What is the government up to?
Sep 18, 2016, , http://www.kaieteurnewsonline....he-government-up-to/
The decision of the government to establish a tribunal to investigate whether the Chairman of the Public Service Commission, Mr. Carvil Duncan, should be removed from all constitutional service commissions is as bizarre as it is ominous.
The last time such a tribunal was established it was activated by a complaint made by a member of the Bench against a judge. The complainant indicated that the now disrobed and deceased judge had approached her to find favor with someone who was one of his relatives and who had a case in front of her. The complaint was made to the relevant authority and a tribunal was established to hear the charges against the judge. The tribunal found merit in the complaint and this led to the disbarring of the judge.
A process was begun under the PPPC to have a Commissioner of Police (COP) face a similar tribunal in order to determine whether that person should remain as the head of the Guyana Police Force. The process never went forward because the then COP filed legal action which stayed the first step in the process and later proceeded on retirement which effectively ended any attempt to discipline him.
In both of the above cases, there reasons given for asking the persons accused of misbehavior to answer why they should not be subject to investigation. In the first case, there was a complaint filed against the judge. A charge there had to be answered. In the second instance there was a highly publicized tape-recording of a phone call in which was believed to be between the COP and another person.
The present case is strange because the person concerned is already before the magistrates’ court. It is bizarre that instead of waiting for the outcome of that matter, which is about to be concluded, the constitutional mechanism for determining misbehavior has been activated.
A person cannot be tried twice for the same offence. If, presumably, the person is freed by the magistrate’s court, what happens if he is then found guilty by the tribunal of misconduct. The charges are technically different. One is a charge for criminal misconduct; the other is a charge of misbehavior. But the evidence will most likely relate the same subject matter, the payment of almost G$1M while being a Director of the Guyana Power and Light.
It is hard to recall any precedent of a person facing a criminal charge also having a tribunal investigate the same facts. The government must be desperate to remove this man. Why else would they be going to such trouble?
If he is convicted on the criminal charge in the Magistrate’s Courts, it makes his position untenable because he would be disqualified to serve on any service commission. The opposition has already criticized the decision to appoint the tribunal on the grounds that it is premature and an abuse of process.
An abuse of process can arise if a lower judicial body overturns a higher judicial ruling. This does not apply in this instance because the tribunal appointed by the President is a higher judicial body that the one hearing the criminal charges against Duncan. It is left to be seen whether the tribunal will await the Magistrate’s verdict before proceeding. It does not have that but in order not to find itself in a legal quagmire it may opt to do so.
The second instance in which an abuse of process may be adduced is by the having someone simultaneously face two trials for the same facts.
The establishment of the tribunal, unlike what the opposition is saying, does not fly in the face of the presumption of innocence. The tribunal will start from that same presumption.
On the political side one has to ask the reasons for the government’s desperation? Why take this step now when the criminal case is winding down? What is the government hoping to achieve? What are its motivations?
Is that they want Duncan out so badly that they cannot wait on the Magistrate’s decision? This is a truly strange situation indeed, the likes of which cannot be recalled.
The answer may be found in the fact that Duncan despite being charged has not stepped down his from positions on the constitutional commissions. The government’s actions may be a way of ensuring that he is forced to step down. In other words, the establishment of the tribunal may be the government’s way of pushing Duncan out, regardless of what the court rules. If this is the motivation it constitutes an abuse of process since the intention is not really to determine misbehavior but to remove him.
We are heading into uncharted waters. The government may be treading a dangerous course.
The public must place its faith, however, in the fairness and independence of the tribunal. The government cannot dictate what the tribunal will rule.