ATTORNEY-General Anil Nadlall, S.C., has moved to the Full Court to challenge the decision of High Court Judge, Gino Persaud, to proceed with the hearing of the constitutional action filed by the now expired Police Service Commission (PSC).

On Wednesday, Justice Persaud, who sits at the Demerara High Court, threw out the application made by Nandlall to strike out the substantive matter filed by the PSC. The PSC is challenging its suspension by President Dr. Irfaan Ali, a move which it claims was “unconstitutional”.

The judge said that he is of the considered view that the substantive issue of the legality of the suspension of the body’s commissioners should be heard and determined on its merits as the matter is of public interest.

“Judicial review is also concerned with deciding whether there has been a plain excess of jurisdiction or not – whether a decision is lawful or not, whether a decision is ultra vires or not. This cannot be automatically dissolved or whittled away with the end of the tenure of the commissioners,” he said during a virtual ruling which lasted less than 15 minutes.

According to Justice Persaud, not hearing the matter would 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 the proceedings were filed.

“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,” he added.

He explained to the respective parties that the hearing and determination of the case 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.

The judge, in his ruling, also said that from the outset, the suspended commissioners were not properly advised to institute the proceedings which were filed on July 16, 2021, in the name of the PSC given the fact that they were suspended and they were also obviously aware that the end of their three-year term was imminent.

“They should have filed as individuals stating their capacities albeit a suspended one. The issue of whether this was fatal or not will be addressed later,” he said.

As such, the judge said former PSC chairman and former Assistant Commissioner of Police, Paul Slowe, has a sufficient interest and locus standi to continue the proceedings and be substituted as the applicant in the place and stead of the PSC.

According to the judge, this will “facilitate the just and effective resolution of the matters in dispute before the court.”

He also made no order as to costs since it is a matter of public interest.

The AG was ordered to file an Affidavit in Defence for the substantive case by April 6, 2022, and Slowe is expected to file his reply, if necessary, by April 20.

The parties shall simultaneously file, serve and email written submissions by May 4, 2022.

A date is yet to be fixed by the judge for oral addresses.

MISINTERPRETATION
Expeditiously, the AG moved to the Full Court of Demerara High Court and filed an appeal to challenge the ruling of Justice Persaud.

In his grounds for appeal, which were released to the media last evening, Nandlall is arguing that Justice Persaud misinterpreted, misconstrued, and misapplied the important doctrine of “public interest litigation” in such a manner that his decision has resulted in a grave miscarriage of justice.

Nandlall is also contending that the judge erred and misdirected himself in law by ruling that Slowe be substituted in place of the PSC, a constitutional body, for the purpose of continuing judicial review proceedings.

Among other things, Nandlall is arguing that the judge’s decision to “potentially permit” Slowe, “a citizen, to usurp, interfere with, compromise, undermine, and assume” the functions of the PSC is unconstitutional.

He is also of the view that the judge’s decision violates the doctrine of separation of powers and Article 226 of the Constitution of the Co-operative Republic of Guyana, Chapter 1:01 of the Laws of Guyana.

Last September, Justice Persaud ruled in favour of an interlocutory application filed by Nandlall, and ordered the removal of President Irfaan Ali as a respondent in the case filed by the PSC.

Following that ruling, Nandlall made another application, this time for the PSC’s  case to be dismissed since it was already “dead and non-existent in law.”

As it relates to the “dead” PSC, Nandlall explained that because the commission is a “constitutional creature”  the court would not be able to appoint a substitute in its place.

However, lawyer for the PSC, Dexter Smartt, said that the case touches on key issues such as the supreme power of the land, and the power of the President.  “It is a matter of public importance and interest,” the attorney said as he explained that the case is a “peculiar proceeding.”

The PSC’s application was filed in July 2021, the month 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 is praying that the court grants a declaration that the purported suspension of 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.

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 2021, 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. Finally, on August 8, 2021, the life of the five member PSC expired. The commission was sworn in by then President, David Granger, to serve for a period of three years – 2018 to 2021.