Monday, August 30, 2021

Text of Police Service Commission Legal Arguments on Attorney General of Guyana Application to Strike Out the President as Respondent – Hearing before Justice Gino Persaud

Oral Argument

Delivered by Selwyn A. Pieters, B.A., LL.B., L.E.C.

Attorney-at-Law

 

RE: Guyana 2021-HC-DEM-CIV-FDA-1004 – Attorney General’s Application to Strike Out the President as Respondent – Hearing before Justice Gino Persaud, August 30, 2021

 

Introduction

·         Good afternoon, Your Honour.

·         It is the position of the Police Service Commission that His Excellency the President of the Cooperative Republic of Guyana is indeed a proper and appropriate party in these proceedings, being named in his official capacity in that office.

o   For the reasons set out in our Reply submission filed July 29, 2021, and these oral arguments which are being delivered today, we humbly ask the Court to dismiss the Attorney General’s application and proceed to consider the merits of the Fixed Date Application against all of the named Respondents, including His Excellency the President.

 

1. Why We Named His Excellency as a Respondent

·         I would like to begin by simply explaining why we chose to name His Excellency the President as a party to these proceedings.

·         In the Fixed Date Application, we seek a number of orders to remedy what we submit is the unlawful suspension of the members of the Commission by His Excellency on June 15/16, 2021, as well as the actions of the Secretary to the Commission and the Commissioner of Police following the said unconstitutional and unlawful suspensions.

o   The first of these orders sought, listed as letter (a) on the first page of the Fixed Date Application, directly concerns the actions of His Excellency on June 15/16, 2021 in sending the letters that contained the purported suspensions.

§  As we assert, His Excellency`s letters did not abide by the requirements of Articles 225(6) and 210(3) of the Constitution, and were therefore ultra vires and of no force or effect, and we have asked for a declaration to this effect.

·         This declaration sought is the reason that we decided to name His Excellency as a respondent.

o   It was, after all, His Excellency and His Excellency alone who ordered the said suspensions, under a power vested in him through Article 210(3) of the Constitution.

o   We submit, of course, that His Excellency did so in a manner that contravened the Constitution.

o   But in any event, there is no question that this was an action of the President in his official capacity, as indeed the Attorney General’s submissions themselves appear to acknowledge at paragraph 11.

·         So, in short, because the Fixed Date Application specifically impugns an official action by His Excellency the President, and because we seek a declaration that directly concerns the said Action, we respectfully submit it is appropriate to name His Excellency the President as a Respondent, alongside the four other named Respondents.

·         Your Honour, we also acknowledge that the naming of His Excellency as a party in these proceedings is somewhat unusual.

o   However, we submit that this fact simply reflects the unusual and unprecedented nature of this case and of the actions which we allege His Excellency and His Excellency’s government have taken against the Commission: unconstitutional, undemocratic and violation of the independence and automy of this Constitutional Service Commission

o   Simply because there is no exact precedent for this case does not mean that naming His Excellency is impermissible at law.

 

2. His Excellency is Named in His Official, Not Personal, Capacity

·         Your Honour, as we have indicated in our written submissions, the crucial legal point is that the Fixed Date Application names His Excellency in his official capacity, not his personal capacity.

o   The named party is “His Excellency the President of the Cooperative Republic of Guyana,” not “Dr. Mohamed Irfaan Ali.”

·         This is an absolutely crucial distinction to make because Article 182(1) of the Constitution, relied on by the Attorney General, prohibits only those proceedings “against him or her [the President] in his or her personal capacity.”

o   This would appear not to include his official and public capacity.

o   The drafters of the Constitution chose to include the words “in his or her personal capacity”, and respectfully, we submit that they did so because those words mean something.

o   In other words, we submit that it would be an error to assume that, really, the drafters meant to say, “no proceedings should be instituted against him or her FULL STOP.”

·         To illustrate this distinction in our written submissions, we have given the example of an applicant in a British Commonwealth country naming Her Majesty the Queen as a respondent to impugn official government conduct.

o   I appreciate that there is some difference between the Queen as a symbolic head of state who does not herself engage in any acts of government, and naming a President who does participate in government.

o   Nonetheless, we submit that, at the procedural level of naming the party, what we have done is analogous to naming Her Majesty the Queen in Right of Canada or Ontario or another government entity. Nothing in law prohibits the naming of a HEAD OF STATE in his or her Capacity under the Constitution of Guyana.

 

3. The Role of the Attorney General Does Not Preclude Naming His Excellency

·         The next point I would like to make is that, while the Attorney General is the legal representatives of the Government of Guyana, and is a necessary and appropriate party to these proceedings,

o   the said role of the Attorney General does NOT preclude the naming of His Excellency the President.

