Totally irrational for PSC to overrule DPP, PCA recommendations

Dear Editor,
READING the Guyana Chronicle’s editorial of Thursday, September 7, 2017 (“PSC’s disturbing recommendation to Top Cop”), I was reminded of when a former chairman of the Judicial Service commission made a recommendation to President Hoyte.

(The story is told in a case reported as Barnwell V The AG and Another (1993) 49WIR 88). The moral behind that chairman’s decision (matters of procedural impropriety notwithstanding), was that where there are serious allegations made against an officer (in that case a Judge), the officer must be made to account and disciplinary measures instituted.

IN CONTRAST and in contradistinction, the Omesh Satyanand-chaired Police Service Commission’s recommendation in a 14th July 2017 letter to the commissioner of police that “no charge should be instituted against the officers,” portrays just the opposite: unaccountability, and tolerance for serious indiscipline in, of all institutions, a necessarily disciplined service like the GPF. I submit, that the PSC’s decision amounts to a contumacious disregard of its public duties and abuse of the public’s trust, serious enough to warrant condemnation and punishment.

Yet, Omesh Satyanand seeks to discredit the GC’s editorial. (“Role of Police Service Commission–disciplinary matters”–KN, Monday, September 11). And coincidentally, there is a letter by retired Assistant Commissioner Clinton Conway (“some burning questions “GC 2017-09-11). In Mr. Conway’s letter, we are informed of “20 alleged acts of misconduct committed by 17 officers and inspectors.”And this is the gravamen of this matter.

Was there really no real prospect of conviction or guilty-finding in nine of those 20 allegations – hence, “no charge”? That prospectivity was the legal test as to whether in this matter “no charge” was justified. The evidential material on file was the determinant factor, not “interviews.” Both the DPP and the chairman of the PCA (being a former chancellor of the judiciary), would be very familiar with, and of profound understanding of, that legal test. The present CoP (not being learned in law); and that PSC, have no such capacities.

So, legalistic niceties about the due exercise of the PSC’s and/or CoP’s discretionary powers notwithstanding, I submit that it must be the mother of all irrationalities, bordering on asininity, for the DPP and PCA’s recommendations to institute charges to have been overruled by that PSC and CoP, in their respective capacities. One should think this an indefensible irrationality, amounting to a breach of public trust.

But Mr. Satyanand in arguing the PSC’s case for justification of the “no charge should be instituted against the officers” decision, does not alert us to this high figure of 20, but by a sleight of pen, mentions, ONLY two (2) “examples” as to why the “allegations levelled against these ranks” (i.e the 20) “were recommended to be dismissed.” So,what about these other 18? Not a word, except that self-serving “interviews” were done with the ranks.

The irresistible inference, as it seems to me, is that on the facts of those 18 other allegations, a “no-charge” recommendation was not justified by any standard or basis; and so adopting the aphorism that “silence is golden,” he tactfully makes no mention, thereby avoiding having to also give details of those 18. Moreover, no recommendation should have been made at all in respect of offences involving any rank BELOW Inspector; for at that stage (not being some appeal) the PSC has no disciplinary function over those ranks.
But readers, Mr. Satyanand’s tangled web of deceit gets even more tangled.

We are reliably informed in the GC’s editorial that his letter to CoP Seelall Persaud recommending “no charge …” is dated 14 July 2017” (this date is important as to the timeline of events he refers to in support of the “no-charge” decision). But in his convoluted letter to the KN, he writes, “Interestingly in correspondence dated August 15th, 22nd, 23rd, 24th, and 25th 2017 the “Top Cop” has recommended that all charges be dismissed due to lack of sufficient evidence, despite the recommendations from the Police Complaints Authority.”

So, recognise that these correspondence from the beleaguered Top CoP were sent ex-post facto to the PSC, i.e., some 1½ months AFTER Mr. Satyanand’s letter of 14th July to the CoP. So, unless that Satyanand- chaired PSC was somehow psychic, or telescopic in its perceptions, it could not have materially anticipated that the TOP Cop would have taken a similar position as that taken by the PSC some 1½ months before, and so those correspondence are of no value and wholly irrelevant to the critical question whether on that date (i.e. 14th July 2017), the PSC had information, or evidence, or even recommendation that justified its “no-charge” decision with regard to all 20 allegations. No such is discernible in his letter. So, plainly, on the merits of the facts, the PSC’s “no charge…” case is as weak as weak could be, and insupportable.

