(The following is an opinion piece written by former Attorney General Mohabir Anil Nandlall)
The theme which ran through my last article was the systematic undermining of independent institutions of the State. As a result of recent developments, I feel compelled to continue this theme.
Mr. Carvil Duncan is a member and the Chairman of the Public Service Commission. By virtue of provisions of the constitution, the Chairman of the Public Service Commission is, ex officio, a member of the Police Service Commission and the Judicial Service Commission. The Public Service Commission, like the other service commissions, are institutions created by the Constitution and endowed with the fundamental role and function of guarding against executive abuses.
In fact, these Commissions are a significant component of the most critical array of constitutional mechanisms created to protect the citizenry against executive and other excesses. The appointment, discipline and removal from office of some of the most significant officials in the apparatus of the State, are the functional responsibilities of these Commissions. They insulate these officers from the reach of the Executives, as part of an elaborate and carefully orchestrated schematic tapestry that cloaks these office holders with security of tenure–all designed to ensure their functional autonomy and independence in the discharge of their duties. More particularly, to protect them from executive influence and interference. As a result and in turn, those who constitute these Commissions are themselves clothed with even greater security of tenure and institutional independence. To these persons, the Constitution accords the highest regime of protection and functional independence. The express language of Article 226(1) of the Constitution is symptomatic of the type of protection which the Constitution confers upon these office holders. It provides as follows:
- (1) “Save as otherwise provided in this Constitution, in the exercise of its functions under this Constitution a Commission shall not be subject to the direction or control of any person or authority.”
As Chairman of the PSC, Mr. Carvil Duncan enjoys all these constitutional protections. Constitutional purists in Guyana and across the Region must have been deeply shocked about certain disclosures Mr. Duncan made a few days ago. In a public statement, Mr. Duncan related that he was invited to meet with the head of the Executive, the President, and the President’s Chief Aide, Mr. Joseph Harmon, Minister of State, whereof the President requested Mr. Duncan’s resignation and Mr. Harmon offered him a suitable financial package for his exit. During the course of the meeting, Duncan reports that the President said, “no less than 3 times, I do not want more blood on my carpet.”
So, the nature, purport and intent of that sophisticated network of mechanism which the framers of the Westminster-styled constitutions conceived and architectured to guard constitutional office holders like Mr. Duncan, was simply shoved aside by the leading executive officers of this land and arrogantly disregarded and indeed violated.
This constitutional heresy was compounded by “the blood on the carpet” reference – whatever that means. In short, the President has flagrantly violated the letter, spirit and intent of some of the most sacrosanct constitutional provisions and indeed his actions strike at the very heart of our constitutional democracy. Presidents (or Prime Ministers, as the case may be) have been impeached for far less in democratic countries. In Guyana, this is barely front page news. And life goes on. Not a murmur from the Associations representing lawyers in the country. But then again, the implications may be beyond them. Not a word from the organizations representing human rights. Today it is the Chairman of the Public Service Commission. Tomorrow it can be the Chancellor of the Judiciary or the Director of Public Prosecutions or indeed any other constitutional office holder. That the President has violated the Constitution in such a contemptuous fashion which can catalyze his removal from office by virtue of Article 94 of the Constitution seemed to have bothered no one.
Article 94 provides “The President may be removed from office if he or she commits any violation of this Constitution or any gross misconduct. The procedure for removing him or her is prescribed by article 180.”
But the travesty does not end there. Mr. Duncan having rejected their offer, the Government has embarked upon a manifestly unlawful course of action to remove him from office. While certain criminal charges are pending before a Magistrate at Georgetown’s Magistrate’s Court against Mr. Duncan, the Government decides to trigger a constitutional process to remove him from office on the ground that the pendency of those charges can interfere with the discharge of his constitutional functions. To begin with, the engagement between Mr. Duncan and the President to which I have made reference above, alone and without more, renders this constitutional process farcical. As is required by Article 225(4) of the Constitution, the Prime Minister advised the President that Mr. Duncan’s removal from office should be investigated. As a result, the President has established a tribunal to investigate Mr. Duncan’s removal from office. The tribunal has commenced its work. On the 10th October, 2016, I appeared before the said tribunal on behalf of Mr. Duncan. I made an application for the tribunal not to proceed with its mandate on the ground that the tribunal itself is legally defective and that it is about to embark upon a course which is manifestly unconstitutional, unlawful and illegal. I predicated my application upon the following grounds:
- that certain established case law authorities in Guyana and the Caribbean placed a mandatory obligation upon the Prime Minister to afford Mr. Duncan a fair and adequate hearing before advising the President that Mr Duncan’s removal from office should be investigated. (Barnwell v AG and another,(1993)49WIR Page50 and Reis v Crane,(1994) 43WIR 444).
- that article 144 of the Constitution provides that a person charged with any criminal offence is presumed innocent until he is proven guilty before a court of competent jurisdiction and that this presumption of innocence prevents this tribunal from proceeding to investigate Mr. Duncan with a view of removing him from Office on the mere institution of the charges and without him being found guilty: and should the tribunal proceed, it would be violating Article 144 of the Constitution.
I am of the considered view that any fair and competent tribunal in these circumstances would have found those objections to be unassailable. However, this tribunal overruled them in less than 10 minutes. To my mind, it is clear that this tribunal has been instructed to and is bent on executing a hatchet job on Mr. Duncan. This is yet another exemplification of authoritarianism. As I said last week, democracy and the rule of law are its victims. I take solace from the fact that injustice never prevails for too long. It is only a matter of time before justice resumes its natural seat.