A legal issue not a private spat
Nov 12, 2016 , http://www.kaieteurnewsonline....-not-a-private-spat/
There is no spat over the reversal of the ‘promotion’ of ranks of the Guyana Police Force. The government is wickedly attempting to present this matter as a case of a difference between the Commissioner of Police and the person who performed the duties of Commissioner while the substantive Commissioner was on leave.
This is not a personality issue. It is not an internal problem within the Force. It is a legal problem which has arisen because the government has allowed the title of Acting Commissioner to be used for the person who was merely performing the duties of Commissioner while the Commissioner was on leave.
There is a difference between an Acting Commissioner and someone who performs the functions of Commissioner of Police when the Commissioner of Police is on leave. That person should not be called an Acting Commissioner. They should be designated by their substantive title and be said to be performing the functions of Commissioner, something that is permissible by law.
What is not permissible is for someone performing the functions of Commissioner to make promotions within the Guyana Police Force. The Constitution of Guyana is explicit on this point. It reserves for the Commissioner and the Commissioner alone, the power to make promotions of junior ranks.
It does not grant to any person performing the duties of Commissioner any such powers. This is why under the PPPC, for a very long time, when there was no substantive Commissioner of Police, there could be no promotion of junior ranks.
The Constitution of Guyana says that an acting Commissioner can be appointed if the office of Commissioner becomes vacant. When the Commissioner of Police goes on leave, annual or sick, this does not make his office vacant. The Commissioner is still the Commissioner. The only thing is that he is not performing the duties of Commissioner because of his absence from the job due to entitled leave.
Someone has to perform the duties of Commissioner. The person performing those duties when the Commissioner of Police is on leave is often referred to as the acting Commissioner. This is a misnomer, because the Constitution of Guyana is very clear that an acting Commissioner is sworn in when the office of Commissioner is vacant.
The office of Commissioner becomes vacant in three situations – when the incumbent retires, when he is discharged for misconduct or if he dies. Absence from work due to leave does not constitute a vacancy in the office of the Commissioner. An acting Commissioner of Police therefore cannot be sworn in whenever a Commissioner of Police proceeds on leave.
An acting Commissioner can only be sworn in when there is a vacancy in the office of Commissioner. But if the substantive Commissioner proceeds on leave, someone can be appointed (not sworn in) to perform the duties of Commissioner. That person has no power to make any promotions. If this were allowed, it would mean that if a substantive Commissioner gets sick then the person who holds the fort for him while he is recovering, even if it is for three days, can make promotions.
The Constitutional power which is vested in the Commissioner of Police and him alone, cannot be exercised in such a flippant manner.
The incumbent Commissioner of Police is therefore absolutely right in his determination that the promotions made while he was on leave are ultra vires of the law. The person performing the duties of Commissioner have no such power.
This is not an internal power squabble. This is a question of law. The Commissioner is duty bound, as he has done, to reverse any actions which are not in compliance with the law of the land.
It is worrying that the government is trying to present this matter as a case of the police force washing its dirty linen in public. The matter only became public because the press got wind of the reversal of the promotions. It was not a case whereby the Commissioner went public to attempt to humiliate his second in command.
The government must recognize that this is a legal matter which has to be settled legally. The government, before it came to office, had also questioned the legality of the appointment of the Commissioner of Police. It refused to go to the Courts to have this appointment annulled and therefore, until such is challenged, it is the incumbent Commissioner, and him alone, who makes promotion for junior ranks.