CJ upholds appointment of Integrity Commission, says Pres Ali consulted with Opposition Leader

– rules Police Service Commission was improperly constituted, but preserves decisions

By Jarryl Bryan

In a ruling she handed down on Tuesday in a virtual hearing, acting Chief Justice Roxane George has upheld President Dr Irfaan Ali’s appointment of the members of the Integrity Commission, but in order to preserve decisions of the members of the Police Service Commission, she has applied the de facto doctrine to their appointment, which she ruled was not properly constituted.

In the case of the Integrity Commission, the Chief Justice noted that the President had followed Article 232 of the Constitution in his efforts to consult with the Opposition.

“It is the interpretation of the effect of the engagements between the applicant and the President, as evidenced by their letters, the meetings, and the joint statement, that is really the source of controversy in this case. Did these engagements amount to meaningful consultations? Did these engagements demonstrate procedural fairness? And in this regard, was the consultation sufficient?” she asked.
According to the Chief Justice, however, the President’s efforts were not reciprocated in a reasonable manner by Opposition Leader Aubrey 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.

“I have concluded that given the overall context of the appointment of the second respondent as a member of the commission…he had enough information and opportunity to advance his reasons for objecting to the second respondent, and to recommend another,” Justice George said in referring to when the names were approved by the National Assembly.

The Integrity Commission has Demerara Bank Corporate Secretary Chandra Gajraj as Chairperson; along with Mohamed Haniff, Kim Kyte-Thomas, lawyer and former Solicitor General; Hardesh Tiwari, and Reverend Wayne Chris Bowman as members. The two constitutional commissions were appointed on May 31.

Police Service Commission
In regard to the Police Service Commission, the Chief Justice sided with the applicant in ruling that the commission was improperly constituted at the time, due to the absence of a Chairman of the Public Service Commission. However, she upheld the appointment of the commission’s Chairman, Pastor Patrick Findlay.
The Chief Justice noted that there is no evidence to suggest that the commission was not properly constituted, therefore it would not be wise to say that all of the commission’s actions are nullified.
Additionally, the Chief Justice noted that, in the application, there is no claim seeking to nullify all the commission’s actions, nor is there evidence of its actions outside of the gazetted promotion list.
The Chief Justice also emphasised that she would not exercise her discretion to grant an order nullifying the commission’s actions. As such, she applied the de facto doctrine to save the commission’s actions.
Those actions relate to the appointment of Clifton Hicken as acting Police Commissioner as well as the recent promotions of members of the Police Force, whose rights as third parties would have been affected.
The Chief Justice took care to stress that Hicken’s appointment, which she had upheld in a separate ruling on August 11, would remain untouched by this new ruling on the Police Service Commission.
“In the interest of avoiding any unforeseen circumstances of my decision that the Police Service Commission is not properly constituted, I apply the de facto doctrine to save the actions of the Commission as currently constituted,” Justice George has said.
Norton, through Attorney-at-Law Roysdale Forde, SC, had applied to the High Court to quash the appointment of the Chairman of the Police Service Commission on the ground that the Head of State had failed to engage him in the constitutionally required process of meaningful consultation. Besides Findlay, the new members of the PSC are Attorney-at-Law Mark Conway and businessmen Ernesto Choo-a-Fat and Hakeem Mohammed.
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”.

Consultation
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. He argued that, overall, the consultation has to be fair, but it does not have to be perfect. The two constitutional commissions were appointed on May 31.
In concluding her ruling, the 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 Satram put 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.