Attorney General Anil Nandlall, SC, is appealing a decision made by High Court Justice Gino Persaud to dismiss his application that sought to have the legal proceedings filed by the Police Service Commission (PSC) thrown out.
The PSC had, in July last year, challenged its June 2021 suspension by President Dr Irfaan Ali, saying it was unconstitutional. But the life of the three-year Commission expired on August 8, following which the AG filed a Notice of Application the following month, seeking to dismiss the proceedings filed by the PSC. A new PSC has not been constituted as yet.
Nandlall had argued, during the last court hearing in November 2021, that since the life of the PSC has expired, the Commission has no legal authority to continue the judicial review proceedings it had filed.
“The Commission can only act if it has a quorum. Despite vacancies, decisions may be made, but provided that there is a quorum. Inferentially, if the Commission is not constituted, it cannot have a quorum in law, and therefore it cannot act,” the Attorney General contended.
However, during his ruling on Wednesday, Justice Persaud found that the issues raised in the substantive case filed by the PSC are matters of public interest. Hence, citing a slew of both local and overseas cases, the High Court judge was of the view that the issue of the legality of the commissioners’ suspension “…should be heard and determined on its merits, being a matter of public interest.”
“To hold otherwise would be to leave the legality of the suspension hanging – never to be adjudicated upon simply because of the inescapable fact that the life of the Commissioners came to an end after filing these proceedings. This does not seem to me either logical or fair, but rather an affront to fairness, natural justice, access to justice, and indeed the rule of law… A hearing and determination would serve to bring clarity to the role of the Executive in such instances, and ensure that the constitutionally-granted autonomy of the PSC remains protected,” Justice Persaud stated.
In addition, to rule on the public interest of the court, the trial judge also made a decision on whether the former PSC Chairman Paul Slowe, who swore the Affidavit in Support of the proceedings filed, has sufficient interest to continue the proceedings and be substituted as the Applicant in the place of the Police Service Commission, since it is expired.
Also citing case laws to support his decision, Justice Persaud found that Slowe “…has a sufficient interest, since he is directly affected together with the locus standi to continue the proceedings, and the Court can properly, under its inherent jurisdiction, order that he be substituted as the Applicant in the place and stead of the Police Service Commission, to facilitate the just and effective resolution of the matters in dispute before the Court.”
To this end, the High Court Judge ordered that Slowe be substituted in the place of the PSC as the Applicant of the proceedings, and that the rubric be amended accordingly to reflect the ruling.
However, at the beginning of his ruling on Wednesday, which was delivered virtually, Justice Persaud did comment that suspended Commissioners, who are being represented by Attorneys-at-law Dexter Smart, Dexter Todd and Selwyn Pieters, were not “properly advised” when they instituted the substantive proceedings in the name of the PSC, especially given the fact that they were already suspended and were aware that the end of their three-year term was imminent. He opined that they should have filed the proceedings in their individual capacity instead.
Nevertheless, with the Head of State already removed as a party to the proceedings, following a ruling by Justice Persaud that the President enjoys absolute immunity from the judicial process, the PSC’s case against Prime Minister Mark Phillips, the Attorney General, Police Commissioner Nigel Hoppie, and the Commission’s Secretary was slated to commence. In fact, the trial judge had even given instructions and timelines for the parties to file their respective pleadings.
But being in disagreement with the decision of the High Court Judge, AG Nandlall on Wednesday afternoon filed a Notice of Appeal at the Full Court of the High Court of Guyana, seeking to appeal the ruling.
He is asking that Justice Persaud’s decision be set aside and reversed, saying it is misconceived and erroneous in law.
“The Learned Hearing Judge has misinterpreted, misconstrued, and misapplied the important doctrine of ‘public interest litigation’ in such a manner that the decision of the Learned Hearing Judge has resulted in a grave miscarriage of justice… The learned Hearing Judge erred and misdirected himself in law by ruling that Mr Paul Slowe be substituted instead and in place of the Guyana Police Service Commission, a constitutional body, for the purpose of continuing judicial review proceedings in the High Court of the Supreme Court of Judicature.”
The Attorney General further argued in his Appeal Notice that the High Court ruling violates the doctrine of separation of powers, and violates Article 226 of the Constitution as well as undermines the independence and functional autonomy of the PSC, guaranteed by the Constitution.
He contended that, “The decision of the Learned Hearing Judge is unlawful, unconstitutional, and is not supported by established legal principles and doctrines… The decision of the Learned Hearing Judge potentially permits Paul Slowe, a citizen, to usurp, interfere with, compromise, undermine, and assume the functions of the Police Service Commission, a constitutional body established by the Constitution of the Cooperative Republic of Guyana, in breach of the said Constitution.”
AG Nandlall also indicated that since the Judge’s decision paves the way for PSC’s substantive case to proceed, he will soon also be filing a Notice of Application, seeking to stay the proceedings.
President Ali had suspended the PSC after its Chairman at the time, Slowe, and Commissioner Clinton Conway – both retired Assistant Commissioners of Police – were slapped with fraud charges.
They, along with other retired and serving members of the Police Force, have been implicated in a $10 million fraud over duties delegated to them for revising the Police Force’s raft of Standing Orders. It is alleged that they collected payments amounting to $10 million, but never provided the Force with a raft of revised Standing Orders.
Slowe is also facing three counts of sexual assault. It is alleged that on three occasions in 2019, at Police Headquarters, Eve Leary, Georgetown, Slowe sexually assaulted a senior Policewoman by rubbing her left leg and foot without her consent.
President Ali suspended the PSC weeks after the Prime Minister had written to Slowe and Conway, asking them to show cause why the fraud charges against them should not result in their removal from the Commission.
In that letter, the Prime Minister had said he was exercising powers vested in him by Article 225 of the Constitution, which mandates that a person shall not be removed from a constitutional office except for inability to discharge their function, or for misbehaviour.
That article further provides that a constitutional office holder can be removed by the President if an appointed tribunal recommends the removal of that person. The tribunal is to be appointed following the advice of a prescribed authority, in this case the Prime Minister, and is to be constituted in consultation with the Judicial Service Commission (JSC).
The JSC is currently not functioning. The last JSC was appointed by former President Donald Ramotar on September 11, 2014. The tenure of each appointed member is for three years; therefore, the tenure of the last Commission expired since September 12, 2017.
The PSC is vested with the authority to exercise disciplinary control over persons holding or acting in high office within the Police Force, or even remove them from office. The PSC also deals with the promotion of Policemen above the rank of Inspector.
The Government, on June 28, rejected as unlawful and illegal a list of purported promotions of members of the Police Force issued by the PSC. In so doing, Nandlall reminded that the PSC was suspended by the President in the exercise of powers conferred upon him by the Constitution.
The Attorney General had made it clear that the decision of the President can only be rescinded, revoked, set aside, or reversed by the President himself, or by a court of competent jurisdiction.
“No person, let alone a constitutional commission, will be allowed to become judge, jury, and executioner in our constitutional democracy. The rule of law simply does not permit it,” he said.