A blog that is organized around the lawyering experience of Criminal and Human Rights Lawyer Selwyn Pieters and things that interest him!!!!!
Tuesday, December 20, 2022
Friday, December 02, 2022
Summary of the December 2, 2022 Rulings in Police Service Commission and Paul Slowe v. The Secretary of the Police Service Commission et al 2021-HC-DEM-CIV-FDA1004
By Selwyn A. Pieters B.A., LL.B., L.E.C.
Lawyer & Notary Public (Ontario, Canada)Attorney-at-Law (Republic of Guyana, Island of Trinidad)
Pieters Law Office
Police Service Commission and Paul Slowe v. The Secretary of the Police Service Commission et al 2021-HC-DEM-CIV-FDA1004
Georgetown, Guyana – December 2, 2022 - The Honourable Mister Justice Gino Persaud delivered an oral judgement via zoom videoconference on December 02, 2022 at 1:15 PM at the Demerara High Court in Guyana in the matter PSC and Paul Slowe v. The Secretary of PSC et al 2021-HC-DEM-CIV-FDA1004 in relation to two interlocutory applications brought by The Attorney General of Guyana, Commissioner of Police, and the Honourable Prime Minister as well as the Police Service Commission.
Mr. Paul Slowe was represented by Selwyn
Pieters, Dexter Todd and Dexter Smartt.
The Attorney General was represented by
Solicitor General Nigel Hawke, Shoshanna Lall, Chevy Devonish, R. Clarke and
Arti Outar.
The PSC was also represented by a lawyer
standing in for Darshan Ramdhani, K.C.
On July 5, 2022, The PSC Attorney, Darshan
Ramdhani, K.C., filed an application seeking permission for the application to
be wholly discontinued and for the Commission to withdraw the matter. The
matter then came back before the Court on July 11, 14, 22, August 24, and
September 20, 2022.
Attorney General and Minister of Legal
Affairs Mohabir Anil Nandlall, S.C., M.P., at the September 20, 2022 hearing
made an oral application for a stay of the proceedings pending the outcome of
an appeal filed on the Chief Justice’s ruling in Aubrey Norton v. Attorney
General of Guyana et al. 2022-HC-DEM-CIV-FDA-902, which held that the
Police Service Commission was not properly constituted.
Justice Persaud commenced his ruling on
December 2, 2022 by discussing the purpose of judicial review repeating
paragraphs 12-15 of his March 9, 2022 ruling:
No Lis between the parties to a claim for
judicial review
12. In
Trinidad, the C.A. in the matter of Dr. Myron Wing-Sang Chin, Farrell
(in their capacities as the Commissioners of the COI into the construction of
the Las Alturas Towers) v Noel Garcia, AG (CA# P-342/2017) delivered
on 16 January, 2019 reaffirmed the existing principle of public law that there
is no “lis” between the parties to a claim for judicial review.
Justice of Appeal Mendonca at para. 14 stated:
It is correct
to say that in judicial review proceedings there is no lis between
the parties. Judicial review proceedings are directed at the decision and not
the parties. As was said in Gilharry v. Transport Board et
al BZ 2012 CA 10, “what is vulnerable [in judicial review
proceedings] is the decision and not the decision maker” it is the “process by
which the courts exercise a supervisory jurisdiction over the activities of
public authorities in the field of public law”.
13. In the
case of R v Stratford-on-Avon District Council and another, ex parte
Jackson - [1985] 3 All ER 769 it was held that,
In judicial
review proceedings there is no true lis inter partes or suit by one
person against another: see R v Secretary of State, ex p Hackney London
BC
14. In the
case of R v Secretary of State for the Environment, ex parte
Hackney London Borough Council and another - [1983] 3 All ER 358 it was
stated at page 367 that,
Moreover, we
do not think that there is in judicial review proceedings any true lis between
the parties…
…the court
“is not finally determining the validity of the tribunal's order as between the
parties themselves” but “is merely deciding whether there has been a
plain excess of jurisdiction or not”. They are a special class of
remedies designed to maintain due order in the legal system, nominally at the
suit of the Crown, and they may well fall outside the ambit of the ordinary
doctrine of res judicata.
15. In the
case of Chief Constable of North Wales Police v Evans [1982] 3
All E.R. 141 at p. 143 per Lord Halsham stated.
The remedy by way of judicial review is directed at the decision-making
process itself rather than at the parties who made it. Its purpose “is to protect the individual against an abuse of
power by a wide range of authorities, judicial, quasi-judicial, and
administrative to ensure (he) is given fair treatment by the authority, to
which he has been subjected …”
Justice Persaud in his ruling said the two
applications has stymied the hearing of the substantive matter filed by Mr.
