The Com­mis­sioner of Po­lice - the lat­est vic­tim of au­thor­i­tar­i­an­ism

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By: Mo­habir Anil Nand­lall, MP

At­tor­ney-at-Law

Of­fice of the Com­mis­sioner of Po­lice is one of those of­fices cre­ated by the Con­sti­tu­tion, which is in­su­lated by a strong ap­pa­ra­tus of con­sti­tu­tional pro­tec­tion against any form of in­ter­fer­ence and in­flu­ence, more par­tic­u­larly, em­a­nat­ing from the Ex­ec­u­tive Gov­ern­ment.

Its holder en­joys a regime of se­cu­rity of ten­ure, which is not eas­ily pen­e­tra­ble. These con­sti­tu­tional de­vices were care­fully and con­sciously de­signed so that these of­fice hold­ers can dis­charge their con­sti­tu­tional role and func­tional re­spon­si­bil­i­ties, in­de­pen­dently, au­tonomously and fear­lessly.

The Con­sti­tu­tion has cre­ated a se­ries of such of­fices and com­mis­sions.

They all form part of the checks and bal­ances con­structed by the con­sti­tu­tional framers to pre­vent abuse of power, vi­o­la­tion of the Con­sti­tu­tion and gen­er­ally, to main­tain and up­hold the rule of law. It is these in­sti­tu­tions that form the foun­da­tion upon which our con­sti­tu­tional democ­racy rests.

Mr. See­lall Per­saud, Com­mis­sioner of Po­lice, was sent a let­ter last week by Min­is­ter of Pub­lic Se­cu­rity, Mr. Khem­raj Ram­jat­tan, in which the Min­is­ter pur­ports to send Mr. Per­saud on leave.

In this piece, hav­ing re­gard to what I have out­lined above, I wish to ex­am­ine this let­ter and the le­gal/con­sti­tu­tional ram­i­fi­ca­tions, which flow there­from.

Sec­tion 6 of the Po­lice Act Chap 16:01 vests in the Com­mis­sioner of Po­lice “the com­mand, su­per­in­ten­dence, ef­ficient ad­min­is­tra­tion and gov­ern­ment” of the Guyana Po­lice Force and “for the proper ex­pen­di­ture for all pub­lic monies ap­pro­pri­ated for the ser­vice thereof.”

The Min­is­ter of Pub­lic Se­cu­rity has no author­ity over the force or the Com­mis­sioner of Po­lice other than a gen­eral power to give pol­icy di­rec­tions. This is not a mat­ter of con­jec­ture, but a mat­ter of law and based upon the clear lan­guage of sec­tion 6 of the Po­lice Act, which has been the subject of in­ter­pre­ta­tion by our courts on a num­ber of oc­ca­sions.

The Con­sti­tu­tion pro­vides that the Com­mis­sioner of Po­lice shall be ap­pointed by the Pres­i­dent, act­ing af­ter mean­ing­ful con­sul­ta­tion with the Leader of the Op­po­si­tion and the Chair­man of the Po­lice Ser­vice Com­mis­sion.

It is equally clear that the Po­lice Ser­vice Com­mis­sion ex­er­cises no dis­ci­plinary con­trol over the Com­mis­sioner of Po­lice.

Ar­ti­cle 225 of the Con­sti­tu­tion

Ar­ti­cle 225 of the Con­sti­tu­tion, which ap­plies to the Com­mis­sioner of Po­lice, pro­vides that the holder of that Of­fice shall not be re­moved there­from or sus­pended from the ex­er­cise of the func­tions thereof, ex­cept in ac­cor­dance, with the pro­vi­sions of the Ar­ti­cle. The Ar­ti­cle lists only two grounds upon which the Com­mis­sioner of Po­lice can be re­moved from Of­fice: in­abil­ity to per­form the func­tions of his Of­fice, whether aris­ing from in­fir­mity of body and mind, or for mis­be­hav­ior.

Ad­di­tion­ally, the Ar­ti­cle pro­vides that if the ques­tion of re­moval arises (and it can only arise on the two grounds stated above) then the Pres­i­dent must es­tab­lish a tri­bunal, con­sist­ing of a Chair­man and two other per­sons, who are judges or for­mer judges or per­sons qual­i­fied to be judges, who shall in­ves­ti­gate the ques­tion of the Com­mis­sioner’s re­moval from Of­fice.

When that tri­bunal is es­tab­lished, only then the Pres­i­dent has a power to sus­pend the Com­mis­sioner from per­form­ing the func­tions of his Of­fice. That tri­bunal shall then re­port to the Pres­i­dent and rec­om­mend whether or not the per­son should be re­moved from Of­fice.

Ap­ply­ing those pro­vi­sions of the law and the Con­sti­tu­tion to the let­ter sent by Min­is­ter Ram­jat­tan to Mr. Per­saud, one would quickly see that the let­ter has con­tra­vened the law and man­i­festly vi­o­lated the Con­sti­tu­tion in sev­eral re­spects.

As Vice-Pres­i­dent and Min­is­ter of Pub­lic Se­cu­rity, Mr. Ram­jat­tan has no author­ity to write such a let­ter to the Com­mis­sioner of Po­lice. Mr. Ram­jat­tan in the let­ter says that he is “ad­vised to in­form” the Com­mis­sioner. Ad­vised by whom? Even the Pres­i­dent can­not send such a let­ter, or ten­der such ad­vice. That let­ter amounts to a sus­pen­sion of the Com­mis­sioner of Po­lice from per­form­ing the func­tions of his of­fice.

