Suspended PSC case: President immune from civil proceedings – Court rules

President Dr Irfaan Ali at an event hosted by the Guyana Police Force (Photo by Office of the President)

President Dr Irfaan was removed as the third named respondent in the case filed by the suspended Police Service Commission (PSC) after High Court Justice Gino Persaud ruled that the President is immune from civil proceedings.

The PSC had filed an application challenging its June 16 suspension by the Head of State. In the documents, President Ali was listed as a respondent.

But Attorney General Anil Nandlall had filed an application asking that the President be struck out.

In delivering his ruling in the matter today, Justice Persaud held that pursuant to Article 182 (1) of the Constitution, the President, in his official capacity, is immune from civil suit.

As a consequence of the ruling, the Attorney General has filed a notice of application asking the court to dismiss the substantive matter brought by the PSC.

Furthermore, the Court has ordered the PSC to pay the Attorney General $200,000 in costs.

On August 30, Justice Persaud entertained full arguments on the issue from Nandlall and Attorney-at-law for the PSC, Selwyn Pieters.

Nandlall placed heavy reliance on Article 182 of the Constitution and Section 10 of the State Liability and Proceedings Act. Under the aforementioned constitutional provision, he argued that the President has immunity from the judicial process.

For his part, Pieters urged the Court to dismiss the AG’s application because President Ali is “indeed a proper and appropriate party being named in his official capacity” as he unlawfully suspended the PSC.

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.

Chairman of the PSC, Retired Assistant Commissioner of Police, Paul Slowe, and several members of the Commission 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 had 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 life of the PSC expired on August 9.

By virtue of Article 246 of the Constitution, the Police Service Commission is vested with the authority to exercise disciplinary control over persons holding or acting in high offices within the Force or even remove them from office as well as the promotion of ranks above the rank of Inspector.