Judge says President acted unlawfully in suspending PSC members
Declaring that constitutional commissioners enjoy security of tenure and can only be removed in accordance with the set procedure, Justice Gino Persaud yesterday ruled that President Irfaan Ali had acted unlawfully and ultra vires of the constitution in suspending the Chairman of the Police Service Commission (PSC), Paul Slowe and several commissioners.
The judge ruled that the “decision of His Excellency, the President to suspend the Chairman and other members of the PSC was: a. Unlawful b. Ultra vires article 225 of
the constitution c. Arbitrary d. Unreasonable
e. Unfair f. In violation of the suspended Chairman and Commissioner’s constitutional rights to the protection of the law and due process of the law g. Null, void and of no legal effect”.
The judge ordered that the suspensions of the Chairman and members of the PSC, namely Chairman Slowe and Commissioners Michael Somersall, Claire Jarvis, Vesta Adams and Clinton Conway, from performing the functions of their respective offices as ordered by the President by letter on June 16, 2021, were contrary to, in violation of, and ultra vires the
Constitution of the Cooperative Republic of Guyana and in particular Articles 225 (6) and 210 (3), and therefore of no force and effect.
The judge’s ruling ascribed unconstitutional behaviour to the President, a condition that the ruling PPP/C had frequently accused the former Granger administration of.
Slowe had sought a series of reliefs from the High Court but with the effluxion of time and various actions being taken, the judge said that the only matter to be addressed was
that of whether the President’s action was illegal and he found that it was.
Slowe had been seeking several orders from the court that would have also allowed the promotion of persons that the PSC he had presided over had recommended. That is no longer possible as the PPP/C government has already moved ahead with various appointments in the police hierarchy.
In addition, Attorney
General Anil Nandlall SC had filed a series of interlocutory proceedings which were all thrown out by various courts but which delayed the hearing of the substantive case which the judge finally ruled on yesterday.
The finding of unconstitutional behaviour will be a stinging blow to the PPP/C and its counsel in the case, Attorney General Nandlall last night said on NCN that the government did not agree with the judge’s decision and that it would be appealed.
The non-appointment by this government of the Judicial Service Commission (JSC) proved a major weakness in the argument presented by Nandlall to the court. The judge found that without the JSC in place the tribunal
that was required to be in place to probe the allegation that had been levelled against Slowe could not be established. The judge underlined that the constitution had carefully delineated the procedure for disciplining members of the PSC as a means of ensuring that they couldn’t be arbitrarily removed.
Following their purported suspension, Slowe’s PSC instituted proceedings against the President, the Commissioner of Police, the AG and others. As a result of immunities, the President was subsequently removed from the proceedings but it was ruled that the case would proceed.
The judge said that suspension of the PSC members from constitutional
office on 16th June, 2021 proved tantamount to a removal from office since the Tribunal (the quasijudicial body) responsible for recommending such removal from office to the President envisaged by article 225(3) of the Constitution (the removal process) was never constituted.
“In fact, it could not have been constituted since the Tribunal is appointed after the President acts in accordance with the advice of the Judicial Service Commission and there has been no Judicial Service Commission in existence since 2017.
In fact, a new Chairman of the PSC was sworn in on 31st May, 2022. The term of office of the suspended Chairman and
other members came to an end on 8th August,2021”, he said. The JSC is still to be appointed despite assurances by the government that this would have already been done.
The judge took pains to point out the procedure described by the constitution in Article 225 for the removal from office.
i.The prescribed authority advises the President that the question of removing the officer from office ought to be investigated,
ii. The President shall then act in accordance with the advice of the judicial service commission in appointing a tribunal,
iii. The tribunal shall enquire into the matter and report on the facts thereof to the President and recommend to him whether the officer ought to be removed,
iv. the President acting in accordance with the advice of the prescribed authority may suspend the officer from performing the functions of his office if the question of removal has been referred to a tribunal,
v. The officer shall be removed from office by the President if the Tribunal has recommended to the President removal from office for inability to discharge the functions of his office whether arising from infirmity of the body or mind or any other cause whatsoever or for misbehaviour.
The judge said that the removal process under Article 225 guarantees security of tenure to the chairman and members of the PSC to safeguard them from unfounded charges of misbehaviour.
“The obvious intent behind the same is to protect them from undue political pressures or personal favouritism and vendetta thereby enabling the service commissions to discharge their constitutional obligations in full measure”, he said.
On 19th May 2021, Slowe had been charged with the offence of conspiracy to defraud. Prime Minister Mark Phillips then caused a letter to be sent to him demanding that he show cause as to why he (the PM) should not advise the President that the question of his removal as Chairman of the PSC be investigated. On 31st May 2021, Slowe gave the Prime Minister submissions in response to the show cause letter. On 1st June 2021, Show Cause Notices were issued to members of the Commission to show cause in writing why the Prime Minister should not advise the President to initiate an investigation into the removal of each of the members of the Commission. By letter dated 15th June 2021, the Prime Minister advised the President that the question of removal of the Applicant as Chairman of the PSC should be investigated. In the last paragraph of
the correspondence, the Prime Minister also advised that the Applicant be suspended. By letter dated 16th June 2021, Slowe was suspended from his constitutional post by the President acting pursuant to Article 210 (3) of the Constitution.
