MR. SELWYN A. PIETERS
MR. DEXTER TODD &
MR. DEXTER SMARTT
ATTORNEYS-AT-LAW
…..
IN
THE HIGH COURT
OF THE SUPREME
COURT OF JUDICATURE OF
GUYANA
CONSTITUTIONAL AND
ADMINISTRATIVE DIVISION
2021-HC-DEM-CIV-FDA-1004
BETWEEN:
Applicant
-
and
-
1.
SECRETARY, POLICE SERVICE COMMISSION
2.
THE COMMISSIONER OF POLICE
3.
HIS EXCELLENCY THE PRESIDENT OF THE
COOPERATIVE REPUBLIC OF GUYANA
4.
THE HONOURABLE PRIME MINISTER OF THE
COOPERATIVE REPUBLIC OF GUYANA
5.
THE ATTORNEY GENERAL OF THE COOPERATIVE
REPUBLIC OF GUYANA
Respondents
APPLICANT’S REPLY
TO THE NOTICE OF APPLICATION OF THE ATTORNEY GENERAL TO STRIKE OUT THE THIRD
NAMED RESPONDENT
I.
Overview
1.
The Attorney General of the Cooperative Republic
of Guyana (hereinafter “the Attorney General”), fifth Respondent in the underlying
Fixed Date Application (hereinafter “the Fixed Date Application”) of the
Applicant Police Service Commission (hereinafter “the Commission”), filed an
application on July 27, 2021 under Rule 19.02(3) of the Civil Procedure
Rules of 2016 for a declaration that the third named Respondent, namely His
Excellency the President of the Cooperative Republic of Guyana (hereinafter
“His Excellency”) is not a proper party to these proceedings, and an order that
His Excellency be removed accordingly.
2.
The grounds given for the Attorney General’s
Application are, inter alia, Articles 89, 112, and 182 of the
Constitution and section 10 of the State Liability and Proceedings Act.
3.
It is the Commission’s position that His
Excellency is indeed a proper party to these proceedings given the relief
sought in the Fixed Date Application and in particular the sought declaration
that the purported suspensions of the Chairman and members of the Commission,
ordered by His Excellency in his capacity as President pursuant to Article
225(6) of the Constitution, are of no force or effect.
4.
None of the statutory or Constitutional
provisions or legal principles referred to in the Attorney General’s
Application provide a proper basis for removing His Excellency as a Party. He is
a necessary or proper party in this application having regard to his actions in
respect to what is alleged here to be the unlawful and unconstitutional suspension
of the full Police Service Commission, a Constitutional Service Commission. The
Attorney General’s Application should therefore be dismissed.
II.
The Attorney General’s
Application
5.
The crux of the Attorney General’s Application
is the claim, at page 5 of the Notice of Application, that “the law is clear
that no action, whether criminal or civil, shall be instituted against His
Excellency the President of the Cooperative Republic of Guyana whilst he holds
the office of President.”
6.
The constitutional grounds given for this
assertion are His Excellency’s status as Head of State under Article 89 of the
Constitution as well as the provision in Article 182(1) of the Constitution
that “no proceedings, whether criminal or civil, shall be instituted against
him or her in his or her personal capacity in respect thereof either
during his or her term of office or thereafter.” (Emphasis added.)
7.
The Attorney General’s Application further cites
the Attorney General’s role as principal legal advisor to the Government of
Guyana pursuant to Article 112 of the Constitution and the requirement under section
10 of the State Liability and Proceedings Act that “any claim by or against the
State shall be brought by or against the Attorney General…”
8.
Finally, the Attorney General relies on a brief
excerpt of obiter dicta from the case of Kent Garment Factory v. the
Attorney General and Others (1991) 46 WIR 177[1],
which endorsed the assertion that proceedings against the State are required to
be brought against the Attorney General, and that the Minister in question in
that case was not an appropriate party.
III.
Law and Argument
9.
The Commission submits that the legal basis
given for the Attorney General’s Application is incorrect and grounded in an
overbroad and faulty interpretation of the immunities granted to His Excellency
under the Laws of Guyana. No provision of the Constitution or any statute
establishes that the President of the Cooperative Republic of Guyana cannot be
named in his official capacity as a party to an application pursuant to the Constitution.
