APNU/AFC appeals CJ’s decision on appointments of PSC Chairman, Integrity Commission

Contending that acting Chief Justice Roxane George, SC, erred and misdirected herself in law in upholding President Dr Irfaan Ali’s appointment of Patrick Findlay as Chairman of the Police Service Commission (PSC) as well as his appointment of the Integrity Commission, the A Partnership for National Unity/Alliance For Change (APNU/AFC) has filed an appeal.

The action brought in the name of Opposition Leader Aubrey Norton, which was filed on Monday, lists 11 grounds upon which the party is seeking to have the Chief Justice’s ruling overturned by the Court of Appeal of Guyana.
In her ruling delivered virtually on August 23, Justice George dismissed Norton’s bid to have the President’s appointments of Findlay and the Chairperson and members of the Integrity Commission annulled, on the basis that the Head of State did not engage him in the constitutionally-required meaningful consultation.
Both constitutional commissions were appointed on May 31.

But in finding that the President acted lawfully in appointing Findlay, and by extension the new PSC, Justice George held there was procedural fairness and that the consultation process between President Ali and Norton was “sufficient”.
Even though the PSC was lawfully appointed, the acting Chief Justice, however, found that it was not properly constituted in the absence of a Chairperson for the Public Service Commission —another constitutional commission that is still to be set up and which is vital to the reconstitution of the PSC.
In the circumstances, she applied the de facto doctrine to give legality to all actions taken by the PSC, including its recent promotion of dozens of senior Police Officers.
In the case of the appointment of the Integrity Commission, Justice George noted that the President had followed Article 232 of the Constitution in his efforts to consult with the Opposition as well as the Integrity Commission Act. Besides 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 Integrity Commission has Demerara Bank Corporate Secretary Chandra Gajraj as Chairperson; along with Mohamed Haniff; Dr Kim Kyte-Thomas, lawyer and former Solicitor General; Hardesh Tiwari, and Reverend Wayne Bowman as members.

Numerous errors
The Opposition is dissatisfied with the acting Chief Justice’s ruling except for her finding that the PSC was not properly constituted.
In his notice of appeal, Norton argued that she “misinterpreted, misconstrued, and misapplied” the important constitutional value and objective of meaningful consultation in such a manner her decision was a grave miscarriage of justice.
“The Chief Justice (ag) erred and misdirected herself in law when she found that the President of Guyana engaged in meaningful consultation with the Opposition Leader when appointing the Chairman of the Police Service Commission, and the Chairperson and the members of the Integrity Commission,” he said.
According to the Opposition Leader, Justice George’s decision not only violates the doctrine of separation of powers but is also unlawful, unconstitutional, and not supported by established legal principles and doctrines.
Norton is arguing, among other things, that the Chief Justice (ag) erred in law and made palpable errors of fact in finding that any decisions taken by the PSC, not properly constituted, were protected by de facto doctrine.
The Opposition has also expressed the view that Justice George again erred in law when she rendered a decision that was against the weight of the evidence and public records and/or documents of which the High Court had judicial notice.
The APNU/AFC is hoping for the acting Chief Justice’s entire ruling to be set aside by the appellate court and for costs to be awarded in that court and the court below.

Not reciprocated reasonably
According to the acting Chief Justice, however, the President’s efforts in making the constitutional appointments were not reciprocated reasonably by Opposition Leader Norton, whom she noted had all the necessary information to determine if the nominees were suitable, or to raise objections at the appropriate time.
As she put it, it takes two hands to clap.
Article 210 of the Constitution mandates that “the Police Service Commission shall consist of a Chairman appointed by the President, acting after meaningful consultation with the Leader of the Opposition from among members appointed upon nomination by the National Assembly”.
Norton, who is also the Leader of the People’s National Congress Reform (PNCR) — the largest party in the APNU/AFC coalition —contended that he was not afforded a “reasonable opportunity” to express a considered opinion on the matter of consultation concerning the appointments of the PSC and Integrity Commission.
For his part, Attorney General Anil Nandlall, SC, had submitted that the nominees for the PSC, including Findlay, were nominated by the Appointments Committee of the National Assembly of which the Opposition is a part.
Nandlall, who is also the country’s Legal Affairs Minister, had argued that, overall, the consultation has to be fair, but it does not have to be perfect.
In concluding her ruling, the acting Chief Justice also stressed to onlookers the need for consultations between political leaders to be done in the manner they were envisioned by the framers of the Constitution, for the good of the nation.
“The tone of engagements… leaves much to be desired. As Mr [CV] Satram [lawyer for the PSC] puts it, the process became confrontational. Parties to a consultative process must respectfully focus on what the consultation is about, and not on peripheral and irrelevant issues,” she said.
She expressed that it was “highly unfortunate” that service commissions provided for by the Constitution have not been constituted or reconstituted in a timely manner, adding that this is a disservice to the entities they serve and the country.(G1)