Venezuela already launched a soft invasion of Guyana

 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 3, 2023

The Cooperative Republic of Guyana (“Guyana”) / the Bolivarian Republic of Venezuela (“Venezuela”) border dispute and Guyana’s continued existential threat from Venezuela (Speaking notes)

By Selwyn A. Pieters

Attorney at Law

The demarcation of the Guyana and Venezuela existing boundary was laid down in a final and binding international Arbitral Award October 3rd, 1899 (Boundary between British Guiana and Venezuela (1899)), to which both Guyana and Venezuela are still bound. Venezuela accepted and honoured the border determined by the 1899 Arbitral Award for more than half a century.

The post-independence era has had periods where the Guyana-Venezuela Border Controversy has risen its ugly head and moreso for political mileage on the part of Venezuelan politicians.

 

Venezuela from time to time since the 1962 (during Guyana’s struggle for independence from Great Britain) continue to raise the issue of a claim to Guyana’s territory. Venezuela current claim to Essequibo covers 70 percent or two-thirds of Guyana’s total land mass.

Venezuela and Guyana had armed military conflict when our soldiers removed Venezuelan Forces from Ankoko Island in 1966 and has engaged Venezuelans in respect to Eteringbang twice.

Guyana is 83,000 square miles with a population approximately 750,000. About 90 percent of the population inhabits the narrow coastland area. Our borders are porous. And from time to time there are events involving Venezuelan soldiers and civilians at Eteringbang, Mabaruma, Kaikan, and other areas in the Cuyuni-Mazaruni region of Guyana

In 2016 Venezuela resurrected its claim. The incursion of Venezuelan soldiers near Eteringbang in May 2016, and their firing of weapons at officials of the Guyana Geology and Mines employees forced the government of the day and then then opposition PPP in a bi-partisan move took the case to the International Court of Justice.

The legal issues before the International Court of Justice (ICJ) with regard to the claim brought by Guyana was heard. The Honourable Attorney General and an able team of lawyers provided oral arguments in Arbitral Award of 3 October 1899 (Guyana v. Venezuela) in the International Court of Justice on 22 November 2022 and following before the ICJ. Guyana prevailed on jurisdiction. It is unknown when its final determination will be made. In light of Venezuela's Referendum to be held on December 3, 2023, the ICJ last Friday issued provisional orders so that the status quo ante remains and that Venezela does nothing that would annex the Essequibo Region whilst this matter is under consideration by that Court.

However, what is apparent is Venezuela’s move to settle the border regions of Guyana with its citizens. In a Demerara Waves Online publication of July 18, 2022, Captain Gerry Gouveia, National Security Adviser, was quoted at an AMCHAM Guyana forum setting out the security threats posed to Guyana by persons from Venezuela. He gave a number of examples, including, and I quote: “a lot of non-state actors on our Western border that are terrorizing our business people and challenging our security forces, whether it is orchestrated or not.” And I further quote him: “You could understand the security dilemma we face that in the migrants could be embedded Venezuelan agents and so this is not something that we don’t appreciate, that we are looking at as well as we open our arms with compassion and with humanity.  . . . There are an estimated 60,000 Venezuelans in Guyana now.”

Venezuela with a population of more than 28.2 million person is capable of launching a bloodless takeover of our borders simply by overwhelming our population with Venezuelan settlers, refugees and persons with military-like bearing. In other words, sleeper cells. Deportation of Venezuelan migrants who are not Conventional Refugees or persons in need of protection or persons who are legitimately in Guyana for a proper purpose would not be in violation of International Law, it would be consistent with the laws.

It is possible that Venezuela can launch a soft invasion of Guyana by simply overwhelming its population and resources. Spanish speaking Venezuelan nationals specifically warraus are reported to be amongst the populations of significance who are migrating from Venezuela to Guyana.

Thus, Guyana cannot only rely on the International Court of Justice and its strategic business and military partners to secure its borders but must in its deliberate judgment ensure that the immigration, military, social welfare and policing resources are adequately deployed to interdict, document and deport those who are indeed trafficked to Guyana for purposes that can indeed threaten its security and overwhelm its population.

