President Irfaan Ali has been struck as a respondent from the action filed by the Police Service Commission (PSC) regarding the annual promotion of police officers and Ali’s suspension of the Commission.
In a ruling handed down yesterday afternoon, Justice Gino Persaud said that in accordance with Article 182 (1) of the Constitution, the president is conferred with immunity which insulates him from suit.
What the Judge made clear, however, is that the actions of the Head of State can be judicially reviewed by a court in any challenge which seeks to ascertain whether or not in the exercise of powers bestowed on him, the president has acted within the confines of the law.
On this point the Judge reminded that no one—not even the president is above the Rule of Law.
As is the case brought by the PSC, the Judge said that the applicants are in their right to question whether President Ali would have acted lawfully when he suspended the Commission.
As Attorney General (AG) and Minister of Legal Affairs Anil Nandlall SC, had argued, however, with which the Court found favour, Justice Persaud explained that the PSC fell into error in naming the president as a party to the proceedings.
As Nandlall had previously argued, the Judge concurred that all actions against the State extending to those of the President warranting judicial review, are to be brought against the AG and not the president.
Justice Persaud said yesterday that the answer to the issue lay in a literal, purposive and commonsense interpretation of Article 182 (1). The Article 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 Judge said that the Article carries two limbs—first that the president is not answerable to any court—and secondly, because he is not so answerable, it logically follows that no civil proceedings shall be instituted in his personal capacity in respect of his official acts and functions.
He said that the effect of the provision is to furnish the holder of the Office of President with two categories of presidential immunities that operate in relation to the performance of the functions of the Office.
In the first instance the Judge said, is immunity which applies in the President’s official capacity and secondly, immunity which applies to his personal capacity. “The immunity from suit is complete,” the Judge stressed.
Justice Persaud said that a literal interpretation of the phrase, “the holder 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…” would seem to imply that the natural person performing the functions of President would not be required in his personal capacity to answer to the Court.
That, he said, would then imply that the Office or the juridical person of the President could therefore answer for actions performed in pursuit of its functions.
This had been the argument of counsel for the Commission—Selwyn Pieters.
“To contemplate such a distinction would lead to a manifest absurdity,” the Judge, however, declared, while stating that the President has no alter ego—“one personal who is not personally answerable to the court—and one juridical/official who is answerable to the court are not contemplated by the suite of presidential immunities detailed in Article 182 (1),” Justice Persaud said.
Nandlall had made this point in previous addresses to the court in which he argued that both personalities are one and the same and could not be separated.
The Judge said that the words “personally answerable” do not mean private capacity. He said it “simply means not personally walking up the court steps to answer to the court for an act done in the performance of his functions.”
Citing a number of legal authorities, the Judge said that the President enjoys broad immunity from suit or criminal liability for anything done in an official capacity—an immunity he said that subsists both during and after his term of office.
Making it clear that the immunity is “personal” to the President, Justice Persaud said that in accordance also with legal authorities, the “actions” of the President are, however, subject to court scrutiny.
On this point he noted that proceedings can be brought against the government, but that it is the Attorney General who would have to be named a respondent and not the President. To have named the President as a respondent he stressed, “Is impermissible and wrong in law, given the immunities of the President set out in Article 182 (1).”
In the circumstances, Justice Persaud struck Ali’s name as a respondent in the action
The PSC was ordered to pay court costs in the sum of $200,000.
Following the ruling, Nandlall drew to the Court’s attention a Notice of Application which he filed and served ahead of yesterday’s hearing, in which he is seeking to strike out the Fixed Date Application (FDA) brought by the PSC, challenging the President’s suspension of the Commission and the non-promotion of ranks.
Nandlall said that his application is premised on the fact that the Commission had not been lawfully constituted
The Judge said he was not in receipt of the application and enquired why it had not been communicated to the Court before yesterday’s ruling was rendered. He nonetheless allowed the parties an opportunity to file submissions for arguments on that application which the Court has set for November 10th.
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.