So, Mr. Satyanand as justification invokes the cloak of the “Constitutionality of the Police Service Commission.” Ironically, as I argue, it is this very “constitutionality” which contrives also to damnify him and the other PSC’s members whose decision/recommendation was “unanimous.” As the GC’s editorial so poignantly puts it, the PSC, “… is threatening the people’s safety and nation’s security.” I agree. Serious issues about the security-related public duties vested by article 212 in the PSC and abuses of the public’s trust are involved.

I accept as generally correct and sound, Satyanand’s point about article 212(1) of the Constitution, the Police (Discipline) Act Cap 17:01, the Police Complaints Authority Act, Cap 17:02 and the respective roles/function of the PSC, the DPP, PCA and the CoP, including matters of delegation, and appeals. However, he conveniently omits to mention that the PSC has absolutely no role or function as regards the recommending, charging or prosecuting of CRIMINAL offences (such as theft of fuel) as in the Criminal Law (offences) Act Cap 8:01; and/or Summary Jurisdiction (offences) Act Cap 8:01; and so its recommendation to the CoP in relation to that theft-of-fuel allegation was constitutionally misconceived, and outside its constitutional ambit.

I know that the theft-of-fuel allegation involves both a criminal and a disciplinary offence; but the DPPs recommendation must have been in respect of the criminal offence. And the PSC did not err on the side of taking disciplinary action, but rather, on the side of not taking disciplinary action.
I mention one other aspect not mentioned in the GC’s editorial, or Clinton Conway’s letter.

Readers (who are not lawyers) would be astonished to know that by article 226 (6), the Constitution itself has made the PSC to all practical purposes and intent, (if no fundamental right is involved) a law onto itself. Because of article 226(6) as confirmed in case law (Thomas – dismissal of ASP by a PSC for disciplinary offences) even the Supreme Court has no jurisdiction, or right, to inquire into the validity of the PSC’s decision, once it is performing its article 212(1) functions/powers of, inter alia, “to exercise disciplinary control” (i.e. in relation to offences against discipline involving inspector to assistant commissioner).

No matter how the conduct of senior ranks may be a discredit to the reputation of the force; no matter how senior ranks may have misconducted themselves in investigations touching and concerning the Head of State’s security, if ex hypothesis, the PSC instead of disciplining those ranks, rewards them with promotion, that PSC decision because of article 226(6) is final. It cannot be successfully challenged in the Courts by the Government! And I submit, that it is just such finality that also, implicitly, creates in the PSC a correlative duty to vindicate the public trust, and avoid abuses of it.

Such avoidance did not happen in this matter. Where so much for reaching power is entrusted, much is expected in its exercise.
I end with this: there seems to have been nurtured an Orwellian syndrome of unaccountability and irreproachability in some members of the GPF (as in George Orwell’s “Animal Farm” “pigs” being more equal than the other animals).

That presents a clear and grave danger to our national security? Ranks could have been induced and permitted to think that they are not disciplinable. Society is the casualty. And it may well be the case, that this Orwellian syndrome explains the audacity of the now infamous phrase of “inherently incredible” in the just concluded Paul Slowe-chaired CoI.
In life, nothing is too farfetched; those misconducting ranks should all be made to watch a movie based on the real-life Rwandan genocide of 1994.

The notion might seem novel, but for me, the Omesh Satyanand- chaired PSC abuse of public trust is such as to amount to the crime of misfeasance/misconduct in public office (in a subsequent letter I will stir some points about this).

Regards
Maxwell E. Edwards

SHARE THIS ARTICLE :
Facebook
Twitter
WhatsApp
All our printed editions are available online
emblem3
Subscribe to the Guyana Chronicle.
Sign up to receive news and updates.
We respect your privacy.