The President cannot dictate to a constitutional commission

Aug 10, 2017 Letters

Dear Editor,
In a previous letter, I emphasised that the coming constitutional reform process will yield nothing but wasted time, and money unless we fail to cultivate a culture of deference to, and compliance with the provisions of the Constitution of the Cooperative Republic of Guyana (“the Constitution.”) The recent directive by the President of the Cooperative Republic of Guyana (“the President”) to the Police Service Commission (“the Commission”) to halt further promotions until further notice, provides cause to echo that sentiment.
The law on this matter is, unlike the constitutional provisions on the appointment of a chairman for the Guyana Elections Commission, unambiguous. Article 226 (1) makes it pellucid that “save as otherwise provided in this Constitution, in the exercise of its functions under this Constitution, a Commission shall not be subject to the direction or control of any other person or authority.”
Undoubtedly, the President is a person to whom this Article refers, and the Police Service Commission is a commission contemplated by this provision. Therefore, the President’s direction for the Commission to halt promotions can only be seen as subjecting it to such direction or control which the constitution aims to prevent.
In this context, it is pertinent that Article 226 (1) be read together with Article 8, which provides that “this Constitution is the supreme law of Guyana, and, if any other law is inconsistent with it, that other law shall, to the extent of the inconsistency, be void.” The Constitution has given power to the President, and it has also set limitations on his power. The Constitution gives the President power to make certain appointments to the Commission in accordance with set guidelines.
The rule of law, as a constitutional doctrine, adds weight to the principle, and law, that the President, and all other office holders for that matter, must exercise power in accordance with the law, resisting urges to act arbitrarily, and conveniently. The President, therefore, exercises his power subject to constitutional limitations. He is inferior to the Constitution, its subordinate even.
The President has not provided the public with a reason for this directive. It is unclear whether he has provided one to the Commission. If the President believes there is legal validity in his actions, and it does not seem that there is, it should be stated forthwith.
This is not to say, however, that adducing same would validate the direction. Article 226 (1), and Article 8 combine to render the power exercised, its effect, and its source, unconstitutional, and void. As things stand, the Commission is not bound by this direction. Even so, the Honourable President ought to withdraw this directive, perhaps after seeking the advice of the learned Attorney General.
This is my opinion, at least. After all, it is the court which has the last say as to what the law is. Therefore, perhaps it may be necessary to, as was done regarding the interpretation of Article 161(2), approach the Court to have the question of the President’s powers with respect to the Police Service Commission settled. In a society where the principle of constitutionalism is adhered to only when it is convenient to do so, or where compliance is compelled by the judiciary, perhaps increased judicial proceedings is a viable alternative.
Chevy Devonish
Law Student

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