A ruling rendered on Wednesday by the Demerara Full Court has paved the way for Justice Gino Persaud to proceed with hearing the case challenging President Dr Irfaan Ali’s June 2021 suspension of the Police Service Commission (PSC).
Justice Persaud had, on March 9, dismissed an application by Attorney General Anil Nandlall to have the case thrown out, and the Full Court, comprising Justices Priya Sewnarine-Beharry and Fidela Corbin-Lincoln, has upheld Justice Persaud’s decision.
The Full Court has, however, varied that decision, adding former PSC Chairman, retired Assistant Commissioner of Police Paul Slowe, as a party to the proceedings, instead of substituting him for the PSC, which has been defunct for almost a year.
Nandlall is likely to challenge the Full Court’s decision at the Court of Appeal.
In his ruling, Justice Persaud had held that the issues raised in the substantive case are matters of public interest. Relying on several local, regional, and overseas case laws, he had reasoned 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, the Judge had noted, 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,” he had said.
The PSC, which expired on August 8, 2021, has not been reconstituted.
Nandlall had, however, petitioned the Full Court to have Justice Persaud’s decision reversed on the basis that it is misconceived and erroneous in law. He had argued that the trial Judge had misinterpreted, misconstrued, and misapplied the important doctrine of ‘public interest litigation’ in such a manner that his decision had resulted in a grave miscarriage of justice.
“The learned Judge erred and misdirected himself in law by ruling that Mr Paul Slowe be substituted instead and in place of the [PSC], a constitutional body, for the purpose of continuing judicial review proceedings in the High Court…” he had further argued.
According to him, the ruling of the lower court 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 of Guyana.
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, in breach of the said Constitution.”
Among other things, Slowe is asking the High Court to declare the PSC’s suspension unconstitutional. With the Head of State removed as a party to the proceedings, following a ruling by Justice Persaud that the President enjoys absolute immunity from the judicial process, Slowe is looking to proceed with his case against Prime Minister Mark Phillips, the Attorney General, former Police Commissioner (ag) Nigel Hoppie, and the Commission’s Secretary.
Although Attorneys-at-Law Dexter Smartt and Dexter Todd conceded that the life of the PSC had indeed expired, they had urged the court to go ahead and hear the case on its merits, since it is a public interest matter that touches and concerns the Constitution.
Smartt had submitted, “The matters to be dealt with are matters that need finality. It touches and concerns the Constitution, the supreme law of the land, and the powers of the President.”
According to him, while doing research, he had found no case laws concerning the fate of legal proceedings filed by a constitutional body that has now expired.
Against this backdrop, he had argued that the case is “peculiar”, and had noted that the court should consider the effects of not giving a decision in the matter. The lawyer had contended that the court had jurisdiction when this matter started, and it continues to have jurisdiction moving forward, as this is a matter of public importance.
“To terminate these proceedings would leave certain constitutional issues unaddressed, and leave room for constitutional violations,” Smartt had added.
President Ali had suspended the PSC after its then Chairman, Slowe, and then Commissioner, retired Assistant Police Commissioner Clinton Conway, were slapped with fraud charges. They, along with other retired and serving members of the Guyana Police Force (GPF), 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 $10M, but never provided the Force with a raft of revised Standing Orders.
In addition, Slowe is facing three counts of sexual assault. It is alleged that on three occasions in 2019, at Police Headquarters, Eve Leary, Georgetown, he 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 PSC.
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 the function thereof, 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 JSC expired in 2017.
The PSC is vested with the authority to exercise disciplinary control over persons holding or acting in high offices 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, 2021, 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.
He had made it clear that the decision of the President could be rescinded, revoked, set aside, or reversed only 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,” the Attorney General had said.
