Suspension of previous PSC unconstitutional – Judge rules

Finding that there was a breached Article of the Constitution of Guyana in suspending the previous Police Service Commission (PSC) in June 2021, High Court Judge Gino Persaud on Friday declared that the suspension of that constitutional body was unconstitutional.
Head of State Dr Irfaan Ali had suspended the PSC after its Chairman Paul Slowe and one of its Commissioners Clinton Conway—both retired Assistant Commissioners of Police—were charged with conspiring to defraud the Guyana Police Force (GPF) of $10 million.

The ruling came almost two years after the Commission’s Chairman, Retired Assistant Commissioner of Police Paul Slowe filed judicial review proceedings, in which he, among other things, contended that the President’s decision was unconstitutional and arbitrary.

No unfettered discretion
Although the President is empowered by the Constitution to suspend constitutional bodies, including the PSC, Justice Persaud held that the Head of State does not have an “unfettered discretion” as his suspension powers only exist on the advice of the prescribed authority and/or a decision by the tribunal after the question of referral has been referred to that tribunal.
Article 225 requires the question of removal of a person from office to be put to the President by the Prime Minister and the President then has to act in accordance with the advice of the Judicial Service Commission (JSC) in appointing a tribunal. The JSC has been defunct since 2017.
“The tribunal must then do its work. It is the tribunal’s role to inquire into the matter and report on the facts to the President and recommend whether the officer is to be removed,” the Judge explained, adding that the framers of the Constitution created this mechanism to ensure due process and security of tenure so that the members of PSC are not subjected to arbitrary behaviour.
“The removal and suspension procedure set out in Article 225 attempts to insulate the PSC from any undesirable political influence. It offers its members the opportunity to do their business…without having to keep a watchful eye on the mandates and directives of the Executive.”
According to the Justice, the President’s failure to appoint the JSC “proved fatal” as a referral to the tribunal is a “condition precedent” to the suspension of members.
In light of this, he held, “Therefore, the President had no authority on which to suspend the Chairman or any other member of the Commission.”
Lawyers for the State had sought to justify the President’s decision using the doctrine of necessity, averring that the President could not act on the advice of the JSC because it was not constituted. However, Justice Persaud was keen to note that the failure to constitute the JSC “cannot be relied upon to excuse the unlawful act of suspending the constitutional office holders.”
He said the failure to appoint the JSC is the “President’s burden to bear” and noted that there is no evidence to support that the President made steps to constitute this Commission.
Considering this, he said he was of the “considered view” that exceptional circumstances do not exist to invoke the doctrine of necessity. Consequently, the decision to suspend in the absence of a referral to the tribunal was ultra vires Article 225 and unconstitutional.

Nuclear response
On the issue of the criminal charge, the Judge said “Lest we forget, in this Republic, there is an enshrined principle backed by constitutional muster to which every citizen of this country is afforded, and that is the right to the presumption of innocence as set out in Article 144(2) of the Constitution. Mr Slowe has not been convicted of any charges.
“At the time when he was suspended, he was entitled to that presumption. The mere institution of charges cannot amount to ‘misbehaviour’ properly except and until the person has been adjudged guilty by a competent tribunal. Therefore, to act in reliance of charges cannot be a basis to justify the President’s unconstitutional conduct.”
“The suspension of the Chairman and other members in the absence of a JSC and constituted tribunal was a nuclear response by His Excellency, the President. The suspension proved permanent and tantamount to a removal from office without due process. The Constitution imbued the President with no power to suspend in the absence of a tribunal and in doing so he acted ultra vires the Constitution and unlawfully,” he added.
The Judge noted that the removal and suspension process outlined in the Constitution is to safeguard members of constitutional bodies from undue political pressure, personal favouritism, and vendetta. According to him, members of these bodies enjoy security of tenure similar to Judges.
As such, the Judge so declared that the President’s suspension of the PSC’s Chairman and other members of that Commission was unlawful; ultra vires Article 225; arbitrary; unreasonable; unfair; violated the suspended Chairman’s and Commissioner’s constitutional rights to the protection of the law and due process of the law, null, void and of no legal effect.
Slowe was represented by Attorney-at-Law Selwyn Pieters, Dexter Todd, and Dexter Smartt while the respondents, including Prime Minister Mark Phillips and Attorney General Anil Nandlall, SC, were represented by lawyers from the Attorney General’s Chambers.
Pieters has indicated that he will be seeking “significant costs” from the respondents given the length of time the matter has been engaging the court and the respondents’ filing of several interlocutory applications. As such, the Judge invited the parties to file submissions on the issue.
The matter has been adjourned until April 14.

Criminal charge
Slowe and Conway, along with other retired and serving members of the 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.
These matters are pending at the Georgetown Magistrates’ Courts.

Show cause
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 the Prime Minister 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.
By way of a lawyer’s letter, they replied denying any wrongdoings. Instead, they told President Ali that his suspension of the PSC flagrantly violated the letter, spirit, and intent of some of the most sacrosanct constitutional provisions, and strikes at the heart of Guyana’s democracy.
They also told President Ali that Presidents and Prime Ministers, as the case may be, have been impeached for far less in democratic countries. As such, the PSC (the applicant) filed judicial review proceedings, challenging the President’s decisions. However, since the life of that PSC ended on August 8, 2021, the Full Court added Slowe as an applicant to the case.

“Public interest”
Justice Persaud had, on March 9, 2022, 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 law, 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.
Nandlall had appealed this decision to the Full Court but lost.

New PSC
The members of the new PSC were sworn in on May 31, 2022.
Besides Patrick 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.
The PSC is a constitutional body, established under Article 137 (1) and was given the authority under Article 212 (1) subject to the provisions of Article 211 (1) of the Constitution to make appointments to any offices in the Police Force of or above the rank of Inspector, and exercise disciplinary control over and to remove persons holding or acting in such offices. (G1)