Slowe’s counsel argued in court that the suspension was ultra vires the constitution and particularly Article 225. The judge noted that the Attorney General placed heavy reliance on the charges that were instituted against Slowe and another member of the PSC as justification for their suspension. The judge said that the AG further contended that the power to suspend was in the preserve of the President and because of the peculiar circumstances of the case the President’s power under Article 225 (6) could not be nullified by the absence of a duly constituted JSC.
The judge differed in his ruling.
He noted the primacy of the work of the tribunal which was to be established by the President on the advice of the JSC.
“After the Tribunal has been duly appointed by the President in accordance with the advice of the Judicial Service Commission, the Tribunal must then do its work. It is the
Tribunal’s role to enquire into the matter and report on the facts to the President and recommend whether the officer is to be removed under Article 225 and Article 210 (3). However, even the scope of the enquiry concerning removal is fettered by Article 225 (2) which provides that the officer can only be removed for inability to discharge
the functions of his or her office (whether by infirmity or body or mind or any other cause whatsoever), or for misbehaviour. Article 210 (3) of the Constitution provides that all provisions of Article 225 of the Constitution which relate to removal from office is to apply to members of the PSC. In essence therefore, removal from office can only be for cause on the two grounds specified in Article 225 (2). Independence and security of tenure of office is guaranteed”, the judge posited.
Noting that Article 225 (6) signals that the suspension of commission members would cease to have any effect if the tribunal recommends to the President that the officer should not be removed, the judge said that the President therefore does not have an “unfettered discretion” as his powers subsist on the advice of the prescribed authority.
“Such
Constitutional
Anil Nandlall Commissioners enjoy independence and security of tenure similar to Judges in our Constitution which is a living document and is always interpreted and construed purposively. Constitutions are as revered and sacred as the ark of the covenant and lip service must not be paid to them”, the judge declared.
He said that the question of removing any of the officers was never referred to a tribunal appointed by the President on the advice of the Judicial Service Commission and that this failure by the President “proves fatal”.
Doctrine
The judge then pointed out that the state also sought to argue the doctrine of necessity in the absence of the JSC.
“It is my considered view that the failure to constitute the Judicial Service Commission cannot be relied upon to excuse the unconstitutional act of suspending these constitutional officer holders. The failure to constitute the Judicial Service Commission is the President’s burden to bear. All members of the Judicial Service Commission are appointed by the President, after he has meaningfully consulted with the relevant constitutionally prescribed functionaries. In these proceedings, no evidence has even been adduced which would indicate that the President took steps to constitute the Judicial Service Commission”, the judge asserted.
He went on to add: “The framers of our Constitution envisaged constitutional compliance and that all constitutional commissions would be duly constituted, and those which were not, haste would be made to do so. This is so, because a failure to duly constitute a constitutional commission operates to negatively impact the machinery and administration of Government work. Constitutionalism implies constitutional compliance which is an indispensable prerequisite to a modern democracy.
“The authorities make it clear that the Doctrine of Necessity or Implied Mandate is invoked at times when it is necessary for the Executive or some other body to act in order to maintain the proper functioning of those various arms of state. It is invoked under the aim of maintaining or ensuring stability. The concept is that ‘that which is not lawful is made lawful by necessity’. The failure to appoint a Commission, in my view, does not meet the high threshold to invoke this (seldom) utilised doctrine”.
The judge said that suspension is a serious disciplinary mechanism that carries with it enormous consequences such as loss of income and loss of public confidence and reputation and great care must always be taken before embarking on that exercise.
“Fidelity must always be paid to the constitution, rule of law and natural justice. Such a course was abandoned in this case. The State, by invoking necessity, has admitted to this faltering course. However, necessity can be of no aid in the circumstances at bar. The State has not convinced the court that this was an extreme situation which warranted the utilisation of the doctrine. There was no political upheaval, there was no instance of societal breakdown, there was no suspension of the Constitution. The extreme circumstance which resulted in a failure to comply with the provisions of the Constitution by the President was as a result of the actions of the President in not appointing a Judicial Service Commission”, Justice Persaud added.
The judge chided the counsel for the state about the right to presumption of innocence.
“On the issue of the criminal charge, lest we forget, in this Republic there is an enshrined principle backed by constitutional muster to which every citizen of this country is afforded, and that is the right to the presumption of innocence as set out in constitutional
Article 144(2) of the Constitution. Mr. Slowe has not been convicted of any charges. At the time when he was suspended, he was entitled to that presumption. The mere institution of charges cannot amount to ‘misbehaviour’ proper except and until the person has been adjudged as guilty by a competent tribunal. Therefore, to act in reliance of charges cannot be a basis to justify the President’s unconstitutional conduct”, the judge asserted.
In his concluding remarks he added: “The suspension of the Chairman and other members in the absence of a JSC and constituted Tribunal was a nuclear response by His Excellency, the President. The suspension proved permanent and tantamount to a removal from office without due process. The Constitution imbued the President with no power to suspend in the absence of a Tribunal and in doing so he acted ultra vires the constitution and unlawfully. A condition precedent to the executive power to suspend is the referral to and establishment of the tribunal.
This is a sine qua non to suspension and removal”.
The parties are to address the court on the question of costs.
It had been argued that the move against Slowe et al had as its objective the promoting of senior cops that the government was comfortable with. Slowe had accused President Ali of attempting on several occasions to influence the promotion of senior members of the GPF. The President had denied this. According to Slowe the charges of conspiracy to commit fraud which were levelled against him and PSC member Clinton Conway were part of a plot to dismantle the PSC and install a more easily influenced Commission before the police promotions list could be officially issued.