AG moves to strike out case filed by “dead” Police Service Commission

Attorney General Anil Nandlall, SC is arguing that because the life of the Police Service Commission (PSC) expired on August 8, 2021, the constitutional body has no legal standing to continue with proceedings it filed challenging its suspension by President Irfaan Ali.

On this ground, Nandlall is asking High Court Judge Gino Persaud to dismiss the case. When the matter continued on Wednesday at the Demerara High Court, he argued that it is not disputed that the life of the PSC came to an end.

“So, we can proceed upon that undisputed fact. The [PSC] is a body that is constituted in a manner [prescribed] by the Constitution.  The way it functions is also the subject of constitutional provisions,” the Senior Counsel noted.

The Attorney General drew the court’s attention to Article 226 of the Constitution and its various sub-articles. He said that a reading of those articles concludes that decisions of the PSC are made by votes and that it can only act if there is a quorum.

“The Commission can only act if it has a quorum. Inferentially, if the Commission is not constituted it cannot have a quorum in law and therefore it cannot act.” According to him, when legal proceedings are launched, they cannot continue in “autopilot”.

He said that the proceedings must continue as a result of the presence of parties who have authority in law to continue those proceedings. At the time the PSC filed the case, it was already “dead” and “non-existence” in law, the Attorney General argued.

In light of this, he argued that lawyers cannot and could not have been authorised to appear on behalf of the PSC. “Their [the lawyers] contract came to an end upon the expiration of the life of the Commission,” Nandlall added. He reasoned that the expiration of the life of the PSC has the same effect as if a party [human being] to a legal proceedings dies.

While the Attorney General admitted that he did not find any case laws to support the specific issue at hand [the expiration of a constitutional commission], he did reference legal authorities dealing with the death of a person who instituted legal proceedings.

Lawyer for the PSC, Dexter Smartt conceded that the life of the Commission has expired. He also conceded that he found no case law to support the position he is advocating. In his brief submissions, the lawyer said the case was filed while the PSC was properly constituted.

Lawyer Dexter Smartt

Despite there being no authorities to support his case, Smart urged Justice Persaud to hear the matter because it touches and concerns the Constitution and the powers of the President. It is his view that the case filed by the PSC concerns matters that need to be brought to “finality”.

Justice Persaud indicated that it is unlikely that he will rule on the matter this year and therefore reserved his judgement.

When the PSC initially filed the case, it named President Ali as a party. In fact, the President was the third-named respondent. However, on September 16, Justice Persaud ruled that Article 182 (1) of the Constitution immunises a sitting President from facing civil/criminal proceedings.

The decision resulted in President Ali being removed as a respondent. Justice Persaud said that the purpose of the aforementioned article is to confer on the President, in his official capacity, immunity from judicial scrutiny for acts performed pursuant to his office.

To name the President as a respondent in a case is “impermissible and wrong in law”, the Justice held.  In June 2021, the President suspended the PSC after its Chairman retired Assistant Commissioner of Police Paul Slowe, and Clinton Conway were slapped with fraud-related charges.

It is alleged that they were paid $10M to revise the Police Force’s raft of Standing Orders but failed to do so.  Shortly after they were arraigned at the Georgetown Magistrates’ Courts on the charges, Prime Minister Mark Phillips wrote to them, asking them to show cause why the fraud charges against them should not result in their removal from the constitutional agency.

They responded by denying any wrongdoing. The PSC, through its lawyers, had written to President Ali several times contending that its suspension was unconstitutional. “It is clear that your Excellency’s purported suspension of the Chairman and other members of the Commission is contrary to the Constitution…,” the letter reads.

With no favourable response from the Head of State, the PSC instituted legal proceedings in which it asked the High Court to quash the President’s decision to suspend the PSC.