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.
a)
A Declaration that the conduct and or proceedings of the
National Assembly on December 29, 2021 in the absence of the Mace is ultra vires
the Constitution, Common Law, the
constitutional values of the Rule of Law, Democracy, and Inclusive Governance, unwritten
constitutional principles of the Rule of Law, and the Standing Orders of the
National Assembly, illegal, null,
void and of no legal effect.
b)
A Declaration
that the passage of the Natural Resource Fund Bill No. 20 of 2021 by the National Assembly
on December 29, 2021 in the absence of the Mace is ultra vires the Constitution,
Common Law, the constitutional values
of the Rule of Law, Democracy, and Inclusive Governance unwritten
constitutional principles of the Rule of Law, and the Standing Orders of the
National Assembly, illegal, null, void and of no legal effect.
c)
A Declaration that the holding and or continuation of
proceedings of the National Assembly on
December 29, 2021 beyond the time stated in
Resolution No.2 of the 12th Parliament of Guyana, First
Session (2020) of the National Assembly without any approved Motion to do so is ultra vires
the Constitution, Common Law, the
constitutional values of the Rule of Law,
Democracy, and Inclusive Governance, unwritten constitutional principles of the Rule
of Law, the Standing Orders of the
National Assembly, illegal, null,
void and of no legal effect.
d)
A Declaration that the holding and or continuation of
proceedings of the National Assembly on December 29, 2021 with the use of a
replacement Mace without any approved Motion to do so is ultra vires the
Constitution, Common Law, the constitutional values of the Rule of Law, Democracy,
and Inclusive Governance, unwritten constitutional principles of the Rule of Law, the
Standing Orders of the National Assembly, illegal,
null, void and of no legal effect.
e)
A Declaration that the enactment of the Natural Resource Fund
Act No. 19 of 2021 by the Parliament of Guyana December 29, 2021 in the absence
of the Mace is ultra vires the Constitution, Common Law, the
constitutional values of the Rule of Law, Democracy, and Inclusive Governance, unwritten
constitutional principles of the Rule of Law, and the Standing Orders of the
National Assembly, illegal, null, void and of no legal effect.
f)
A Declaration that
the Second Named Applicant possesses a fundamental human right to political
participation and that aforesaid fundamental human right encapsulates the
opportunity to take part in the conduct of public affairs of Guyana which is guaranteed
by Article 154A of the Constitution and Article 25 of the Covenant of Civil and
Political Rights.
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.
Aubrey Norton v. Attorney General et al No. 2022-HC-DEM-CIV-FDA-902, the issues here revolves around the appointment of Pastor Patrick Findlay as Chair of the Police Service Commission and the appointment of the Integrity Commission without meaningful consultations with the Leader of the Official Opposition Aubrey Norton and whether the Police Service Commission was properly constituted. An added issue was the application of the de facto doctrine. The Chief Justice ruled that the appointment of the Chairman of the Police Service Commission and the members of the Integrity Commission by the Executive President was Constitutional. The Police Service Commission is not properly constituted the Chief Justice found. She applied the de facto doctrine to protect all decisions made by the Commission inclusive of promotions.
Norton was represented by Roysdale Forde, SC and Attorney-at-Law Selwyn Pieters.
Appearing on behalf of the State was Attorney General Anil Nandlall with Solicitor General Nigel Hawke, and other lawyers from the Attorney General’s Chambers.
Darsham Randhani appeared for the Police Service Commission
C.V. Satram appeared for the Integrity Commission.
Christopher Jones v. Attorney General and Clifton Hicken No. 2022-HC-DEM-CIV-FDA-705 - The Chief Justice of Guyana heard arguments on whether the president engaged in an overreach in violation of 211 of the Constitution when he appointed Clifton Hicken as acting Commissioner of Police using the Doctrine of Necessity. On the application of the doctrine of necessity, she held that "....while the necessity in this instance was not spawned out of a national crisis such as a coup as evidenced in Mitchell and similar cases, this is a case of a necessity not to cure an illegality but to ensure that the unexpected lacuna that resulted in an impossibility to comply with art 211 did not result in a situation that would have left the Guyana Police Force, and therefore the nation, without a Commissioner."
