Oral Argument
Delivered by Selwyn A. Pieters, B.A.,
LL.B., L.E.C.
Attorney-at-Law
RE: Guyana 2021-HC-DEM-CIV-FDA-1004 – Attorney General’s
Application to Strike Out the President as Respondent – Hearing before Justice
Gino Persaud, August 30, 2021
Introduction
·
Good afternoon, Your Honour.
·
It is the position of the Police Service
Commission that His Excellency the President of the Cooperative Republic of
Guyana is indeed a proper and appropriate party in these proceedings, being
named in his official capacity in that office.
o
For the reasons set out in our Reply submission
filed July 29, 2021, and these oral arguments which are being delivered today,
we humbly ask the Court to dismiss the Attorney General’s application and
proceed to consider the merits of the Fixed Date Application against all of the
named Respondents, including His Excellency the President.
1. Why We Named His Excellency as a
Respondent
·
I would like to begin by simply explaining why
we chose to name His Excellency the President as a party to these proceedings.
·
In the Fixed Date Application, we seek a number
of orders to remedy what we submit is the unlawful suspension of the members of
the Commission by His Excellency on June 15/16, 2021, as well as the actions of
the Secretary to the Commission and the Commissioner of Police following the
said unconstitutional and unlawful suspensions.
o
The first of these orders sought, listed as
letter (a) on the first page of the Fixed Date Application, directly concerns
the actions of His Excellency on June 15/16, 2021 in sending the letters that
contained the purported suspensions.
§
As we assert, His Excellency`s letters did not
abide by the requirements of Articles 225(6) and 210(3) of the Constitution,
and were therefore ultra vires and of no force or effect, and we have
asked for a declaration to this effect.
·
This declaration sought is the reason that we
decided to name His Excellency as a respondent.
o
It was, after all, His Excellency and His
Excellency alone who ordered the said suspensions, under a power vested in him
through Article 210(3) of the Constitution.
o
We submit, of course, that His Excellency did so
in a manner that contravened the Constitution.
o
But in any event, there is no question that this
was an action of the President in his official capacity, as indeed the Attorney
General’s submissions themselves appear to acknowledge at paragraph 11.
·
So, in short, because the Fixed Date Application
specifically impugns an official action by His Excellency the President, and
because we seek a declaration that directly concerns the said Action, we respectfully
submit it is appropriate to name His Excellency the President as a Respondent,
alongside the four other named Respondents.
·
Your Honour, we also acknowledge that the naming
of His Excellency as a party in these proceedings is somewhat unusual.
o
However, we submit that this fact simply
reflects the unusual and unprecedented nature of this case and of the actions
which we allege His Excellency and His Excellency’s government have taken
against the Commission: unconstitutional, undemocratic and violation of the
independence and automy of this Constitutional Service Commission
o
Simply because there is no exact precedent for
this case does not mean that naming His Excellency is impermissible at law.
2. His Excellency is Named in His
Official, Not Personal, Capacity
·
Your Honour, as we have indicated in our written
submissions, the crucial legal point is that the Fixed Date Application names
His Excellency in his official capacity, not his personal capacity.
o
The named party is “His Excellency the President
of the Cooperative Republic of Guyana,” not “Dr. Mohamed Irfaan Ali.”
·
This is an absolutely crucial distinction to
make because Article 182(1) of the Constitution, relied on by the Attorney
General, prohibits only those proceedings “against him or her [the President] in
his or her personal capacity.”
o
This would appear not to include his official
and public capacity.
o
The drafters of the Constitution chose to
include the words “in his or her personal capacity”, and respectfully, we submit
that they did so because those words mean something.
o
In other words, we submit that it would be an
error to assume that, really, the drafters meant to say, “no proceedings should
be instituted against him or her FULL STOP.”
·
To illustrate this distinction in our written
submissions, we have given the example of an applicant in a British Commonwealth
country naming Her Majesty the Queen as a respondent to impugn official
government conduct.
o
I appreciate that there is some difference
between the Queen as a symbolic head of state who does not herself engage in
any acts of government, and naming a President who does participate in
government.
o
Nonetheless, we submit that, at the procedural
level of naming the party, what we have done is analogous to naming Her Majesty
the Queen in Right of Canada or Ontario or another government entity. Nothing
in law prohibits the naming of a HEAD OF STATE in his or her Capacity under the
Constitution of Guyana.
3. The Role of the Attorney General
Does Not Preclude Naming His Excellency
·
The next point I would like to make is that,
while the Attorney General is the legal representatives of the Government of
Guyana, and is a necessary and appropriate party to these proceedings,
o
the said role of the Attorney General does NOT
preclude the naming of His Excellency the President.
