With the life of the Police Service Commission (PSC) having expired, Attorney General (AG) Anil Nandlall SC has moved to strike out the court action initiated by the body to challenge President Irfaan Ali’s suspension of its members and complete a promotions process.
Nandlall’s contention is that since there is no Commission, there can be no lawful subsistence of any legal proceedings on its behalf.
Ali suspended the members of the Commission by letters dated June 15th, 2021. The Commission instituted proceedings on July 21st challenging the President’s suspension, which it argues was unlawfully done.
Nandlall is arguing that with the Com-mission being vacant, the attorneys have no authority in law to continue pursuing its Fixed Date Application (FDA).
In written submissions laid over with the court, the AG says that like the other service commissions, the PSC is “regarded as a juridical animal possessing its own legal persona” by which it can sue and be sued.
He submits, however, that those commissions, can only act through and by virtue of their constituent members, which he says is clearly illustrated when one examines the powers and procedures of commissions outlined in Article 226 of the Constitution.
According to him, “important principles culled from those provisions” may be summarized thus: that decisions are made by votes, that the Commission can only act if it has a quorum and that despite vacancies, decisions may be made but provided there is a quorum.
From that summary of Article 226 he presented, the AG said that it must then be “axiomatic” that the PSC “can only act provided that it is constituted and quorate.”
He then goes on to reason that if it is vacant it cannot act or make decisions. “Applying this simple reality to the case at bar, there is no one to continue to maintain the instant proceedings,” the AG says.
Nandlall sought to point to the fact that former PSC member Clinton Conway had sworn to an affidavit-in-answer to the State’s application. Since Conway had been suspended, however, the AG contends that he (Conway) has no authority to so do “and cannot lawfully act for, or on behalf of, the Commission.”
Conway’s affidavit, he argues, should therefore be struck out.
According to him, “the legal eventuality with which [the] Court is confronted is analogous to legal proceedings visited by the death of one of the parties.”
He then goes on to argue that pursuant to Article 210 of the Constitution, the PSC is the sole applicant in the proceedings and there is therefore no personal representative which may be substituted for it.
It is the AG’s view that attorneys for the Commission are purporting to continue proceedings in the name of a “non-existent Applicant,” which he said legal authorities have established cannot be maintained under those circumstances.
He then goes on to argue that to so do would result in an abuse of the court’s process “for a non-existent entity to consume judicial time and resources by purporting to participate in proceedings before it.”
The AG’s application is coming up for hearing on November 10 before Justice Gino Persaud.
In its FDA, the PSC sought a number of declarations, including that 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 three 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 acknowledged receipt of Slowe’s ultimatum but did not comply.
The promotions list was made public just one hour after Chief Justice (ag) Roxane George 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, Presi-dent Ali by letters dated 15 June, 2021, issued orders purporting to suspend the five-member Commission which included Slowe, Conway, Claire Jarvis, Michael Somersall and Vesta Adams.
Stemming from the CJ’s June 28 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.