Slowe and there has been one application after another since the matter was
filed in the Court and engaged his attention.
On the application for a stay until the
conclusion of the appeal in Aubrey Norton v. Attorney General was
resolved. Justice Persaud considered in detail the May 25, 2022 ruling of Justices
Priya Sewnarine-Beharry and Fidela Corbin-Lincoln, sitting in the Full Court in
Attorney General v. Police Service Commission and Paul Slowe
2022-HC-DEM-CIV-FCA- 18 which upheld his March 09, 2022 jurisdictional ruling
to strike out application and substituting Paul Slowe as a party. He read
paragraph 5 of that decision which held that:
[5] The effect of the term of the
appointed members of the Commission becoming vacant is simply that there are
currently no members to carry out its functions. This by itself is not a basis
to strike out the claim under CPR 14.01. Members can be appointed at any time
to continue to carry out the functions of the PSC. Upon their appointment those
members could determine whether to continue or discontinue the claim. Of course
a court would be entitled to take the continued non appointment of members to
the Commission as a basis to strike out the claim as an abuse of process as
this would delay the prosecution of the action.
Justice Persaud read paragraph 6 of the
Full Court’s decision: “We therefore agree with the learned trial judge’s
decision to refuse the application to strike.”
Justice Persaud thereafter read paras 7-8
of the Full Court decision:
[7] We do not find that the order as
framed by the learned judge had the effect of permitting a private citizen to
carry out the functions of the PSC - a constitutional body. It is clear from the
reasoning of the learned trial judge that he found that Mr. Slowe had an
interest in his own right and not that he was continuing the action on behalf
of the PSC.
[8] We fully agree with the learned trial
judge’s reasoning as to why Paul Slowe is an interested party and should be
added. However, we do not find that it was necessary to substitute Mr. Slowe in
place of the PSC which remains an existing constitutional body albeit unable to
properly function in the absence of appointed members. Based on the reasoning
of the learned trial judge Mr. Slowe should be added as a party in his own
right. Apart from the court’s power to hear from any person with a sufficient
interest in judicial review proceedings [CPR 56.04] the court has a general
power to add a party at any stage of the proceedings [CPR 19]. The addition of
an interested party saves time and costs.
Justice Persaud then went on to consider
the Chief Justice’s declarations and orders in Aubrey Norton v. Attorney
General of Guyana et al. at paragraph 116:
(2) It is hereby declared that in the
absence of the appointment of the Chairman of the Public Service Commission to
the Police Service Commission, subsequent to the expiration of the life and or
term of the appointment of the previous Police Service Commission, the said
Police Service Commission is not currently lawfully and duly constituted in accordance
with article 210 of the Constitution of Guyana.
(3) As
a consequence, it is hereby declared that unto June 29, 2022, the second
respondent could not have lawfully consulted with the other members of the
Police Service Commission on the appointment of an acting Commissioner of
Police in the absence of the appointment of the Chairman of the Public Service
Commission as a member of the Police Service Commission pursuant to article 210
(1) (b) of the Constitution of Guyana.
(6) It
is hereby declared that in order for the Police Service Commission to exercise
any of the powers, functions, and or duties conferred on it by the Constitution
of Guyana, it is a mandatory requirement that upon the constitution of the
Police Service Commission subsequent to the expiration of the life and or term
of the appointment of the previous Police Service Commission, that a Chairman
of the Public Service Commission be appointed and be made a member of the
Police Service Commission pursuant to article 210 (l)(b) of the Constitution of
Guyana.
(7) As
a consequence, for the avoidance of any unforeseen consequences of my decision
regarding my finding that there is a deficiency in the Police Service
Commission as currently constituted, it is hereby declared that any action of
the said Police Service Commission as currently constituted is validated
pursuant to the de facto doctrine.
Justice Persaud having considered the Full
Court ruling in 2022-HC-DEM-CIV-FCA- 18 and the Chief Justice’s ruling in
2022-HC-DEM-CIV-FDA-902 dismissed the application as an abuse of the process of
the Court, holding that “there can be no stay of a declaratory order, and I am
not prepared to stay the proceedings before me, pending the appeal of the Chief
Justice’s ruling, which will leave the proceedings before me in limbo, since
that appeal would take time to be heard and determine, and we have no
indication how long that would take.”
Justice Persaud went on to say that the Norton
appeal has no impact on Mr. Slowe’s right to have the lawfulness of his suspension
adjudicated upon: “This is also an access to justice issue for Mr. Slowe. How
long should he wait as a litigant, who is entitled to access to justice to have
the legality of his suspension ruled upon while the respondents file
interlocutory application upon interlocutory application delaying the
substantive issue.
