High Court Judge Gino Persaud will, on August 16, begin hearing arguments in an application filed by Attorney General Anil Nandlall, SC to have President Irfaan Ali removed as a respondent in the case file by the suspended Police Service Commission (PSC).
Chaired by retired Assistant Commissioner of Police Paul Slowe, the PSC last month instituted legal proceedings to have its June 16 suspension by the President declared unconstitutional. Besides President Ali, others listed as respondents in the matter are Prime Minister Mark Phillips, Attorney General Anil Nandlall, Police Commissioner Nigel Hoppie, and secretary to the commission.
During a brief virtual hearing on Wednesday, Nandlall pointed to the importance of a determination of the interlocutory application before the court proceeds to hear the substantive matter. In the application, Nandlall contends that naming the Head of State as a respondent in any matter is unconstitutional and is in breach of the State Liability and Proceedings Act.
The Attorney General argues that pursuant to Article 182 of the Constitution of Guyana, the President has immunity from the judicial process, whether criminal or civil proceedings. He submitted that Article 182 states that, subject to the provisions of Article 180, the holder of the office of President shall not be personally answerable to any Court for the performance of the functions of his or her office, or any act done in the performance of those functions.
Moreover, Nandlall has said the Article outlines that no proceedings, whether criminal or civil, shall be instituted against the Head of State in his/her personal capacity in respect to his/her functions during office.
He added, “Whilst any person holds or performs the functions of the office of President, no criminal proceedings shall be instituted or continued against him or her in respect of anything done or omitted to be done by him or her in his or her private capacity.
“And no civil proceedings shall be instituted or continued in respect of which relief is claimed against him or her for anything done or omitted to be done in his or her private capacity.”
Under Article 89, the President is the Head of State, the supreme executive authority, and Commander-in-Chief of the armed forces of the Republic of Guyana; and, as a consequence, all actions brought against him in his capacity as Head of State should only name the Attorney General, Nandlall argues.
Nandlall relies on Section 10 of the State Liability and Proceedings Act to amplify this point.
Slowe and several members of the PSC are currently facing criminal charges in the Georgetown Magistrates’ Courts. They 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 the officers collected payments amounting to $10 million, but never provided the Force with a raft of revised Standing Orders.
President Ali has suspended the PSC Chairman and Commissioners Michael Somersall, Claire Jarvis, Vesta Adams, and Clinton Conway – all retired Assistant Commissioners of Police – weeks after the Prime Minister had written to them, asking them to show cause why the fraud charges against them should not result in their removal from the constitutional body.
The Prime Minister, in the letter, 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 the 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 on September 12, 2017.
The PSC was suspended pending the establishment of a tribunal. Notwithstanding its suspension, the PSC, through its lawyers, has maintained that it will disregard the President’s “purported suspension” and continue with its mandate in respect to disciplining and promotion of officers of the Guyana Police Force.
The life of the PSC expires at the end of this month.