Such a sus­pen­sion is clearly pro­hib­ited by Ar­ti­cle 225. The Com­mis­sioner can only be sus­pended from the ex­er­cise of the func­tions of his of­fice in a man­ner con­tem­plated by that Ar­ti­cle, that is, the ques­tion of his re­moval must arise for an in­abil­ity to per­form the func­tions of his of­fice through some in­fir­mity of body or mind or for mis­be­hav­ior. None of these re­quire­ments ex­ist or are re­ferred to in the let­ter to trig­ger the sus­pen­sion.

Un­var­nished ig­no­rance

Even if and when they ac­tu­ally ex­ist, then a tri­bunal has to be es­tab­lished by the Pres­i­dent, in a man­ner pro­vided for in Ar­ti­cle 225 and only then, the power to send the Com­mis­sioner on leave can be trig­gered. What we are wit­ness­ing here, there­fore, is a com­plete dis­re­gard of the con­sti­tu­tional process, which must be un­der­taken as pre­scribed by the Con­sti­tu­tion, if a Com­mis­sioner of Po­lice is to be law­fully sus­pended.

The en­tire regime of se­cu­rity of ten­ure that the Con­sti­tu­tion has ac­corded to the Of­fice of the Com­mis­sioner of Po­lice is be­ing ig­nored, eroded and tram­pled upon by the po­lit­i­cal dik­tat of a Min­is­ter, who seems to be tak­ing in­struc­tions from a phan­tom.

In the let­ter, Mr. Ram­jat­tan seeks to jus­tify his ac­tions by con­tend­ing that he is act­ing “in the pub­lic in­ter­est and to al­low for con­tin­ued ini­tia­tives and in­no­va­tions be­ing pur­sued by the Guyana Po­lice Force’s tem­po­rary Ad­min­is­tra­tion…”

Mr. Ram­jat­tan must be ashamed, as a lawyer, to au­thor such un­var­nished ig­no­rance. If the framers of the Con­sti­tu­tion in­tended the Po­lice Com­mis­sioner to be re­moved on the ground of this neb­u­lous term “pub­lic in­ter­est”, they would have said so in the Con­sti­tu­tion and they would have de­fined what “pub­lic in­ter­est” means.

This is sim­ply a con­coc­tion of Mr. Ram­jat­tan, which he uses to sub­or­di­nate the Con­sti­tu­tion and the se­cu­rity of ten­ure, which it con­fers upon the Of­fice of the Com­mis­sioner.

As I have stated, un­der the Po­lice Act, it is the Com­mis­sioner of Po­lice who is re­spon­si­ble for the over­all man­age­ment, ad­min­is­tra­tion and gov­ern­ment of the Force.

There­fore, any “ini­tia­tives and in­no­va­tions” pur­sued by the Guyana Po­lice Force must be done ei­ther by the Com­mis­sioner of Po­lice, or those au­tho­rized by him.

If they are not, then they would be ul­tra vires and un­law­ful. The law does not con­tem­plate the Force to have a “tem­po­rary Ad­min­is­tra­tion”.

The Com­mis­sioner of Po­lice is the law­ful head of the Ad­min­is­tra­tion of the Guyana Po­lice Force. The Force is a crea­ture of statue and can only act and be ad­min­is­tered and man­aged in ac­cor­dance with that statuteThe Po­lice Act.

What is this tem­po­rary Ad­min­is­tra­tion?

Who ap­pointed them? From where are they get­ting their author­ity?

This ad hoc body and the tasks that they are un­der­tak­ing are all un­law­ful. It is clear that there has been a coup d'étatin the Po­lice Force against the Com­mis­sioner.

Colo­nial relic

The let­ter ends with this sen­tence: “It is the con­sid­ered opin­ion of the Ad­min­is­tra­tion that you should be and you are hereby di­rected to pro­ceed on ef­fec­tive ad­min­is­tra­tive leave from Novem­ber 24th 2017, un­til fur­ther no­tice.”

Again, it is un­be­liev­able that such a state­ment can em­anate from a lawyer. Mr. See­lall Per­saud, as the Com- mis­sioner of Po­lice, does not hold of­fice at the opin­ion and plea­sure of this Gov­ern­ment. He holds of­fice un­der the Con­sti­tu­tion of Guyana and en­joys se­cu­rity of ten­ure.

The con­cept of hold­ing of­fice at “plea­sure” is a colo­nial relic and has no place in a con­sti­tu­tional democ­racy, like ours.

The Com­mis­sioner of Po­lice can only be sus­pended from the per­for­mance of those func­tions in ac­cor­dance with the Con­sti­tu­tion. “Spe­cial leave” is an­other vul­gar au­thor­i­tar­ian fab­ri­ca­tion by Mr. Ram­jat­tan to de­feat the Com­mis­sioner’s con­sti­tu­tional pro­tec­tion. It is a con­cept that has no ba­sis in law.

Only l ast week, t he learned Chief Justice ren­dered a Rul­ing deal­ing with sim­i­lar con­sti­tu­tional con­cepts, doc­trines and prin­ci­ples.

I re­fer to the case that chal­lenged the let­ter writ­ten by Min­is­ter Joseph Har­mon giv­ing di­rec­tions to the Po­lice Ser­vice Com­mis­sion, which the Chief Justice ruled, con­sti­tuted a fla­grant vi­o­la­tion of the Con­sti­tu­tion. If any­one is in doubt that we are on the road to au­thor­i­tar­i­an­ism then this in­ci­dent should re­move those doubts.

Firstly, it was Carvil Dun­can, Chair­man of the PSC. Then it was the Regis­trar of Deeds. Then the Deputy Solic­i­tor Gen­eral and the list goes on.

Now, it is the Com­mis­sioner of Po­lice. Next, it might be a judge who rules against them. Though they may ap­pear to be win­ning the bat­tles, they will cer­tainly lose the war.

Au­thor­i­tar­i­an­ism will never tri­umph for long in to­day’s free and lib­eral world.

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