Dear Editor,
Carvil Duncan has filed legal proceedings in the High Court challenging the actions by the executive to remove him from office as Chairman and a member of the Public Service Commission, a member of the Judicial Service Commission and a member of the Police Service Commission. The quintessential issue for the determination of the court is whether or not it is lawful for the government to have embarked upon this path, in light of the fact that there are pending criminal proceedings in the Magistrate’s Court, to which Carvil Duncan has pleaded not guilty and whereof he is protected by a constitutional doctrine which presumes him innocent until proven guilty in those proceedings.
Notwithstanding the existence of these pending proceedings in the High Court, in flagrant violation of the sub judice principle, the Attorney General has chosen to speak, publicly, on the very issue which is engaging the attention of the court. At a recent press conference, the Attorney General contends that the government can lawfully remove Mr Duncan from office during the pendency of the criminal proceedings and before their determination. Whether this is so or not, is the very pith and substance of the issue which the High Court is to determine. The Attorney General is no ordinary litigant. He is the head of the Bar and the executive’s principal legal representative. His official influence can be overwhelming and he has publicly signalled to the judiciary and the particular judge, the executive’s view and I dare say, its expectations. Is the Attorney General attempting to prejudice the outcome of the pending case? Is this the example the head of the Bar is setting for other lawyers? Should lawyers now engage in public articulation of cases which are the subject of pending litigation?
It is my considered view that the Attorney General has satisfied all the ingredients of the offence of contempt of court, for breach of the sub judice rule.
Since Mr Williams has chosen to express his view on the merits of the pending litigation, justice and fairness compel a response. Almost every legal contention which the Attorney General posited at that press conference is misconceived and wrong. He labels Mr Duncan a “public servant”, and then proceeds to wrongly apply his interpretation of the Public Service Commission rules to Mr Duncan. The press statement issued by GINA on October 25, reads:
“The Attorney General (AG) is adamant that the Government does not have to await the conclusion of Carvil Duncan’s criminal matter in the court, to move administratively against the public servant.” “We don’t have to wait for no criminal matter to be completed to move administratively against anybody, that’s always been the rule”, Attorney General, Basil Williams, told the press recently, at a press briefing held at the Ministry of Legal Affairs; “If you are a public servant and you are charged for any offence in Guyana, what happens to you? You’re interdicted…”
Mr Duncan is the Chairman of the Public Service Commission, a high constitutional office whose function is to employ, transfer, promote and discipline public servants. This office holder has a strong regime of security of tenure akin to that of a judge of the Supreme Court. By what rational process of reasoning and logic can such an office holder be equated to a public servant? The Public Service Commission rules have no applicability whatsoever to Mr Duncan. Indeed, it is Mr Duncan’s responsibility to apply those rules to public servants. It is the constitution, the supreme law, which applies to Mr Duncan. Therefore, not even by analogy, can Mr Duncan be sensibly equated to a public servant or can the Public Service Commission rules apply to him. In any event, Mr Duncan was not “interdicted”. The President established a disciplinary tribunal to investigate his removal from office. Long after the establishment of the tribunal, Mr Duncan was then “suspended”. Therefore the disciplinary process to remove Mr Duncan from office commenced long before his suspension.
But even worse, Mr Williams is misrepresenting or misinterpreting the Public Service Commission rules. These rules clearly provide that if a public servant is charged with a criminal proceeding no disciplinary action can be taken against him until those criminal proceedings are determined. The rationale is clear: to proceed with disciplinary proceedings while the criminal charges are pending, would not only abrogate the presumption of innocence, but would also prejudice the criminal proceedings. Rule 80. (1) of the Public Service Commission rules provide:
“Where criminal proceedings have been instituted in any court against an officer, Permanent Secretary or the Head of Department, the Commission shall not institute disciplinary proceedings against the officer upon any grounds arising out of criminal charge until after the court has determined the matter and the time allowed for an appeal from the decision of the court has expired; but where an officer, on conviction, has appealed, the Commission may commence proceedings after the withdrawal or determination of the appeal.”
Applying the most elementary principle of common sense and logic to this situation, if a lowly ranked public servant has the kind of protection which rule 80 accords, does it not follow that the Chairman of the Public Service Commission, a high constitutional office holder who enjoys security of tenure similar to that of a judge of the Supreme Court, is not entitled to, at a minimum, the same or, moreover, greater protection?
The striking similarity between the Attorney General’s contentions and that of the Chairperson of the tribunal established to investigate Mr Duncan’s removal from office, articulated when I appeared before that tribunal for Mr Duncan over two weeks ago, has not escaped me.
Yours faithfully,
Mohabir Anil Nandlall, MP
