August 24,2017
Dear Editor,
Recently President Granger ordered the Police Service Commission (PSC) to stop all promotions within the force. As we all know the Constitution of Guyana, which is the supreme law of the land, provides, inter alia, for the establishment of the PSC, with autonomous power to make appointments and exercise disciplinary control in the Police Force of all ranks from inspector and above, with the exception of the Commissioner and deputy Commissioner of Police.
The President’s directive was based on his claim that he had recently received complaints from members of the public of serious improprieties on the part of senior police officers, allegations of abuse included. The President’s critics were quick to condemn his actions on the basis that he has violated the country’s Constitution. In fact, I am advised that a law firm has since filed a constitutional action seeking a Court Order declaring the President’s letter of instructions to the Commission void and of no effect for breach of the Constitution.
The question is whether the President, in the circumstances, has in law violated the Constitution of Guyana. I would answer this question in the negative! Let’s take a quick glance at the following provisions of our Constitution.
Article 89
There shall be a President of the Co-operative Republic of Guyana, who shall be Head of State, the supreme executive authority, and Commander-in-Chief of the armed forces of the Republic.
Article 99
(1) The executive authority of Guyana shall be vested in the President and, subject to the provisions of this Constitution, may be exercised by him or her either directly or through officers subordinate to him or her.
Article 51
There shall be a Parliament of Guyana, which shall consist of the President and the National Assembly
As a part of parliament, he is vested with certain law-making authority. After all, the role of parliament is to make laws for the peace, order and good government! As the Head of State and the supreme executive authority, he is clothed with certain executive powers, for example national defence and the security of the state which is constitutionally the responsibility of the President. In order to be able to effectively perform these and other national security functions, the President must have the full and total confidence of, and trust in, the state’s law enforcement officers for the purpose of intelligence and other protection of the peace. If this trust is lacking or is in doubt, then the foundation of the relationship between the Commander in chief and his forces is destroyed.
The President’s directive does not interfere nor intended to influence the decisions of the Commission in terms of appointment, discipline or control of senior officers. It falls squarely within the ambit of executive powers under the Constitution which entrusts the security of the state in the hands of the President of the nation. This directive is not an administrative decision subject to judicial review. It amounts to an exercise of executive function which is outside the realm of the judiciary under our Constitution which recognizes with legal finesse the distinct, separate and independent function of the Executive, Legislative and Judicative bodies.
The President has claimed that he had good reasons to direct the PSC to put promotions on hold given the fact that he had received complaints of abuse and indiscipline among senior law enforcement Officers. It is respectfully submitted that such complaints are good enough to raise concerns over the security of the State for which the President, the supreme executive authority is ultimately responsible. The President’s action aforesaid is not capricious, arbitrary or illegal and so long as his directive is not clothed with illegality, it is not inconsistent with the rule of law, a fundamental foundation on which the Guyana Constitution rests.
The President’s directive is an exercise of public law power which has been summarised by the South Africa Constitutional Court in 2006…as follows:
“The exercise of public power must therefore comply with the Constitution, which is the supreme law, and the doctrine of legality, which is part of that law. The doctrine of legality, which is an incident of the rule of law, is one of the constitutional controls through which the exercise of public power is regulated by the Constitution. It entails that both the Legislature and the Executive are constrained by the principle that they may exercise no power and perform no function beyond that conferred upon them by law. In this sense the Constitution entrenches the principle of legality and provides the foundation for the control of public power…The exercise of such power must be rationally related to the purpose for which the power was given…as long as the act viewed objectively, is rationally related to the legitimate government purpose, a court cannot interfere simply because it disagrees with it or considers the legislation to be inappropriate”.
K. S. Chatarpaul BA, LLB, JD, LLM
Barrister & Solicitor
Ontario Canada