The temperature in the Canadian province of British Columbia reached a record high last week at 46.6°C (115.88°F), resulting in at least 233 deaths and the closure of schools and universities. In northern California, “lava fire” (fire caused by lightning during a thunderstorm) ignited more than 12,000 acres, resulting in evacuations. The smoke was seen as far as 100 miles away in Oregon. About 800 firefighters are battling the blaze. In a related news, an underwater gas pipeline ruptured last Friday in the Gulf of Mexico causing a huge “eye of fire” on the surface of the ocean. The fire, which was just 400 meters from an oil platform, was brought under control after several hours, and no injuries were reported. It is, however, unclear what impact this explosion will have on the environment.
Canada will be banning the sale of fuel-burning new cars and light-duty trucks from 2035 in an effort to reach net-zero emissions by 2050. Only zero-emissions cars and trucks will be sold from 2035, and interim targets will be set for 2025 and 2030. The UK also will be banning fuel-powered vehicles from 2030, while the United States is yet to fix a date to do so. California, the largest U.S. auto market, will switch to electric vehicles starting in 2035 while the Quebec has set the same target. British Columbia is phasing out fuel-powered cars and trucks with a total ban coming into effect in 2040. All of this is good news for the protection of the environment and in an effort to mitigate the adverse effects of global warming and climate change.
On the corruption front, former South African President, Jacob Zuma, has been sentenced to 15 months in prison for contempt of court as a result of his refusal to appear before an anti-corruption commission that is investigating allegations of corruption during his presidency. Over in Brazil, President Jair Bolsonaro is being investigated for dereliction of duty in the procurement of 20 million doses of COVID-19 vaccine from a Brazilian intermediary at what is suspected to be an inflated price. The vaccine was manufactured in India. Dereliction of duty is a criminal offence in Brazil. Amid the allegation, the government suspended the contract. Brazil has the second highest COVID-19 deaths in the world.
In today’s article we discuss the controversy over the Police Service Commission’s decision not to promote officers who have pending disciplinary matters.
Background information
Last December, the Police Service Commission (PSC), a constitutional body appointed under Article 210 of the Constitution, approved of the promotion of several senior officers of the Guyana Police Force. A Senior Superintendent of Police with a pending disciplinary matter was, however, overlooked for promotion. He sought the judicial intervention for what he believed to be an unfair practice, alleging that officers who also had pending disciplinary matters were promoted. The Applicant contended that the Commission’s practice not to promote police officers with pending disciplinary matters, regardless of the nature or seriousness of such complaints, perpetuates a permanent injustice against him and others who were scheduled for promotion.
Chief Justice ruling
Last Monday, the Chief Justice ruled that the PSC’s decision not to promote officers who have pending disciplinary matters against them is not unlawful; and there exists no legitimate expectation for promotion, as it is neither a right nor entitlement. She further stated that no evidence was produced to substantiate the Applicant’s claim that other officers with pending disciplinary matters were promoted; and it is not a mandatory requirement for the Commission to only act on the recommendations of the Commissioner of Police. The Chief Justice added that it is not for the Court to decide what weight should be given to alleged infractions or to determine how trivial or serious they ought to be before they can operate to bar any promotion.
The Applicant had also argued that he was denied a hearing before not being considered for promotion. The Chief Justice, however, considered that: (i) the right to fair hearing is relevant only if the Applicant had been promoted and then there was some attempt to demote him; (ii) in the absence of such an attempt, the fair-hearing argument has no merit; (iii) for the fair hearing principle to be applicable, there must be some law that would have been breached; and (iv) it is neither the norm nor the law for the Applicant to be heard before being denied promotion.
The Chief Justice concluded that in the absence of evidence of unfair treatment meted out against the Applicant, she could neither quash nor prevent the promotion of the concerned officers, if they had been selected. She also stated that the court could not usurp the powers of the Commission as it is not its function to so do. The Chief Justice further remarked that the circumstances that led to the litigation do not augur well for the overall management of the Police Force; and the poor and haphazard system of dealing with disciplinary matters involving police officers highlights the need for comprehensive regulations governing the disciplinary procedures and promotions, including clarity on what infractions could affect promotions.
Aftermath of the Chief Justice ruling
Following the Chief Justice’s ruling, the PSC announced the promotion of 132 police officers. The Government, however, stated that it would not recognize the Commission’s decision since the President had suspended all five of its members some three weeks ago, pending an investigation into certain allegations. It is relevant to note that, except as provided for by the Constitution, a holder of a constitutional office shall not be subject to the direction or control of any other person or authority. He/she cannot be removed from office except for inability to discharge the functions of his/her office (whether arising from infirmity of body or mind) or for misbehaviour. In order to do so, the question of person’s removal has to be first referred to a tribunal and is based on a recommendation of the said tribunal.
The tribunal is to comprise a chairman and no less than two other members selected by the Judicial Service Commission (JSC) from among judges or persons who are qualified to be judges. The tribunal is to enquire into the matter and report the facts to the President along with a recommendation whether the person is to be removed from office.
In his letter of suspension, the President informed the concerned officials that the suspension was based on an advice tendered by the Prime Minister, the prescribed authority under Article 225(6) of the Constitution, and that a tribunal would be established to conduct the investigation. That article reads as follows:
If the question of removing the officer from office has been referred to a tribunal under this article, the President, acting in accordance with the advice of the prescribed authority, may suspend the officer from performing the functions of his office, and any such suspension may at any time be revoked by the President, acting in accordance with such advice as aforesaid, and shall in any case cease to have effect if the tribunal recommends to the President that the officer should not be removed from office.
The Prime Minister had written to two members of the PSC asking them to show cause why the allegations against them should not result in their removal from the Commission. This they did along with the submission of affidavits and other supporting documents. The explanations were obviously not satisfactory to the Government, hence the President’s letters of suspension. As can be noted, a tribunal must first be set up before an officer can be suspended on the advice of the prescribed authority. To the extent that such a tribunal is yet to be established, the President’s action appears premature. That apart, the composition of the tribunal is to be determined by the JSC. Unfortunately, there is no JSC in place. This further complicates matters.
Conclusion
It is most unfortunate that one of the most important institutions of the State – the Guyana Police Force – has been embroiled in a public controversy over the promotion of senior officers of the Force. This has resulted in judicial intervention. In this regard, the Chief Justice’s ruling is very instructive. What is also most unfortunate is the standoff that now exists between the PSC and the Government. Where this is all going to lead is very much unclear. Meanwhile, the 132 officers earmarked for promotion will have to await the outcome of the standoff. We sincerely hope that an outcome satisfactory to all parties involved will be achieved as quickly as possible. The Constitution is paramount, and in our effort to resolve the matter, it is important that we ensure strict adherence to its provisions.