It should be noted on April 15, 2019 in Santiago, Chile in what is known as the “Lima Group declaration”, several Latin American Countries “Agree that Venezuela is experiencing a humanitarian, political, economic and moral crisis generated by the illegitimate and dictatorial regime of Nicolás Maduro, which constitutes a threat to international peace and security, with regional and global effects.” The rule of law in Venezuela under President Maduro is honoured in the breach rather than the observance.

Venezuelans, including the Venezuelan President himself, Nicolas Maduro, has up the ante (particularly on with the referendum, inflammatory rallies and speeches on social media and amassing troops at the Border with Guyana). The stakes are high given Guyana’s recent economic shift as an oil producing country. This is not a diplomatic exercise on Venezuela’s part nor is it an exercise in which it will abide by the orders of the ICJ, it is an exercise that potentially can destabilize investor confidence in Guyana, cause Guyanese citizens grave unease and discomfort and indeed set the stage for a soft invasion. The very legitimacy of the Venezuelan government questionable.

We as Guyanese have to stay woke and stay engaged. This is the time for all Guyanese to support our government in its fight against this existential threat from Venezuela and its President Nicolas Maduro.

 

Attorney General of Guyana, Sarah Browne, Vikash Ramkissoon v. Christopher Jones & Speaker of the National Assembly

 Electronic Copy of the Full Judgment of the Guyana Court of Appeal in  Attorney General of Guyana, Sarah Browne, Vikash Ramkissoon v. Christopher Jones & Speaker of the National Assembly Civil Appeal No. 50 of 2021

Desmond Morian v. Attorney General of Guyana Civil Appeal No. 19 of 2016 Order of the Court of Appeal 

Desmond Morian v. Attorney General of Guyana  (Civil Appeal No. 19 of 2016, 23rd January 2020) - Transcript  Guyana Court of Appeal

Desmond Morian v. Attorney General of Guyana Ian Chang C.J. decision (2015-HC-DEM-CIV_CM-55, 19th February 2016

Ethical Conduct in Public Officer - meeting the test of rectitude

 No one really is above the law, however that law is defined. As persons in the public eye, where as a Judge, Adjudicator, lawyer, Police Officer, Government Minister or even Influencer, we can be subjected to excessive scrutiny in terms of our actions and/or omissions. Obviously, it calls for some risk management in our personal and professional lives. In my professional life we call it "defensive lawyering", which means dotting the i's and crossing the T's. In our private lives it involves risk management or avoiding situations that can embarrass our profession, employer, family and friends. if one is living a risky lifestyle the odds of things going terribly wrong is greater given the obvious pitfalls.

This calls for an understanding that we are under a greater level of scrutiny. I know that as a lawyer of prominence whose images are flashed on televisions and who appears in newspapers and the internet more often that I like. It means that I can't do some of the things I would like to do or go to some of the places where I can socialize with people that I like.

I also know that as a Black man with dreadlocks if things go south I would be held to a higher standard: See, for example, Law Society of Ontario v. Guiste, 2023 ONLSTH 59 (CanLII), <https://canlii.ca/t/jwx9r>. See also my writings on the plight of Black lawyers in Selwyn Pieters, “Lawyer Regulation, Race and Justice: An updated Look at LSUC disciplinary matters involving Black and Visible Minority lawyers.” Selwyn Pieters : A Blog That is Organized Around the Lawyering Experience of Criminal and Human Rights Lawyer Selwyn Pieters and Things that Interest Him!!!!! (blog)12 December 2014, <http://selwynpieters.blogspot.com/2014/12/an-updated-look-at-lsuc-disciplinary.html> and Selwyn Pieters “Lawyer Regulation, Race and Justice”; Law Society of Upper Canada v. Selwyn Milan McSween, 2012 ONLSAP 003 <http://selwynpieters.blogspot.com/2014/12/an-updated-look-at-lsuc-disciplinary.html>

The task therefore is for us to recognize this and in so doing for us to meet the test of rectitude because we are constantly under public scrutiny.

Race Anti Black Racism and the weaponization of Criminal Justice System

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/

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.

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.           

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 12^th 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.

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

Full Court denied Leave to Appeal to the Court of Appeal in the Police Service Commission matter: Attorney General et al vs The PoliceService Commission 2022 HC DEM CIV FCA 18

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

 

 

 

 

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.

A full copy of the Legal Opinion is here Link