·         The Attorney General’s role in these proceedings is set out in:

o   Article 112 of the Constitution (which names him as the “principal legal advisor to the Government of Guyana”);

o   Section 10 of the State Liability and Proceedings Act (which establishes that any claim against the state must be brought against the Attorney General); and

o   Rule 56.01(3) of the Civil Procedure Rules of 2016 (which requires service on the Attorney General where a Constitutional claim is made).

·         A review of these proceedings reveals that none of the law cited prohibits or precludes the naming of His Excellency as a party in his official capacity. 

o   To claim that it does goes against the plain meaning of these provisions.

 

4. Other Grounds From Our Written Submissions

·         Your Honour, I propose to address the remaining grounds set out in our written submissions only briefly before I move on to make some remarks about My Friend’s submissions.

·         First, we have submitted that, even if it is true that the State Liability and Proceedings Act can be interpreted in the broad way that the Attorney General has done, that statute cannot preclude any application grounded in the Constitution rather than in any statute or the common law, such as our Fixed Date Application.

o   This is a simple consequence of the fact that the Constitution is the supreme law of Guyana, and so cannot be constrained or undermined by a mere statute.

o   Therefore, it is submitted that His Excellency can be named notwithstanding the State Liability and Proceedings Act, whatever its application in other non-Constitutional cases.

·         Second, it cannot be emphasized too strongly that His Excellency the President is bound by the laws and Constitution of Guyana and is not above those laws or that Constitution. He is a servant of the Constitution and Subordinate to it. See, for example, articles 93 and 180.

o   No person is above the Constitution or the law, and this includes His Excellency, notwithstanding his status as Head of State.

o   His Excellency’s subjection to the Constitution is not something that exists only in theory.

o   Rather, individuals and organizations must be able to hold His Excellency accountable in a court, and the ability to name His Excellency as a party to proceedings, such as this one, is an important part of that system of accountability.

 

5. Responses to the Attorney General’s Submissions

·         Your Honour, I will now briefly address the submissions of My Friend the Attorney General in support of his application to strike His Excellency as a respondent.

·         My Friend begins by providing the history of presidential and Crown immunity.

o   In response to this, I will simply indicate that we are not in medieval England and we are not in colonial British Guiana.

o   We are in the Cooperative Republic of Guyana in 2021 and the applicable laws are those that we have on the books today.

o   Old doctrines such as the idea that “the king can do no wrong,” cited in My Friend’s submissions, have surely been rejected altogether by the people of Guyana who have determined, through our history and the drafting of our Constitution, that no person is above the law.

·         My Friend also refers to a number of cases from other jurisdictions such as Sri Lanka and India to support his interpretation of our Constitution.

o   To this, I will point out that these cases come from different countries with different constitutional orders, history, different traditions, foreign to our own,  and should not be followed as if they addressed the Constitution of Guyana.

o   For instance, the Indian Constitution at Article 361(1), referred to in the case of Rameshwar Prasad and Other v Union of India and Another[1] and quoted at paragraph 18 of my friend’s submissions, states that the President:

“shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties.”

§  No such provision or language exists in the Constitution of Guyana.

·         As far as the rationale for presidential immunity is concerned, addressed at paragraphs 32 – 39 of My Friend’s submissions, I will simply submit that there is no risk whatsoever that these proceedings will hinder His Excellency in fulfilling the lawful functions of his office, or constitute an undue distraction from that office simply because His Excellency is a named party.

o   The Attorney General in para 38 of his written submissions submits that “Article 182 (1) of the Guyana Constitution, like similarly worded provisions of the Commonwealth Constitutions, shares the essence and underlying spirit of these provisions, that is, to allow His Excellency, the President of the Cooperative Republic of Guyana, to perform the high functions of his office as Head of State, Head of Government and the Supreme Executive Authority and not to be distracted by being named in legal proceedings, either officially or personally.” Distraction is not a sufficient basis to support a claim that the President cannot be named as a party to this proceeding.  We note that the President who has unconstitutionally interfered in the independent process of the PSC, unconstitutionally suspended the PSC, has not explained how being named in this judicial process initiated as a result of his own unconstitutional conduct would significantly distract him from his ability to carry out the duties of the President. particularly, where, as here, he is represented by the MAGLA.[2] His Excellency has the very able representation of My Friend the Attorney General and these proceedings will not take up any more of His Excellency’s time if he is named than if he is not. Distraction does not implicate the Constitution. See, Trump v. Vance 591 U.S. ____ (2020)

·         With respect to the Guyanese cases relied on by My Friend, my submissions are as follows:

o   First, in the case of Baird v Public Service Commission and the Attorney General, it is clearly articulated in the very text quoted in My Friend’s submissions that the immunities under Article 182 of the Constitution “attach personally to the President”, making him “personally immune from the curial processes.”