On the Police Service Commission
application to wholly discontinue the matter, filed by Darshan Ramdhani, K.C.,
the Court held that “It is patently clear that the application cannot be sustained
since the Police Service Commission is not properly constituted and cannot
participate in these proceedings. The application to discontinue the Fixed Date
Application is refused.”
Justice Persaud repeated paragraph 5 of the
Judgment of the Full Court which upheld his earlier decision on standing of
Paul Slowe as a litigant in the proceedings independent of the Police Service
Commission.
Justice Persaud found that “There are no
reasonable grounds which would allow the Police Service Commission to withdraw
the Fixed Date Application. The Police Service Commission cannot withdraw Mr.
Slowe’s right to have the legality of his suspension challenged.”
In summation, Justice Persaud made the
following orders:
·
The oral application for
a stay of proceedings pending appeal on Aubrey Norton v AG is an abuse
of process and is hereby refused.
·
The Notice of Application
filed by Mr. Ramdhani, filed 5 July 2022, is without merit and is refused in
light of the Chief Justice’s decision in Aubrey Norton which held that
the PSC is not properly constituted.
The timetable for the progress of the
proceedings are as follows:
1. The
Attorney General is directed to file an Affidavit of Defence on behalf of The Attorney General of Guyana, Commissioner of Police, and the Honourable Prime Minister by no later than
December 16, 2022.
2. The
Applicant Paul Slowe is directed to file an Affidavit in Reply by not later than December
23, 2022.
3. Written
Submissions are to be filed no later than January 9, 2023.
4. The
Police Service Commission is not entitled to file an affidavit. However, they
may provide written submissions.
5. Oral
arguments will be heard on January 16, 2023.
END/
Thursday, September 15, 2022
The Attorney General v BK MARINE INC and Winston Jordan
By Selwyn A. Pieters B.A., LL.B., L.E.C.
Lawyer & Notary Public (Ontario, Canada)
Attorney-at-Law (Republic of Guyana, Island of Trinidad)
Pieters Law Office
Created September 15, 2022
The High Court recently dismissed a civil action by the Attorney General of Guyana Mohabir Anil Nandlall in 2021-HC-DEM-CIV-SOC-25 AG v. BK Marine and Jordan asserting the tort of misfeasance in public office or in the alternative breach of fiduciary duty. What is instructive in this case is Justice Brassington Reynolds relied on the seminal U.K. case Three Rivers District Council v. Bank of England (No. 3), [2000] UKHL 33, [2000] 2 WLR 1220, [2000] 3 All ER 1. In that case Lord Steyn held that: "The rationale of the tort is that in a legal system based on the rule of law executive or administrative power 'may be exercised only for the public good' and not for ulterior and improper purposes." Three Rivers was adopted and applied by the Caribbean Court of Justice in Florencio Marin v The Attorney General of Belize, CV 5 of 2010, [2011] CCJ 9 (AJ).
The test to be met to establish this tort Justice Reynolds found are as follows:
[16] The elements of the tort as adumbrated in Three Rivers supra and cited in Florencio Marin v The Attorney General of Belize, are as follows:
(i) The Defendant must be a public officer;
(ii) There must be the exercise of power as a public officer;
(iii) The Public Officer must either have acted out of malice i.e., specifically intending to injure a person or persons (“targeted malice”); or acted knowing that he had no power to do the act complained of and that the act would probably cause injury to the plaintiff (“untargeted malice”);
(iv) Any Plaintiff with a sufficient interest to found a legal standing to sue was competent to bring the action;
(v) The plaintiff must prove that his loss was caused by the abuse of power; and
(vi) The damage must not be too remote.
In applying the test to this case Justice Reynolds found that:
[23] Having regard to the above elements of the tort and the principles formulated in various case law, this Court is not of the considered view that the Claimant made out a case of misfeasance in public office. The Court found favour with Counsel for the Second Named Defendant’s contention that the instant case can be distinguished from Florencio Marin v The Attorney General of Belize. It is the court’s respectful finding that the Marin case is clearly distinguishable from the case at bar, as the subject properties for reasons to be later adduced are clearly not state property within the meaning of the authorities; any property in the state lying properly in its ‘shares’ in the fourth-named defendant company.
[24] The Claimant in this instant action has also failed to plead or prove that the Second Named Defendant has accrued any personal benefit from the alleged sale of the land and that he had acted in bad faith or had a dishonest motive. No sufficient circumstances have been pleaded or brought to the attention of the court on the evidence which can ground a finding to the extent required of misfeasance in public office. The threshold of sufficiency has not been achieved by the Claimant to ground a finding of misfeasance in public office on the authorities. It is not sufficient for the claimant to allude to or to invite the court to infer that the parties have acted in bad faith or with any dishonest motive, even more so in the absence of any true comparator as to the value of the subject property; the court being itself unable to substitute or ascribe any valuation of its own motion.