He is in not different position that Her Majesty the Queen (of the United
Kingdom) or the President of the United States of America, in so far as his
role under the Constitution is concerned.
(a)
The Fixed Date Application
Names His Excellency in his Official, not Personal, Capacity
10. The
Fixed Date Application names His Excellency in his official capacity as
President, not in his personal capacity. The named party is “His Excellency the
President of the Cooperative Republic of Guyana”, not “Dr. Mohamed Irfaan Ali”
personally or in his personal capacity.
11. Thus,
naming His Excellency in his official capacity is not contrary to Article
182(1) of the Constitution, which prohibits proceedings “against him or her in
his or her personal capacity,” but not in his official capacity. Article
182 in its totality must be read in accordance with the distinction between the
President’s personal and official capacity.
12. It
bears noting at this point some comments from the Ontario Court of Appeal in McAteer
v. Canada (Attorney General), 2014 ONCA 578 that is apposite here:
13. [51] However, as Canada developed as an independent federalist state, the conception of the Queen (commonly referred to as the Crown)[3] evolved. Unlike the unitary role of the Crown at the height of the British Empire, its role in Canada is divided into three distinct roles. First, the Queen of Canada plays a legislative role in assenting to refusing assent to, or reserving bills of the provincial legislature or Parliament – a role that is performed through the Governor General and the Lieutenant Governors. Second, the Queen of Canada is the head of executive authority pursuant to sections 9 and 12 of the Constitution Act, 1867. Third, the Queen of Canada is the personification of the State, i.e., with respect to Crown prerogatives and privileges: Laskin, at pp. 119-20. “The law and learning of Crown privileges and immunities came to the colonies as received or imposed English law, and through section 129 of the British North America Act [which continues the laws in force in Canada, Nova Scotia or New Brunswick at the date of Union] they were absorbed in the Canadian federation.” Laskin, at 120. Thus, English constitutional law, which had gradually subjected nearly all royal prerogative power to parliamentary sovereignty, made its way into Canada.[4] Moreover, the Crown may for some purposes fall within provincial power under s. 92 of the Constitution Act, 1867, and for other purposes fall within federal power under s. 91. For the purposes of Canadian federalism, the Crown therefore cannot be viewed as a single indivisible entity: Laskin, at p. 119. The Crown is “separate and divisible for each self-governing dominion or province or territory”: R. v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Indian Association of Alberta, [1982] Q.B. 892, at 917 (Eng. C.A.), per Lord Denning.
13. Naming
the President in his public, official capacity, rather than his personal
capacity, is procedurally analogous to a lawsuit in a Commonwealth country
naming Her Majesty the Queen as respondent, as is common practice, to challenge
not the personal actions of the Queen, but the official actions of her representatives
in government.
14. If
the drafters of the Constitution had intended to block all proceedings against
His Excellency altogether, irrespective of the capacity in which the President
is named, the said drafters would have had no need to include in Article 182(1)
the words “in his or her personal capacity” and would not have done so.
It follows that
Article 182(1), properly understood, bars only those proceedings that name His
Excellency in his private rather than public capacity. No provision of the Constitution
bars the naming His Excellency as a party to these proceedings in his official and
public capacity as President.
(b)
The Role of the Attorney
General Does Not Preclude Naming His Excellency
15. Moreover,
the role of the Attorney General as representative for the State is not a bar
to naming His Excellency as a respondent in his official capacity.
16. The
Attorney General correctly indicates in his Notice of Application that he is
the principal legal advisor to the Government of Guyana pursuant to Article 112
of the Constitution, and further that, according to section 10 of the State
Liability and Proceedings Act, “any claim by or against the State shall be brought
by or against the Attorney General.”
17. Related
to these provisions is the requirement under Rule 56.01(3) of the Civil
Procedure Rules of 2016 that, “Where the proceeding is for relief under the
Constitution, it must be served on the Attorney General.”
