There was good reason for Police Service Commission to join Mahipaul action

Following the ruling of Justice Gino Persaud on March 24, 2023, that President Mohamed Irfaan Ali violated the Constitution of the Cooperative Republic of Guyana when on June 16, 2021, he unlawfully suspended the members of the Police Service Commission, Attorney general, Mohabir Anil Nandlall, SC, MP, made a statement on the National Communications Network (NCN) where he sought to justify the unconstitutional action of the President.

The Attorney General argued, among things, that the reason why the President unlawfully suspended the members of the Police Service Commission was because the Commission joined with Member of Parliament Ganesh Mahipaul to challenge the amendment to the Fiscal Management and Accountability Act.

Editor, I feel compelled to explain, for the benefit of readers, some important events and the reason why the Police Service Commission joined in that challenge.

On May 19, 2021, Prime Minister Mark Anthony Phillips, MSS, sent letters to Mr. Clinton Conway and me. The letters read as follows “it has been brought to my attention that you have been charged with the offence of conspiracy to defraud contrary to common law, whereof between 1st March 2019 and 7th July, 2020, you with other persons conspired together, at the Guyana Police Force Headquarters, Eve Leary, Kingston, to defraud the Guyana Police Force of ten million and fifty-six thousand ($1, 056,000,00) sic, GYD and placed before the Georgetown Magistrate’s Court, where the matter remains pending.

In the exercise of the powers vested in me by virtue of Article 225 of the Constitution of the Cooperative Republic of Guyana, I hereby direct that you do show cause in writing why I ought not to advise, His Excellency the President of the Cooperative Republic of Guyana, that you be removed from the office of a member of the Police Service Commission as a result thereof.

A written response must be submitted to me either by email at pm@gov.opm.gov.gy or hard copy, hand delivered at either of the following addresses, on or before 31st May, 2021”.

Our attorney, on our behalf, provided a comprehensive response by the given deadline.

It is import to draw attention to the date of the charge, May 19, 2021, and the date of the letter from the Prime Minister, May 19, 2021, the very day. That was even before the defendants appeared in court to answer the charge, which they did on May 20, 2021.

The fact that the letters from the Prime Minister were dated the same day the charge was filed provide strong circumstantial evidence that there was a conspiracy to remove Mr. Conway and me from the Police Service Commission, and the trumped up charge was instituted as part of a diabolical plan to do so.

Perhaps, belatedly remembering that in the case involving the Chairman of the Public Service Commission, Mr. Carvil Duncan, who was suspended from that Commission following a criminal charge instituted against him, and that Mr. Nandlall had argued that such a course of action was unlawful; the Prime Minister then sent a second letter to me dated June 1, 2021. That letter stated “it has been brought to my attention that you have joined Opposition Member of Parliament, Mr. Ganesh Mahipaul and retained Opposition Members of Parliament, Roysdale Forde SC, Khemraj Ramjattan, Raphael Trotman, Geeta Chandan-Edmond and Amanza Walton-Desir, to institute proceedings against the Government of Guyana and various other parties in High Court Action No. 2021-HC-DEM-CIV-FDA-239, which matter is pending.

The Commission and its members are named as Applicant in the proceedings and are expressly relying on the Affidavit evidence of Mr. Mahipaul in the proceedings, and from all indications, the case has political overtones and has the appearance of a political contest between the Government and the Opposition.

By the Commission’s posture, the public perception is that the Commission and its members have abandoned all appearances of impartiality and have joined forces with the Opposition politicians to engage in an open, partisan, political contest with the Government.

The Constitution of Guyana, the supreme law, enjoins the Commission and its members to be free from actual, or perceived political bias, influence or interference and must at all times appear to be independent, impartial and autonomous.

In the exercise of the powers vested in me by virtue of Article 225 of the Constitution of the Cooperative of Guyana, I hereby direct that you do show cause, in writing, why I ought not to advise, His Excellency The President of the Cooperative Republic of Guyana, that your removal as Chairman of the Police Service Commission be investigated, as a result thereof.

A written response must be submitted to me by email at pm@opm.gov.gy or hard copy, hand delivered, at the following address on or before 8th June, 2021”.

Similar letters were sent to the other four members of the Police Service Commission.

Replies were provided by the given deadline.

It is apposite to note that Member of Parliament Mahipaul’s Fixed Date Application was filed in February, 2021, months before the trumped up charge was filed against Mr. Conway and me. The second letter from the Prime Minister in relation to the Mahipaul matter is dated June 1, 2021. The timeline strongly supports my contention that there was a conspiracy to get rid of the Police Service Commission by any means, including flagrantly violating the relevant Articles of the Constitution of the Cooperative Republic of Guyana. That is why two sets of letters, providing different reasons, were sent by the Prime Minister.

Why did the Police Service Commission join in the Mahipaul Application?

During November, 2019, two female police trainees made allegations against Senior Superintendent Fazil Karimbaksh. Those allegations where referred to the Police Service Commission for action to be taken. The allegations were investigated and Karimbaksh was subsequently charged departmentally. Before the commencement of the inquiry into the charges Karimbaksh filed Fixed Date Application No. 2020-HC-DEM-CIV-FDA2065 in the High Court challenging the charges that were instituted against him. The respondents were the Commissioner of Police and the Chairman of the Police Service Commission.