·
The Attorney General’s role in these proceedings
is set out in:
o
Article 112 of the Constitution (which names him
as the “principal legal advisor to the Government of Guyana”);
o
Section 10 of the State Liability and
Proceedings Act (which establishes that any claim against the state must be
brought against the Attorney General); and
o
Rule 56.01(3) of the Civil Procedure Rules of
2016 (which requires service on the Attorney General where a Constitutional
claim is made).
·
A review of these proceedings reveals that none
of the law cited prohibits or precludes the naming of His Excellency as a
party in his official capacity.
o
To claim that it does goes against the plain
meaning of these provisions.
4. Other Grounds From Our Written
Submissions
·
Your Honour, I propose to address the remaining grounds
set out in our written submissions only briefly before I move on to make some
remarks about My Friend’s submissions.
·
First, we have submitted that, even if it is
true that the State Liability and Proceedings Act can be interpreted in
the broad way that the Attorney General has done, that statute cannot preclude
any application grounded in the Constitution rather than in any statute or the
common law, such as our Fixed Date Application.
o
This is a simple consequence of the fact that
the Constitution is the supreme law of Guyana, and so cannot be constrained or
undermined by a mere statute.
o
Therefore, it is submitted that His Excellency
can be named notwithstanding the State Liability and Proceedings Act, whatever
its application in other non-Constitutional cases.
·
Second, it cannot be emphasized too strongly
that His Excellency the President is bound by the laws and Constitution
of Guyana and is not above those laws or that Constitution. He is a servant
of the Constitution and Subordinate to it. See, for example, articles 93 and
180.
o
No person is above the Constitution or the law,
and this includes His Excellency, notwithstanding his status as Head of State.
o
His Excellency’s subjection to the Constitution
is not something that exists only in theory.
o
Rather, individuals and organizations must be
able to hold His Excellency accountable in a court, and the ability to name His
Excellency as a party to proceedings, such as this one, is an important part of
that system of accountability.
5. Responses to the Attorney General’s
Submissions
·
Your Honour, I will now briefly address the
submissions of My Friend the Attorney General in support of his application to
strike His Excellency as a respondent.
·
My Friend begins by providing the history of
presidential and Crown immunity.
o
In response to this, I will simply indicate that
we are not in medieval England and we are not in colonial British Guiana.
o
We are in the Cooperative Republic of Guyana in
2021 and the applicable laws are those that we have on the books today.
o
Old doctrines such as the idea that “the king
can do no wrong,” cited in My Friend’s submissions, have surely been rejected
altogether by the people of Guyana who have determined, through our history and
the drafting of our Constitution, that no person is above the law.
·
My Friend also refers to a number of cases from
other jurisdictions such as Sri Lanka and India to support his interpretation
of our Constitution.
o
To this, I will point out that these cases come
from different countries with different constitutional orders, history,
different traditions, foreign to our own,
and should not be followed as if they addressed the Constitution of
Guyana.
o
For instance, the Indian Constitution at Article
361(1), referred to in the case of Rameshwar Prasad and Other v Union of
India and Another[1]
and quoted at paragraph 18 of my friend’s submissions, states that the
President:
“shall not be answerable to any court for the exercise and
performance of the powers and duties of his office or for any act done or
purporting to be done by him in the exercise and performance of those powers
and duties.”
§
No such provision or language exists in the
Constitution of Guyana.
·
As far as the rationale for presidential
immunity is concerned, addressed at paragraphs 32 – 39 of My Friend’s
submissions, I will simply submit that there is no risk whatsoever that these
proceedings will hinder His Excellency in fulfilling the lawful functions of
his office, or constitute an undue distraction from that office simply because
His Excellency is a named party.
o
The Attorney General in para 38 of his
written submissions submits that “Article 182 (1) of the Guyana Constitution,
like similarly worded provisions of the Commonwealth Constitutions, shares the
essence and underlying spirit of these provisions, that is, to allow His
Excellency, the President of the Cooperative Republic of Guyana, to perform the
high functions of his office as Head of State, Head of Government and the
Supreme Executive Authority and not to be distracted by being named in legal
proceedings, either officially or personally.” Distraction is not a
sufficient basis to support a claim that the President cannot be named as a
party to this proceeding. We note
that the President who has unconstitutionally interfered in the independent
process of the PSC, unconstitutionally suspended the PSC, has not explained how
being named in this judicial process initiated as a result of his own
unconstitutional conduct would significantly distract him from his ability to
carry out the duties of the President. particularly, where, as here, he is
represented by the MAGLA.[2]
His Excellency has the very able representation of My Friend the Attorney
General and these proceedings will not take up any more of His Excellency’s
time if he is named than if he is not. Distraction does not implicate the
Constitution. See, Trump v. Vance 591 U.S. ____ (2020)
·
With respect to the Guyanese cases relied on by
My Friend, my submissions are as follows:
o
First, in the case of Baird v Public Service
Commission and the Attorney General, it is clearly articulated in the very
text quoted in My Friend’s submissions that the immunities under Article 182 of
the Constitution “attach personally to the President”, making him “personally
immune from the curial processes.”
