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.

  1. 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. 
  2. 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

 

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