Unconstitutional Suspension Of The Police Service Commission (PSC)

On June 16, 2021, the President of Guyana unlawfully and unconstitutionally suspended the PSC.

Here are the indisputable facts.

Article 210 of the Constitution of the Cooperative Republic of Guyana makes provision for the establishment and composition of the Police Service Commission.

The members of the PSC were sworn in by President David Granger on August 9, 2018, for a term of three years.

On June 16, 2021, President Mohamed Irfaan Ali wrote to each member of the PSC informing them that they were suspended from performing their duties with immediate effect, pending the establishment of a Tribunal.

That action was a clear violation of the Constitution of the Cooperative Republic of Guyana.

Article 225 of the Constitution sets out the procedure for removing members of the PSC.

Article 225 (2) of the Constitution provides for the removal from office of certain persons, which includes members of the PSC, ”only for inability to discharge the functions of his or her office, whether arising from infirmity of body or mind or any other cause whatsoever, or for misbehaviour”. None of that was alleged in the letters from the President.

Article 225 (3) states that “the officer shall be removed from office by the President if the question of his or her removal from office has been referred to a Tribunal under this Article and the Tribunal has recommended to the President that the officer ought to be removed from office for inability as aforesaid or for misbehaviour.”

Nothing was referred to a Tribunal and therefore there was no recommendation from a Tribunal for the removal of the members of the PSC.

Article 225 (4) states: “if the Prescribed Authority advises the President that the question of removing the officer form office under this article ought to be investigated then: –

a. The President shall act in accordance with the advice of the Judicial Service Commission, in appointing a Tribunal which shall consist of a Chairman and not less than two other members, selected by the Judicial Service Commission for among persons who hold or have held office as a judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or a court having jurisdiction in appeals from any such court or who are qualified to be admitted to practise in Guyana as an attorney-at-law and have been so qualified for such period as is prescribed by Parliament for the purpose of sub paragraph (b) of Article 129 (1) in relation to the office of puisne judge.

b. That Tribunal shall inquire into the matter and report on the facts thereof to the President and recommend to him or her whether the officer ought to be removed under this article.

Article 225 (6) if the question of removing the officer from office has been referred to a Tribunal under this article, the President, acting in accordance with the advice of the Prescribed Authority, may suspend the officer from performing the functions of his or her office, and any such suspension may at any time be removed by the President, acting in accordance with such advice as aforesaid, and shall in any case cease to have effect if the Tribunal recommends to the President that the officer should not be removed from office.

Again, it is to be restated that nothing was referred to a Tribunal as stipulated in Article 225 (6).

Having regard to the above, it is clear that in the absence of the Judicial Service Commission and the setting up of a Tribunal to inquire into the matter, the President could not have lawfully suspended the Police Service Commission.

THE REAL REASON FOR THE SUSPENSION OF THE PSC

1. The Chairman of the Police Service Commission alleged that he had a meeting with the President on September 16, 2020. During that meeting it is alleged that the President stated his desire to have certain police officers promoted; among those officers were some with disciplinary and other pending matters. The President was advised that ranks with pending matters are not considered for promotion by the PSC.
2. The Police Service Commission met on December 23, 2020, to commence the process to have ranks (from inspector to assistant commissioner) promoted. At the end of the deliberation, several ranks were shortlisted to be further considered.
3. According to Senior Superintendent Calvin Brutus the shortlist was leaked to him by a confidential source at the Police Service Commission.
4. The President initiated a telephone call with the Chairman of the Police Service Commission on the night of December 23, 2020. The Chairman alleged that during that call the President enquired about the promotion of specific police officers whom he referred to as ‘his people’. Among the persons the president enquired about were Senior Superintendents Calvin Brutus and Fazil Karimbaksh. The President was advised that both of those ranks were among several who were not short-listed because of pending matters against them. The Chairman further alleged that the President became very irate upon learning that ‘his people’ were not shortlisted for promotion.
5. On December 24, 2020, the Minister of Home Affairs, Mr. Robeson Benn, instructed the Commissioner of Police to initiate criminal proceedings against several members of the Force, among them were several ranks who were shortlisted for promotion.
6. On December 31, 2010, Senior Superintendent Calvin Brutus moved to the High Court to challenge the promotions, even though no promotion had been made.
7. The Chief Justice ordered that the status quo in the Force must be maintained until the challenge was heard and determined. As a result, the Police Service Commission halted the promotion process. The decision in the Brutus matter was set to be delivered on May 24, 2021.
8. On May 19, 2021, several former and serving police officers were arrested and charged on an allegation of ‘conspiracy to commit fraud’, among those persons were the Chairman of the Police Service Commission and another member, Mr. Clinton Conway. On the very day, May 19, the Prime Minister wrote to the Chairman and Conway asking them to show cause why he should not advise the President to have them removed from the PSC, because of the charge instituted against them.
9. It is curious that the Prime Minister could have been advised on the very day the charge was filed and before the persons appeared before the court to answer the charge.
10. The speed with which the Prime Minister wrote to the Chairman and Conway suggests that there was a conspiracy to discredit them before the ruling on May 24. The court did not hand down the decision on May 24. The matter was postponed to June 18, 2021.
11. On June 1, 2021, the Prime Minister sent a second show cause letter, this time to all the members of the Police Service Commission, asking them to show cause why he should not advise the President to have them removed from the Police Service Commission. The reason stated on this occasion was that the Commission had joined with other Commissions and politicians to challenge the amendment to the Fiscal Management and Accountability Act. It was noted that none of the members of the other Commissions was sent similar letters.
12. As stated earlier the decision in the Brutus matter was set to be handed down on June 18, 2021. The President suspended the Commission on June 16, 2021. The timeline clearly suggests that the President wanted the Commission out of office before the court handed down the decision, which based on the evidence he must have known will go against Brutus. Therefore, the clear intention was to ensure that when the decision was handed down there would be no Commission to effect the promotions, which had been halted on December 31, 2020.
13. Why would the President suspend the members of the Commission on June 16 when the life of the Commission was to end on August 9; in less than two-month time? It is quite clear that the only reason the President disregarded the provisions of the Constitution and unlawfully suspended the Commission was because he did not want to have the Commission in place when the court hand down the decision.
14. The decision was handed down on the June 28, 2021, and as was anticipated the Chief Justice ruled in favor of the PSC and threw out the challenge brought by Senior Superintendent Brutus. Following the ruling the PSC released to list of persons promoted.
15. The Government, through the Attorney General, refused to recognize the promotions. This act is also clearly unconstitutional, as the Police Service Commission is the constitutional body charged with the responsibility to make promotions in the Guyana Police Force from the ranks of inspector to assistant commissioner.
16. The Police Service Commission moved to the High Court seeking an order to have the relevant persons (the secretary to the PSC and the Commissioner of Police) give effect to the promotions. The matter is still pending.

It is worth noting that currently several constitutional commissions are not in place. Those include:

1. The Police Service Commission
2. The Public Service Commission
3. The Judicial Service Commission
4. The Teaching Service Commission
5. The Procurement Commission
6. The Integrity Commission

It is evident that the government is not keen on having these commissions, which are intended to serve as important checks and balances in place.

It is very worrying that in light of these and other alleged constitutional violations by the government, civil society groups and the diplomatic community, who were so vocal not so long ago, are silent, and therefore appear to be complicit in these constitutional breaches.

Concerned Patriot