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…says President Ali’s decision to prematurely suspend Commission unconstitutional
The Police Service Commission, through its Legal Counsel Selwyn Pieters, has informed President Irfaan Ali that it will not heed to his suspension but would rather continue its work in keeping with its constitutional mandate on the grounds that the President’s decision is unconstitutional.
“…the members of the Commission have not been lawfully suspended from performing the functions of their offices and…will therefore continue to perform its constitutional mandate in respect to discipline and promotion of Guyana Police Force Officers from Inspectors to Assistant Commissioners,” Pieters informed the President.
It was against this background that the Commission, on Monday (June 28), released its approved List of Police Promotions but the move was met with fierce objection from the Irfaan Ali Administration.
On June 16, President Ali suspended the Chairman of the Police Service Commission, Paul Slowe, CCH; and its Commissioners – Michael Somersall, CCH; Claire Alexis Jarvis, Vesta Adams and Clinton Conway – but in a letter dated June 28 their Legal Counsel told the President that his decision contravenes the Constitution, in particular Article 225 (6), which sets out the conditions for the suspension and or removal of a Constitutional Officer from a Commission.
Pieters explained that while Article 225 (6) stipulates that the President, acting in accordance with the advice of the prescribed authority, may suspend an Officer, only if the matter has been referred to a tribunal.
He noted that the prescribed authority, according to Article 210 (3), is the Chairman of the Commission and or the Prime Minister, however, the Chairman never proffered such advice in the case of Somersall, Jarvis, Adams and Conway.
“It is clear from the above provisions that Your Excellency’s purported suspension of the Chairman and other members of the Commission is contrary to the Constitution in two respects: first, because the question of removal from office has not yet been “been referred to a tribunal;” and second, advice of the “prescribed authority” with respect to the suspensions,” Pieters told the Head of State.
Iterating that the suspension of the Chairman and Commissioners of the Police Service Commission is premature, the Legal Counsel pointed out that the President in his June 16 letter, indicated that he has taken a decision to suspend Members of the Commission “pending the establishment” of the tribunal. This, Pieters emphasized, is in breach of Article 225.
“Respectfully, Your Excellency has no such power. Clearly, one cannot refer a question to a tribunal that does not yet exist. The proposed suspensions of the members of the Commission are therefore all premature, null, void and ultra vires Article 225,” the Attorney told President Ali.
Further, he pointed out that Article 225 (4) of the Constitution stipulates that President must act in accordance with the advice of the Judicial Service Commission, in appointing a tribunal but there is no Judicial Service Commission in place.
“At present, there is no Judicial Service Commission, with the last such Commission having come to an end in 2017. Accordingly, in order for Your Excellency to appoint a tribunal to whom you may refer the question of removal, as required by Article 225 (4) and (6), a Judicial Service Commission should be constituted,” Pieters submitted.
In support of his argument, Pieters referenced to the case, in which a Tribunal was established to determine whether or not Carvil Duncan, should have been removed the Chairmanship of the Public Service Commission.
Duncan, however, challenged the establishment of the tribunal as premature and prejudicial, and in October 2016, he was successful in having the work of the tribunal suspended on procedural and substantive grounds. Pieters was keen on pointing out that Duncan was represented by the current Attorney General Anil Nandlall.
“The suspensions referred to in Your Excellency’s letters, being ordered before the referral of the removal question to a tribunal, which indeed does not exist (and cannot exist in the absence of a duly appointed and functioning Judicial Services Commission), are without lawful authority and of no force or effect,” the Legal Counsel told the President.
NOT ON THE ADVICE OF SLOWE
Further, Pieters submitted that President Ali’s decision to suspend the Police Service Commissioners was not based on the advice of the Chairman as required by Article 225 (6).
“As indicated above, under Articles 225 (5) and 210 (3) jointly, the Prime Minister may advise the President to suspend the Chairman of the Commission, but not to suspend the other members. Rather, for the President to suspend these other members, the “prescribed authority” who must so advise him is the Chairman himself, while the Prime Minister can only advise the President with respect to these other members under paragraph (4) (appointment of a tribunal), not paragraph (6) (suspension of officers).
The Chairman, Mr. Paul Slowe, has not advised Your Excellency to suspend the other members of the Commission. These suspensions are therefore contrary to Article 225 and of no lawful force and or effect, even if the removal question had been referred to a tribunal,” Pieters told the President.
He said it is clear that the President did not act in accordance with the Constitution. “In consequence, the purported suspensions of the Chairman and other members of the Commission are ultra vires the Constitution, unlawful, illegal, premature and of no legal force, import or effect,” Pieters told the Head of State.
He said because the Commission was not lawfully suspended, it will continue to perform its constitutional mandate. He advised the President that should he disagree, he should refer the matter to the court.
LIST OF PROMOTIONS
Based on the advice of their Legal Counsel, the Chairman and Commissioners of the Police Service Commission, on Monday (June 28) approved and made public its official List of Promotions for Officers within the Guyana Police Force.
The Commission released the List moments after High Court dismissed an application which challenged the promotions.
The case – Calvin Brutus v the Police Service Commission – filed in December, 2020 had in effect barred the release of the List of Promotions, which was scheduled to be released on Old Year’s Night (2020), however, with the case dismissed, the Commissioned wasted no time in making the list public.
The list entails promotions for 132 ranks within the Guyana Police Force including the promotion of Senior Superintendents Ravindradat Budhram, Errol Watts, Wendell Blanhum, Edmond Cooper, Phillip Azore and Kurleigh Simon – to the Office of Assistant Commissioner of Police. Notably, Brutus and four other senior officers had challenged their exclusion from the list, and in doing so, sought to nullify the promotion of Cooper, Azore and Simon on the basis that they are facing disciplinary actions, however, Chief Justice (ag) Roxane George, in handing down her ruling, said there wasn’t sufficient evidence to substantial the claim made.
However, the Government, through the Attorney General Anil Nandlall rejected the List.
“The Government of Guyana rejects as unlawful and illegal, a list of purported promotions of members of the Guyana Police Force by the Police Service Commission,” Nandlall said while noting that the Police Service Commission was suspended by President Irfaan Ali on June 16, 2021.
The Attorney General said the decision of the President can only be rescinded, revoked, set-aside or reversed by the President himself, or by a court of competent jurisdiction. “No person, let alone, a constitutional commission, will be allowed to become judge, jury and executioner in our constitutional democracy. The Rule of Law simply does not permit it,” the Attorney General said.
He said the move by the Police Service Commission to publish a List to countermand, disobey and disregard the President’s decision, not only amounts to an effrontery to the highest executive office in this land, but is simply absurd.
“If anyone had any doubts about the independence and rectitude of this grouping who constitute the Police Service Commission, those doubts should now be put to rest,” Nandlall posited.
The Attorney General said that though the High Court dismissed the application challenging the proposed List, the ruling does not make it legitimate.
“It must be made abundantly clear that nothing in the ruling rendered this afternoon by the learned Chief Justice, the Honourable Roxanne George, CCH, SC, in the case filed by Mr. Calvin Brutus, Senior Superintendent of Police, against the Police Service Commission and the Attorney General, gives legitimacy to the purported list of promotions issued by the PSC or any such list, as suggested in certain segments of the Press. In fact, one of the grounds that the Police Service Commission proffered in opposition to the case brought by Mr. Brutus is that ‘’the Commission has not made a final decision regarding promotions,” the Attorney General said.
He said in the circumstances, the purported list of promotions of members of the Guyana Police Force will be ignored by the Government.