Challenge to President’s suspension of previous PSC: Nandlall, Pieters differ on what actions taken by commission lawful

The challenge to President Dr Irfaan Ali’s June 2021 suspension of the former Police Service Commission (PSC) by Assistant Police Commissioner (ret’d) Paul Slowe, the immediate past Chairman of the PSC, has been put on hold again, this time until Chief Justice (ag) Roxane George, SC, issues her written decision on a related matter.

Justice George on Tuesday dismissed Opposition Leader Aubrey Norton’s bid to have the President’s appointment of Patrick Findlay as Chairman of the PSC annulled on the basis that the Head of State did not engage him in constitutionally required meaningful consultation.
In finding that the President acted lawfully in appointing Findlay, and by extension the new PSC, she held there was procedural fairness, and that the consultation process between President Ali and Norton was “sufficient”.

Even though the PSC was lawfully appointed, she 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. 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. They were appointed on May 31.

Pause
During another hearing of Slowe’s case on Wednesday, Attorney General and Legal Affairs Minister Anil Nandlall, SC, asked presiding Justice Gino Persaud to defer hearing the matter until the Chief Justice’s written reasons in the other case becomes available.
Advancing details for his request, Nandlall said, “[On Tuesday], the Chief Justice, among a number of pronouncements, ruled that the PSC is not properly constituted, but proceeded to say that all actions done thus far are saved by the de facto doctrine, and (are) therefore lawful.
“Some other pronouncements were made in relation thereto that have some impact on [Slowe’s case] in so far as it involves the very Police Service Commission.”

Considering Her Honour’s ruling, Nandlall questioned whether the PSC, the other applicant in the challenge to the President’s suspension, “can or cannot proceed”, since it has been saved as a party by the de facto doctrine.
The Attorney General reasoned that it would be a prudent course to “pause” the challenge until the PSC is properly constituted. He then pointed to the need to examine what actions of the former PSC have been saved by the de facto doctrine and are now before the court.
“We don’t want two courts [Justices George and Persaud] of concurrent jurisdiction to be clashing. Because the proper course will not be to pursue those reliefs any longer, but to appeal the Chief Justice’s decision in that regard,” Nandlall said.
Given that the Chief Justice read a “very abridged” version of her decision, he said, it would be necessary in the circumstances for the parties to be allowed to read her full judgement. In light of this, he asked for the parties to be given time to examine that judgement and its implications/possible implications on the instant case, in order to decide on the way forward.

Differ
For his part, Slowe’s lawyer Selwyn Pieters decried the inordinate delay in the hearing of his client’s matter. “One concern is the inordinate delay in the processing of this case, and I’m not casting any blame anywhere,” he said.
He submitted that the de facto doctrine also applies to the promotion of 132 Police officers that was made by the PSC under the chairmanship of Slowe.
He said those officers’ promotions remain in limbo.
But interjecting, Nandlall clarified that the de facto doctrine concerns the present PSC, and not the former one that Slowe had chaired.
Responding to Slowe, Nandlall said, “We may differ on what the impacts are [of the Chief Justice’s ruling]. My friend [Pieters] has already begun to say that the Chief Justice was talking about the previous Police Service Commission under which Paul Slowe was the Chairman. The case had nothing to do with that, so we are going to have a lot of misunderstanding…”
Pieters raised no objection to the matter being put on hold pending the perusal of the Chief Justice’s judgment, but said that any delay should be minimal.
While Justice George did not give a specific date as to when her written decision would be ready, she did indicate that it was “shortly”.
Justice Persaud has adjourned the case to September 20 at 13:30h.

Challenge to suspension
President Ali had suspended the former PSC last year June, after its Chairman Paul Slowe and Commissioner Clinton Conway, who is also a retired Assistant Commissioner of Police, were charged with fraud. They, along with other retired and serving members of the Guyana Police Force (GPF), 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 they collected payments amounting to $10 million, but never provided the Force with a raft of revised Standing Orders.
In addition, Slowe is facing three counts of sexual assault. It is alleged that on three occasions in 2019, at Police Headquarters, Eve Leary, Georgetown, he sexually assaulted a senior Policewoman by rubbing her left leg and foot without her consent.
President Ali had suspended the pair, along with other former PSC Commissioners Claire Jarvis and Vesta Adams – all retired Assistant Commissioners of Police – weeks after Prime Minister Mark Phillips had written to Slowe and Conway, asking them to show cause why the fraud charges against them should not result in their removal from the constitutional body.
Despite its suspension, the former PSC had maintained that it would disregard the President’s “purported suspension” and continue with its mandate with respect to disciplining and promotion of officers of the Police Force; and it had gone ahead and promoted 132 officers. The Government had later rejected that list of “purported promotions” as “unlawful and illegal”.
Shortly after, the previous PSC moved to the High Court to have its suspension declared unconstitutional.
Justice Persaud had, on March 9, 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.
In his ruling, Justice Persaud had held that the issues raised in the substantive case are matters of public interest. Relying on several local, regional, and overseas case laws, 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.
“This does not seem to me either logical or fair, but rather an affront to fairness; natural justice; access to justice and, indeed, the rule of law. A hearing and determination would serve to bring clarity to the role of the Executive in such instances, and ensure that the constitutionally-granted autonomy of the PSC remains protected,” the High Court Judge had said.

Full Court ruling
Nandlall had filed, to the Full Court, an appeal against Justice Persaud’s ruling, and in May, the Full Court had upheld Justice Persaud’s decision. The Full Court had varied Justice Persaud’s decision, adding Slowe as a party to the proceedings, instead of substituting him for the PSC. In so doing, the Full Court had held that Slowe has an interest in the matter, since he has alleged that his appointment was wrongfully terminated by the Head of State.
Addressing Nandlall’s contention that the challenge to the President’s suspension could not proceed because the life of the PSC had expired, the Full Court had said: “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.
“The effect of the term of the appointed members of the Commission becoming vacant is simply that there are currently no members to carry out its functions. This by itself is not a basis to strike out the claim under (Civil Procedure Rules)… Members can be appointed at any time to continue to carry out the functions of the PSC. Upon their appointment, those members could determine whether to continue or discontinue the claim. Of course, a court would be entitled to take the continued non-appointment of members to the Commission as a basis to strike out the claim as an abuse of process, as this would delay the prosecution of the action.”
As such, the Full Court, comprising Justices Fidela Corbon-Lincoln and Priya Sewnarine-Beharry, 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, remitting the matter to Justice Persaud for a full hearing. The newly constituted PSC, through Darshan Ramdhani, QC, has moved to discontinue the claim. (G1)