‘The President acted lawfully’

–AG maintains, says gov’t will appeal ruling in PSC challenge

ATTORNEY-GENERAL Anil Nandlall, SC., has signalled the government’s intention to appeal Justice Gino Persaud’s ruling in favour of a constitutional action challenging the suspension of the former Police Service Commission (PSC) in 2021.

On Friday, Justice Persaud found that the President acted unlawfully when, based on the advice of the Prime Minister, Brigadier (ret’d) Mark Phillips, and in accordance with Article 225 of the Constitution of Guyana, he suspended the then Chairman, Paul Slowe, and the members of the Commission, pending the findings of a tribunal that was to be established.

However, Minister Nandlall has rejected the ruling, and will soon be moving to the Court of Appeal to have the decision overturned.

“That decision we disagree with; and it is the government’s intention to file an appeal against that decision. We believe that the President acted properly. The important thing about the case, though, is that the case really has no practical importance anymore,” the AG said.

He added that many of the crucial reliefs sought by Slowe fell away with the passage of time and other legal challenges, including those filed by the Opposition.

The AG went on to explain that the PSC is an independent body responsible for the promotion of certain ranks in the Police Force, and for disciplining those ranks.

He alleged that Slowe is a known critic of the People’s Progressive Party/Civic (PPP/C), and is not impartial.

Nandlall stressed that Slowe is currently criminally charged, and is before the Georgetown Magistrates’ Court on three counts of sexual assault, and the offence of conspiracy to defraud the State of just over $10 million.

Justice Persaud, in his ruling, posited that after the question of removing the officers is put to the President by the Prime Minister, the President shall act in accordance with the advice of the Judicial Service Commission (JSC) in appointing a tribunal.

This tribunal is to consist of a chairman, and not less than two other members. However, the JSC is yet to be reconstituted.

In the instant case, Justice Persaud explained that the question of removing any of the officers was never referred to a tribunal appointed by the President on the advice of the Judicial Service Commission.

“This failure by the President proves fatal, as a referral to the tribunal is a condition precedent to suspension of members of the PSC. Ergo, the President had no authority on which to suspend either the Chairman or any other member of the PSC,” Justice Persaud said.

“It is my considered view that the failure to constitute the Judicial Service Commission cannot be relied upon to excuse the unconstitutional act of suspending these constitutional office holders,” he added.

Meanwhile, Minister Nandlall, in addressing this aspect of the judge’s ruling, stressed that the President acted in the public’s interest, and in the interest of national security.

“What should the President have done in those circumstances to allow such a rogue organisation to proceed with a course of action that would have had destructive consequences to the police force of the country? Or should he sit and twiddle his thumb because there is no judicial Service Commission?” he questioned.

The AG underscored that President Ali acted lawfully, by exercising his executive power, and in the exercise of his deliberate judgement, since there was no JSC in place to which he could have turned to establish his tribunal.

“I believe that we have good grounds of appeal; these matters are important for law and order. They are important for our democracy; they are important for good governance, they are important for constitutional growth in our country,” the AG said.

Justice Persaud ruled that the purported June 16, 2021 suspension of the PSC Chairman 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’s Articles 225(6) and 210(3), and therefore of no force or effect.
The parties are set to return to court on April 14 to ventilate the issue of costs.
In March 2021, Justice Persaud had dismissed the application made by the Attorney-General to strike out the matter.
Justice Persaud, in handing down that ruling, had said that the PSC’s case should be heard and determined on its merits, since the matter is of public importance and interest.

According to the judge, hearing the PSC’s case would bring clarity on the role of the President’s executive power, and the issue of the legality of the President’s suspension of the PSC.

The judge 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 that they were suspended, and they were also obviously aware that the end of their three-year term was imminent.

As such, the judge said that Slowe had sufficient interest and locus standi to continue the proceedings, and be substituted as the applicant in the place of the PSC.

Last year, Justice Persaud threw out an application for a stay of the proceedings which was filed by Attorney-at-Law Darshan Ramdhani, KC, who was representing the interest of the reconstituted PSC and the AG.

The two parties had called for a stay of the substantive case, pending the outcome of appeals filed against the rulings made by Chief Justice (ag) Roxane George, S.C., in cases which touched on the subject of the action before Justice Persaud.

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