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Come Thursday, September 16, 2021, High Court Judge, Gino Persaud will rule on the constitutionality of President Irfaan Ali being named as a respondent in a matter brought against the State by the Police Service Commission (PSC).
In July, the Police Service Commission filed a Fixed Date Application (FDA) in the High Court challenging among other things President Ali’s decision to suspend the Commission led by Assistant Commissioner of Police (Ret’d) Paul Slowe. The President was among the five respondents named but in objection, Attorney General Anil Nandlall filed a Notice of Application to strike out the President – the Third Named Respond – as a party in the matter.
During the presentation of oral arguments on Monday, August 30, 2021, the Attorney General relied heavily on Article 182 of the Constitution. He submitted that as Head of State, President Ali enjoys immunity under Article 182.
Article 182 states: “Subject to the provisions of Article 180, the holder of the Office of President shall not be personally answerable to any Court for the performance of the functions of his or her office or for any act done in the performance of those functions and no proceedings, whether criminal or civil shall be instituted against him or her in his or her personal capacity in respect thereof either during his or her term of office or thereafter.”
The Attorney General told Justice Persaud that no court or tribunal has been able to alienate the holder of the Office of the President from the Office itself. He said instead of naming the President, the PSC ought to have named the Attorney General. Nandlall said such was the case when the decisions made by former President David Granger were challenged in the Court.
“We are not at all advocating that the presidential immunity bars judicial review; the president’s decision remains challengeable, the president is subject to the laws of Guyana, the President is a creature of the Constitution and cannot act above the constitution or beyond the constitution or in violation of the constitution, and any president who does that, your honour has the power, the High Court has the power to review that decision and strike it down but the defendant in those proceedings, the respondent in those proceedings is not the president but the Attorney General,” Nandlall argued.
Against that background, the Attorney General called on the Court to remove the President from among the named respondents in the case.
However, the Police Service Commission, through its Attorney Selwyn Pieters, insisted that President is a proper and appropriate party to the proceedings given the relief sough in the FDA regarding the purported suspension of the Commission.
From the onset, Pieters – a Canadian-based Attorney – asked the High Court to dismiss the Attorney General’s application and proceed with the substantive matter brought by the PSC.
Justifying the decision to name President Ali in the proceedings, Pieters explained that in the FDA the PSC is seeking a number of orders in an attempt to remedy the “unlawful suspension” of the members of the Commission by the President as well as the actions of the Secretary of the PSC and the Commission of Police.
He pointed out that the first set of orders being sought is in direct relation to the actions of President Ali. “In short, because the Fixed Date Application specifically impugns an official action by the president and because we seek a declaration that directly concerns the said action, we respectfully submit that it is appropriate to name His Excellency the President as a respondent alongside the other four respondents in this matter,” Pieters said.
Pieters submitted that the Constitution of Guyana does not prohibits proceedings against the President in his official capacity. “The drafters of the Constitution chose to include the words ‘in his or her personal capacity’ and we respectfully submit that they did so, because those words mean something,” he said.
In the substantive matter, the Commission is seeking a declaration that the President’s decision to suspend the entire Police Service Commission is contrary to and a violation of the Constitution.