Court strikes out President as party to PSC matter

During his virtual ruling on Thursday, the High Court Judge said to name the President as the Third Respondent when the Attorney General is listed as a Respondent as well is impermissible and wrong in law given the immunities of the President outlined in the Article 182 (1) of the Constitution.

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 as a party in the matter.

While the Attorney General argued that President Ali enjoys immunity under Article 182, the Police Service Commission, through its Attorney Selwyn Pieters, insisted that the President is a proper and appropriate party to the proceedings given the relief sought in the FDA.

However, Justice Persaud said the PSC, in its line of argument, created an artificial distinction between the president’s personal and official capacities. Such, he said, is a “distinction without a difference” because the suite of presidential immunities in Article 182 is complete.

“There is nothing contemplated in Article 182 (1) such as immunity in respect of personal capacity but non-immunity in respect of official capacity,” he reasoned while noting that it goes against the spirit of the jurisprudential concept of the immunities of the president.

“The respondents seem to have conflated immunity with impunity. They have also conflated presidential immunity from suite with exclusion of judicial review or ouster of the court’s supervisory jurisdiction to judicially scrutinize the official act of the president. There is no such ouster. Article 182 (1) does not mean that any act of the President done in the performance of his functions is not subject to judicial review…,” the High Court Judge explained.

Justice Persaud said Article 182 (1) is intended to be a shield not a sword. However, he made it clear that while the president enjoys a suite of immunities, his actions are subject to review through the Attorney General, who should be named.

Justice Persaud made it clear that Thursday’s ruling does not affect the substantive matter brought by the PSC.

“This does not in any way affect the substance of the applicant’s case challenging the decision of the President to suspend [the Commission] because this is defended by the Attorney General, who remains a party,” Justice Persaud said.

However, the Attorney General, at the conclusion of the judge’s ruling, informed the Court that a Notice of Application was filed to strike out the FDA on the ground that the Police Service Commission (PSC) is not lawfully constituted.