Sending Police Commissioner on leave amounts to suspension or constructive dismissal

Nov 27, 2017 News

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– unconstitutional to force him out of office, says former Attorney General

Public Security Minister, Khemraj Ramjattan continues to stand by his decision to send Police Commissioner, Seelall Persaud on ‘special leave’ in the ‘public interest,’ even as accusations surface that the decision may be unconstitutional and smacks of political interference in the work of the Guyana Police Force (GPF).
Former Attorney General, Anil Nandlall told Kaieteur News yesterday that Constitutional independent office holders like the Commissioner of Police can’t be forced to take leave.
“It amounts to suspension or constructive dismissal. This is simply to circumvent the regime of security of tenure which the constitution accords to the Commissioner of Police,” Nandlall stated.
As it relates to suspension or dismissal, Nandlall noted that Article 225 of the Constitution which applies to the Commissioner of Police provides that the holder of that Office shall not be removed or suspended from the exercise of the functions thereof. except in accordance with the provisions of the Article.
The Article lists only two grounds upon which the Commissioner of Police can be removed from Office, and it relates to the Commissioner’s inability to perform the functions of his Office, whether arising from infirmity of body and mind. The second ground for removal is for misbehavior.
Additionally, Nandlall noted that the Article provides that if the question of removal arises (and it can only arise on the two grounds stated above) then the President must establish a tribunal, consisting of a Chairman and two other persons, who are judges or former judges or persons qualified to be judges, who shall investigate the question of the Commissioner’s removal from Office.
“When that tribunal is established, only then the President has a power to suspend the Commissioner from performing the functions of his Office. That tribunal shall then report to the President and recommend whether or not the person should be removed from Office,” Nandlall said.
He said what Guyana is witnessing is a complete disregard for the constitutional process which must be undertaken as prescribed by the Constitution if a Commissioner of Police is to be lawfully suspended.
“The entire regime of security of tenure that the Constitution has accorded to the Office of the Commissioner of Police is being ignored, eroded and trampled upon by the political diktat of a Minister, who seems to be taking instructions from a phantom,” Nandlall stated.
In a letter dated November 23, 2017 to Persaud, Minister Ramjattan, indicated ‘it is the considered opinion of the administration that you should be and directed to proceed on special leave with effect from November 24, 2017 until further notice’.
The Minister has since explained ‘until further notice’ to mean that Persaud will remain on leave through the Christmas holidays and will return late January after he completes 56 days of additional leave.
“I have the authority and I so advised him as to the special leave. I feel in the circumstances explained in my letter that he will come back immediately after the holidays when those temporary initiatives would have been completed,” Minister Ramjattan had said.

The letter, seen by Kaieteur News, indicated that the Minister was advised to inform Persaud of the decision which was made in the public interest. The letter also stated that the decision is to allow for continuing initiatives and innovations being pursued by the force’s temporary administration to be completed before Persaud’s resumption of duty.
Persaud had been on accumulated leave since July 10. He should have resumed official duties on Friday. He was then to proceed on pre-retirement leave next year with retirement by April 2018.
Minister Ramjattan said that he had spoken with Persaud on November 23, a day before he was expected to resume duty, about the decision to have him proceed on ‘special leave’.
NO AUTHORITY
But Nandlall argued that the Minister has no authority to write the letter in question to the Commissioner and questioned who advised the Minister to inform the Commissioner.
“Advised by whom? Even the President cannot send such a letter. That letter amounts to a suspension of the Commissioner of Police from performing the functions of his Office. Such a suspension is clearly prohibited by Article 225,” Nandlall maintained.
The former AG expressed the view that the Minister of Public Security has no authority over the force or the Commissioner of Police other than a general power to give policy directions. He stated that this is not a matter of conjecture, but a matter of law and based upon the clear language of section 6 of the Police Act, which has been the subject of interpretation by local courts on a number of occasions.
The Constitution provides that the Commissioner of Police shall be appointed by the President, acting after meaningful consultation with the Leader of the Opposition and the Chairman of the Police Service Commission.
According to Nandlall, it is equally clear that the Police Service Commission exercises no disciplinary control over the Commissioner.
“Certainly this amounts to political interference and attempt to politicise the force. This is exactly what the People’s National Congress did in the past Governments. They are simply incapable of acting democratically and in accordance with the Constitution. It is in their nature to act like Authoritarians,” Nandalall stated.
Further, Nandlall noted that the Minister must be ‘ashamed as a lawyer’ to author such ‘unvarnished ignorance’ by mentioning ‘public interest’. The former AG stated that if the framers of the Constitution intended the Police Commissioner to be removed on the ground of ‘this nebulous term public interest’ they would have said so in the Constitution and they would have defined what ‘public interest’ means.
“This is simply a concoction of Mr. Ramjattan which he uses to subordinate the Constitution,’ Nandlall stated.
He maintained that Persaud, as the Commissioner of Police, does not hold office at the opinion and pleasure of the coalition government.
It was pointed out that Government should take note of the recent decision by the Chief Justice dealing with similar constitutional concepts, specifically in relation to the letter written by Minister Joseph Harmon giving directions to the Police Service Commission.

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