-AG insists it was a ‘grave constitutional error’
COME August 16, High Court Judge Gino Persaud is expected to hear addresses regarding the interlocutory application filed by the Attorney-General and Minister of Legal Affairs, Anil Nandlall, S.C., who is contending that the suspended Police Service Commission (PSC) made a “grave constitutional error” by listing President Irfaan Ali as a respondent in its legal challenge.
At Wednesday’s hearing of the case in the Demerara High Court, the AG asked that the court hears his application before it gives attention to the matter filed by the PSC against the Government of Guyana over its ‘unconstitutional’ suspension. According to Nandlall, the substantive matter filed by the PSC is tainted by the grave constitutional error since the president is immune from prosecution. “We believe a fundamental constitutional issue has arisen, which should be addressed by the court before it proceeds to hear the substantive matter, which we are respectfully submitting is tainted by that grave constitutional error,” the AG said. As such, Justice Persaud set August 16, for oral addresses on the interlocutory application filed by the AG.
The PSC application was filed in July, after President Ali, based on advice from Prime Minister, Brigadier (ret’d) Mark Phillips, and in accordance with Article 225 of the Constitution of Guyana, suspended the PSC chairman and its members pending the findings of a tribunal that was to be established.
The PSC, with the aid of their attorneys, Selwyn Pieters, Dexter Todd and Dexter Smartt, filed a constitutional action which is praying that the court grants a declaration that the purported June 16, suspension of its chairman, Paul Slowe and commissioners, Michael Somersall, Claire Alexis Jarvis, Vesta Adams, and Clinton Conway, from performing the functions of their respective offices in the Commission, were in violation of the constitution of the Co-Operative Republic of Guyana Articles 225(6) and 210(3), and therefore of no force or effect.
The applicant is also seeking another declaration from the court that the commission remains competent and responsible to fulfil its Constitutional mandate including appointments to any offices in the police force of or above the rank of Inspector in accordance with Article 212(1) of the Constitution.
Additionally, the applicant is seeking a further declaration from the court that the Prime Minister’s recommendations to the President for the removal of the PSC chairman and its members from their respective offices at the commission were in violation of and ultra vires the Constitution, and in particular Article 225(2), being made on grounds other than inability to discharge the functions of office or misbehaviour.
However, the AG, in his application, 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 and Section 10 of the State Liability and Proceedings Act, therefore, listing the President is unlawful, unconstitutional, null, void and of no effect.
According to Section 10 of the State Liability and Proceedings Act, 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”.
Additionally, 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. Article 182 of the Constitution 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.
In June, Acting Chief Justice, Roxane George S.C., struck out the legal challenge brought by five senior police officers against the PSC over the 2020 year-end police promotions. Following the CJ’s ruling, the Government of Guyana through the Attorney-General and Minister of Legal Affairs issued a statement rejecting the PSC’s promotion list as “unlawful and illegal.”
It noted that in the circumstances, this purported list of promotions of members of the Guyana Police Force (GPF) will be ignored since the PSC was suspended.
“The said 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,” the Attorney General, in a statement, said.
“The attempt of the Police Service Commission, therefore, to countermand, disobey and disregard the President’s decision, not only amounts to an effrontery to the highest executive office in this land, but is simply absurd. If anyone had any doubts about the independence and rectitude of this grouping who constitute the Police Service Commission, those doubts should now be put to rest,” he added.
In handing down her ruling, the CJ noted that the circumstances that led to the applications before the court are most unfortunate.
“They do not augur well for the overall management and wellbeing of the GPF. The determination of these applications will not assuage what are clearly deep-seated feelings of distrust and mistrust in the higher echelon of the force.” She noted that the application highlights a “poor and haphazard” system for dealing with disciplinary matters against police officers and the need for comprehensive regulations governing the disciplinary procedure and promotions respectively, including clarity on what infractions could affect such promotion.
The CJ, however, said that for the sake of good governance, a cordial relation is needed between the two bodies. Among other things, she noted that the PSC did not act unlawful in considering the disciplinary matter and that the application before the court lacked sufficient evidence to grant the orders and declarations that were being sought by the senior officers.
Slowe, along with eight other current and retired senior ranks of the police force, are currently before the court for allegedly conspiring to defraud the GPF of some $10M.
In addition to former Assistant Commissioner of Police Slowe; retired Assistant Commissioner Clinton Conway; current Assistant Commissioner Royston Andries-Junor; Assistant Commissioner, Claude Whittaker; Senior Superintendent George Fraser; Superintendent, Mark Gilbert; Assistant Superintendent, Marlon Kellman; Woman Senior Superintendent Marcelene Washington, and retired Senior Superintendent Michael Sutton, were also charged.