Challenge to suspension of PSC: AG denied leave to appeal ruling for Judge to determine legality of President Ali’s decision

The two-Judge bench Demerara Full Court has refused an application for leave to appeal a decision of that court, upholding a ruling by a High Court Judge who took jurisdiction to hear the challenge to President Dr. Irfaan Ali’s June 2021 suspension of the last Police Service Commission (PSC). The action was brought by the previous PSC.

The application for leave to appeal the Full Court’s decision to the Court of Appeal of Guyana, along with an application for a stay of that court’s decision, was filed by Attorney General Anil Nandlall, SC, Prime Minister Mark Phillips, and Police Commissioner (ag) Clifton Hicken.
The Full Court comprised Justices Priya Sewnarine-Beharry and Fidela Corbin-Lincoln.
In delivering the court’s ruling on Thursday, Justice Corbin-Lincoln held that the grounds of appeal advanced by Nandlall were without merit. Consequently, both applications were dismissed, and Slowe, who was added as a party to the proceedings by the Justices, was awarded $75,000 in court costs, to be paid on or before July 29.

Public interest
High Court Judge Gino Persaud had, on March 9, dismissed an application by the Attorney General to have the legal challenge to the President’s decision thrown out.

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 came 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,” he had said.

Full Court proceedings
Nandlall had filed an appeal against Justice Persaud’s ruling to the Full Court, which in May had upheld the decision of the lower court. The Full Court, however, 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 held that Slowe has an interest in the matter, since he has alleged that his appointment was wrongfully terminated by the Head of State.
The Full Court, on Thursday, reiterated that it has “the right and discretion to add any party to a proceeding, whether by an application or of its own motion. That is not an issue that in the Court’s view raises any serious issues of law. This area of law of the Court deciding to add a party, an interesting party, is not an area of law in dispute, nor does it raise any issue of great public import in terms of adding Mr. Slowe as a party.”

Existing constitutional body
Nandlall had argued that Slowe’s application could not have survived the August 8, 2021 expiration of the life of the Commission, and argued that it should be dismissed.
But the Full Court disagreed. It had held 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.
“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 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. In light of this ruling, the substantive matter has been remitted to Justice Persaud for a full hearing.

Injunction
On May 31, President Ali swore in the members of the PSC at the Office of the President. They are Attorney-at-Law Mark Conway, businessmen Ernesto Choo-a-Fat and Hakeem Mohammed, and Pastor Patrick Findlay, who will serve as Chairman.
In a separate case filed in May, Slowe, a retired Assistant Commissioner of Police, is seeking an injunction preventing the recently reconstituted PSC from promoting senior officers of the Guyana Police Force (GPF) until the court determines the constitutionality of the President’s decision to suspend the PSC.
Earlier this week, the matter came up before Justice Persaud, who stayed his decision to proceed with the hearing case pending the Full Court’s ruling on Nandlall’s applications. Then, last week, the recently appointed PSC applied to the High Court to discontinue the case challenging the President’s decision. Both cases will come up on July 22 before Justice Persaud.
“To terminate these proceedings would leave certain constitutional issues unaddressed, and leave room for constitutional violations,” Smartt, a lawyer in the matter, had added.