Madam Chief Justice Roxane George found the doctrine of supervening impossibility applies in Jones v. AG and Hicken: "I consider it disingenuous of the applicant to plead what in effect is a want of action by the non-governmental members of the National Assembly to elect the Leader of the Opposition, (which at March 30, 2022 stood at three months) which office hold is necessary for consultation on a number of posts and commissions, including the appointment of the Commissioner of Police and the Police Service Commission, and then use such a state of affairs to plead an unconstitutionality of action by the President in not engaging in meaningful consultation as required by art 211. There could be no disregard of and thereby a breach of the requirement for meaningful consultation when it was impossible to so engage. The applicant therefore is relying on an impossibility to ground a claim of unconstitutionality."
An appeal of this decision was filed in the Court of Appeal.
Jones was represented by Roysdale Forde, SC and Attorney-at-Law Selwyn Pieters.
Appearing on behalf of the State was Attorney General Anil Nanbdlall with Solicitor General Nigel Hawke, and other lawyers from the Attorney General’s Chambers.
Tabitha Sarabo-Halley -vs- The Attorney General of Guyana 2022-HC-DEM-CIV-FDA-994 before The Honourable Madam Justice Damone Younge - this matter deals with the suspension of 8 APNU/AFC Members of Parliament. The Privilege Report regarding Opposition APNU/AFC MPs Chief Whip Christopher Jones, Ganesh Mahipaul, Sherod Duncan, Natasha Singh-Lewis, Annette Ferguson, Vinceroy Jordan, Tabitha Sarabo-Halley and Maureen Philadelphia was adopted by the House on August 21, 2022.
This case raises significant issues of constitutional law and policy, administrative law and matters of public importance particularly where, as here, quarter of the Opposition Bench has been suspended leaving over 60,000 Guyanese voters without their representatives in the National Assembly of this Court does not intervene. Further, there are individual, collective and public interest consequences of the decision of the National Assembly.
The Judge did not grant a conservatory order and set dates for steps to be completed in the proceedings with the view to a hearing on November 01, 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.
Sarabo-Halley is represented by Roysdale Forde, SC and Attorney-at-Law Selwyn Pieters.
Appearing on behalf of the State was Attorney General Anil Nandlall with Solicitor General Nigel Hawke, and other lawyers from the Attorney General’s Chambers.
Vinceroy Jordan v. Attorney General - this is a challenge President Irfaan Ali’s failure to act on the written consultation with the Opposition Leader on making permanent the appointments of Chancellor and Chief Justice. This matter is before The Honourable Madam Justice Damone Younge.
PSC and Slowe v. The Secretary of the Police Service Commission et al - The Full Court denied Leave to Appeal to the Court of Appeal in the Police Service Commission matter:
Attorney General et al vs The Police Service Commission 2022 HC DEM CIV FCA 18. This case being heard before the Honourable Mr. Justice Gino Persaud involves 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. This case was adjourned to September 20, 2022 to allow the parties to study
Aubrey Norton v. Attorney General et al No. 2022-HC-DEM-CIV-FDA-902 and its application to this case.
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
Darshan Ramdhani, Q.C. appears for the PSC
Bharrat Jagdeo v. Monica Thomas et al- CCJ- GYCV2022/002 before the Caribbean Court of Justice on the issue of whether the Court of Appeal had jurisdiction to hear and determine an appeal against the decision of the Honourable Madam Justice Roxanne George (Ag. Chief Justice) on 18th January 2021 dismissing Election Petition No. 99 of 2020 (“the Petition”) on the ground that there had been late service upon the Fourth Respondent who was a necessary party to the Petition. The appeal was allowed and the decision of the Court of Appeal set aside without costs. The Court affirmed the exclusive jurisdiction of the High Court. It went on to say that there are only three grounds upon which the COA could have claimed jurisdiction to hear an appeal of the dismissal of the elections petition none of which was present in this case.
COA-CA-66-2021: Claudette Thorne & Heston Raymond Bostwick v. Keith Lowenfield et al is before the Court of Appeal and is an appeal against the
decision of the Honourable Madam Justice Roxanne George (Ag. Chief Justice) of April 26, 2021 dismissing Election Petition No. 88 of 2020. Her failure to render her "full (written) reasons" more than 16 months after promising to release it shortly is being argued as a denial of the right to a fair trial in contravention of Article 148 of the Constitution.
