ATTORNEY-GENERAL and Minister of Legal Affairs, Anil Nandlall, S.C., has insisted that although the Police Service Commission (PSC) is not fully constituted, it is still “fully functional.”
During his ‘Issues in the News’ programme which was streamed recently on Facebook, AG Nandlall responded to comments made by APNU+AFC Shadow Minister of Legal Affairs, Roysdale Forde, S.C., in relation to the constitutionality and legality of the PSC.
On May 31, Patrick Findlay was sworn in as chair of the commission, which also includes Mark Conway, Hakeem Mohamed, and Ernesto Choo-a-Fat.
The four members of the PSC were approved by the parliamentary Committee on Appointments, after consultations with the Guyana Police Association comprising former members of the Guyana Police Force, and the National Community Policing Executive.
Article 212 (1) of the Constitution of the Co-operative Republic of Guyana addresses the composition of the PSC.
It states: “The Police Service Commission shall consist of – (a) a Chairman appointed by the President acting after meaningful consultation with the Leader of the Opposition from among members appointed under subparagraph (c); (b) the Chairman of the Public Service Commission; (c) four members appointed by the President upon nomination by the National Assembly after it has consulted with such bodies as appear to it to represent the majority of the members of the Police Force and any other such body it deems fit.”
Forde had said that the Police Service Commission is not properly constituted without the Chairman of the Public Service Commission and as such, the promotion of senior officers that was recently announced would also be null and void.
AG Nandlall told viewers that Forde is now contending that the PSC is unlawfully constituted and therefore cannot act because of this unlawful constitution. He accused Forde of “piggybacking” on an argument advanced by Retired Assistant Commissioner of Police, Clinton Conway.
Conway had argued that the PSC consists of five members but only four have been appointed. It was further argued that because the body is not properly constituted, it cannot act.
“The Constitution of our country provides very clearly that there shall be a Police Service Commission… our constitution speaks to how the Police Service Commission is to be constituted meaning how it is to be populated,” AG Nandlall said while rubbishing Forde’s contentions as being “deeply flawed.”
Nandlall added that because there is no Public Service Commission in place, the fifth member of the Police Service Commission cannot be appointed. He went on to explain that the Constitution states that there are to be five members of the Police Service Commission, four of whom shall come from the National Assembly.
He added that one of those four shall be appointed the chairman by the President after the President would have consulted with the Leader of the Opposition.
“It is no secret that we don’t yet have a Public Service Commission…We have a Police Service Commission that has four members, except the chairman of the Public Service Commission,” he added.
AG Nandlall accused Forde of “conflating and creating a condition” that PSC is not fully constituted with one that is not operational.
“Our Constitution specifically says that notwithstanding a vacancy existing in any of the service commissions… providing that there is a stipulated quorum, then those commissions can act. The Constitution also says, that notwithstanding a vacancy, the commission can still act and the actions or decisions of the commission will not be affected by that vacancy,” he said during his programme.
The Attorney-General contended that this is a “standard principle of law” which exists in constitutions across the world and in many corporate statutes.
“Imagine if the drafters of the Constitution were so naive to say that every time there is a vacancy in an office, that that office can’t function or because of one vacancy, an entire body or commission cannot function,” he said.
Further, AG Nandlall stated that if this was the situation, the “Constitution would grind to a halt.” He contended that the Constitution’s drafters made provisions to allow for the bodies to function in the absence of a full complement of members.
In giving an example, he explained to viewers that every time the President of Guyana travels overseas, the Prime Minister or any designated officer acts as the proposed President.
“The Constitution also says that if there is any vacancy in a cabinet position, the cabinet can continue to act, notwithstanding the vacancy. Any decisions made would be valid, notwithstanding the vacancy,” he said.
Nandlall strongly rejected Forde’s argument about the Police Service Commission not being functional.
“It is not fully constituted, but it is functional. We never said that it was fully constituted. [We] want to put those matters to rest,” he added.