Court orders removal of President Ali’s name from PSC case
President, Dr. Mohamed Irfaan Ali
President, Dr. Mohamed Irfaan Ali

-says a sitting Head of State is ‘immune’ from civil proceedings

HIGH Court Judge Gino Persaud, on Thursday, ruled in favour of an interlocutory application filed by the Attorney-General and Minister of Legal Affairs, Anil Nandlall, S.C, and ordered the removal President Irfaan Ali as a respondent in a case filed by the Public Service Commission (PSC).

The judge, in his ruling, said the naming of the both the President and the AG as respondents in the commission’s Fixed Date Application (FDA) was “impermissible” and “wrong in law.”

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

He agreed with the submissions made by Nandlall, who had said that 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.”

Judge Persaud relied on Article 89 of the Constitution which explicitly states that the President is the “Head of State, the supreme executive authority, and Commander-in-Chief of the armed forces” and therefore any action brought against him should only be done in the name of the Attorney-General.

Additionally, Article 182 of the Constitution notes that 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.

To back up his ruling, Justice Persaud cited several cases including a Guyanese case – Baird v Public Service Commission (2001) 63 WIR 134 — in which former Chief Justice, Ian Chang, at page 164 said: “The immunities which attach personally to the President under article 182 of the Constitution are for the limited purpose of ensuring effective performance of the functions of his high office, and not for the purpose of granting immunity to the State for any wrongdoing. The State would still be liable for the President’s wrongdoing, even though the President himself would be immune from the curial processes. It is the President who is immune from the curial process, not his acts.”

Further, Judge Persaud said that based on the “common sense interpretation” of the aforementioned laws, a sitting President is immune from facing civil proceedings.

Justice Gino Persaud

As such, the judge said that the removal of the President as a respondent will not hinder the case, since the AG is also a named as a party in FDA. It was later ordered that the PSC pays $200,000 in court costs to the AG.

Attorney-at-law, Selwyn Pieters

During the proceedings, the AG informed the court that during the morning hours he filed another Notice of Application asking for the PSC’s FDA to be struck out.

Timelines for written submissions from both parties regarding the substantive matter were fixed before November 10 was set for the hearing of oral submissions.

The PSC’s 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 its 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.

In June, Acting Chief Justice, Roxane George S.C., had 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, the purported list of promotions 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 had said in a statement, adding:

“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.”

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