Dear Editor,
DEPUTY Superintendent of Police Motie Dookie’s (ex-SWAT head) special leave matter reveals a comedy of errors. The learned judge erred in treating this special leave matter as if it were, a priori, an act of disciplinary control. It was not. The respondent`s Affidavit was periphrastically drawn-here pleading errors happened. The Permanent Secretary, Department of Public Service, duly performing his “approval” role, nevertheless seems to have misapprehended (in this case) the applicability of the law as to special leave in the public interest as some stop-gap measure in the absence of a Police Service Commission (PSC). It is not. Yet again, learned counsel Nandlall (Dookie’s lawyer) has succeeded with superficial, over simplistic and vacuous arguments with his customary abstract disquisition on trite constitutional law. And in this case the Respondent`s defence ought to have been unassailable. It failed. (“Decision to send ex-SWAT head on leave unlawful-court rules” SN 2018-09-02).

Editor, Nandlall’s focus on article 212(1) of the Constitution, is misguided and misplaced. It succeeded (aided by abject defence pleading) in simplistically hoodwinking the court to making a finding that DSP Dookie was suspended! But if the CoP(ag) could not discipline him, was he suspending him? With the letter from CoP (ag) to DSP Dookie not making any reference to Rule H33 of the Public Service Rules, was Counsel aware of Rule H33 when he filed his application for certiorari? Probably not. Article 212 is as familiar to lawyers; as Rule H33 is unfamiliar. So, one is entitled to ask: what is the documentary evidential basis for Nandlall’s assertion that the CoP (ag) acted purportedly to discipline DSP Dookie, and ipso facto, in contravention of article 112(1) which vests In the PSC the exclusive power to discipline officers of Dookie’s rank. Certainly, it cannot be, and was not the CoP (ag) letter!
Regrettably, in a fatal flaw premised on an a priori assumption that the then CoP (ag) (“Deputy Commissioner” sic) acted unilaterally [rather than conjunctively with PS (PSM)], the learned Judge wrote viz “The only issue is whether the Deputy Commissioner is vested with the power by the constitution or by Rule H33 of the Public Service Rules 1987 Revised Edition…to send Mr. Dookie on special leave”. With all due respect, constitutional power vested in CoP is unknown! I entirely agree with former CoP Winston Felix that Rule H33 was applicable, and properly, and duly, invoked in this matter (contrary to Nandlall`s belated orally submitted vacuous extravagant nonsense, that “a literal reading of Rule H33 disqualifies its application to the Guyana Police Force altogether.” – extracted from the Judge’s written ruling.). Rule H33 is plainly applicable by section 100 of the Police Act, Cap 16:01, it is not inherently repugnant to the constitutional purposes of article 212(1); its (coextensive) exercise cannot frustrate those beneficent purposes as the officer is, notwithstanding being on special leave, ex hypothesi, still promotable, transferable, and confirmable; disciplinable, and removable (as the case maybe) by the PSC. On its totality, and implicitly the defence pleadings raised the crucial aspect of “public interest” ground in Rule H33 as the reason or purpose for the special leave. Was that defence illusory? Public interest is paramount and transcends DSP Dookie`s individual contractual rights to be on active duty; and the public interest in this instance is personified conjointly in the CoP (as recommender) and the PS (PSM) (as approver) in terms of Rule H33 (it is silent as to if “approval” to be in writing, or oral suffices). So, if having cogitated on this paramountcy “a decision” was arrived at that the public interest necessitated that Dookie proceed on special leave, how was that a suspension? How could, how did that defence fail? (esp. paragraphs, 10,11 and 12 of the Respondent’s Affidavit provided this evidence of public interest necessity).

Turning briefly to further and better particulars as to the factual justification for acting for the public interest. On its face, this was not a decision arrived at whimsically or capriciously. Given the prima facie facts of DSP Dookie’s presence (alone with the driver – a circumstance from which grave suspicion is; not unreasonably engendered) in the vehicle in which some 357 bottles ( not 30 bottles) of uncustomed whiskey was; the rank and high profile status as the SWAT head; the wide media publicity and consequential nation-wide public awareness of that circumstance and the perception or appearance or impression of corruptibility or criminality ensuing; the notorious public distrust and loss of confidence by a distrusting Guyanese public in the police force (generally at any rate) – such notoriety entitling a Judge to take judicial notice of it, – this matter, ineluctably became, and was, one of palpable public interest. This was not hypotheses; this was realities.

What then was to be done in the exigencies of the situation? What should the CoP`s response (as head of public security administration) have been – mindless and heedless passivity or indifference; or administrative action, to disabuse public perception? Should he have folded his arms in sterile despair? Surely, such disabusement or mitigation was of, and in, public interest. Surely the law could not be such an ass as to not provide an administrative remedy in the face of such preception. There is an overriding public interest that there should be public confidence in the administration of public security. Passivity erodes or diminishes such confidence. Administrative impotency was not an option; that would have been a betrayal of this duty as CoP to maintain public confidence in the GPF. The response was to send Dookie on special leave – action not capricious, and within the limits of statutory power under Rule H33. Evidentially, on the very familiar and established legal principle of presumption of regularity of official acts, that action, taken pursuant to Rule H33, was approved by PS (PSM), on the recommendation of the CoP (ag) and ipso facto, and ipso jure, in compliance with it. Has the Applicant (DSP Dookie) produced any positive or direct evidence (Affidavit or otherwise) to rebut or displace this presumption of regularity? Absolutely none. With respect, the learned Judge’s finding that CoP acted “unilaterally”, is against the weight of this presumptive evidence.