§  There is no question that His Excellency enjoys immunity to civil actions in his personal capacity.

§  The question is whether this also implies a further immunity in his official, public capacity. We submit that it does not.

o   My Friend also places reliance on a short piece of obiter dicta from the 1991 Guyana case of Kent Garment Factory v The Attorney General and the Minister of Trade and Tourism.[3]

§  As we have outlined at paragraphs 26 – 30 of our Reply, that case concerned an entirely different fact situation involving, not the President, but the Minister of Trade and Tourism, and considered a challenge, not to any official conduct of that Minister, but to the refusal of an import license by an official in his ministry.

§  We submit therefore that Kent Garment Factory can be easily distinguished from the present case.

§  I reiterate, in any event, that it addressed the question of naming the said Minister only in passing and entirely by way of obiter dicta.

§  We therefore submit that Kent Garment Factory has no application to the present case.

o   Third and finally, My Friend relies on the 2019 case of DIPCON Engineering Services Limited v The Attorney General of Guyana and the President of the Cooperative Republic of Guyana.[4]

§  In that case, as in this one, the Applicant named “the President of the Cooperative Republic of Guyana” as a Respondent and, as My Friend has pointed out, the Court concluded that it could not do so.

§  Your Honour, our submission with respect to the DIPCON case is simply that it was not well-founded in law, and in particular that the Court in that case made the error of following several foreign judgements without acknowledging the differences between our Constitution and the Constitutions under which these foreign cases emerged.

§  Specifically, the Court relied almost entirely on cases from Uganda, Sri Lanka, India, and Botswana, with some further reference to the American jurisprudence.

§  However, the constitutions considered in each and every case clearly established that the president in question could not be named in his personal or official capacity, unlike the Constitution of Guyana.  

§  For instance, Article 98(4) of the Constitution of Uganda, quoted at paragraph 25 of DIPCON, says simply, “While holding office, the President shall not be liable to proceedings in any court.”

§  Similarly, the Sri Lankan Constitution, quoted at paragraph 30 of DIPCON, expressly provides immunity “in respect of anything done or omitted to be done by him either in his official or private capacity.”

§  As for the Indian Constitution, I have already explained that it, too, expressly provides immunity for the official conduct of the President, which Guyana’s Constitution does not.

§  Interestingly, the Court in DIPCON acknowledged that, for Botswana, Article 41 of that country’s Constitution allowed the President to be sued in his official capacity.

§  Your Honour, we acknowledge that the DIPCON case is perhaps alone in directly addressing the question of whether or not the President can be named as a respondent in this Court. But we say this decision is an outlier and should be followed by you.

§  So to reiterate, the lack of specific mention of official capacity means that this is possible and our authority is the Constitutional provision that prohibits suing in the private name or capacity of His Excellency. To be clear, what the constitution does not prohibit cannot be said to be prohibited by common law or case law from other jurisdictions.

§  We submit that that the DIPCON case was not correctly decided and that this honourable Court should decline to follow DIPCON to the extent that it indicates a president cannot be named in his official capacity.

 

Conclusion

·         In closing, Your Honour, the Police Service Commission maintains that His Excellency the President has been properly named as a respondent in his official, public capacity as President, given that the Fixed Date Application directly challenges an official action by the President in that office.

o   Nothing in Guyana’s Constitution, or in the State Liability and Proceedings Act, or in any other statute or regulation in Guyana, and nothing in the history of presidential immunity or the jurisprudence of any other country, precludes the Police Service Commission’s naming of His Excellency the President in his official capacity in this Fixed Date Application.

o   The Police Service Commission submits that the Attorney General’s interpretation of the law runs

§  contrary to the plain meaning of the Constitution and the statutes relied on,

§  contrary to the spirit and purpose of presidential powers, privileges and immunity,

§  and contrary to the supremacy of the Constitution of the Cooperative Republic of Guyana.

o   We therefore humbly ask the court to dismiss the Attorney General’s application to strike His Excellency as a party.

·         Thank you, Your Honour. Subject to any questions from the Court, those are our submissions.

 



[1] [2006] INSC 35 (24 January 2006).

[2] In any event, as alluded to in our submissions on the show cause hearing, Article 93 of the Constitution provides as well that he can be impeached! If there is any distraction, that distraction is from his own unconstitutional action that may well trigger impeachment. But that is not an issue for the Court, it is for the legislature.

[3] (1991) 46 WIR 177.

[4] 2019-HC-DEM-CIV-FDA-1148.


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