18. In
accordance with all of these provisions, the Attorney General was named as a
Respondent to the Fixed Date Application as appropriate and required by law. It
is anticipated that the said Attorney General will act throughout these
proceedings as representative and advisor for His Excellency.
19. However,
neither the Constitution nor the State Liability and Proceedings Act nor the
Civil Procedure Rules state, nor is it implied, that the President is
vicariously immune simply because the Attorney General is a necessary party.
None of these provisions articulate a requirement that only the Attorney
General may be named where an act of the State, including and act of the
President, is in question. Such a rule would need to be explicitly stated in
the statute or Constitution. The Attorney General’s assertion is contrary to
the plain language of these provisions.
20. As
stated above, the reason for naming His Excellency as a Respondent was the
relief sought in the Fixed Date Application, including a declaration that the
purported suspensions of the Chairman and members of the Commission from
performing the functions of office were contrary to the Constitution and of no
force or effect. The said purported suspensions were ordered by His Excellency
in a series of letters dated June 16, 2021.
21. It
is submitted that, because the Fixed Date Application directly concerns the
actions of His Excellency in his official capacity as President, His Excellency
remains an appropriate named Respondent in addition to the Attorney General.
(c)
The State Liability and
Proceedings Act Has No Application to Constitutional Applications
22. It
is further submitted that the State Liability and Proceedings Act, whatever its
reach in other areas of law, can have no application to shield the President in
the context of Constitutional Applications such as the Fixed Date Application. To
hold otherwise would allow the State Liability and Proceedings Act, an ordinary
statute, to constrain and undermine the Constitution of Guyana and in effect to
usurp its proper role as Guyana’s supreme law. No such interpretation is
tenable in accordance with the rule of law.
23. The
Guyanese Constitution, unlike certain other jurisdictions including Trinidad
and Tobago, does not incorporate the State Liability and Proceedings Act into
the Constitution or imbue its contents with constitutional significance.
Therefore, to the extent that rules and obligations under the Constitution are
at odds with any provisions of the said Act which purport to limit liability,
it is the Constitution that must prevail in any case.
24. It
should be noted that section 10 of the aforementioned Act, relied on by the
Attorney General, begins, “Except as otherwise provided in any written
law before the commencement of this Act, not being any provision of a written
Law repealed by this Act…” (Emphasis added) This language clearly anticipates
carveouts at law to the provision’s general application with respect to legal
proceedings against the state. This would necessarily include carveouts by the
Constitution itself.
25. Accordingly,
section 10 of the abovementioned Act cannot be interpreted to bar proceedings
concerning the official actions of state actors that are in violation of the
Constitution, even if the provision may be read to prohibit naming those
parties in ordinary civil actions. To the extent that the Attorney General’s
Application relies on such an interpretation, it is faulty.
(d)
The Cited Case of Kent Garment Factory v. The
Attorney General and Others (1991) 46 WIR 177 Has
No Application to This Case
26. As
noted above, the Attorney General relies on the Guyana Court of Appeal case Kent
Garment Factory v. The Attorney General and Others (1991) 46 WIR 177 to
support the assertion that His Excellency may not be named as a respondent in
his official capacity. In particular, the Attorney General relies on the
statements in that case that “the Minister could not be sued in his official
capacity” and subsequently, “I do not propose to dilate on these submissions
except to say that I fully agree with them.”
27. In
the facts of Kent Garment Factory, garment manufacturers were refused an
import license and subsequently brought an application naming the Minister of
Trade and Tourism as well as the Attorney General as respondents. They sought a
declaration that the said refusal by the Minister in question was arbitrary and
unlawful and an order compelling the competent authority to extend the
manufacturers’ license. The application was dismissed.
28. The
passage cited from Kent Garment Factory in the Attorney General’s
Application is clearly obiter dicta and had no bearing on the holding of
that case. Furthermore, no provision in the Law of
Guyana was given in support of the assertion in this passage, nor any
support at law except for the century-old English cases of Raleigh v Goshen
[1898] 1 Ch 73 and Hosier Bros v Earl of Derby [1918] 2 K B 671.
