Case filed by suspended PSC: No legal proceedings can be brought against President – AG tells court
…seeks to remove Head of State as a party
Attorney General Anil Nandlall, SC, has made an application to the Demerara High Court to have President Irfaan Ali removed as a party in the case filed by the suspended Police Service Commission (PSC). The PSC is asking the court to declare that its June 16 suspension by the Head of State is unconstitutional.
Last week, the PSC, which is chaired by retired Assistant Commissioner of Police, Paul Slowe, instituted legal action against the President, Prime Minister Mark Phillips, the Attorney General, Police Commissioner Nigel Hoppie, and its secretary over the suspension of its Chairman and Commissioners Michael Somersall, Claire Jarvis, Vesta Adams, and Clinton Conway – all retired Assistant Commissioners of Police.
The case comes up for hearing next Wednesday before Justice Gino Persaud.
However, Nandlall contends that pursuant to Article 182 of the Constitution of Guyana, the President has immunity from the judicial process, and as such, naming him as a respondent in the matter is unconstitutional and in breach of the State Liability and Proceedings Act.
Under Article 89, the President is the Head of State, the supreme executive authority, and Commander-in-Chief of the armed forces of the Republic of Guyana and, as a consequence, all actions brought against him, in his capacity as Head of State, should only name the Attorney General, he argues.
The Attorney General submitted that Article 182 states that subject to the provisions of Article 180, the holder of the office of President shall not be personally answerable to any Court for the performance of the functions of his or her office or any act done in the performance of those functions.
Moreover, Nandlall said that the Article outlines that no proceedings whether criminal or civil, shall be instituted against the Head of State in his/her personal capacity in respect to their function during office.
He added, “Whilst any person holds or performs the functions of the office of President no criminal proceedings shall be instituted or continued against him or her in respect of anything done or omitted to be done by him or her in his or her private capacity.”
“And no civil proceedings shall be instituted or continued in respect of which relief is claimed against him or her for anything done or omitted to be done in his or her private capacity.”
According to the Senior Counsel, the constitutional issues raised in the PSC’s application can be properly dealt with by the Attorney General who is the principal legal advisor to the Government according to Article 112 of the Constitution.
Nandlall said that under Section 10 of the State Liability and Proceedings Act, proceeding for the enforcement of any claim by or against the State shall be brought by or against the Attorney General.
Slowe and several members of the Commission are currently facing criminal charges before the Georgetown Magistrates’ Courts. They have been implicated in a $10 million fraud over duties delegated to them for revising the Police Force’s raft of Standing Orders.
It is alleged that the officers collected payments amounting to $10 million, but never provided the Force with a raft of revised Standing Orders. President Ali suspended the Police Service Commission weeks after the Prime Minister wrote to Slowe and the other Commissioners, asking them to show cause why the fraud charges against them should not result in their removal from the PSC.
The Prime Minister, in the letter, said he was exercising powers vested to him by Article 225 of the Constitution, which mandates that a person shall not be removed from a constitutional office except for inability to discharge the function, or for misbehaviour.
That article further provides that a constitutional office holder can be removed by the President if an appointed tribunal recommends the removal of that person.
The tribunal is appointed following the advice of a prescribed authority, in this case, the Prime Minister, and is to be constituted in consultation with the Judicial Service Commission (JSC).
The JSC is currently not functioning. The last JSC was appointed by former President Donald Ramotar on September 11, 2014. The tenure of each appointed member is for three years; therefore, the tenure of the last Commission expired on September 12, 2017.
The PSC was suspended pending the establishment of a tribunal.