The Attorney General is clutching at straws

May 14, 2023 Letters

Dear Editor,

Kaieteur News – On May 4, 2023, The Attorney General of Guyana appealed the decision of Justice Gino Persaud in the challenge to the President’s unlawful suspension of the Police Service Commission, which he did on June 16, 2021.

Let me from the outset state that in a democratic society, government and, ororganisations/agencies/individuals, have a constitutional right to have the decision of a judge that they deem unfavorable, reviewed by a higher court. That is part of the concept of the rule of law.

I am also of the view that in such a society it is of critical importance that the facts of the matter be made known; the public should be apprised and kept informed. I will therefore hereunder highlight some significant events in the case in question, which I am sure will provide some clarity.

On June 15, 2021, Prime Minister Mark Phillips, MSS advised the President of Guyana that the question of removal of the members of the Police Service Commission from office should be investigated. He also advised the President that the members should be suspended from their constitutional posts. The following day, June 16, President Irfaan Ali sent letters to each member of the Police Service Commission informing them that they are suspended with immediate effect.

The attorney for the members of the Commission, Mr. Selwyn Pieters, by way of letter, informed the President that the purported suspension of the members was unconstitutional because the process to suspend members of a constitutional commission, as set out in the Constitution of the Co-operative Republic of Guyana, was not followed. The President ignored the missive from Mr. Pieters.

On July 19, 2021, the members of the Commission filed an application in the High Court challenging the unlawful suspension. The President was named as one of the respondents.

On July 27, 2021, the Attorney General filed a Notice of Application to have the President removed from the proceedings owing to the immunities that attached to the President of the Co-operative Republic of Guyana.

On September 17, 2021, after hearing arguments from the parties, Justice Gino Persaud ordered that the President be removed from the proceeding on the basis that it was “impermissible and wrong to add the Executive President of Guyana to court proceedings given the immunities that attach to his office”. The judge also stated that “the removal of the President does in no way affect the substance of the Applicant’s case challenging the decision of the President to suspend because the State’s legal representative, the Attorney General, was still a party to these proceedings”.

As the Judge was about to set the timelines for the continuation of the matter, the court was informed by the Attorney General that an application was filed on September 16, 2021, for the discontinuation of the proceedings, on the grounds that the life of the Police Service Commission ended on August 8, 2021, and therefore the Commission cannot lawfully continue to maintain the legal proceedings.

Having considered all the arguments, Justice Persaud subsequently ruled that the fact that the life of the Commission ended on August 8, 2021, had no effect on the ability to maintain the proceedings. He ordered that Paul Slowe be substituted in the place and stead of the Police Service Commission. The Judged stated that “these proceedings were judicial review proceedings directed at the lawfulness of the decision and not the parties”.

Dissatisfied with the decision of the Judge, the Attorney General appealed the ruling to the Full Court.

On May 25, 2022, the Full Court upheld the decision of Justice Persaud. The Full Court ruled that Paul Slowe can be added as an applicant to the proceedings and that it was not necessary to substitute him in the place and stead of the Police Service Commission.

Not satisfied with the ruling of the Full Court, the Attorney General sought leave to appeal the ruling to the Appeal Court of Guyana. The court refused to grant the leave.

On July 5, 2022, the not fully constituted Police Service Commission filed an application seeking permission to withdraw and wholly discontinue the proceedings on the basis that it “was in the best interest of its constitutional mandate to do so”.

Justice Persaud refused the application. In doing so he reminded the lawyer for the not fully constituted Commission, King’s Counsel (KC) Randhani, that Paul Slowe was also an applicant to the proceedings, and they could not withdraw the right of Paul Slowe to have his suspension determined by the court.

On September 20, 2022, the Attorney General and (KC) Ramdhani, made an application for a stay of the proceedings pending the appeal of the proceedings before the Chief Justice in Norton v The Attorney General et al.

That application was denied. In denying the application the judge stated that “the decision in Norton coupled with the reasoning of the Full Court, made it patently clear that the Notice of Application to discontinue these proceedings could not be sustained since it was adjudged in the Norton decision that the PSC was not properly constituted. This therefore meant that the PSC could not actively participate in continuing or discontinuing these proceedings”.

The Judge further stated “that the application to discontinue was an abuse of process since it had already been determined that the expiration of the life of the PSC did not bring the live issue of the lawfulness of the suspension to a close. The Full Court agreeing with this decision on appeal meant that any further attempt through another interlocutory application to achieve the same ends clearly abused the process of the court. The PSC could not withdraw Mr. Slowe’s right to have the legality of his suspension challenged”.

Oral arguments in the substantive matter (the suspension of the members of the PSC) were made by the respective attorneys on January 16, 2023.

On March 24, 2023, Justice Gino Persaud ruled that the President violated the Constitution of the Co-operative Republic of Guyana when of June 16, 2021 he suspended the members of the Police Service Commission. The Judge stated that the action by the President was:

Unlawful
Ultra vires article 225 of the constitution
Arbitrary
Unreasonable
Unfair
In violation of the suspended Chairman and Commissioner’s constitutional rights to the protection of the law and due process of the law
Null, void and of no legal effect

It is my opinion that in deciding to appeal what is clearly a well-reasoned decision by Justice Gino Persaud, which is fully supported by the relevant Articles of the Constitution of the Co-operative Republic of Guyana, and the many authorities that were cited, the Attorney General is clutching at straws. It is my fervent hope that the appeal will be heard in an expeditious manner.

I end with a quote from playwright Tom Stoppard “We drift down time, clutching at straws. But what good is a brick to a drowning man?”

Sincerely yours.
Paul Slowe CCH, DSM, Assistant Commissioner of Police (Retired). Former Chairman of the Police Service Commission.