The standoff between the Police Service Commission and the Authorities continues

Corruption and discrimination have long been recognised as significant barriers to achieving an equal and inclusive future…We found compelling evidence that discrimination – whether on the basis of race, ethnicity, age, gender, sexual orientation or belief – enables and fuels corruption, creating a vicious cycle that deepens inequality.

Transparency International & Equal Rights Trust

Last week, we reported that former South African President, Jacob Zuma, was sentenced to 15 months’ imprisonment for his failure to appear before the country’s anti-corruption commission investigating certain allegations against him while holding office. Mr. Zuma has since turned himself in to the police to serve his sentence.

An ice-covered lake in the Amery Ice Shelf in East Antarctica disappeared in three days during the period 9-11 June 2019, due to what is believed to be a collapsed ice shelf. An estimated 21-26 billion cubic feet of water, more than that contained in the Sydney Harbour, may have drained into the ocean, causing sea level to rise. Scientists believe that the weight of water had opened a fissure in the ice shelf beneath the lake, causing the water to drain away.

According to the Chairman of the United States House Oversight and Reform Subcommittee on the Environment, ExxonMobil may be summoned to testify before Congress after a senior employee disclosed that the U.S. oil giant has been undermining President Joe Biden’s climate and infrastructure proposals. Additionally, it is alleged that Exxon has been using shadow organisations to bolster support for anti-climate change measures. Other fossil companies may also be asked to testify before Congress. The information is contained in a tape recording by the Greenpeace investigation project “Unearthed” and aired at Channel 4 in the United Kingdom. Greenpeace activists posed as industry recruiters and interviewed the Senior Director for Federal Relations at ExxonMobil as well as a former senior director who explained how the company has worked to influence various senators to weaken the negative aspects of the President’s proposal.

In today’s article, we discuss the continuing stand-off between the Police Service Commission (PSC) and the Authorities as regards the promotion of 132 police officers. The Chief Justice had ruled that the PSC’s decision not to promote officers who have pending disciplinary matters against them is not unlawful; there exists no legitimate expectation for promotion, as it is neither a right nor an entitlement; and it is not a mandatory requirement for the Commission to only act on the recommendations of the Commissioner of Police. This was in response to a judicial review sought by a senior police officer who was overlooked for promotion because of a pending disciplinary matter. The Commissioner had recommended several senior officers for promotion but the PSC felt otherwise.

Announcement of the promotion of officers and Government’s reaction

Following the ruling, the PSC announced the promotion of the officers, which promotion had been put on hold by order from the Chief Justice until the matter is heard. The Government reacted to the announcement by stating that it would not recognize the PSC’s action, as the President had suspended the Commission pending the establishment of a tribunal to look into certain allegations against two of its members. The composition of the tribunal is to be determined by the Judicial Service Commission (JSC).

The JSC is responsible for making recommendations for judicial appointments and for exercising disciplinary control over persons holding or acting in judicial offices. In accordance with Article 198(1) of the Constitution, the JSC is to comprise the Chancellor as the Chairperson; the Chief Justice; the Chairman of the Public Service Commission; a judge or a former a judge selected by the President after meaningful consultation with the Leader of the Opposition; not more than two persons, not being practicing attorneys-at-law, nominated by the National Assembly after consultation with the body or bodies representing lawyers. However, a person is ineligible for appointment if he/she is a public officer. By Article 128 (1) judges, other than the Chancellor and the Chief Justice, are to be appointed by the President, acting in accordance with the advice of the JSC.

Given the importance of the role of the JSC, it is unfortunate that there has been no JSC since 2017, and it is unclear why the Granger Administration did not take steps to activate it through the appointment of new members. Following the change in Administration, the Attorney General had given the undertaking in September 2020 that the appointment of members of the JSC would be given priority. He has now renewed the Government’s commitment to do so.

In last week’s article, we had stated that the

President’s action might have been premature in that plain reading of Article 225(6) suggests that a tribunal must first be established before the concerned officials can be suspended on the advice of the prescribed authority: Prime Minister in the case of the Chairman of the PSC; and the Chairman in the case of the other members. Attorney-at-law Selwyn Pieters representing the PSC was more specific when he stated that the President’s action is unconstitutional and has no legal basis, and he has written to the President to this effect.

The Attorney General, however, insisted that the President acted correctly in exercising his constitutional power:

Once the decision has been made by the President that the matter is to be referred to a tribunal, a determination has been made already that the matter will be investigated by a tribunal and once that determination has been made, whether or not the tribunal has been established is ancillary.

The government has already issued a statement and outlined the reasons why those promotions will not be recognised and certainly they ought not to be gazetted.

The life of the PSC will expire next month and it is unclear what happens thereafter.

PSC’s letter to the Commissioner of Police

The PSC had submitted the promotion list to the Commissioner of Police on 28 June 2021. However, one week later, the Commissioner had not taken any action to effect the promotion. This prompted the Chairman of the PSC to issue a letter dated 5 July 2021 to the Commissioner, giving him an ultimatum to take the necessary action to publish a Special Promotion Order or face legal action. In the said letter, the PSC Chair stated that the Commission considered the Commissioner’s failure to issue the Order a mark of defiance:

Your action in not ensuring that the Special Promotion Order is prepared and published one week after receiving the promotion list from the Police Service Commission is interpreted by the Police Commission as you defying the legitimate action of the Police Service Commission in promoting ranks of the Guyana Police Force.

Should you further delay to give effect to the promotions, the Police Service Commission will be forced to take legal steps to command you to carry out your duties in relation to the promotions.

This letter is to inform you that the Police Service Commission expects you to cause the Special Promotions Order to be published forthwith, and that you give instructions to the Quartermaster to issue the newly promoted ranks with their badges of rank.

Government’s latest response

In response to the letter to the Commissioner, the Attorney General reiterated that the Government would not recognise police promotions issued by the PSC since the President had suspended the Commission some three weeks ago. He stated that the President’s decision can only be rescinded, revoked, set-aside or reversed by the President himself, or by a court of competent jurisdiction. The Attorney General further stated that the PSC’s attempt to countermand, disobey and disregard the President’s decision amounts to an effrontery to the highest executive office in the land.

Meanwhile, the ultimatum given by the PSC Chairman expired last Tuesday with no evidence of any response from the Commissioner of Police. It is unclear whether the Chairman’s threat to take legal action against the Commissioner will materialize.