Thursday, July 29, 2021

PSC V SECRETARY OF THE PSC ET AL, APPLICANT’S REPLY TO THE NOTICE OF APPLICATION OF THE ATTORNEY GENERAL TO STRIKE OUT THE THIRD NAMED RESPONDENT

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:

THE POLICE SERVICE COMMISSION

                                    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.

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