The Judge went further to find that "the claim constitutes an abuse of the Court’s process and cannot be allowed to stand."
The Court then Ordered "the Claim instituted by the Attorney General on the 8th day of February 2021 be struck out with costs to the first-named and second-named defendants in the sum of two (2) million ($2,000,000.00) dollars each."
The Attorney General of Guyana appeared in person to prosecute this claim against the former Minister of Finance Winston Jordan and was all over the media speaking about the case. His Honour however did not found that "the claim by the Attorney General to have been politically motivated or actuated by bad faith, vindictiveness, and spite..."
This decision by Justice Reynold was sound judicial reasoning about a hopeless case that was bound to fail and should not have been instituted in the first place.
However, my expectation is the State will appeal all the way to the CCJ.
Friday, September 02, 2022
Constitutional Law Cases engaging the Courts in Guyana 2022
By Selwyn A. Pieters B.A., LL.B., L.E.C.
Lawyer & Notary Public (Ontario, Canada)
Attorney-at-Law (Republic of Guyana, Island of Trinidad)
Pieters Law Office
Created September 01, 2022
These are some recent cases in which I am involved as co-counsel in Guyana:
2022-HC-DEM-CIV-FDA-469 Chris Jones and Norris Witter v. Attorney General of Guyana et al. This case concerns the Sitting of the National Assembly on December 29th, 2021, the conduct of the session including the absence of the Mace and the failure to consider a petition by 64 civic minded citizens. Mr. Witter and 63 other citizens had submitted through a Member of Parliament a Petition in which it sought a pause on any debate on the Natural Resource Fund Act (Bill) in order that the Government fully engage with both the Opposition and Civil Society. That the Petition also sought a pause on any debate in order to provide an opportunity for the proposed amendments be made available to the citizens. This Bill was not put before a Special Select Committee. Parliament erupted in chaos as Government Members and some Opposition Members in engaged boisterous and loud shouting at each other across the well of the National Assembly. The Natural Resource Fund Act 2021 was passed in the absence of the Mace. The Natural Resources Bill assented to by the President on December 30th, 2021. Jones and Witter are seeking:
1.
g) A Declaration that in accordance with Article 154A of the Constitution which mandates that Human Rights enshrined in International Conventions set out in the Fourth Schedule to the Constitution shall be respected and upheld by the Executive, consequently the Executive in designing and formulating a Natural Resource Fund policy for Guyana is required and obligated by the Constitution and Covenant on Civil and Political Rights to engage in consultation with the Stakeholders and Citizenry of Guyana.
A trial is scheduled for September 12, 2022.
i.
leave to the No. 1 Respondent
to file a NOA to strike out the Fixed Date Application (FDA) on or before the 29th
August 2022
ii.
leave to the No. 2 Respondent
to file an NOA to strike out the No. 2 Respondent from the proceedings on or
before the 29th August 2022
iii.
leave to Applicants to file
Affidavit in Answer to NOAs from No 1 and 2 on or before the 19th September
2022
iv.
Respondents to file Affidavits
in Answer to the Notice (NOA) of Application for Conservatory Orders on or
before the 19th September 2022
v.
Applicants to file their
Affidavits in Reply, if necessary on or before the 3rd October 2022;
vi.
No. 1 and No. 2 Respondent to
file Affidavit in Reply if necessary, on or before the 3rd October 2022
vii.
written submissions on all four
NOA’s to be filed and exchanged on or before the 12th October 2022;
viii.
matter fixed for the 1st
November 2022 at 9:30 hrs. for oral arguments on all four NOA’s.
Thursday, July 14, 2022
Full Court denied Leave to Appeal to the Court of Appeal in the Police Service Commission matter
By Selwyn A. Pieters B.A., LL.B., L.E.C.
Lawyer & Notary Public (Ontario, Canada)Attorney-at-Law (Republic of Guyana, Island of Trinidad)
Pieters Law Office
Created July 14, 2022
Georgetown, Guyana – July 15, 2022 - The Full Court of the
Supreme Court of the Judicature today (Honourable Madame Justice Priya
Sewnarine-Beharry and The Honourable Madame Justice Fidela Corbin-Lincoln) denied
leave to appeal to the Attorney General of Guyana, Commissioner of Police, and
the Honourable Prime Minister in a case involving adding Paul Slowe as a party
to the Police Service Commission case involving the unconstitutional suspension
of the Chairman Paul Slowe and Commissioners by His Excellency Mohamed Irfaan
Ali and the failure to government of Guyana to recognize the promotion of 132
senior police officers from Inspector to Assistant Commissioner made by the
said Commission.