En passant, I cautiously endorse the view about the constitutional doctrine of necessity proffered by the learned Attorney General (“AG awaiting word from legal team” GC Wednesday September 5, 2018). I express no opinion, on this complex issue except to say it is fully and eruditely elucidated by Haynes, P. in Mitchell and others (1986) LRC (const) 35.

Turning now to case law authority, the learned Judge relied on and applied suspension cases. But that approach begs the question – was DSP Dookie suspended, in fact, and in law, when sent on special leave? There is local (analogous) case of Barker, AG, PSC V. Eric Douglas (unreported) – a 1996 majority decision of the Court of Appeal involving the discharge of Sargent Douglas by the CoP under statutory powers in the Police Act Cap 16:01, in the PUBLIC INTEREST (so immediately its relevance is acute). The CoA (reversing the High Court decision of George, CJ) held that the discharge was not unconstitutional, and it was not unlawful (there is much dicta that discharge in the public interest – where there is a mere appearance of criminality – does not involve exercising disciplinary control–the judgement of Kennard, JA is particularly illuminating and instructive). I would rely on this Douglas case as an ANALOGY regarding non disciplinary, unfavourable action against a police officer in the public interest, as in both Douglas and Dookie, the statutory ground is the public interest, and there was involuntary foisting on the policeman, some disfavour. Analogical reasoning is very familiar in judicial adjudication (I argue that the suspension Privy Council case of Rees V Crane which was not cited by the Judge, in which a High Court Judge was ordered by the Chief Justice`s letter to the Judge to cease presiding in Court, if its ratio decidendi is properly understood and intellectually considered, supports the Attorney General’s arguments of Dookie being ordered by the CoP to cease performing active duties (ie special leave) being lawful administrative action – the learned reader is referred to (1994) 43 WIR at pages 452(b) – 453(f)). Doubtless, if ex hypothesi, a police officer’s mental condition prima facie posed some serious risk to the public, he could be leaved under RH33. Would that be a suspension? Absolutely not.

A convenient point, I think, to quote Rule H33 (which must be read together with section 100 of the Police Act cap 16:01) for the benefit of the lay reader viz: “special leave with full pay on the ground of public interest may with the approval of the Permanent Secretary, Public Service Ministry be granted to a public servant upon the recommendation of the Permanent Secretary / Head of Department / Regional Executive Officer.” A CoP falls within the ambit of “Head of Department,” and similarly in Rees V Crane, the Privy Council could refer to the Chief Justice as “the head of judicial administration…” The adjective “special” in its legislative context (Rule H33 is a subsidiary legislation) means (Judges and most lawyers knows) that those words are interpreted so that the leave must relate to, and be justified by the public interest, not relate to the personal idiosyncracies of the policeman, such as his preference to be on duty. Both a “public servant”; and PS/HoD/REO can invoke Rule H33. In either case of grant, the public interest is the overriding consideration. Has Rule H33 ever been judicially interpreted? There is no inherent unworkability in being coextensively and contemporaneously, both applicant and recommender, to the disadvantage of the “public servant” (DSP Dookie is a public servant).

A most convenient point to quote the Police Act, section 100 which provides viz “ALL MEMBERS of the Force shall . . . be subject to the provisions of the regulations or other written law relating to the administration of the PUBLIC SERVICE as are in force from time to time.” The Dookie case was decided per incuriam (ie through inadvertence or want of care) without reference to section 100. Nandlall`s contention is plainly refuted by section 100. En passant, I mention that the words “All members” would have to be interpreted, mutatis mutandis, as excluding the CoP who under article 232(6) (b) of the Constitution, enjoys a security of tenure equivalent to Judges, DPP etc.; this equivalency means that a CoP cannot be sent on forced special leave by the PS/Minister of Public Security as he is in just a secure position as the Judge in Rees V. Crane (the suspension case mentioned above).

Editor, in letters I wrote last year in response to the misguided hysteria generated by the Government’s/President’s promotions freeze letter to the PSC, I had more fully elucidated and adumbrated and debunked the notion that articles 212 (and 226) meant that the Government had no function or power in relation to PSC appointees (“Maxwell responds to Devonish” GC-August 14, 2017; “President has constitutional power to stop police promotions” KN Monday August 14, 2017; the other “it is for the Gov’t. to define national security concerns” GC Friday August 18, 2017). Those letters compliment the views I have expressed in this letter, about leave.

I end with this: the Dookie case raised novel and complex issues of much practical relevance and significance in relation to the division of powers and functions between the PSC and CoP in the case of senior officers, on which authoritative judicial erudition was patently needed. In my writings I have endeavoured to show that members of the GPF (except the CoP) are leaveable under Rule H33. DSP Dookie was leaved under Rule H33. The power under Rule H33 is sui generis. It is invokable whether there is an extant PSC, or not. Dookie (despite some paraphrastic pleadings) was not disciplined when the CoP (ag) invoked Rule H33. To judicially deny its beneficent use by the CoP, is to purport to render it obsolete and nugatory to that extent. That, any court must vigilantly restrain itself from doing, when invited to do so on abstract disquisition on law.

Regards
Maxwell. E. Edwards