Attorney General appeals High Court’s decision to hear PSC suspension case

Attorney General Anil Nandlall, SC; Former Chairman of the PSC, Paul Slowe

Hours after High Court Judge Gino Persaud ruled that he will go ahead and hear the case challenging President Dr. Irfaan Ali’s suspension of the Police Service Commission (PSC), Attorney General Anil Nandlall, SC has moved to have the Judge’s decision overturned.

Urging the court to dismiss the case, Nandlall had argued that because the life of the PSC expired in August 2021, the constitutional body had no legal standing to continue with proceedings it filed challenging its June 2021 suspension by President  Ali.

At the Full Court, Nandlall, in a Notice of Appeal, contends that Justice Persaud misinterpreted, misconstrued, and misapplied the important doctrine of public interest litigation in such a manner that his decision resulted in a grave miscarriage of justice.

The Attorney General further contends that Justice Persaud erred and misdirected himself in law by ruling that former Chairman of the PSC, Paul Slowe be substituted instead and in place of the  PSC, for the purpose of continuing judicial review proceedings.

Nandlall is arguing that the Justice’s ruling is misconceived, erroneous in law, violates the doctrine of separation of powers, violates Article 226 of the Constitution of Guyana, and undermines the independence and functional autonomy of the Police Service Commission guaranteed by the Constitution of Guyana.

Moreover, he is looking to have the Judge’s decision set aside on the basis that it is unlawful, unconstitutional, and is not supported by established legal principles and doctrines.

He also argues that the decision potentially permits Slowe, a citizen, to usurp, interfere with, compromise, undermine, and assume the functions of the PSC, a constitutional body established by the Constitution of Guyana, in breach of the said Constitution.

Since the decision appealed is regarding an interlocutory issue in the High Court, the Attorney General said that the Full Court’s jurisdiction to hear the matter is vested pursuant to the Court of Appeal Act, Rafudeen Nizmudin v. Javin Jason Nizmudin [2020] CCJ 4 (AJ), Gobin v. The Attorney General, Full Court Appeal No. 27 of 2020 and the Civil Procedure Rules of 2016.

Ruling that the High Court does have jurisdiction to hear the challenge mounted by the PSC against its suspension by the President, Justice Gino Persaud, on Wednesday, dismissed an application by the Attorney General to have the matter dismissed.

Delivering his ruling via Zoom, Justice Persaud held that he is of the view that the substantive issues should be heard and determined on its merits being a matter of public interest. To hold otherwise, he noted, would leave the issue of the legality of the President’s suspension of the PSC “hanging”.

Justice Persaud said that hearing the case on its merits would bring clarity to the role of the Executive arm of the government in such instances. He said that it will also ensure that the constitutionally granted autonomy of the PSC remains protected.

Since the life of the PSC expired last August, its former Chairman, Paul Slowe has been substituted by the court as the applicant in place of the PSC, on the court finding that he has the locus standi to continue the proceedings on behalf of the suspended Commissioners.

Slowe’s case is against Prime Minister Mark Phillips, the Attorney General, Police Commissioner Nigel Hoppie, and the Commission’s Secretary.

The respondents have until April 6 to file an affidavit in defence. The applicant was given until April 20 to file an affidavit in reply. The court will thereafter set a date to hear arguments.

While lawyer for the PSC, Dexter Smartt had conceded that the life of the Commission expired, he had urged Justice Persaud to hear the matter because it touches and concerns the Constitution and the powers of the President.

Smartt had argued that the case filed by the PSC concerns matters that need to be brought to “finality”. Last year, Justice Persaud had removed President Ali as a party to the proceedings after ruling that the Head of State enjoys absolute immunity from the judicial process.