AG moves to set aside High Court ruling on President’s PSC decision

Attorney General Anil Nandlall, SC, on Thursday filed a Notice of Appeal (NoA) to set aside a ruling of the High Court that President Dr Irfaan Ali acted unconstitutionally when he suspended the Chairman and Commissioners of the previous Police Service Commission (PSC).
The Head of State had suspended the PSC on June 16, 2021, after its Chairman, Paul Slowe, and one of its Commissioners, Clinton Conway—both retired Assistant Commissioners of Police—were charged with conspiring to defraud the Guyana Police Force (GPF) of $10 million.
In addition, Slowe is charged separately with sexually assaulting a senior Policewoman.
That PSC had been appointed by former President David Granger.
The ruling issued on March 24, by Justice Gino Persaud came almost two years after Slowe filed judicial review proceedings, in which he, among other things, contended that the President’s decision was unconstitutional and arbitrary.
Although the President is empowered by the Constitution to suspend constitutional bodies, including the PSC, Justice Persaud held that the Head of State does not have an “unfettered discretion” as his suspension powers only exist on the advice of the prescribed authority and/or a decision by the tribunal after the question of referral has been referred to that tribunal.
Article 225 requires the question of removal of a person from office to be put to the President by the Prime Minister and the President then has to act in accordance with the advice of the Judicial Service Commission (JSC) in appointing a tribunal. The JSC has been defunct since 2017.
“The tribunal must then do its work. It is the tribunal’s role to inquire into the matter and report on the facts to the President and recommend whether the officer is to be removed,” the Judge said, adding that the framers of the Constitution created this mechanism to ensure due process and security of tenure so that the members of PSC are not subjected to arbitrary behaviour.
“The removal and suspension procedure set out in Article 225 attempts to insulate the PSC from any undesirable political influence. It offers its members the opportunity to do their business without having to keep a watchful eye on the mandates and directives of the Executive.”
Justice Persaud, in his ruling, pointed out that the President’s failure to appoint the JSC “proved fatal” as a referral to the tribunal is a “condition precedent” to the suspension of members. In light of this, he held, “Therefore, the President had no authority on which to suspend the Chairman or any other member of the Commission.”
However, the Attorney General contended that Justice Persaud erred and misdirected himself in law when he determined that referral of the question of removal of the former PSC members and the appointment of a tribunal was a condition precedent to the President’s power to suspend.
According to the AG, the Judge erred again when he conflated the President’s power to suspend, and the sole issue in the case at bar with the power of the tribunal to remove officers.
“[Justice Persaud] failed to appreciate the dichotomy of functions and that each could exist independently of the other, more so given the peculiar circumstances of this case, there being no Judicial Service Commission in place since 2017,” Nandlall argued.
In the NoA, Nandlall was keen to point out that Justice Persaud erred when he failed to properly address his mind to the fact that at no time on or before June 16, 2021, when the President suspended the PSC, could he have engaged the Opposition Leader on any appointments, including appointments to the JSC as since August 2020, the Opposition has refused to recognise the Government as legitimate, and consequently, refused to engage with the Government.
Moreover, it is being argued that the Judge erred when he failed to consider that it was neither unreasonable nor irrational for the President to have formed the view that the cumulative effect of the several actions of the former Commissioners entitled the President, acting on the advice of the Prime Minister to exercise his discretion to suspend the former members of the PSC.
On the issue of the criminal charge against Slowe, the Judge held, “Lest we forget, in this Republic, there is an enshrined principle backed by constitutional muster to which every citizen of this country is afforded, and that is the right to the presumption of innocence as set out in Article 144 (2) of the Constitution. Mr Slowe has not been convicted of any charges…”
“At the time when he was suspended, he was entitled to that presumption. The mere institution of charges cannot amount to ‘misbehaviour’ properly except until the person has been adjudged guilty by a competent tribunal. Therefore, to act in reliance of charges cannot be a basis to justify the President’s unconstitutional conduct,” the High Court Judge said.
Justice Persaud had previously dismissed an application by the Attorney General to have the legal challenge to the President’s suspension thrown out on the basis that the action could not have survived the August 8, 2021 expiration of the life of the PSC.
To maintain the legal proceedings, Slowe was added as a party.
He had ruled that the issues raised in the substantive case are matters of public interest. Relying on several local, regional, and overseas case law, he had reasoned that the issue of the legality of the Commissioners’ suspension “…should be heard and determined on its merits, being a matter of public interest.” To hold otherwise, the Judge had noted, would be to leave the legality of the suspension hanging – never to be adjudicated upon simply because of the inescapable fact that the life of the Commission had come to an end after filing these proceedings.
But Nandlall argued that “The Judge erred and misdirected himself in law when His Honour determined that the expired [PSC] could lawfully continue to maintain legal proceedings before the Honourable Court, and in so determining, refused the Appellants’ application to strike out the Fixed Date Application. The Learned Judge further erred and misdirected himself in law when His Honour ruled that in pursuance of the expired [PSC’s] ability to maintain legal proceedings, His Honour added [Slowe] to the proceedings.”
Considering his findings, Justice Persaud so declared that the President’s suspension of the PSC’s Chairman and other members of that Commission was unlawful; ultra vires Article 225; arbitrary; unreasonable; unfair; violated the suspended Chairman’s and Commissioners’ constitutional rights to the protection of the law and due process of the law, null, void and of no legal effect.
Costs are yet to be determined in this matter.
At the Court of Appeal, Nandlall is seeking an order setting aside the whole decision of Justice Persaud, an order for Slowe to bear the costs of the appeal, and such or further orders the court deems just.
Slowe, the respondent, is being represented by Attorneys-at-Law Selwyn Pieters, Dexter Todd, and Dexter Smartt while the appellants, including Prime Minister Mark Phillips, Nandlall, and the Police Commissioner are represented by lawyers from the Attorney General’s Chambers.
The members of the new PSC were sworn in on May 31, 2022.
Besides Patrick Findlay as Chairman, Attorney-at-Law Mark Conway, and businessmen Ernesto Choo-a-Fat and Hakeem Mohammed are the other members of the new PSC.
The PSC is a constitutional body, established under Article 137 (1) and was given the authority under Article 212 (1) subject to the provisions of Article 211 (1) of the Constitution to make appointments to any offices in the Guyana Police Force of or above the rank of Inspector, and exercise disciplinary control over and to remove persons holding or acting in such offices. (G1)