Even the most evil have a right to natural justice

May 27, 2018 Features / Columnists, Peeping Tom

The Minister of Public Security should NOT ask the Commissioner of Police to reverse a decision which was taken to send Motie Dookie on special leave. He should advise the Commissioner to ignore the instruction purportedly received to send the officer on special leave in the public interest.

The incumbent Minister of Public Security is not to blame for the present impasse, but since the matter comes under his purview, he should have it reversed. The decision is unconstitutional, premature and prejudicial to the outcome of any future disciplinary proceedings which will be brought against Dookie.

The issue has raised eyebrows nationally given the selectivity of sending one officer on special leave while not doing so for others who are awaiting the institution of administrative disciplinary charges.

An explanation has been provided for the decision. The person who was acting for the Minister and who it is alleged ordered the Commissioner of Police to have the officer proceed on leave has said that the offence for which the officer is likely to face disciplinary charges cannot be compared to the charges which the others are facing. The issue however is not comparability; it is consistency. What is good for the goose must be good for the gander.

No Minister of the government, more so one acting in the absence of the substantive Minister, has any authority to order the Commissioner of Police to send anyone on special leave in the public interest. The Commissioner of Police cannot be ordered by a Minister.

The Commissioner is obliged to follow general directions, another way of saying policy. But when it comes to the management of staff, the Commissioner cannot be ordered by either the President or any of his Ministers.

A Minister acting for another Minister should avoid making decisions without the consent of the substantive officeholder, because in the final analysis, the principle of Ministerial responsibility means that it is the substantive Minister who has to answer to parliament for the actions of his office. A person holding the fort really should not make decisions of such import and more so should not act in contravention of the Constitution.

Neither a Minister nor the President has any authority to dismiss a tenured employee or to send that person on leave in the public interest. In the instance of tenured employees, the power to suspend, retire or ask someone to proceed on leave in the public interest resides exclusively with the Service Commissions.

Motie Dookie, is a tenured employee. He can only be disciplined by the Police Service Commission. In the absence of such a Commission, this responsibility does not devolve to a Minister who is a political appointee or someone holding the fort for the Minister.

It is precisely because there is no Police Service Commission in place that a number of disciplinary charges against members of the Force cannot be determined, and it is for this reason that the decision to send Motie Dookie on special leave is ultra vires of the Constitution, which vests exclusive responsibility in the hands of the Police Service Commission.

The President neither the Minister of Public Security can claim ignorance of this fact. Anil Nandlall has filed successful actions in the Court challenging decisions by the government which intrude or seek to direct Service Commissions. At least two Ministers have found themselves publicly shamed for seeking to direct Service Commissions.

Motie Dookie is facing disciplinary charges over certain acts which he is alleged to have committed. He, like all the others, is facing allegations of wrongdoing in the course of the exercise of their duties, and like every citizen also, has a right to a fair hearing by a competent tribunal. Even the most evil among us have a right to natural justice. What has happened to Dookie can happen to any tenured employee.

The decision to send Motie Dookie on special leave is prejudicial to Mr. Dookie’s impending disciplinary hearings. It has poisoned his right to a fair and impartial hearing.

The AFC has to stand firm within the government. It would be disgraceful for the present Minister of Public Security to wash his hands of this matter; otherwise APNU will feel that it has the licence to continue to do as it pleases with the ministerial portfolios held by the AFC.

The incumbent Minister of Public Security did not make a decision to send Motie Dookie on special leave, but he has an obligation to correct a wrongdoing and avoid the State being surcharged for millions of dollars for violation of the rights of Motie Dookie. He has a duty to overturn a wrong, regardless of the source of that unlawful order, or however much contempt he feels about the person involved.