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
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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