Acting Chief Roxane George-Wiltshire SC has ruled that there is nothing unlawful in the Police Service Commission (PSC) not promoting officers who have pending disciplinary matters against them.
Among other things, the Chief Justice also declared that there exists no legitimate expectation for promotion, as it is neither a right nor entitlement.
These were some of the pronouncements Justice George-Wiltshire made yesterday when she delivered her judgment in the action brought by Senior Superintendent of Police Calvin Brutus, who was challenging the promotion of police officers who he said have pending disciplinary matters.
Brutus who has been denied promotion because of pending disciplinary matters, had argued in his application that there are a number of the ranks who, despite having pending disciplinary matters, have nonetheless been listed for promotion.
A number of other affected police officers who were added as interested parties to the proceedings, also shared this position.
Brutus had contended that some of those promoted have matters pending against them dating as far back as 2016; while his matter is dated 2019.
The chief justice said, however, that Brutus had presented no evidence to substantiate his claim that Senior Superintendents Edwin Cooper, Philip Azore and a number of others whom he noted had been identified for promotion, had unresolved disciplinary matters against them.
The judge said in her ruling also said that contrary to advancements made by Brutus (the Applicant) there is no mandatory requirement that the Commission must only act on the recommendations for promotions from the Commissioner.
Annexed to this point she said, too, that there is nothing unfair/unlawful about the PSC ousting police officers from being promoted in cases where they have matters of a disciplinary nature against them.
She noted, too, that it is not for the Court to decide what weight should be given to those alleged infractions or to determine how trivial or serious they ought to be before they can operate to bar any promotion.
Brutus had argued also, that he was denied a hearing before not being considered for promotion. The chief justice said, however, that the right to fair hearing does not operate in what she explained to be that negative circumstance.
On this point she explained that it would only have, if Brutus had been promoted and then there was some attempt to demote him, then he would have been entitled to a fair hearing. In the absence of such, she said that the fair-hearing argument has no merit.
The judge said that it is neither the norm nor the law for the Applicant to be heard before being denied for promotion. For the fair hearing principle to be applied, she explained that there must be some law that would have been breached.
In fact, the judge said that the Applicant knew the reason he had not been selected for promotion—that being the pending disciplinary matter against him.
Brutus had also complained of the contravention of his constitutional right of equal treatment before the law.
He, however, failed on this ground, too, as the judge found that he was unable to advance any differential treatment meted out to him by the Commission in comparison to that of Cooper, Azore and the others he made reference to as having been selected for promotion.
The judge said that while Brutus complained of those officers also having pending disciplinary matters against them but having still been listed to be promoted, he failed to present any evidence of any such matter.
In the absence of such evidence, Justice George-Wiltshire said that she could neither quash nor prevent the promotion of those officers, if they had been selected. In fact, the Chief Justice said that she could not usurp the powers of the Commission, even as she noted that it is not her function to so do.
The judge said that such an intervention would need a full investigation.
No orders were made as to costs.
The judge remarked that the circumstances which led to the litigation were “most unfortunate,” while noting that they “do not augur well for the overall management and wellbeing of the Guyana Police Force.”
She opined, too, that the determination of the matters would not assuage what she described as “clearly deep-seated feelings of distrust and mistrust in the higher echelons of the Force.”
She went on to add that “Unfortunately, for the sake of good governance of the Force some rapprochement will have to be found,” but noted that in coming to a decision, “such is neither the duty nor jurisdiction of the Court.”
She said that the application before the court, however, further highlights the existence of a “poor haphazard system of dealing with disciplinary matters involving police officers and also highlights the need for comprehensive regulations governing the disciplinary procedures and promotions, including clarity on what infractions could affect promotions.”
Early in January, Brutus moved to the High Court to block the promotion of several senior ranks, who were listed for promotions ahead of him, despite disciplinary matters pending against them.
Brutus was appointed to the rank of Senior Superintendent of Police in 2015. In October 2019, it was alleged by the Deputy Commissioner–Administration that Brutus committed a breach of discipline.
As a result, the PSC had appointed Assistant Commissioner Andries-Junor to investigate the allegation. A breach of discipline notice was not served upon the Applicant until October, 2020. Brutus is arguing that the investigation has not progressed since then.
The Chief Justice did note yesterday the need for more expeditious hearing of such complaints against officers. She noted that they are entitled on such issues to a fair hearing within a reasonable time.
In keeping with its practice, the Commission failed to consider and/or denied the Applicant promotion to the office of Assistant Commissioner of Police relying on the said allegation of indiscipline.
Brutus in his action was asking the court to overrule the practice of the Commission prohibiting the promotion of ranks who have pending disciplinary matters.
The annual promotion of ranks within the Guyana Police Force (GPF), which is usually done on the last day of the year, was put on hold on December 31st last year, after the Chief Justice granted an order blocking the ascent of several senior members within the force to the rank of Assistant Commissioner of Police.
Brutus’ contention was that the decision to promote other ranks with disciplinary complaints whilst denying his promotion is “unfair, irrational, arbitrary and unreasonable.”
Following the court ruling yesterday, the PSC announced police promotions but the government said these would not be recognised as the Commission had been suspended by President Irfaan Ali.
