not lawfully and duly constituted Police Service Com-mission appears to be an unadulterated defaulter.”
Recently, Conway wrote, a deputy superintendent of police had received a letter from the PSC and that “Many letters of a similar nature may have been recently issued by the commission…”
The correspondence informed the officer that as a result of a recommendation received from the Commissioner of Police and the advice from its Legal Officer, the Police Service Commission had taken a decision to proceed with a disciplinary hearing against him in relation to alleged breaches of discipline committed by him. He reportedly disobeyed a lawful order given to him by a superior in rank and neglected his duty contrary to the Police (Discipline) Act Chapter 17:01. Article 212 (1) of the Constitution of Guyana gives the Police Service Commission the power to make appointments to any office in the Police Force of or above the rank of inspector, the power to exercise disciplinary control over persons holding or acting in such offices, and power to remove such persons from office.
Nandlall, however, related that the government has since filed an appeal on the ruling which was not in government’s favour.
