On Thursday September 16th, Justice Gino Persaud will deliver his ruling on whether President Irfaan Ali’s name will be struck from the action filed by the Police Service Commission (PSC) regarding the annual promotion of police officers.
Restating his position yesterday that the President is immune from suit, Attorney General (AG) Anil Nandlall SC said that the Head of State has been improperly and unlawfully named a party to the proceedings.
Meanwhile, without advancing any legal authority to substantiate his arguments, counsel for the Commission—Selwyn Pieters—submitted that there is nothing precluding a suit from being brought against the President in his official capacity.
The AG, however, took issue with this position, saying that one could not divorce “Mohamed Irfaan Ali” from the President, as they are one and the same.
Nandlall argued that it is against him as Attorney General, that all actions against the State are to be brought and not the President; while stating that in accordance with Article 182 of the Constitution, the compendium of powers, privileges and immunities enjoyed by the President are conferred upon the holder of that office as sitting Head of State.
Article 182 (1) provides, “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 office or for any act done in the performance of those functions and no proceedings, whether criminal or civil, shall be instituted against him in his personal capacity in respect thereof either during his term of office or thereafter.”
The AG said that that is the golden thread running through the gamut of immunities conferred on the officeholder, and that consistently, no tribunal has even been able alienate the holder of that office from the office.
The Attorney General advanced, too, that in accordance with Section 10 of the State Liability and Proceedings Act (SL&PA), it is he against whom State actions are to be filed.
Citing Article 182, Pieters argued that the President was not being sued by his client in a personal capacity, but rather for his act of suspending the Commission, which he had done in his official capacity.
But Nandlall said the President could not be divorced from the person “Mohamed Irfaan Ali,” while adding that what Pieters was seeking to do was elevate “the President not being sued in his personal capacity;” when, according to him, what should be elevated is that “the President could not be sued for acts done while performing his official duties.”
It is on this point that Nandlall said the President could not be divorced from himself, and that he had been performing his official duties under the Constitution when he suspended the Commission.
The AG said that whether the President would have done so legally is another issue which the Court will have to determine in the substantive action; but stressed that a distinction had to be drawn between that, and against whom State actions are to be brought.
Nandlall said that not only does legislation point to the AG being the proper party to be sued for the state, but he also cited a number of case law authorities which he said supports his contentions.
He said his argument is not to advance that the President is above the law, nor that his decisions could not be judicially reviewed, but rather that he was above the curial process.
Nandlall said that decisions of presidents are reviewed all the time and that he himself had approached the Court to review a number of actions by former President David Granger. He pointed out that on every occasion, however, it was the AG against whom he had brought his challenge and never against the President himself.
Against this background he said that the arguments advanced by Pieters are without merit and asked that President Ali’s name be struck as a respondent in the substantive application brought by the Commission.
While not citing any legal authority though asking that that AG’s application be dismissed, Pieters, however, held to his position that Ali was properly named.
He said that while it is not the norm to name the President in the suits, and while he had no legal authority to support his contention; and notwithstanding the SL&PA, it does not preclude the Head of State from being named a respondent in the action.
The lawyer said that the reason the President was named, was because allegations of particular statements made, were attributed directly to the President, and also because it was Ali by whom the suspension order had been directly given.
He said, too, that among the declarations being sought in his client’s Fixed Date Application (FDA) are reliefs from actions the President would have taken.
Pieters sought to contend that while the AG is the lawful, necessary and proper party to civil proceedings against the State, nothing prohibits the President from being directly named a party also.
“His actions are central to what this case is about, and that is why we named him as a party,” Pieters said.
Following the conclusion of arguments yesterday afternoon, Justice Persaud announced that he will render his ruling on September 16th.
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.
Over two months ago, Chairman of the Commission, Paul Slowe wrote Police Commissioner Nigel 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.
