Arguing that the President is immune from suit, Attorney General Anil Nandlall SC has filed an application asking the High Court to exclude President Irfaan Ali who has been listed as a respondent in the action brought by the Police Service Commission (PSC) regarding the annual promotion of police officers.
In his notice of application to strike out Ali’s name, Nandlall argues that the inclusion of the President contravenes Article 182 of the Constitution as well as Section 10 of the State Liability and Proceedings Act (SL&PA).
In its action against Police Commissioner (ag) Nigel Hoppie over his continued refusal to effect the promotions announced last month, the PSC lists Ali among a number of other persons, as respondents.
Nandlall argues, however, that pursuant to Article 182, the President is immune from suit and therefore pursuant to Article 89 of the Constitution, all actions brought against him in his capacity as Head of State should only name the Attorney General (AG).
The AG notes that subsection (1) of Article 182 states, “subject to the provisions of Article 180, the holder of the office of the President shall not be personally answerable to any court for the performance of the functions of his or her office or 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.”
Against this background, the AG wants the President’s name to be forthwith struck from the application filed by the PSC and is also seeking costs and any further order the court deems just to grant.
Nandlall argues that the law is clear that no action—whether criminal or civil—shall be instituted against the President whether in or out of office; while adding that the issues raised in the application filed by the PSC can be effectively dealt with by him as AG, who has already been rightly named as a proper party and one of the respondents to that action.
Nandlall stressed that the President is therefore not a proper party to the proceedings, and that it was therefore improper and contrary “to the clear directive” of the Constitution to have named him as a party.
As AG and Minister of Legal Affairs, Nandlall reminds that pursuant to Article 112 of the Constitution and Section 10 of the SL&PA, it is he who is the principal legal advisor to the Government and that all actions by or against the state must be brought by or against the AG.
He said that the SL&PA mandates that it is the AG who is to be named in civil cases by and against the State, such as the one brought by the PSC.
According to Nandlall his application is made “in the interest of justice” and to “protect the dignity of the office of the President and to ensure that the President has as much freedom as possible in the due execution of the duties of his high and exacting office.”
In its Fixed Date Application, the PSC is seeking a number of declarations—among them— for the Commission’s Secretary to be directed to prepare formal letters to the ranks named on the official list of promotions compiled and signed by the Commission on June 28th, 2021 informing those ranks of the Commission’s decision to promote them and for the court to nullify Ali’s suspension of the Chairman and members of the Commission.
About a month ago, Slowe wrote Hoppie directing that he honour the promotions list published by the constitutional body on June 28th or risk legal action. Hoppie has acknowledged receipt of Slowe’s ultimatum but is still to comply.
The promotions list was made public just one hour after Chief Justice (ag) Roxane George-Wiltshire had dismissed a challenge which had delayed the promotions for more than six months.
Days before the Chief Justice (CJ) handed down her ruling, however, President Ali by letters dated 15th June, 2021 issued orders purporting to suspend the five-member Commission which included Slowe, retired Assistant Commissioner of Police Clinton Conway, Claire Jarvis, Michael Somersall and Vesta Adams.
Stemming from the CJ’s June 28th ruling, however, Slowe called on the Top Cop to effect the promotions.
In his letter, Slowe upbraided Hoppie for failing to prepare the promotion order so that the promoted ranks and other members of the Force could be informed of the promotions.
Hoppie’s delay in complying with the directives of the PSC is likely due to a declaration from Nandlall that the promotions were “unlawful and illegal” and therefore would not be acknowledged by the government.
It has however been pointed out that Hoppie is answerable to the PSC on police promotions and not the Attorney General.
