The Minister has no power to ‘remove’ Seelall Persaud

Nov 27, 2017 Features / Columnists, Peeping Tom

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Citizens often fail to appreciate the link between protecting the Constitution and justice for the average citizen. For most citizens, constitutional breaches do not impact on them and are therefore of no importance.
It is only after their freedom is restricted through unlawful arrest or detention; when their movement is restricted at ports of exit; when government seizes their lands or revokes their leases or when they are the victims of a political witch hunt that they begin to appreciate how important it is to protect the Constitution.
It is the Constitution which is their protector. If breaches of the Constitution are not opposed and challenged, then the rights of citizens are going to be flattened.
In a landmark decision (Endell Thomas v The Attorney General of Trinidad and Tobago, No. 47 of 1980), the Privy Council made some important observations which are relevant to what is taking place in Guyana.
Lord Diplock observed  that under a party system of government such as what existed after Independence in Trinidad and Tobago and in other Commonwealth countries which are patterned after the Westminster model, “dismissal at pleasure would make it possible to operate what in the United States at one time became known as the “ spoils “ system upon a change of government, and would even enable a Government, composed of the leaders of the political party that happened to be in power, to dismiss all members of the public service who were not members of the ruling party and prepared to treat the proper performance of their public duties as subordinate to the furtherance of that party’s political aims.”
Lord Diplock continued, “In the case of an armed police force with the potentiality for harassment that such a force possesses, the power of summary dismissal opens up the prospect of converting it into what in effect might function as a private army of the political party that had obtained a majority of the seats in Parliament at the last election.”
In order to protect public officers from summary dismissal, the Constitutions of most independent Commonwealth States provide for public officers to be appointed, disciplined and dismissed by Service Commissions.
This is intended, as Lord Diplock noted, to insulate public servants, teachers and police officers from political influence of the government. The Chief Justice (ag.) of Guyana recently reinforced this point.
The Commissioner of Police enjoys security of tenure under the Constitution of Guyana. He cannot be removed from office by executive fiat. In the case of Thomas v Attorney General of Trinidad and Tobago, Lord Diplock said that “to ‘remove’ from office in the Police Force …  embraces every means by which a police officer’s contract of employment (not being a contract for a specific period), is terminated against his own free will, by whatever euphemism the termination may be described, as, for example, being required to accept early retirement.”
The power to remove a police officer in the public interest resides with the Police Service Commission. The Minister of Public Security has no such power. To place such powers in the hands of the Executive would frustrate the constitutional protections accorded to police ranks.
In the case of the Commissioner of Police, he cannot be dismissed at pleasure, not even by the President.  He cannot be removed in the public interest either by the Minister of Home Affairs or the President.
The Commissioner of Police enjoys security of tenure. His appointment requires the approval of the President and the Opposition Leader. So even the President cannot appoint the Commissioner on his own; so why does anyone believe that a Minister who possesses no executive authority would have such powers, regardless of whether there is just cause of the removal.
There is a provision within the Constitution of Guyana which relates to the removal of certain constitutional office holders. The persons concerned can only be removed by virtue of retirement, resignation, mental incompetence or for misconduct. In the case of the latter two cases, namely mental incompetence and misconduct, a tribunal has to be established to investigate these charges.
It is shocking to learn that the Commissioner of Police’s leave is being extended by executive fiat. This is unconstitutional. ‘Prak’, of all people should know this.
There are persons who do not like the present Commissioner of Police. They must be reminded that the issue is not the person but the principle. Just as how the government can trample on the Constitution to send someone into early retirement, the same government can do this to any ordinary public servant, teacher of police.
What can be done to Seelall can be done to you. And who will protect you if that should happen?

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