President’s unlawful interference with work of Police Service Commission

Dear Editor,
Recently, a letter was sent from the Ministry of the Presidency by Minister Joseph Harmon writing on behalf of President David Granger to the Police Service Commission (PSC). That letter directed the PSC to halt the contemplated promotion of Police Officers; a matter solely and purely within the constitutional competence of that Commission. The issuance of that letter raises a substantial and serious constitutional issue which calls into question the governance style of the A Partnership for National Unity/Alliance For Change coalition Government.
The establishment of the service commissions under the Constitution of Guyana was intended to insulate and protect those commissions from Executive and morseso political interference, direction and control. That these commissions are intended to be independent and autonomous could not in this era of constitutional awareness and enlightenment be the subject of any controversy.
That brings me to two contributors to the letter columns of the local newspapers. They are Maxwell Edwards, a former Magistrate; and Kaishree Chatterpaul, an Attorney who ordinarily resides in Canada. In essence, both men have written to assert that the President’s directive to the PSC was within the President’s authority. In both cases these were surprising assertions coming from supposedly legally trained persons. Edwards has become known in the press for advancing novel legal propositions mainly on behalf of the Attorney General and the President but his contentions, as decisions of the courts have recently shown, have been without merit and border on the absurd.
In his recent foray into the area of constitutional law, his thrust is that the President can halt the work of the PSC and that such a presidential intervention may be premised on a policy of “appointment freeze” or alternatively, on the doctrine of executive privilege. Coming from a former Magistrate, who describes his misconceived contentions as “novel”, such arguments are both disgraceful and shocking. Edwards attacked Chevy Devonish, a law student, whom he says is a person “yet to be learned in the law” for not showing “self-restraint and considered caution in his insinuation of unconstitutionality and arbitrariness against no less a public authority than the President of this country.”
My understanding is that given the undoubted independence and autonomy of the PSC, Chevy Devonish was clearly right and Maxwell Edwards is hopelessly wrong. President Granger is not infallible. He is not, if his actions warrant it, above being said to be acting unconstitutionally (as I will show he has done in numerous instances in a forthcoming letter). I challenge Maxwell Edwards to point to any precedent (barring a suspension of the Constitution) to show one instance where some Executive policy or doctrine has been applied to interfere with the work of a constitutionally established service commission. Chevy Devonish has presented a serious challenge to Maxwell Edwards’ learning in the law. Devonish must be congratulated for his appreciation of and understanding of the role and function of the Police Service Commission. No more needs be said about Maxwell Edwards and his fanciful, frivolous contentions. There is much to be said for Lincoln Lewis’ recent appeal in the press for a concerted programme aimed at an education for our people about our Constitution, from which programme Maxwell Edwards would undoubtedly benefit.
Next, a look at the arguments of Kaishree Chatterpaul who writes as a person under the influence of a delusional causing substance would. It takes considerable courage for a lawyer to write as Chatterpaul does. He contends that the President’s “directive” (his word) is “not an administrative decision subject to judicial review…. It amounts to an exercise of executive function which is outside the realm of the judiciary” because of the doctrine of the separation of powers. A substantial body of administrative law has been built up over the years founded largely on the courts’ review of executive action. Chatterpaul bravely and boldly asserts that” the President’s directive” is “an exercise of public law power”. He then cites a case from South Africa in support of his argument that the President in relation to the PSC has acted lawfully. The statements Chatterpaul quotes from the case just do not support him. The opening lines of the passage from the case quoted by Chatterpaul throw him into the dustbin. The passage reads “the exercise of public power must therefore comply with the Constitution, which is the supreme law, and the doctrine of legality, which is part of the law.”
There is no room on any constitutionally established ground for any interference with the work of the PSC, from any quarter whatever, and that includes the President, though I would be prepared to concede that the President or the Government or any citizen for that matter, may present information to the Commission on any matter which the Commission may utilise in the consideration of its work but no directives can be given. How the Commission treats with the information provided is a matter entirely for the Commission. By his directive the President exceeded the boundaries of presidential authority and was therefore acting unlawfully. His action, as an exercise of public law power, as Chatterpaul contends, is affected by a want of legality, and was therefore in violation of the doctrine of legality and by extension, the rule of law. It was extremely difficult to find in Chatterpaul’s letter, the legal basis for his contention that it was within the President’s authority to halt the work of the Police Service Commission. Maxwell Edwards and Kaishree Chatterpaul apart, it was interesting to note the reaction from various quarters in Guyana concerning the President’s letter to the Police Service Commission.
President Granger himself has said that “we have asked the Police Service Commission to simply delay”. Note must be taken of the fact that Minister Harmon in the name of President Granger had written to the Commission not to delay the consideration of Police promotions but to advise that the President had “directed that there be no consideration of promotions of members of the Guyana Police Force until further notice”. Clearly the letter was directing a halt to the consideration of promotions of Police Officers by the Commission and it notified the Commission that the President presumably would give notice to the Commission about the resumption of its work. It appears that the President was in receipt of some information which he wished to consider.

It also appears that this information relates to Police disciplinary issues. Such matters are indisputably within the constitutional jurisdiction of the PSC but President Granger indicated that “we are investigating those complaints and once those queries are satisfactorily answered, we will proceed.” What exactly does President Granger mean by “we will proceed”? To whom is he referring as “we”? What is in issue is the question of Police promotions, a matter over which he and his Government have no control and should not seek to influence. The words of the President that “we will proceed” are ominous.
That President Granger has interfered in the work of the PSC is without doubt. Upon receipt of the letter from Minister Harmon in the name of President Granger, the Service Commission which was legitimately engaged in considering Police promotions, halted its efforts. PSC Chairman Omesh Satyanand is reported in the press as saying that the President’s directive was unconstitutional but that some members decided not to proceed because the directive came from the President. That position taken by the Commission is the direct result of the President’s unlawful interference with the work of the Police Service Commission.

Sincerely,
Selwyn Persaud