Justice Gino Persaud initial substituted Mr. Slowe in the
stead of the Police Service Commission. After determining that the issues
raised in this case are matters of public interest, he determined that he would
not strike out the claim as urged by the Attorney General Mohabir Anil Nandlall
. He then substituted Mr. Paul Slowe as the Applicant and ordered rubric shall
be amended accordingly.
The Attorney General then appealed to the Full Court. The
Full Court found that there was no basis to strike out the proceedings. It also
found that Mr. Slowe, who appointment is alleged to have been wrongfully
terminated had an interest in the matter and should be a party to the
proceedings. The Court then added Mr. Paul Slowe as a party. It reasoned in a
decision of May 25, 2022 that “We fully agree with the learned trial judge’s
reasoning as to why Paul Slowe is an interested party and should be added.
However, we do not find that it was necessary to substitute Mr. Slowe in place
of the PSC which remains an existing constitutional body albeit unable to
properly function in the absence of appointed members. Based on the reasoning
of the learned trial judge Mr. Slowe should be added as a party in his own
right. Apart from the court’s power to hear from any person with a sufficient
interest in judicial review proceedings [CPR 56.04] the court has a general
power to add a party at any stage of the proceedings [CPR 19]. The addition of
an interested party saves time and costs.”
The Attorney General subsequently filed an application for
leave to appeal to the Court of Appeal on July 06, 2022 submitting that “this
matter is a public interest litigation and is of high public and constitutional
importance.” In that Application the Attorney General claimed that “The addition
of Paul Slowe as an Applicant in these proceedings has serious ramifications
not only for the determination of the substantive matter herein, but as well,
for the filed and pending interlocutory applications in this matter, including
the Urgent Notice of Application for Injunctive Relief against the Police
Service Commission… and the Notice of Discontinuance filed on behalf of the
police Service Commission.”
The Full Court rejected the submissions that the addition of
Paul Slowe as a party to the litigation, in which he has an interest, raises
matters of public importance and significance such that leave to appeal should
be granted.
The Court ruled today (July 14, 2022) that it has “the right and a discretion to add any party to a proceeding whether by an application or of its own motion. That is not an issue that in the Court’s view raises any serious issues of law. This area of law of the Court deciding to add a party, an interesting party, is not an area of law in dispute nor does it raise any issue any of great public import in terms of the adding Mr. Slowe as a party. Having regard to those facts and having regard to the entirety of this Court’s decision, we are not of the view that the application of the Attorney General’s Chambers to appeal or for leave to appeal, we are not of the view that the grounds of appeal really raise any grounds that are of merit and therefore we would refuse leave to appeal and the application for a stay.” Costs was awarded of $75,000.00 to Mr. Slowe to be paid by July 29, 2022.
Mr. Paul Slowe was represented by Selwyn Pieters, Dexter
Todd and Dexter Smartt
The Attorney General was represented by Mohabir Anil Nandlall, Solicitor General Nigel Hawke, Chevy Devonish, and Arti Outar
Thursday, April 21, 2022
Legal Opinion on Appointment of the Acting Commissioner of Police, Clifton Hicken, in Guyana under the Common Law Doctrine of Necessity
By Selwyn A. Pieters B.A., LL.B., L.E.C.
Lawyer & Notary Public (Ontario, Canada)Attorney-at-Law (Republic of Guyana, Island of Trinidad)
Pieters Law Office
Created April 2022
1. I
am pleased to provide my opinion and overview of the issues of surrounding the
recent appointment of Mr. Clifton Hicken as acting Commissioner of Police by
His Excellency Mohamed Irfaan Ali, President of Guyana. My opinion letter is
divided into five categories:
I. Assumptions and Qualifications
II. Relevant Facts
III. Issues and The Law
IV. Conclusions
V. Recommendations and Comments.
ASSUMPTIONS
AND QUALIFICATIONS
2. I
have been asked to advise on whether the President of
Guyana can appoint an Acting Commissioner of Police (COP) using the common law
doctrine of “Necessity” in the absence of abiding by the law stated under the
Constitution,[1]
a sitting Leader of the Opposition and in the absence of a constitutionally
appointed Police Service Commission.
3. In
rendering my opinion, I have assumed the
following:
i. the
genuineness of all signatures, the authenticity of all documents submitted to
us (whether originals or copies), and the conformity to original documents of
all documents submitted to us as copies, whether facsimile, photostatic,
certified or otherwise.
ii. the
accuracy, completeness and truthfulness of all statements, allegations,
recollections and interpretations contained in all submitted material.
