A look at the Motie Dookie issue

Sep 13, 2018 Letters

---

Dear Editor,
Deputy Superintendent of Police Motie Dookie’s (ex SWAT head) special leave matter reveals a comedy of errors. The learned Judge erred in treating this special leave matter as if it were, a priori, an act of disciplinary control. It was not.
The respondent`s Affidavit was periphrastically drawn—here pleading errors happened. The Permanent Secretary, Department of Public Service, duly performing his “approval” role, nevertheless seems to have misapprehended (in this case) the applicability of the law as to special leave in the public interest as some stop-gap measure in the absence of a Police Service Commission (PSC). It is not.
Yet again, learned counsel Nandlall (Dookie’s lawyer) has succeeded with superficial, over simplistic and vacuous arguments with his customary abstract disquisition on trite constitutional law. And in this case the Respondent`s defence ought to have been unassailable. It failed. (“Decision to send ex-SWAT head on leave unlawful-court rules” SN 2018-09-02).
Nandlall’s focus on article 112(1) of the Constitution, is misguided and misplaced. It succeeded (aided by abject defence pleading) in simplistically hoodwinking the court to making a finding that DSP Dookie was suspended!
Regrettably, in a fatal flaw premised on an priori assumption that the then CoP (ag) (“Deputy Commissioner” sic) acted unilaterally [rather than conjunctively with PS (PSM)], the learned Judge wrote viz “The only issue is whether the Deputy Commissioner is vested with the power by the constitution or by Rule H33 of the Public Service Rules 1987 Revised Edition……to send Mr. Dookie on special leave”.
With all due respect, constitutional power vested in CoP is unknown! I entirely agree with former CoP Winston Felix that Rule H33 was applicable, and properly, and duly, invoked in this matter (contrary to Nandlall`s belated orally submitted vacuous extravagant nonsense, that “a literal reading of Rule H33 disqualifies its application to the Guyana Police Force altogether.” – extracted from the Judge’s written ruling.)
Turning briefly to further and better particulars as to the factual justification for acting for the public interest, on its face, this was not a decision arrived at whimsically or capriciously.
Given the prima facie facts of DSP Dookie’s presence (along with the driver – a circumstance from which grave suspicion is; not unreasonably engendered) in the vehicle in which were some 357 bottles (not 30 bottles) of uncustomed whiskey, the rank and high profile status as the SWAT head; the wide media publicity and consequential nation-wide public awareness of that circumstance and the perception or appearance or impression of corruptibility or criminality ensuing; the notorious public distrust and loss of confidence by a distrusting Guyanese public in the police force (generally at any rate) – such notoriety entitling a Judge to take judicial notice of it, – this matter, ineluctably became, and was, one of palpable public interest.
This was not hypotheses; this was reality. What then was to be done in the exigencies of the situation? What should the CoP`s response (as head of public security administration) have been – mindless and heedless passivity or indifference; or administrative action, to disabuse public perception?
Should he have folded his arms in sterile despair? Surely, such disbursement or mitigation was of, and in, public interest. Surely the law could not be such an ass as to not provide an administrative remedy in the face of such preception.
There is an overriding public interest that there should be public confidence in the administration of public security. Passivity erodes or diminishes such confidence. Administrative impotency was not an option; that would have been a betrayal of this duty as CoP to maintain public confidence in the GPF.
The response was to send Dookie on special leave – action not capricious, and within the limits of statutory power under Rule H33. Evidentially, on the very familiar and established legal principle of presumption of regularity of official acts, that action, taken pursuant to Rule H33, was approved by PS (PSM), on the recommendation of the CoP (ag) and ipso facto, and ipso jure, in compliance with it.
Has the Applicant (DSP Dookie) produced any positive or direct evidence (Affidavit or otherwise) to rebut or displace this presumption of regularity? Absolutely none. The learned Judge’s finding that CoP acted “unilaterally”, is against the weight of this presumptive evidence.
I end with this: the Dookie case raised novel and complex issues of much practical relevance and significance in relation to the division of powers and functions between the PSC and CoP in the case of senior officers, on which authoritative judicial erudition was patently needed. In my writings I have endeavoured to show that members of the GPF (except the CoP) are leaveable under Rule H33. DSP Dookie was leaved under Rule H33.
The power under Rule H33 is sui generis. It is invokable whether there is an extant PSC, or not. Dookie (despite some paraphrastic pleadings) was not disciplined when the CoP (ag) invoked Rule H33. To judicially deny its beneficent use by the CoP, is to purport to render it obsolete and nugatory to that extent. That, any court must vigilantly restrain itself from doing, when invited to do so on abstract disquisition on law.
Yours,
Maxwell. E. Edwards

---

---