Embattled trade unionist Carvil Duncan will be moving to challenge the legality of the tribunal set up to determine if he ought to be removed as chairman of the Public Service Commission (PSC), after his attorney’s request for it to suspend its work, while criminal charges against him are pending, was rejected.
The tribunal, which is investigating whether Duncan, who is facing a decision in a court matter that accuses him of stealing monies from the Guyana Power and Light Inc (GPL), has the ability to discharge the functions of the office of chairman, began hearings yesterday but Duncan left with his attorneys after the application to have them stopped was overruled.
Attorney Anil Nandlall, who along with Satesh Satram appeared for Duncan, told Stabroek News last evening that the decision to set up the tribunal flies in the face of the presumption of innocence.
By virtue of being chairman of the PSC, Duncan is a member of the Judicial Service Commission (JSC) and the Police Service Commission.
Nandlall told Stabroek News that when the hearings began, he made an application for the tribunal not to proceed, while criminal charges were pending against Duncan in a Georgetown Magistrate’s Court.
Duncan has been charged with stealing and conspiring to steal from GPL, while he was a serving member of its governing board. It was alleged that he stole $984,900, and conspired with another to steal $27,757,500, which was also property of GPL. The charges against Duncan stem from payments that were made to him and to former Deputy Chief Executive Officer Aeshwar Deonarine and which were uncovered by a forensic audit that was commissioned after the APNU+AFC government entered office last year.
Nandlall said he put forward three grounds upon which the tribunal should not proceed. The first, he said, was that Article 144 of the Constitution affords to every defendant the presumption of innocence in respect of any criminal charge instituted against him until he is proven guilty.
That presumption, he said, precludes any adverse proceedings to be “taken against any person simply on the basis that a criminal charge has been instituted against them. Therefore the tribunal ought not to impact upon a course which can lead to the imposition of a sanction that is Duncan’s removal from office on the mere existence of the institution of a criminal charge.”
He said that to do this will amount to an infraction of the constitutional presumption of innocence. “The presumption of innocence means that Duncan has done nothing wrong until otherwise proven before a court of law,” he said, while adding that the proceedings in the lower court are still pending and, “therefore, Duncan is as innocent as the magistrate is, so why embark upon a course to remove him? Such a course flies in the face of the presumption of innocence.”
Second, he said, it is settled law in Guyana that Duncan ought to have been given a fair and adequate opportunity to be heard before the Prime Minister made a recommendation to the President to establish a tribunal to determine his removal from office.
“This did not happen. The Prime Minister claims that he sent a letter to Duncan inviting him to show cause why he should not be removed from office. Mr Duncan only knew of such a letter when reference was made to him in the press. This letter was supposed to have been sent by the Prime Minister in March, 2016. Duncan checked at the Public Service Commission office, no letter was received there. He checked at FITUG office, no letter was received there. He checked at his home, no letter was received there. He checked at the post office no mail was there for him,” he said.
According to Nandlall, he wrote to the Prime Minister on behalf of Duncan and requested a copy of the letter, the date, time and place where it was delivered as well as any evidence whatsoever which would establish that it was received by someone. “I received a response from PM’s office furnishing me with a copy of the alleged letter but containing no answers to the several questions I have asked,” he said.
Nandlall argued that his client was not afforded a fair hearing before that recommendation was made by the PM and that constitutes a violation of natural justice and that undermines the whole legal existence of the tribunal.
Third, he said, is also the conflict that arises from Duncan being an ex-officio member of the JSC, while the chairperson of the tribunal is a sitting judge and another member is a retired judge who functioned as a judge while Duncan was a member of the JSC.
The tribunal comprises Justice Roxane George along with (ret’d) Justice Winston Patterson and attorney Robert Ramcharran, who were sworn by President David Granger on September 15.
According to Nandlall, the JSC exercises a supervisory and disciplinary jurisdiction over judges and, therefore, it is “improper and incestuous for a retired judge and a sitting judge to preside over a tribunal established to investigate a member of the JSC.”
Those submissions, he said, were overruled by the tribunal. “I informed the tribunal that I will be challenging its legality and the legality of its jurisdiction elsewhere. I further informed the tribunal that my client will not be participating and I asked that we be permitted to leave,” he added.
He said that while they were permitted to leave, the hearing continued.
Nandlall said he will soon file proceedings in the High Court to challenge what he called “a kangaroo tribunal” and “a travesty of justice.”
President Granger said that the establishment of the tribunal represents the commitment of his administration to due process. He said that the government is obliged, when matters are brought to its attention, to ensure that its response is not hasty, arbitrary or whimsical but rather is in keeping with the spirit and letter of the constitution.
The tribunal has up to October 31 to deliver its report to the President.