4. After
considering documents and the facts provided, the relevant statutes and case
law, my advice is as follows:
i)
The common law doctrine
of necessity was not available in the circumstances.
ii) Articles 211(1) and/or 211(2) of the Constitution was in fact breached as the processes under it were disregarded to allow for an improper appointment.
CONCLUSION
59. The factual context including the social, political and legal context had significant bearing on the conclusion I have reached in this matter.
60. The President of Guyana cannot rely on the Doctrine of Necessity as case law has supported protection and preservation of a country’s Constitution. While the Constitution of Guyana is silent as to the processes to undertake in the absence of constitutional office holders imperative to such an appointment process contemplated in Article 211 of the Constitution, the evidence reveals that the President had no interest in consulting with the Leader of the Official Opposition whilst one was in place between August 2020 and January 2022 and his unconstitutional actions in suspending the Police Service Commission as autocratic, therefore the resort to the doctrine of Necessity in making this appointment, in the absence of a functioning Police Service Commission and the vacancy of the Leader of the Opposition, was opportunistic, ill-advised, in bad faith and not captured by circumstances that would support the invocation and use of the doctrine of necessity to make the appointment of acting Commissioner of Police.
RECCOMMENDATIONS AND COMMENTS
61. The appointment is manifestly ultra vires Article 211 (2) of the Constitution, unlawful, illegal, premature and of no legal force, import or effect. Given the unconstitutional appointment has been made, in the absence of a resignation, it is for a Court of competent jurisdiction to adjudicate. An application in the nature of judicial review would be recommended in the circumstances.
62. These matters as past history would dictate are complex, time—consuming, expensive and uncertain.
Thursday, March 10, 2022
The Police Service Commission v. Secretary, Police Commission (1004/2021-FDA - jurisdictional ruling to strike out application
The Police Service Commission v. Secretary, Police Commission (1004/2021-FDA
[Before The Honourable Mr. Justice Gino Persaaud
Appearances:
Chevy Devonish for the 2nd to 5th named Respondents
Selwyn Pieters, Dexter Todd and Dexter Smartt for the Police Service Commission
Dated: March 09, 2022]
THIS IS AN ORAL
RULING CONTAINING A SUMMARY OF THE REASONS FOR MY DECISION. A FULL JUDGMENT
WILL BE DELIVERED TO THE PARTIES SUBSEQUENTLY
1. Before I delve
into the ruling proper, it is appropriate at this stage to remind everyone that
this is not a ruling on the merits of the substantive case challenging the
legality of the suspension of members of the PSC by His Excellency, the
President. This is a ruling on a second interlocutory application by the AG to
strike out the substantive case on the ground that after it was filed, the
three-year term of the Commissioners came to an end on 8 August, 2021 and
consequently the named Applicant cited in the rubric of these proceedings – the
Police Service Commission – cannot continue the litigation. In other words, it
was contended that the litigation is automatically at an end because the term
of office of the suspended Commissioners is also at an end.
2. I wish to say
from the outset that the suspended Commissioners were not properly advised to
institute these proceedings on 16 July, 2021 in the name of the Police Service
Commission given the fact that they were suspended and they were also obviously
aware that the end of their three-year term was imminent. They should have
filed as individuals stating their capacities albeit a suspended one. The issue
of whether this was fatal or not will be addressed later.
ISSUES
a. Whether the
suspended commissioners have an interest in the matter which survives the
duration of their three-year term which is at an end.
- The
public interest issue - whether in the public interest the substantive
issue of the legality of the suspension of the commissioners should be
heard and determined on its merits being a matter of public interest. Does
it “cry out for judicial imprimatur”? Or does it remain perpetually
suspended like the suspended Commissioners – a sword of Damocles - never
to be adjudicated upon simply because of the inescapable fact that the
life of the Commissioners came to an end after filing these
proceedings.
- Whether
the former Chairman, Paul Slowe who swore the Affidavit in Support of the
FDA has a sufficient interest and the locus standi to continue the
proceedings and be substituted as the Applicant in the place and stead of
the Police Service Commission.
Factual
Background:
3. On the 15th September,2021,
the Applicant /Fifth Named Respondent filed a Notice of Application with
supporting affidavit seeking “An Order to strike out Fixed Date Application
2021-HC-DEM-CIV-FDA-1004” on the following grounds:
i. The Police Service Commission, being vacant cannot lawfully continue to
maintain the legal proceedings filed herein; and
ii. The Attorneys- at - law for the Respondent /Applicant have no
authority in law to continue to pursue the Fixed Date Application herein.
4. The Applicant
avers that it is not disputed that on the 8th August,2021 the office of each
appointed member of the Police Service Commission, that commenced the legal
proceedings herein, became vacant as they were each appointed by Instrument of
Appointment on the 9th August,2018.
