Below in an opinion piece by Attorney-at-Law, Member of Parliament and former Attorney General and Minister of Legal Affairs, Anil Nandlall:
The 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.
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 continue 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 statute- The 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’état in the Police Force against the Commissioner.
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 Commissioner 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 last week, the 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 Carvill 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.