Listing President as respondent to lawsuit unconstitutional,
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President, Dr. Irfaan Ali
President, Dr. Irfaan Ali

— Attorney-General contends in PSC legal action

ATTORNEY-GENERAL and Minister of Legal Affairs, Anil Nandlall, S.C., on Tuesday, filed an application in the High Court seeking an Order to remove President, Dr. Irfaan Ali, as a respondent to the matter filed by the suspended Police Service Commission (PSC), challenging the constitutionality of the suspension of the Commission.

Suspended Chairman of the PSC, Paul Slowe, through his attorneys Selwyn Pieters, Dexter Todd and Dexter Smartt, filed the action on July 20, 2021 which lists the Secretary of the PSC, the Commissioner of Police (CoP) (ag) Nigel Hoppie, President Ali, Prime Minister Brigadier (retired) Mark Phillips and Nandlall as respondents.

Attorney-General and Minister of Legal Affairs, Anil Nandlall, S.C.

On July 5, Slowe issued a letter to Hoppie whereby he reminded that the PSC had issued a list on June 28, of ranks of the Guyana Police Force who are to be promoted, and contended that though the commissioner’s office acknowledged receipt of the list on June 30, the CoP has failed to prepare the promotion order.

“Your action in not ensuring that the Special Promotion Order is prepared and published one week after receiving the promotion list from the Police Service Commission is interpreted by the Police Service Commission as you defying the legitimate action of the Police Service Commission in promoting ranks of the Guyana Police Force,” Slowe had written.

The action was filed against the backdrop of President Ali suspending the PSC on June 16, 2021. However, Pieters had contended that the suspension was ultra vires Article 225 of the Constitution, since a tribunal to probe the removal of the PSC had not yet been established.

In the action, the PSC is seeking a declaration that suspension of the Chairman and members of the PSC by President Ali was contrary to and in violation of the Constitution of Guyana, in particular articles 225 (6) and 210 (3).

They are also asking the court to declare that the Prime Minister’s advice to the President to suspend the PSC was unlawful and that the Chairman and members remain competent and responsible to carry out its functions.

Suspended Chairman of the Police Service Commission, Paul Slowe

UNLAWFUL

Nandlall is asking the Court for a declaration that the joinder of President Ali to the proceedings is contrary to and in contravention of Article 182 (1) of the Constitution of the Co-operative Republic of Guyana and Section 10 of the State Liability and Proceedings Act, therefore, listing the President is unlawful, unconstitutional, null, void and of no effect.

Section 10 of the State Liability and Proceedings Act also explicitly states except in exceptional instances, “proceedings for the enforcement of any claim by or against the State shall be brought by or against the Attorney General and may be instituted … in all cases, in the High Court in accordance with the High Court Act”.

The matter filed by Slowe is a civil proceeding instituted under the Constitutional and Administrative Division of the High Court. The principle set out in Section 10 of the State Liability and Proceedings Act also has its merits in Common Law as the Guyana Court of Appeal in the case Kent Garment Factory v the Attorney General et al (1991) acknowledged same.

“The constitutional issues raised in Fixed Date Application can be effectively dealt with by the Attorney-General, who is already named as a party and who is the proper party,” Nandlall wrote in his application as he cited that Article 112 of the Constitution states that the Attorney-General is the principal legal advisor to the Government of Guyana.

But most importantly, Article 89 of the Constitution which explicitly states the President is the “Head of State, the supreme executive authority, and Commander-in-Chief of the armed forces”, therefore any action brought against the Head of State in that capacity should only name the Attorney-General.

NOT PERSONALLY ANSWERABLE

In addition, Nandlall reminded Article 182 notes the President shall not be personally answerable to any court for the performance of the functions of his office or for any act done in the performance of those functions and no proceedings whether criminal or civil, shall be instituted against him in his personal capacity in respect thereof either during his term of office or thereafter.

“The law is clear that no action, whether criminal or civil, shall be instituted against His Excellency the President of the Co-operative Republic of Guyana whilst he holds the office of President,” Nandlall said in his application.

“You have a problem with a decision, you got to the court, you may win, I’m not sure, but that is the place to resolve the legality of issues,” Nandlall had previously told the PSC, as he explained he anticipated that they would pursue dispute resolution through the judicial process, as it is their legal and democratic right.

“It is part of our democracy, it is part of the legal rights of those who have been suspended to challenge the decision to suspend them; that is a right that they have and that is a right that I respect,” he said.

“I will deal with the matter in court and I’ll explain the nature of the proceedings when I receive them, but the point is that this is the way if one wishes to challenge a decision made by a public officer, more so, one made by the Head of State,” he added.

The Attorney-General had expressed that the law does not permit anyone to arrogate unto himself/herself a power to ignore the decision of any public official, especially the Executive President.

“Paul Slowe and this team must recognise, at least when this government is in power, [that] the Constitution will be complied with and the rule of law will be respected and when the President makes a decision or a minister makes a decision, whether he is right or whether he is wrong, in law it is a matter for only the court to decide,” Nandlall had said.

“However, the rule of law requires and demands that you respect that decision until it is rescinded, either by the decision-maker or by a competent authority who has the power or the jurisdiction to rescind that decision,” he added

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