The Attorney General’s Chambers filed a defence on behalf of the Police Service Commission. A few days before the matter came up in the High Court the Police Service Commission was advised that the Attorney General’s Chambers had withdrawn the defence. It was later revealed that the reason for the withdrawal was the Caribbean Court of Justice (CCJ) ruling in the Brent Griffith v Guyana Revenue Authority case, that the Attorney General’s Chamber cannot represent the interest of entities, whether public or private, which are not part of the state. The Service Commissions in Guyana are not part of the state. Therefore, according to the ruling of the CCJ the Attorney General’s Chambers could not have represented the Police Service Commission.

When the matter came up in court the Police Service Commission made a request for time to refile a defence. That request was granted. The Commission then sought to retain an attorney to assist with its defence. It was then discovered that funds were not available at the Commission to retain an attorney. The Secretary of the Commission was instructed to make a request to the Ministry of Finance for funds. The request was made to the Finance Secretary, Ministry of Finance. The Finance Secretary responded to the request saying “you would be aware that no provision was made in the Commission’s 2021 budget for legal Fees. As you correctly pointed out, Constitutional Commissions, Government Ministries, and State Agencies’ historical practice is to utilize the Ministry of Legal Affairs and Attorney General’s

Chamber. There has been no change to this practice. As such, I recommend that you re-engage the Ministry of Legal Affairs and Attorney General’s Chambers for legal representation since it is the only viable option”.

So we had a case where the Finance Secretary refused to provide funds to the Commission and directed that the Commission “re-engage” the Ministry of Legal Affairs and the Attorney General’s Chamber, when the CCJ ruled that those entities cannot represent the Commission.

Prior to the amendment of the Fiscal Management and Accountability Act, the Police Service Commission, like other constitutional Commissions, were provided with lump sum funds, which they used as the respective Commissions deemed appropriate.

The amendment therefore had the effect of denying the Commissions the flexibility to determine how allocated funds were to be utilized. This significantly impacted the independence of the Commissions, as they were now placed in the untenable position where the Ministry of Finance literally determined how and when a constitutional Commission should operate. So, when the Police Service Commission learnt of the Fixed Date Application filed by Member of Parliament Ganesh Mahipaul, the Police Service Commission, like other Commissions, joined in the challenge.

However, only the members of the Police Service Commission were singled out for removal from office. Why was that so?

It is my view, and that of the other members of the Commission that were unlawfully suspended, that the reason for this unconstitutional action had to do with the fact that the Commission refused to promote certain ineligible police officers (they had pending disciplinary matters), whom the President wanted promoted.

The Attorney General implied that the action of the Police Service Commissions in joining the Mahipaul challenge amounted to misbehaviour, one of the two conditions provided in the Constitution for removal of constitutional officers. However, even if that were so, the Constitution provides a clear process for the removal of persons from constitutional office. The Attorney General admitted that the President “missed a step” in the carefully laid out process of suspending the members of the Police Service Commission. What he deliberately failed to say was that the missed step, the failure by the President to establish a Tribunal to investigate any allegation against the Commission, is a critical step in the process. Missing that step proved fatal to the suspension of the members of the Police Service Commission. According to Justice Persaud, by missing that critical step the suspension was “unlawful, ultra vires Article 225 of the Constitution, arbitrary, unreasonable, unfair, in violation of the suspended Chairman’s and Commissioners’ constitutional rights to the protection of the law and due process of the law, null, void and of no legal effect”.

Article 225 of the Constitution of the Cooperative Republic of Guyana sets out the process for removing members of a constitutional Commission. That process includes the President establishing a Tribunal to investigate any allegation of misbehaviour.

The Tribunal is established by the President on recommendations from the Judicial Service Commission. There has been no Judicial Service Commission since September 2017.

The Attorney General argues that in the Aubrey Norton v The Attorney General case the Chief Justice ruled that the appointment of the Acting Commissioner of Police was lawful because there was no Leader of the Opposition, at that time, for the President to consult as stipulated in the Constitution.

The major difference in the two cases is that the President is not responsible for the appointment of the Leader of the Opposition; whereas, he is solely responsible for the appointment of the members of the Judicial Service Commission. It is therefore disingenuous for the Attorney General to argue that the two cases are similar. They are not! As pointed out by Justice Persaud “it is my considered view that the failure to constitute the Judicial Service Commission cannot be relied upon to excuse the unconstitutional act of suspending these constitutional office holders. The failure to constitute the Judicial Service Commission is the President’s burden to bear. All members of the Judicial Service Commission are appointed by the President, after he has meaningfully consulted with the relevant constitutionally prescribed functionaries. In these proceedings, no evidence has even been adduced which would indicate that the President took steps to constitute the Judicial Service Commission”.

The President and the Attorney General must explain to the Guyanese public why the relevant provisions of the Constitution of the Cooperative Republic of Guyana were ignored, and why the President moved with break-neck speed to unlawfully suspend the Police Service Commission on June 16, 2021, a mere fifty-two days before its life was due to automatically end. Was it because of the anticipated unfavourable ruling which was scheduled to be delivered on June 18, 2021, in the Fixed Date Application brought by Senior Superintendent Calvin Brutus, et al, on December 30, 2020, to stop the promotions?

Since the Attorney General has shown a propensity to be loquacious I hope he provides answers to the above. Sincerely yours.

Paul Slowe CCH, DSM, Assistant Commissioner of Police (Retired). Former Chairman of the Police Service Commission.