Dear Editor,

A LETTER by Chevy Devonish in KN, Thursday, August 10th, 2017, under the caption: “The President cannot dictate to a constitutional commission”, attracts both my commendation and my rebuke, or reprimand. I commend him because as a “law student,” his effort at adumbrating for public scrutiny on a matter of such public focus reveals an encouraging cognitive bravery (some might say impetuosity). I reprimand him (as a person yet to be learned in law) for not showing self-restraint and considered caution, in his insinuation of unconstitutionality and arbitrariness against no less a public authority than the President of this country. As I will show in this letter, both insinuations lack merit and cannot be supported in constitutional law. But, moreover, this letter anticipates and pre-empts similar criticisms (but with much less reticence than that of Mr. Devonish) from a certain popular letter writer who has appointed himself the public nemesis of both the President, and the learned attorney general.

So, I argue my case that the direction given by the President to the Police Service Commission (the PSC) that “there be no consideration of promotion of members of the Guyana Police Force until further notice” (what I call an “appointment-freeze” directive) is constitutionally permissible on the basis of the following propositions:-        First, it is article 212 (1) (and not 226 (1)) whereby the function, inter alia, to appoint police officers to the ranks of assistant commissioner, senior superintendent, superintendent, deputy superintendent, assistant superintendent and inspector are exclusively vested in the PSC. So, any unbiased enquiry as to whether the President has purported to give directions to the PSC in the exercise of that PSC’s functions must necessarily begin with the questions: what are the scope and limit of that function? By sheer force of logic  (temporary) appointment- freeze by its very nature, self-evidently cannot be, or be understood to be, an appointment as AC, SSP, Supt., DSP,ASP, Insp. as the case may be. Pro tanto, an appointment-freeze or government policy of non-appointment is not within the embrace of the term “to appoint” (Article 212 (1)) which embraces promotions; and, accordingly, an appointment-freeze is not a function of the PSC. Paradoxically, an appointment- freeze (if that were the internal policy of the PSC) would be an abdication of its function to appoint; and be ultra vires (i.e. outside its function).

Second, the PSC is NOT the employer of police officers, the Government is. The President as head of the executive branch of government has the sole constitutional responsibility and authority by necessary implication of constitutional law (ex necessitate legis) (see Articles 89 and 99 as to the President being the supreme executive authority) to take such appointment-freeze governmental POLICY action. This freeze is an entirely different matter from the PSC’s role as to which individual officer is, or is not appointed. I emphasise that policy is per force an indispensable incident of administration in any field of government. Police appointments are no exception.       Third, in the alternative, the constitutional doctrine of executive privilege or prerogative (known also as public interest privilege) to the extent that it does not encroach on the PSC’s function to appoint in article 212 (1) (as articulated in my first proposition above); or, is not inconsistent with any provision in the Police Act, Cap. 16:01, authorises and validates the President’s appointment freeze action. (As to the residue of these privileges in our legal system –  see section 22 of the Civil Law of Guyana Act, Cap. 6:01) Fourth, the question of constitutional law as to whether an appointment-freeze action is one within the meaning and ambit of the term “to appoint” ; or, is one of permissible governmental policy within the survival or residue of the doctrine of executive privilege, is a NOVEL one for ultimate judicial clarification by the Caribbean Court of Justice (on which opinions may well be divided). Until such clarification, the President’s action attracts a presumption of regularity; and it appears to have constitutional soundness, (sections 16 & 29 of the IGCA, Cap. 2:01 as to the construction of provisions as to functions, offers no insight as to the approach to this novelty).  Fifth, the wording and/or scheme of the constitution itself recognise that both the executive government and the autonomous PSC has respective functions touching and concerning (potential) appointees. In interpreting and considering the counterpart provision in the Trinidad Constitution in relation to its Police Service Commission, this is what the Privy Council in the constitutional case of Thomas V.

Attorney General (1981) 32 WIR 375 at page 386 said relevantly: “In discussing … the division of functions between the Governor-General and the Police Service Commission in relation to what in the constitution is called the “police force” … the functions of the Police Service Commission falls into two classes: ( 1) to appoint officers … including their transfers and promotions … and in respect of any matters not dealt with by legislation ( whether primary or subordinate) it is for the EXECUTIVE to deal with in its contract of employment with the individual police officers …”. The main point here, is that this dictum is a clear refutation of some misconceived notion that the executive (headed of course by the President ) has no function whatsoever in relation to police officers, because of article 226 (1). That is an utter fallacy. And as I see it, the Minister of State’s letter to the PSC was in substance and intent a NOTICE of the exercise by the President of his residual function/power to effect an appointment-freeze. Broad policy directives of a non-discriminatory nature, and as the PUBLIC INTEREST requires, is the privilege of any government of the day. The service commissions were never intended to operate in isolation or immunisation from such public-interest incidents, but rather within these parameters. A freeze on ALL appointments (en bloc) is in no way discriminatory, and is not directed to any particular individual officer; and accordingly, it cannot rationally be argued that any such omnibus freeze negates the whole beneficial constitutional purpose of the autonomous PSC: to insulate individual officers from political influences (for better or worse). Nor, in the circumstances can there be (by any critic) any condescension to particulars of any kind to show how the alleged unconstitutionality has happened.

Was President Granger tending to, or purporting to direct or instruct the PSC as to which individual officer should, or should not be appointed? Plainly NOT.  Sixth, the local analogous case of Teemal Vs Guysuco in which the Guyana Court of Appeal rejected an argument that the employer (Guysuco) could unilaterally vary its contract of employment with its workers by imposing a government “wage freeze” directive, is no authority for arguing that President Granger has no authority to effect an appointment-freeze. That case was decided on private law-of-contract principles. In this matter, we are in the sphere of constitutional law (i.e. public law contract). No police officer has any constitutional/statutory vested right to be appointed; and besides by the constitution itself the President in the exercise of his (executive) functions, in this type of matter, acts in accordance with “his own deliberate judgment” (Article 111 (1)), as to what is best in and for the overriding public interest including, but not limited to, the overarching public interest matter of the safety and security of the Head of State (a matter of which there is no greater national security concern and significance). And, national security is no function of the PSC. It is exclusively a function of the Executive.

So, I end with this: Proper understanding of a constitutional matter of this type is no “Jack and Jill went up the hill….” nursery school recitation matter. It involves much reading, comprehension and learning as to the intricacies of relevant constitutional principles. The constitution, even as its newly- created autonomous services commissions, never intended to dispense or abrogate entirely the historic legal concept of executive prerogatives.  There has necessarily remained areas of coexistence. So, this constitution cannot be interpreted in blind disregard of such coexistence, and indifference to the multiplicities of conundrums which contrive to vex any government in the conduct of government administration. Policies are crucial. Matters of national security are always of paramount consideration. The President in the public interest has acted condignly. He can, and has relied on his residual executive prerogative as the source of that power to take that appointment-freeze action. I have no doubt that those who advised the President as to the constitutional propriety of his action, are right. That is all that matters.Regards,

Maxwell E. Edwards (Former Senior Magistrate)