§
There is no question that His Excellency enjoys
immunity to civil actions in his personal capacity.
§
The question is whether this also implies a
further immunity in his official, public capacity. We submit that it
does not.
o
My Friend also places reliance on a short piece
of obiter dicta from the 1991 Guyana case of Kent Garment Factory v
The Attorney General and the Minister of Trade and Tourism.[3]
§
As we have outlined at paragraphs 26 – 30 of our
Reply, that case concerned an entirely different fact situation involving, not
the President, but the Minister of Trade and Tourism, and considered a
challenge, not to any official conduct of that Minister, but to the refusal of
an import license by an official in his ministry.
§
We submit therefore that Kent Garment Factory
can be easily distinguished from the present case.
§
I reiterate, in any event, that it addressed the
question of naming the said Minister only in passing and entirely by way of obiter
dicta.
§
We therefore submit that Kent Garment Factory
has no application to the present case.
o
Third and finally, My Friend relies on the 2019
case of DIPCON Engineering Services Limited v The Attorney General of Guyana
and the President of the Cooperative Republic of Guyana.[4]
§
In that case, as in this one, the Applicant
named “the President of the Cooperative Republic of Guyana” as a Respondent
and, as My Friend has pointed out, the Court concluded that it could not do so.
§
Your Honour, our submission with respect to the DIPCON
case is simply that it was not well-founded in law, and in particular that
the Court in that case made the error of following several foreign judgements
without acknowledging the differences between our Constitution and the
Constitutions under which these foreign cases emerged.
§
Specifically, the Court relied almost entirely on
cases from Uganda, Sri Lanka, India, and Botswana, with some further reference
to the American jurisprudence.
§
However, the constitutions considered in each
and every case clearly established that the president in question could not be
named in his personal or official capacity, unlike the Constitution of
Guyana.
§
For instance, Article 98(4) of the Constitution
of Uganda, quoted at paragraph 25 of DIPCON, says simply, “While holding
office, the President shall not be liable to proceedings in any court.”
§
Similarly, the Sri Lankan Constitution, quoted
at paragraph 30 of DIPCON, expressly provides immunity “in respect of
anything done or omitted to be done by him either in his official or private
capacity.”
§
As for the Indian Constitution, I have already
explained that it, too, expressly provides immunity for the official conduct of
the President, which Guyana’s Constitution does not.
§
Interestingly, the Court in DIPCON
acknowledged that, for Botswana, Article 41 of that country’s Constitution
allowed the President to be sued in his official capacity.
§
Your Honour, we acknowledge that the DIPCON case
is perhaps alone in directly addressing the question of whether or not the
President can be named as a respondent in this Court. But we say this
decision is an outlier and should be followed by you.
§
So to reiterate, the lack of specific mention
of official capacity means that this is possible and our authority is the
Constitutional provision that prohibits suing in the private name or capacity
of His Excellency. To be clear, what the constitution does not prohibit cannot
be said to be prohibited by common law or case law from other jurisdictions.
§
We submit that that the DIPCON case was
not correctly decided and that this honourable Court should decline to follow DIPCON
to the extent that it indicates a president cannot be named in his official
capacity.
Conclusion
·
In closing, Your Honour, the Police Service
Commission maintains that His Excellency the President has been properly named
as a respondent in his official, public capacity as President, given that the
Fixed Date Application directly challenges an official action by the President in
that office.
o
Nothing in Guyana’s Constitution, or in the State
Liability and Proceedings Act, or in any other statute or regulation in
Guyana, and nothing in the history of presidential immunity or the
jurisprudence of any other country, precludes the Police Service Commission’s
naming of His Excellency the President in his official capacity in this Fixed
Date Application.
o
The Police Service Commission submits that the
Attorney General’s interpretation of the law runs
§
contrary to the plain meaning of the
Constitution and the statutes relied on,
§
contrary to the spirit and purpose of
presidential powers, privileges and immunity,
§
and contrary to the supremacy of the
Constitution of the Cooperative Republic of Guyana.
o
We therefore humbly ask the court to dismiss the
Attorney General’s application to strike His Excellency as a party.
·
Thank you, Your Honour. Subject to any questions
from the Court, those are our submissions.
[1]
[2006] INSC 35 (24 January 2006).
[2]
In any event, as alluded to in our submissions on the show cause hearing,
Article 93 of the Constitution provides as well that he can be impeached! If
there is any distraction, that distraction is from his own unconstitutional
action that may well trigger impeachment. But that is not an issue for the
Court, it is for the legislature.
[3]
(1991) 46 WIR 177.
[4]
2019-HC-DEM-CIV-FDA-1148.
