Case filed by suspended PSC: High Court to rule on President’s immunity on Sept 16

On Thursday, September 16, High Court Judge Gino Persaud will rule on whether President Irfaan Ali is immune from being named as a party to a case filed by the Police Service Commission (PSC) challenging its June 16 suspension by the Head of State. The imminent ruling has its origin in an application filed by Attorney General Anil Nandlall, SC, who is asking that the President be struck out as a respondent.

On Monday, Justice Persaud entertained full arguments on the issue from Nandlall and Attorney-at-law for the PSC, Selwyn Pieters. Elaborating arguments proferred in his written submissions laid over ahead of yesterday’s hearing, the Attorney General maintained that is unconstitutional and unlawful to name the Presidents in legal proceedings regardless of whether it is criminal or civil in nature.

The Senior Counsel placed heavy reliance on Article 182 of the Constitution and Section 10 of the State Liability and Proceedings Act. Under the aforementioned constitutional provision, Nandlall argued that the President has immunity from the judicial process.

President Dr Irfaan Ali

According to him, Article 182 states that subject to the provisions of Article 180, the holder of the office of President shall not be personally answerable to any Court for the performance of the functions of his or her office, or any act done in the performance of those functions.

“Whilst any person holds or performs the functions of the office of President, no criminal proceedings shall be instituted or continued against him or her in respect of anything done or omitted to be done by him or her in his or her private capacity. And no civil proceedings shall be instituted or continued in respect of which relief is claimed against him or her for anything done or omitted to be done in his or her private capacity,” said the Attorney General as he quoted from the constitutional provisions.

Given that Article 89 states that the President is the Head of State, the supreme executive authority, and Commander-in-Chief of the armed forces of Guyana; as a consequence Nandlall submitted that in accordance with Section 10 of the State State Liability and Proceedings Act, all actions brought against him in his capacity as Head of State should only name the Attorney General.

The Senior Counsel went on to highlight the history of Presidential immunity which he says evolved out of the Crown Prerogative. “The Crown was replaced by the President in Guyana where the President is both the Head of State as well as the head of Government. In that regard, Guyana is different from the rest of the Caribbean for example in Trinidad and Tobago where the Head of State is the President and the Head of Government is the Prime Minister.”

Attorney General Anil Nandlall

According to the AG, the compendium of immunities and privileges conferred on the Head of State are similar to the compendium of powers and immunities that have been historically devolved upon members of the judiciary as well as members of the legislature. And he noted that they find expression in constitutional provisions, in statutory provisions as well as in the common law.

He added, “And there is one golden thread that runs through this immunity and it is conferred on the office not necessarily the officeholder, but the office because of the functional responsibilities which devolve upon that office. When the office is occupied, the occupier of that office then enjoys that immunity and all interpretations going back centuries…”

Having regards to the foregoing, the Attorney General submitted that no court which has had the opportunity to interpret this immunity “has ever been able to alienate the holder of the office from the office itself.” He went on to say, “In other words, the cloak of immunity that covers the office, covers the individual impenetrably and that has been the consistent interpretation.”

“You cannot take away the officeholder from the office. When does the President stop being the President? He is President 24 hours per day, every day of the week, every hour of the day… and once he performs either a function of his office or he does it personally. The wisdom of the law has been that it is impossible to draw a distinction between the officeholder and the office.”

In support of his arguments, the Attorney General cited case laws from Guyana, the Caribbean, and other Commonwealth nations. Moreover, Nandlall made it clear that he is “not at all” saying that decisions made by the President are barred from judicial review.

In fact, he submitted that as a creature of the Constitution, the President’s actions are reviewable by the High Court which is conferred with the authority to strike it down should it be found to be unlawful.

Having regard to his arguments, he asked the Court to remove President Ali as a party to the case.

For his part, Attorney-at-law Selwyn Pieters who is the Police Service Commission lead counsel urged the Court to dismiss the AG’s application because President Ali is “indeed a proper and appropriate party being named in his official capacity” as he unlawfully suspended the Police Service Commission.

In addition, he said he is also challenging the actions of the Police Commissioner Nigel Hoppie and Secretary of the PSC following its unlawful suspension by President Ali. “The declarations sought is the reason we named His Excellency as a respondent,” told Justice Persaud.

While he acknowledged that the naming of the President in these proceedings is “somewhat unusual”, the lawyer submitted that this simple fact reflects the “unusual and unprecedented nature” of this case and of the course of the action which the President and his Government has taken against the PSC.

He described those actions as, “unconstitutional, undemocratic and a violation of the independence and autonomy of this constitutional body.” According to him, the absence of exact precedent for this case does not mean that the naming of the President is impermissible neither does the role of the Attorney General precludes the naming of the President as a respondent.

The PSC’s lawyer advanced that the case laws relied on by the Attorney General are not applicable in this case, as Guyana’s Constitution has nothing that prohibits proceedings from being brought against the President in his official capacity. He said that the decisions in those cases are “faulty and not binding”.

Justice Persaud will hand down his ruling on September 16. Besides President Ali, others listed as respondents in the matter are Prime Minister Mark Phillips, Attorney General Anil Nandlall, Police Commissioner Nigel Hoppie, and secretary to the commission.

Paul Slowe

Chairman of the PSC, Retired Assistant Commissioner of Police, Paul Slowe, and several members of the Commission are currently facing criminal charges in the Georgetown Magistrates’ Courts.

They 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 the officers collected payments amounting to $10 million, but never provided the Force with a raft of revised Standing Orders.

President Ali suspended the PSC Chairman and Commissioners Michael Somersall, Claire Jarvis, Vesta Adams, and Clinton Conway – all retired Assistant Commissioners of Police – weeks after the Prime Minister had written to them, asking them to show cause why the fraud charges against them should not result in their removal from the constitutional body.

The Prime Minister, in the letter, 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 life of the PSC expired on August 9.

By virtue of Article 246 of the Constitution, the Police Service Commission is vested with the authority to exercise disciplinary control over persons holding or acting in high offices within the Force or even remove them from office as well as the promotion of ranks above the rank of Inspector.