Chief Justice dismisses challenge to Police 2020 promotion

…says need for comprehensive regulation governing disciplinary, promotion procedure

Senior Superintendent of Police Calvin Brutus has failed in his bid to quash the promotion of several senior officers who were promoted in front of him to Assistant Commissioner of Police as Chief Justice Roxane George dismissed his application on Monday. Back in December 2020, Brutus, through his lawyer, CV Satram, moved to the High Court to challenge the promotions by the Police Service Commission (PSC).

Following the initial challenge, several other senior officers were added as interested parties. Brutus complained that he was being bypassed for promotion even though he was recommended by the Commissioner of Police and owing to frivolous pending allegations of indiscipline against him.
Brutus had sought an order of certiorari quashing the decision of the PSC to promote over him, Senior Superintendents of Police Edmond Cooper, Phillip Azore, and Kurleigh Simon, who like him, have pending disciplinary matters, to the rank of Assistant Commissioner.
“The allegation was essentially that I wrote the [then] Minister of State without the permission of the Commissioner of Police,” Brutus deposed in an affidavit.
He further deposed that Cooper, Azore, and Simon are facing serious disciplinary and/or criminal investigations for dereliction of duty, facilitation of unlawful activities, perverting the course of justice, corruption by a public officer, among other offences.

Brutus had asked for an order nullifying the promotion of his colleagues. In the end, Justice George dismissed Brutus’ application having found that there was no evidence to justify the orders and declaration he was asking the court to grant.
Besides asking the court to grant an order overruling the PSC’s practice of not promoting officers with pending disciplinary matters, Brutus was also seeking a consequential order directing the PSC to appoint him to the office of Assistant Commissioner. None of these orders were granted.

Uphold Constitution
The Chief Justice said that the PSC is duty-bound to conduct investigations regarding the allegations against Brutus and the other aggrieved officers expeditiously. She said that the purpose of having investigations done as soon as practicable would conform with Article 144 of the Constitution of Guyana which makes a fair hearing within a reasonable time a fundamental right.
“It is, therefore, to be expected that there would be reasonable expediency in the conduct of the disciplinary proceedings against the officers affected. More so as it is known that there is a policy that such proceedings can stymie an officer’s prospects of promotion. It would be reasonable that officers so accused would want to clear their names and in the public interest any allegation of misconduct must be investigated so that the public can have confidence in the Guyana Police Force,” she noted.
According to her, it is the PSC that has the control and drive over the investigation process, even where it has delegated its disciplinary powers to an officer. “The Commission as an entity established by and subjected by the Constitution must endeavour to uphold Article 144.”
Justice George pointed out that she did not find that the PSC must, as a matter of law, ignore disciplinary proceedings against officers when it comes to its decision-making as regards promotions.

Nothing unlawful
With regards to Brutus’ request for the PSC’s “blanket policy” of not promoting ranks with pending disciplinary matters to be deemed unlawful, Justice George said that granting such an order could result in a general proposition that would not only affect the PSC but all the other service commissions. They are the Public, Teaching, and Judicial Service Commissions.
“It would be a major usurpation of the powers and authority of the [PSC] for the court to rule in such a sweeping fashion that one of the four constitutional Commissions…must ignore disciplinary matters against officers when considering their suitability for promotion,” the Chief Justice added.
She continued, “To do so would fly in the face of the express authority given to the Commission pursuant to Article 212 to address issues of disciplining persons falling under its purview.” According to her, the court cannot say that the PSC acted unlawfully in taking into consideration disciplinary matters.

She ruled that to so hold will not only usurp the authority of the Commission as regards to disciplining officers but would create a particularly dangerous precedent not only for this Commission but for the other service commission.
Justice George reasoned that the key to addressing the issue of discipline and its impact on the promotion of officers and ranks is to have these issues dealt with expeditiously. “There is nothing unfair in the Commission or any employer for that matter taking into consideration disciplinary issues in determining whether an employee should be promoted.”
She pointed out that there was insufficient evidence to conclude that the disciplinary cases against the aggrieved officers are minor and she cannot act on their opinion that their matters are trivial or frivolous.
“It would not be for this court to determine what is a minor or serious infraction. This would require the court to embark on a fact-finding investigation that is solely within the power of the Commission. These matters will have to be addressed by detailed regulations on promotions,” the Chief Justice noted.

Comprehensive regulation
According to Justice George, this case highlights a “poor and haphazard system of dealing with disciplinary matters against Police officers.” She said that the case also highlights the need for comprehensive regulation governing the disciplinary procedure and promotions respectively including clarity on what infractions could affect such promotions.
“The circumstances that have led to these applications are most unfortunate to say the least. They do not augur well for the overall management and well-being of the Guyana Police Force,” she said, adding that the determination of this case will not assuage what are clearly deep-seated feelings of distrust and mistrust in the Guyana Police Force.
“Unfortunately for the sake of good governance of the Force, some rapprochement will have to be found. However, in coming to this decision, such is not the duty or jurisdiction of the court.”

No legitimate expectation
The Chief Justice had to determine whether Brutus and the other officers had a legitimate expectation to be promoted as they contended that this expectation arose from decade-old practices of the PSC.
Brutus had submitted that the PSC would usually rely on recommendations for promotion submitted to it by the Commissioner of Police. Brutus had contended that the PSC must provide officers who were recommended for but not promoted, with reasoning for departing from this established practice.
But Justice George found that this contention had no merit as there was no prima facie evidence that the promotion Board, the PSC, or the Top Cop “held out any promise or promoted any policy that made it mandatory that it accepts the recommendation of the Board through the Commissioner.”
She held that to say that the PSC must be bound by what Brutus and the others contend is a settled practice “would be to place a fetter on the discretion of the Commission as regard to its decision making.”
“[They] have not provided evidence that it is a settled practice that an officer will be promoted based on the fact that his/her name is on the recommendation list.”
Relying on case laws in which it was noted that there is no legitimate expectation to be promoted, the Chief Justice further held, “A person may be entitled to be considered for promotion, but is not entitled to be promoted.”
Under Article 212 of the Constitution, the Police Service Commission is empowered to promote Police ranks above the rank of Inspector. It also has the authority to exercise disciplinary control over ranks holding or acting in such offices. (G1)