Source : Loop Caribbean
A High Court judge Friday found that President Irfaan Ali violated Guyana’s Constitution when he suspended the then chairman of the Police Service Commission (PSC), Retired Assistant Police Commissioner Paul Slowe in 2021.
Justice Gino Persaud ruled also that there had been no mechanism in place to give the former top cop a fair hearing.
“In summary, therefore, the decision of His Excellency the President to suspend the chairman and other members of the Commission was unlawful and in contravention of Article 225 of the Constitution, arbitrary, unreasonable, unfair, in violation of a suspended Chairman and Commissioners constitutional rights that are the protection of the law and due process of the law,” Justice Persaud said.
Slowe had sought a declaration from the High Court that his suspension and that of the other PSC members by President Ali was contrary to and in violation of the Constitution of Guyana, in particular, articles 225 (6) and 210 (3).
In his ruling, the judge noted the issue should have been put to the tribunal of the Judicial Service Commission (JSC) for ventilation but there is no JSC in place.
Justice Persaud said that President Ali, acting on the advice of Prime Minister Mark Phillips, suspended Slowe on June 16, 2021, although there was no Judicial Service Commission (JSC) to appoint a Tribunal to hear allegations against the then PSC.
He said that the doctrine of necessity would have to be invoked to validate the President’s actions.
“The President does not have an unfettered discretion to suspend, as his suspension power only exists on the advice of the prescribed authority and or a decision of the tribunal.
“After the question of removal has been referred to the tribunal, it is still the independence of these constitutional office holders that they ought not be easily dismissed, removed or suspended except in the manner prescribed by the Constitution,” Justice Persaud said.
“It seems apparent that the framers of the Constitution in their infinite wisdom, sought to create a mechanism which ensures due process and security of tenure so that the membership of the Police Service Commission could not be easily subjected to arbitrary behaviour.”
The judge also noted that although Slowe and fellow PSC member, retired assistant police commissioner, Clifton Conway, had been charged with conspiracy to defraud the Guyana Police Force, the presumption of innocence is what mattered.
“The right to due process is a constitutional right that is not abrogated due to the non-existence of the tribunal. Surely, the right of due process envisages the expectation and existence of the Tribunal.
“The non-existence of a tribunal left the applicants perpetually suspended an extension of this unhappy situation is a scenario where the citizen has offered a grievance and is unable to come to court for redress because the court is not in existence,” the judge said.
Regarding the absence of a JSC, Justice Persaud remarked that that was a “burden for the President to bear”.
Attorney General Anil Nandlall had earlier challenged the naming of President Ali as a respondent since the Constitution shields him from prosecution through presidential immunity articulated under Article 182 (1) of the Constitution.
Earlier this year, the Attorney General assured that a JSC would have been appointed early in the first quarter of this year, but so far that has not been done.
The parties will have to file submissions on costs by April 14, 2023.