29. Moreover, the Court stated immediately after the passage
quoted, “And further, a perusal of the affidavit in support of the motion
reveals that no complaint had been made against any action taken by him [the Minister]
personally.” This case, unlike Kent Garment Factory, involves a
challenge to the actual actions of the named party, namely His Excellency, in
his official capacity as President.
30. A
review of the Kent Garment Factory case reveals that it does not provide
authority to support the proposition that His Excellency may not be named as a
respondent in his official capacity in an application that challenges his own
official actions.
(e)
His Excellency is Not Above the
Law or Constitution
31. His
Excellency, notwithstanding his status as Head of State, is not above the
Constitution or the law. This much is a necessary corollary of the rule of law
and the fundamental principle of Constitutionalism.
32. Article
8 of the Constitution states:
8. This Constitution is the supreme law of Guyana and,
if any other law is inconsistent with it, that other law shall, to the extent
of the inconsistency, be void.
33. In
light of the Constitution’s status as the supreme law of Guyana, the power of
public litigants to seek recourse against the President for direct violations
of the Constitution has special importance for the rule of law. To the extent
that there is any ambiguity in the law regarding proceedings against the
President in his official and public capacity for alleged violations of the
Constitution, it is submitted that this Honourable Court should hold in favour
of allowing such proceedings as a necessary aspect of Constitutionalism.
34. Chief
Justice Roxane George emphasized the need for judicial authority to enforce the
Constitution as against the actions of the President in Zulfikar Mustapha v.
Attorney General, 2017-HC-DEM-CIV-FDA-1643 at pp. 13-14:
Importantly, though, not only is there an absence of an ouster clause in
this case, but any suggestion that, owing to the immunity of the President
under Article 182(1) of the Constitution, the actions of the President are
beyond the reach of judicial direction has been answered in the negative in Gaskin
relying on the authorities cited therein. Support for this position was
garnered from the Privy Council in The Attorney General v Dumas TT 2017
PC 4. Also, in The Attorney General et al v Joseph and Boyce [2006] CCJ
3 (AJ) (paras 20-21), Justice Wit, stated that “[t]he multi-layered concept of
the rule of law establishes, first and foremost, that no person, not even the
Queen or her Governor-General, is above the law.” Then His Honour while
referring to the Barbados Privy Council which determines the prerogative of
mercy in death penalty cases made observations that can be considered to be of
general application. His Honour noted that however eminent the members of that
body may be, their executive functions are discharged under the Constitution
and therefore cannot go unchecked by the courts. Justice Wit further stated
that “[b]oth the executive acceptance of judicial scrutiny and judicial respect
for executive discretion are required under the rule of law and flow from the
separation of powers.
35. Accordingly,
it is open to this Honourable Court to issue orders binding on His Excellency
including declarations with respect to the actions of His Excellency in his
official capacity, as sought in the Fixed Date Application. This is true
whether or not His Excellency may be named as a party.
IV.
Hearing of This Application
36. The
Attorney General’s Application includes the proposal that the said Application
be heard in writing. The Commission agrees that the discrete issue articulated
in the Attorney General’s Application should be heard in writing and does not
require an oral hearing.
37. Further,
the Commission humbly asks that this Honourable Court hear the Attorney
General’s Application in writing in advance of the hearing date for the Fixed
Date Application scheduled for Wednesday, August 4, 2021 at 11:00 a.m. due to
the extremely time-sensitive nature of the said Fixed Date Application. As
stated in the Fixed Date Application, the term of the current members of the
Commission concludes August 9, 2021, which date is rapidly approaching.
V.
Conclusion
38. It
is submitted that His Excellency has been appropriately named as a party in his
official and public capacity in the Fixed Date Application and that such naming
is not prohibited by any provision of statute or the Constitution or any other
rule or principle of the Laws of Guyana.
39. In light of the above, the Commission humbly asks that this Honourable Court dismiss the Attorney General’s Application and proceed to consider the merits of the Fixed Date Application against all of the
[1] The citation given in the Attorney General’s Application is 41 WIR 177. This appears
to be incorrect.