5. The Police
Service Commission has not yet been constituted.
6. Counsel for
the Applicant cited several cases in support of its contention that the Police
Service Commission, being vacant, cannot lawfully continue to maintain the
legal proceedings filed herein: Banque Internationale De Commerce De
Petrograd v. Goukassow [1923] 2 K.B. 682; Elijah Sikona &
George Pariken Narok on Behalf of Trusted Society of Human Rights Alliance v.
Mara Conservatory & 5 others [2014] Eklr; Civil Case No.37
of 2013; Fort Hall Bakery Supply Company v. Frederick Muigai Wangoe
(1959) EA 474.
Respondent’s
Submissions
7. The
Respondent contends that this is a challenge by way of judicial review by the
Chairman and Members of the Police Service Commission on the issue of whether
the decision of the President to suspend them was unlawful and unconstitutional.
8. The
Respondent submits that the legal proceedings were instituted by the Police
Service Commission during the tenure of the Commission.
9. Counsel for
the Respondent cited the case of Rajendra Jaigobin v. Attorney
General of Guyana 2017-HC-DEM-CIV-FDA-1177 where Jaigobin
instituted a matter in the court with the AG as Respondent but before the
completion of the matter, the life of the Commission expired. In that case,
Chief Justice Roxane George (ag) in considering whether to strike out the matter
on academic interest stated at paragraph 2 of her decision that:
“However, I am
of the view and hold that the issue before me is not merely academic because
the life of the Commission has ended. It is an issue that cries out for
judicial imprimatur because of the serious implications if a ruling is not
made. It is a case, to my mind, that involves an important issue in public law
that has arisen before, and which could arise again. It has to be clarified
whether or not a letter of this nature in this case, is within the bounds of
the Constitution and therefore lawful. Precedent for the future must be
established.”
However, in that
case the Commission was not a party to the proceedings so the issue of whether
the life of the Commission had ended was not germane to the issues at hand.
10. The
Respondent submits that the termination of these legal proceedings will result
in Constitutional Matters of public interest being left unaddressed and create
room for Constitutional violations by the Executive arm of Government.
Reference was made to the case of McEwan et al v. The Attorney
General of Guyana [2018] CCJ 30 (AJ), (2019) 94 WIR 332, where
President of the Caribbean Court of Justice, Mr. Justice Adrian Saunders
stated:
“In
constitutional proceedings, courts should adopt a liberal approach in affording
standing to individuals and entities. It is in the public’s interest to ensure
that the Constitution is properly interpreted and applied and the rule of law
is vindicated.”
Analysis – Lis and substitution of party
11. When this case was argued, I specifically requested the Attorneys on
both sides to look for case law in which a constitutional body or a statutory
body had commenced judicial review proceedings and its life subsequently came
to an end during the hearing of the matter. Unfortunately, both sides indicated
they were unable to find any such cases. This makes it a novel point which has
not probably been adjudicated upon in Guyana.
In considering this issue I have found assistance from the following
cases.
No Lis between the parties to a
claim for judicial review
12. In Trinidad, the C.A. in the matter of Dr. Myron Wing-Sang
Chin, Farrell (in their capacities as the Commissioners of the COI into the
construction of the Las Alturas Towers) v Noel Garcia, AG (CA# P-342/2017) delivered
on 16 January, 2019 reaffirmed the existing principle of public law that there
is no “lis” between the parties to a claim for judicial
review. Justice of Appeal Mendonca at para. 14 stated:
It is correct to say that in judicial review proceedings there is
no lis between the parties. Judicial review proceedings
are directed at the decision and not the
parties. As was said in Gilharry v. Transport Board et al BZ
2012 CA 10, “what is vulnerable [in judicial review proceedings] is the
decision and not the decision maker” it is the “process by which the courts
exercise a supervisory jurisdiction over the activities of public authorities
in the field of public law”.
13. In the case of R v Stratford-on-Avon District Council and
another, ex parte Jackson - [1985] 3 All ER 769 it was held that,
In judicial review proceedings there is no true lis inter partes or suit
by one person against another: see R v Secretary of State, ex p Hackney London
BC
14. In the case of R v Secretary of State for the
Environment, ex parte Hackney London Borough Council and another - [1983] 3 All
ER 358 it was stated at page 367 that,
Moreover, we do not think that there is in judicial review proceedings any
true lis between the parties…
…the court “is not finally determining the validity of the tribunal's
order as between the parties themselves” but “is merely deciding whether there
has been a plain excess of jurisdiction or not”. They are a
special class of remedies designed to maintain due order in the legal system,
nominally at the suit of the Crown, and they may well fall outside the ambit of
the ordinary doctrine of res judicata.
