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