Stabroek News reported that ‘Attorney General (AG) Anil Nandlall, in a statement on behalf of government, accused the PSC (Police Service Commission) of countermanding, disobeying and disregarding the President’s decision, which he said, ‘not only amounts to an effrontery to the highest executive office in this land, but is simply absurd.’ Mr. Nandlall speaks of the president as if he is all-powerful, but it is well recognised that even in the United States where the constitution clothes the president with executive supremacy, his power is sometimes questioned, and it is doubtful if a democracy can flourish where there is one supreme executive overlord.
Most briefly, the AG was referring to the quarrel between the government and the PSC concerning the promotion of certain police officers. For reasons having to do with ongoing disciplinary matters, the PSC had left a few of the government’s preferred officers off the promotion list and this led to the dispute. The affected officers took the PSC to court to prevent it from proceeding with the appointments and leaving them off the list but lost their case. In the meantime, the president sought to suspend the PSC but his order was ignored on the grounds that he did not follow the required procedure, and the PSC proceeded with the appointments.
Recently I heard the AG give an example of decision-making in the normal boss/employee relationship, suggesting that barring an injunction, once the president gives an order it must be complied with. Public management will be seriously jeopardised if superior orders can be routinely flouted but subordinates confronted by what they consider illegal orders have the duty to communicate their objections to their superiors all the way up the decision chain. Applied to the boss/employee relationship posited by the AG, this would indeed mean that the Commission should have first taken to the courts before making the appointments.
But the Guyana political system is rooted in the existence of certain fundamental individual rights and the separation of powers, and the independent service commissions are there to help to protect those rights. Article 226(1) of the Constitution 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.’ Where in any normal boss/employee relationship is the employee empowered not to be directed by the boss?
The PSC is that type of constitutional body that is not an executive subordinate of the president, and the constitution of Guyana is littered with instances that speak to the special nature of the service commissions. For example, article 232 (5) states that, together with other bodies such as the offices of President, the Minority Leader, Ombudsman, members of the National Assembly, the members of the service commissions are not public servants. Commissioners cannot be members of the National Assembly and as with other such autonomous bodies, article 225 (6) makes similar provisions for the disciplining of their members. It is this process that the PSC is claiming the president breached.
If ‘good faith’ existed between the parties, the PSC could have asked the court to determine the legality of the president’s order and its decision to go forward. However, the air is devoid of such niceties, the PSC’s term ends in a month and given the operation of our legal system it is uncertain that a timely decision would have been provided. Since it is not subordinated to the president and the court cleared the way for it to proceed if it wished to make the appointments, it took the sensible course. The government has said that it will ignore the decision of the PSC and if by this it means that it will not abide by and will seek to undermine the normal implications of the appointments it will most likely have to answer for such behaviour in the courts. Of course, this kind of standoff contributes to organisational alienation and disunity, particularly as if it does not win the legal battle, the regime will certainly try to find administrative ways of working around the PSC’s decision.
There has been no effrontery. Never mind the persistent corruption of these commissions by the political elite who usually pack them with their supporters – even members of the central executive committees of their parties – they are autonomous bodies intended to help protect the fundamental rights of Guyanese and they should be encouraged to do all that is necessary to defend and enhance their independence.
