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
Created December 2, 2022

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/

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