Nov,23 2017
Chief Justice (ag) Roxane George SC yesterday ruled that the directive given by the Minister of State to the Police Service Commission (PSC) to halt the consideration of planned promotions for this year was unlawful and a blatant disregard for the Constitution, according to Attorney Anil Nandlall.
In August, Nandlall, a former Attorney General had filed a court action challenging a letter which contained the directive issued in the name of President David Granger. The letter was sent by Minister of State Joseph Harmon to the PSC’s Secretary on July 26 asking it to withhold work on the annual police promotions. Under the constitution, no such direction can be given.
An oral decision in the case was handed down by Justice George yesterday afternoon.
On 17th August, 2017, Nandlall filed a constitutional challenge on behalf of attorney Rajendra Jaigobin asking for “a declaration that the Police Service Commission, a Commission established by the Constitution of the Cooperative Republic of Guyana, in the exercise of its functions shall not be subject to the direction or control of any other person or authority;
“A declaration that a letter dated the 26th of July, 2017, directed to the Secretary of the Public Service Commission, a Commission established by the Constitution of the Cooperative Republic of Guyana, by Mr. Joseph Harmon, Minister of State and a member of the Executive, advising that `His Excellency, President David Granger, has directed that there be no consideration of promotions for members of the Guyana Police Force by the Police Service Commission, until further notice …’, is in violation of Article 226 of the Constitution of the Cooperative of Guyana, is unlawful, null, void and of no legal effect”.
In comments to Stabroek News last evening, Nandlall said that the Chief Justice (ag) granted the declarations sought by the Applicant (Jaigobin) and ordered the Attorney General (Respondent) to pay to the Applicant $200, 000 as costs.
He said in an oral version of her ruling, the Chief Justice (ag) stated that the Application was justified in the public interest and therefore the Applicant has locus standi especially in light of the development of the law on locus standi. According to him, the judge said that the letter sent by Minister Harmon was in flagrant disregard of the constitution and is unlawful, null, void and of no effect; that she hoped that the PSC did not act upon the unconstitutional letter and that it speaks volumes that the Attorney General did not defend the matter on the merits but rather sought to hide behind legal arguments such as: “locus standi” and “that the matter is of academic importance”.
According to Nandlall, Justice George made it is clear that this issue is not of academic importance but it is an issue of high constitutional importance, that only two years ago, Minister Simona Broomes, another Minister of the Government had issued similar directions to a Service Commission and although the Court with the consent of the Attorney General had declared that that letter had been in violation of the constitution, a similar palpable violation of the constitution was repeated by another Minister, that in the face of this flagrant disregard for the constitution which the state conceded two years ago, the state should have done the honourable thing and correct the error rather than seek to defend these proceedings and that in the circumstances, the actions of Minister Harmon in writing that the President has directed that there be no consideration of promotion of police officers was a blatant disregard of Article 226 of the Constitution which insulates the Police Service Commission from influence and directions of any other person or authority, especially political directions.
It is unclear when the written version of the ruling will be made available and what consequences it will have on the situation particularly since the life of the PSC has already expired and a new commission is slated to be constituted soon.
Jaigobin had cited several sections of the constitution in his affidavit in support of the action.
He noted that Article 212 (1) of the Constitution states:
“subject to the provision of article 211 (1), the power to make appointments to any offices in the Police Force of or the above the rank of Inspector, the power to exercise disciplinary control over persons holding or acting in such offices and the power to remove such persons from office shall vest in the Police Service Commission”.
Further, he said Article 226 of the Constitution provides thus:
Article 226(1) “Save as otherwise provided in this Constitution, 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”
Further, Article 226(7) of the Constitution provides thus:
“in this article…the expression ‘commission’ means the Elections Commission, the Judicial Service Commission, the Public Service Commission, the Teaching Service Commission or the Police Service Commission”
Jaigobin added that Article 38(G) of the Constitution guarantees the integrity of the Public Service and further insulates Public Officers from political influence and argued that it is clear that the letter by Harmon and its contents are in flagrant violation of the letter, spirit and the intendment of Articles 38(G), 212 and 206 of the Constitution of Guyana.
Jaigobin also adverted to a letter of May 28, 2015 which the then Minister in the Ministry of Social Protection, Simona Broomes issued a letter trying to instruct the Secretary of the Public Service Commission. That letter triggered legal proceedings and then Chief Justice Ian Chang SC ruled that the letter was in violation of Article 226 of the Constitution.
Last evening, Nandlall informed that the Attorney General opposed the application by Jaigobin on the grounds that the Applicant had no locus standi to institute the proceedings and that the court should no longer determine the matter because the life of the commission has expired, therefore the matter is no longer a live matter, that it is of academic importance only, and that the courts do not act in futility.
According to Nandlall, he submitted that the wrong complained against is the violation of the express language of Article 226 of the Constitution, the supreme law of Guyana; that the letter by Harmon violates the doctrine of separation of powers; that the Applicant is a citizen of Guyana and that the Constitution provides for the protection of the citizenry against every form of abuse and that every citizen of Guyana has an interest in ensuring that there is constitutional compliance and every citizen of Guyana has an unfettered right to approach the courts whenever that citizen feels that the Constitution has been violated and that a violation of the constitution can never be classified as an academic question.
He said that he also contended that attempting to direct the commission seems to be a recurrent issue as Minister Broomes had done so with the Public Service Commission two years prior and that this is a matter of high constitutional importance and as the guardian of the constitution the court ought not to refuse to determine a matter when is it alleged that the constitution is contravened.
According to Nandlall several cases from Guyana, the Caribbean and the United Kingdom were cited by both parties.
Granger had justified the directive saying that it was done in wake of complaints about the police.
A statement from the Ministry of the Presidency reported the President as saying that there have been many legitimate complaints by members of the PSC and aggrieved police officers of abuse and malpractice in the Guyana Police Force (GPF) and it is for this reason that he has asked for the promotion of police officers to be delayed.
“We are investigating the complaints, which have been made to us and we have asked the Police Service Commission to simply delay so that we can answer those queries and once those queries are satisfactorily answered we will proceed. It’s no intention on my part to impede the work of the Commission,” the President had said.