15. In the case of Chief Constable of North Wales Police v Evans [1982]
3 All E.R. 141 at p. 143 per Lord Halsham stated.
The remedy by way of judicial review is directed at the decision-making
process itself rather than at the parties who made it. Its purpose “is to protect the individual against an abuse of
power by a wide range of authorities, judicial, quasi-judicial, and
administrative to ensure (he) is given fair treatment by the authority, to
which he has been subjected …”
CONCLUDING ANALYSIS
16. I find that the issues raised in this case are matters of public interest.
In light of the public interest and the authorities reviewed above which
establish that in judicial review proceedings there is no lis between
the parties and the fact that judicial review proceedings are directed at
the decision and not the parties I
am of the considered view that the substantive issue of the legality of the
suspension of the commissioners should be heard and determined on its merits
being a matter of public interest. Judicial review is also concerned
with deciding whether there has been a plain excess of
jurisdiction or not – whether a decision is lawful or not,
whether a decision is ultra vires or not. This cannot be automatically
dissolved or whittled away with the end of the tenure of the Commissioners.
17. To hold otherwise would be to leave the legality of the suspension
hanging - never to be adjudicated upon simply because of the inescapable
fact that the life of the Commissioners came to an end after filing these
proceedings. This does not seem to me either logical or fair but rather an
affront to fairness, natural justice, access to justice and indeed the rule of
law. Justice of Appeal Mendonca in the Trinidad COI case cited above
correctly relied on Gilharry v. Transport Board et al BZ 2012 CA 10,“what
is vulnerable [in judicial review proceedings] is the decision and not the
decision maker” it is the “process by which the courts exercise a supervisory
jurisdiction over the activities of public authorities in the field of public
law”.
18. A hearing
and determination would serve to bring clarity to the role of the Executive in
such instances and ensure that the constitutionally-granted autonomy of the PSC
remains protected. In the words of the Honourable Chief Justice Roxane George
in Rajendra Jaigobin supra, where she states at
paragraph 2 of the decision: “...It is an issue that cries out for judicial
imprimatur because of the serious implications if a ruling is not made...”
Substitution of party
19. I now turn to the issue of whether the former Chairman, Paul Slowe
who swore the Affidavit in Support of the FDA has a sufficient interest and
locus standi to continue the proceedings and be substituted as the Applicant in
the place and stead of the Police Service Commission.
20. In the Trinidad COI case cited above the CA were of the view that
the court has an inherent jurisdiction to substitute a party in judicial review
proceedings where appropriate. At para
18,
As there are parties in judicial review proceedings, it should come as
no surprise that courts have made orders for their substitution. For example,
in Civil Appeal No. 109 of 1985 Sooknanan v. The Conservator of Forests
et al TT 1986 CA 14 the Court of Appeal held that the Attorney General
was not a proper party to the judicial review proceedings before it and ordered
that he be substituted with the proper respondents, namely the Conservator of
Forests and the Minister of Agriculture, Lands, Fisheries and Food Production.
Also, at para.
19,
The concept of substitution of parties is therefore not unknown in the
context of judicial review proceedings.
21. At para 26 JA Mendonca cited the case of River Thames
Society and Lady Berkeley v First Secretary of State and Ors [2006] EWHC 2829
(Admin) and stated,
The Judge, however, was of the view that if a claimant could never be
substituted in public law cases there can be clear injustice. He noted that there have been many cases where there have been
substitutions in similar circumstances as the case before him. He therefore
concluded that while Part 19 is inapplicable to the judicial review
proceedings, the court had an inherent jurisdiction to make the
substitution…
22. I’m therefore of the view that the former Chairman, Paul Slowe who swore the
Affidavit in Support of the FDA has a sufficient interest since he is directly
affected together with the locus standi to continue the proceedings and the
Court can properly under its inherent jurisdiction order that he be substituted
as the Applicant in the place and stead of the Police Service Commission to
facilitate the just and effective resolution of the matters in dispute before
the Court.
DISPOSITION
23. In the circumstances, the NOA filed by the AG is dismissed. No order
as to costs since it is a matter of public interest. It is hereby ordered that
Paul Slowe be and is hereby substituted in the place and stead of the Police
Service Commission as the Applicant herein. The rubric shall be amended
accordingly to reflect today’s order of court. The AG shall file an
Affidavit in Defence by 6 April, 2022 with permission to the substituted
Applicant to file an Affidavit in Reply, if necessary, by 20 April. The parties
shall simultaneously file, serve and email written submissions by 4 May. A date
shall be fixed for oral addresses.
This decision was upheld by the Full Court Attorney General of Guyana and Prime Minister of Guyana et al v. Police Service Commission and Paul Slowe 2022-HC-DEM-CIV-FCA- 18