Paul Slowe withdraws case seeking injunction blocking promotion of Police ranks

In light of the recent promotion of ranks of the Police Force, the immediate past Chairman of the Police Service Commission (PSC), Paul Slowe, has withdrawn his application for an injunction to stop the promotion of the ranks. Slowe had on July 28, applied for an injunction to block the PSC, whose members were appointed on May 31, by President Dr Irfaan Ali, from promoting ranks until the court rules on his challenge to the Head of State’s suspension last year of the former PSC. President Ali had suspended the PSC after its then Chairman Slowe and one of its commissioners, Clinton Conway, were slapped with fraud charges.

They, along with other retired and serving Police ranks, have been implicated in a $10 million fraud over duties delegated to them for revising the Police Force’s raft of Standing Orders.
Up to July 3, when the promotion lists for senior and junior ranks were issued, Slowe’s case for the injunctive relief had not come up before a High Court Judge, so there was, therefore, nothing preventing the promotions from being effected.

The case was eventually called on July 11 before Justice Gino Persaud, who had refused to entertain the application until the Full Court ruled on Attorney General Anil Nandlall’s application for leave to appeal to the Court of Appeal, that court’s ruling, upholding his decision for the challenge to the constitutionality of the President’s decision to be heard on its merits. The Full Court denied Nandlall’s application on July 14.

Overtaken
Meanwhile, Slowe’s lawyer, Selwyn Pieters, on Friday, conceded with Justice Gino Persaud that the application for the injunction has been overtaken by events—the promotion of the ranks.

He had also requested for that application to be amended to, instead, seek an order “staying the effect” of the promotions until Justice Persaud ruled on the substantive matter.
He eventually settled on withdrawing the matter.
While he raised no objections to that request, Nandlall stated that if this action is futile, “then we will be insisting on costs”. Pieters then sought and was granted time to consult with his client on the way forward.
Darshan Ramdhani, QC, on behalf of the new PSC, has applied to Justice Persaud for the commission to be removed as party in the challenge to the President’s June 2021 decision.
Nandlall had argued that the case brought by the former PSC against its suspension, could not have survived the August 8, 2021 expiration of the life of the constitutional commission.
But the Full Court disagreed finding that, “The expiration of the three-year term of the members appointed to the commission does not affect the body itself – established by Article 137 [of the Constitution] – save that the PSC will be unable to carry out its functions without appointed members. The PSC remains an existing constitutional body, even if the term of its appointed members has expired. There is, therefore, no issue of the commission ceasing to be an existing body, or having no capacity upon the expiration of the term of its appointed members.”
As such, the Full Court agreed that Justice Persaud was “correct” when he refused to strike out the claim on the ground that the life of the commission had expired.
The Full Court – comprising Justices Priya Sewnarine-Beharry and Fidela Corbin-Lincoln – varied Justice Persaud’s order so that Slowe can be added as a party to the proceedings rather than being substituted for the PSC.
Justice Persaud said he will hear Ramdhani’s Fixed Date Application (FDA) after Chief Justice Roxane George, SC, renders her ruling on a related matter.
In that matter, the Chief Justice heard over three hours of arguments from lawyers and is being asked by Opposition Chief Whip Christopher Jones to pronounce on the constitutionality of the President’s appointment of Hicken to act as Top Cop. Should his appointment be declared unlawful, Jones further wants the court to nullify the recent Police promotions.
Ultimately, the Opposition parliamentarian is seeking a declaration that Hicken’s appointment is “unreasonable, ultra vires the Constitution, Common Law and is illegal, null, void and of no legal effect” because President Ali failed to “meaningfully consult” with the Leader of the Opposition, Aubrey Norton, as is required constitutionally required.
Article 211 (1) mandates that “the Commissioner of Police and every Deputy Commissioner of Police shall be appointed by the President acting after meaningful consultation with the Leader of the Opposition and the Chairperson of the Police Service Commission after the Chairperson has consulted with the other members of the Commission”.
Provisions for a person to act in the office of the Commissioner of Police are outlined under Article 211 (2) of the Constitution, and the provisions contained in Article 211 (1), shall apply to such an appointment as they apply to the appointment of a person to hold that office.
With Justice George’s decision set for August 11, Justice Persaud had adjourned the matter to August 24.
Following the appointment of Opposition Leader Norton and the Police Service Commission, President Ali commenced a process of meaningful consultation with the Opposition Leader to appoint Hicken to act as the Commissioner of Police.
Those consultations were halted following an undertaking by Nandlall after Norton applied for an order staying any process of meaningful consultation on the appointment of Hicken, an interpretation of the term “meaningful consultation” as well as his challenge to the President’s appointment of the PSC and Integrity Commission.
Oral arguments in this matter are set for next month.
At the time of Hicken’s appointment on March 30, the office of the Leader of the Opposition remained vacant following the resignation of Joseph Harmon on January 26. Aubrey Norton was appointed Leader of the Opposition on April 13.
In the absence of an Opposition Leader with whom the Head of State is constitutionally required to consult on the appointment, Nandlall, while addressing the Chief Justice earlier this week, contended that President Ali made a “judgement call” and did the “most reasonable thing” when he went ahead with appointing Hicken to act in the highest office in the Guyana Police Force (GPF) – the country’s premier law enforcement agency – in the interest of national security.
And even if the court finds that the appointment was unconstitutional, the defence of the doctrine of necessity would justify a departure from what is required by the Constitution, and the de facto officer doctrine would bring legality to everything done by the acting Commissioner of Police, including the promotions, argued the Attorney General. (G1)