Case filed by non-existent PSC should be struck out – AG tells court

The content originally appeared on: INews Guyana
Attorney General Anil Nandlall and Paul Slowe

Attorney General Anil Nandlall, SC, is contending that, given that the life of the Police Service Commission (PSC) expired on August 8, that Commission has no legal authority to continue the judicial review proceedings it filed, challenging its suspension by President Dr Irfaan Ali.
Among other things, the PSC is asking the High Court to declare its June 16 suspension unconstitutional.

With the Head of State removed as a party to the proceedings, following a ruling by Justice Gino Persaud that the President enjoys absolute immunity from the judicial process, the PSC is looking to proceed with its case against Prime Minister Mark Phillips, the Attorney General, Police Commissioner Nigel Hoppie, and the Commission’s Secretary.

But Nandlall has filed a Notice of Application in which he is asking that the case be dismissed. During another hearing on Wednesday, Nandlall, while noting that the life of the PSC has ended, argued, “As a result of that fact, these proceedings cannot be proceeded with by this court.”

He explained that the PSC is a body constituted in a manner prescribed by the Constitution, and how it functions is also subjected to constitutional provisions.

He pointed the court to Article 226 of the Constitution and its various sub-articles, and said that a reading of the article concludes that decisions of the PSC are made by way of votes, and that it can act only if there is a quorum.

“The Commission can only act if it has a quorum. Despite vacancies, decisions may be made, but 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,” the Attorney General contended.

He went on to say that legal proceedings, when launched, cannot continue on autopilot.

The Senior Counsel said the proceedings must be “continued as a result of the presence of the parties who have a capacity in law to continue those proceedings. That submission is twofold: one, it affects the validity of the proceedings themselves; and secondly, it affects the capacity of the lawyers to continue appearing in the proceedings.”

According to the Senior Counsel, the case was filed ex post facto the expiration of the PSC. “Therefore, at the time this application was filed, the Commission was already dead and non-existent in law,” he said, while adding that lawyers Selwyn Pieters and Dexter Smartt who “purport” to appear for PSC “cannot and could not have been authorised to appear.”

“Their [the lawyers] contract came to an end upon the expiration of the life of the Commission,” he said.

Addressing the effects of the expiration of the life of the Commission on the proceedings, the Attorney added, “We submit that when the life of the Commission expired, it has the same effect as when a party who is before the court in the form of a human being dies. The proceeding in such an instance is not defeated, but it is abated, and unless someone is substituted, the proceedings become defective.” This, he added, was decided by Guyana’s Full Court in 1956 in the case of Spence against Hoppie.

Because the PSC is a constitutional creature, he said, the court would be unable to appoint a substitute.

“This Commission is uniquely and peculiarly constituted in a particular way and by a particular legal process; that is, by a process that involves the Executive and the Parliament – the two other arms of Government. The Judiciary has no part to play in the constitution of the Commission.”

This fundamental principle, he noted, “would prohibit this court from doing what this court may have had the power to do were the parties ordinary regular citizens; that is, to entertain an application from either party to substitute as we all know can be done…”

In advocating his point, Nandlall cited several case laws that address the issue of legal defect affecting proceedings, and the legal consequences of those defects if they are not rectified or remedied in the appropriate way or within the prescribed time. He said case laws dictate that should proceedings continue with legal defects, the judgment that comes after is void.

Relying on a specific case law, Nandlall said, “Lord Justice Upjohn conferred that fundamental defect in proceedings will make the whole proceedings a nullity…”

While Attorney-at-Law Dexter Smartt conceded that the life of the PSC had expired, he urged the court to go ahead and hear the case on its merits, since it is a public interest matter that concerns the Constitution. “The matters to be dealt with are matters that need finality. It touches and concerns the Constitution, the supreme law of the land, and the powers of the President.”

According to Smartt, while doing research, he found no case laws concerning the fate of legal proceedings filed by a constitutional body that has now expired. In light of this, he described the case filed by the PSC as “peculiar”, and noted that the court should consider the effects of not giving a decision in the matter.

“The court had jurisdiction when this matter started, and the court continues to have jurisdiction moving forward, as this is a matter of public importance. To terminate these proceedings would leave certain constitutional issues unaddressed, and leave room for constitutional violations.”

After listening to the submissions, Justice Persaud said it is unlikely that he would rule on Nandlall’s application to strike out the matter this year. He therefore reserved his decision.

In July, the PSC commenced legal proceedings in which it contended that its suspension was unconstitutional. President Ali suspended the PSC after its Chairman Paul Slowe and Commissioner Clinton Conway – both retired Assistant Commissioners of Police – were slapped with fraud charges.

They, along with other retired and serving members of the Police Force, 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.

Slowe is also facing three counts of sexual assault. It is alleged that on three occasions in 2019, at Police Headquarters, Eve Leary, Georgetown, Slowe sexually assaulted a senior Policewoman by rubbing her left leg and foot without her consent.

President Ali suspended the PSC 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 Police Service Commission.

In that letter, the Prime Minister had said he was exercising powers vested in him by Article 225 of the Constitution, which mandates that a person shall not be removed from a constitutional office except for inability to discharge the function, or for misbehaviour.
That article further provides that a constitutional office holder can be removed by the President if an appointed tribunal recommends the removal of that person. The tribunal is to be appointed following the advice of a prescribed authority, in this case the Prime Minister, and is to be constituted in consultation with the Judicial Service Commission (JSC).

The JSC is currently not functioning. The last JSC was appointed by former President Donald Ramotar on September 11, 2014. The tenure of each appointed member is for three years; therefore, the tenure of the last Commission expired on September 12, 2017.

The PSC is vested with the authority to exercise disciplinary control over persons holding or acting in high offices within the Police Force, or even remove them from office.

The PSC also deals with the promotion of Policemen above the rank of Inspector.
The Government, on June 28, rejected as unlawful and illegal a list of purported promotions of members of the Police Force issued by the PSC. In so doing, Nandlall reminded that the PSC was suspended by the President in the exercise of powers conferred upon him by the Constitution.

The Attorney General had made it clear that the decision of the President can only be rescinded, revoked, set aside, or reversed by the President himself, or by a court of competent jurisdiction.

“No person, let alone a constitutional commission, will be allowed to become judge, jury, and executioner in our constitutional democracy. The rule of law simply does not permit it,” he said.