Home News Oral arguments in Slowe’s challenge to his suspension from PSC set for...
…AG, others delaying matter by filing interlocutory
applications – Justice Persaud
In a ruling delivered on Friday, High Court Justice Gino Persaud has reiterated the position taken by the Full Court in May — that he can proceed with hearing the challenge of retired Assistant Police Commissioner Paul Slowe’s to his suspension from the previous Police Service Commission (PSC) by President Dr Irfaan Ali.
On behalf of the newly appointed Police Service Commission (PSC), Attorney General (AG) Anil Nandlall, SC, and Attorney-at-Law Darshan Ramdhanie, KC, had asked Justice Persaud to stay the hearing of the matter pending the determination of an appeal against a decision of acting Chief Justice Roxane George, SC, in which she had, among other things, declared that even though the current PSC was lawfully appointed, 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. 
The Chief Justice’s ruling was premised on an application filed by Opposition Leader Aubrey Norton, in which he had asked her to nullify the appointment of Reverend Patrick Findlay as Chairman of the PSC on the basis that the Head of State did not engage him in constitutionally-required meaningful consultation.
However, through Attorney-at-Law Roysdale Forde, SC, Norton has appealed the Chief Justice’s decision, contending, inter alia, that she had misapplied the law.
Access to justice/delaying matter
In refusing to put a hold on the proceedings before him pending the determination of that appeal, Justice Gino Persaud has said that as far as he is aware, there has been no stay of the Chief Justice’s ruling. He has also noted that “there can be no stay of a declaratory order.”
He made it clear that: “I am not prepared to stay the proceedings before me pending the appeal of the Chief Justice’s ruling; which would leave the proceedings before me in limbo, since that appeal would take time to be heard and determined, and we have no indication of how long that would take…”
According to Justice Gino Persaud, Norton’s appeal does not, in any way, impact upon or preclude Slowe’s right to have the lawfulness of his suspension adjudicated upon, since this is an “access to justice” issue for him.
“How long should he wait, as a litigant who is entitled to access to justice, to have the legality of his suspension ruled upon, while the respondents [Attorney General and others] file interlocutory applications upon interlocutory applications, delaying the substantive issue notwithstanding the narrowing of the issues?” he asked.
Reasons for suspension
President Ali suspended the previous PSC in June 2021 after Slowe, its then chairman, and several of its commissioners, had been slapped with fraud charges over payments allegedly made to them in the amount of $10M to revise the Police Force’s raft of Standing Orders, which they allegedly never did.
Slowe is also facing three counts of sexual assault for allegedly rubbing a senior Policewoman’s legs without her consent at Police Headquarters in Georgetown.
In June 2021, the PSC had filed legal proceedings that sought a declaration that President Ali’s suspension of Slowe and Commissioners Michael Somersall, Claire Jarvis, Vesta Adams and Clinton Conway — all retired Assistant Commissioners of Police — had violated the Constitution, and was therefore of no force or effect.
Prime Minister Brigadier (retd) Mark Phillips, AG Nandlall, and former Police Commissioner Nigel Hoppie are the named respondents in those proceedings filed by that PSC. But after the three-year life of that Commission had expired on August 8, 2021, and a new commission had not been constituted, Nandlall had asked Justice Persaud to dismiss the case.
Nandlall’s contention was: “The Commission can only act if it has a quorum. Despite vacancies, decisions may be made, provided that there is a quorum. Inferentially, if the Commission is not constituted, it cannot have a quorum in law, and therefore it cannot act.”
Justice Persaud had, however, thrown out Nandlall’s application, ruling that he would hear the case on its merits because it raises matters of public interest.
“To hold otherwise 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 [President] in such instances, and ensure that the constitutionally-granted autonomy of the PSC remains protected,” Justice Persaud had said.
Nandlall had then appealed Justice Persaud’s ruling to the Full Court, which upheld Justice Persaud’s decision but did not agree with him that Slowe should be substituted in place of the PSC, which remained an existing constitutional body despite being unable to carry out its functions in the absence of appointed members. As such, the Full Court had added Slowe as a party to the proceedings.
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 by President Ali.
“Crippled” by Chief Justice’s ruling
In regard to the application by Attorney Darshan Ramdhanie, KC, on behalf of the current PSC, to discontinue Slowe’s matter, Justice Persaud has said that in light of the Chief Justice’s ruling, “it is patently clear that the application cannot be sustained, since the [PSC]is not properly constituted and cannot participate in these proceedings.”
In arriving at his decision, Justice Persaud cited an earlier ruling by the Full Court in regard to an appeal of his decision to hear the substantive matter. He specifically quoted from paragraph five of that court’s ruling, which elucidated: “Members [of the PSC] can be appointed at any time 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.”
Given that the primary issue is the lawfulness of the PSC’s suspension, Justice Gino Persaud emphasised, “I have already ruled that that issue did not come to an end when the term of office of the previous members of the Commission expired.”
In light of his pronouncement, which was upheld by the Full Court, Justice Persaud held that: “The Police Service Commission cannot come again now within this application to attempt to obtain the same relief in a different way, to bring about the termination of the substantive proceedings.”
Justice George, in ruling that the current PSC was lawfully appointed but not properly constituted in the absence of a Chairperson for the Public Service Commission, had applied the de facto doctrine to save actions carried out by it, including the promotion of scores of Police ranks in July.
But according to Justice Persaud, “This applies retroactively, not prospectively.” He thus said that Ramdhanie’s application to discontinue the challenge “cannot receive prospective validation”, since it was subsequently “crippled” by the Chief Justice’s ruling.
With there being no ground upon which he could grant a stay or withdraw the challenge, Justice Persaud pointed out, the current PSC “cannot withdraw Slowe’s right to have the legality of his suspension challenged”, and he consequently declared that Ramdhanie’s application is an “abuse of the process of the court.”
No award for costs was made because of the public interest nature of the case.
In the circumstances, lawyers from the Attorney General’s Chambers who are representing Prime Minister Phillips, AG Nandlall and the Police Commissioner were instructed to file defences by December 16. An Affidavit in Reply has to be filed by December 23, and written submissions by January 9, 2023.
The PSC’s counsel was given permission to file written submissions on points of law, since it is a public interest matter, but he is not allowed to file a defence, in light of Justice George’s ruling.
Oral arguments in Slowe’s challenge are scheduled for January 16, 2023 at 13:15h before Justice Gino Persaud. Slowe is represented by Selwyn Pieters, Dexter Todd, and Dexter Smartt.
The PSC is a body established by Article 137 of the Constitution, and is vested with the authority to exercise disciplinary control over persons holding or acting in high offices within the Police Force. It is even authorized to remove them from office. The PSC also deals with promotion of Police officers above the rank of Inspector.
