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
