High Court Judge, Gino Persaud has ruled that the challenge filed by the Police Service Commission (PSC) to the suspension of its Commissioners by President Irfaan Ali and the non-promotion of ranks can proceed, and that its former Chairman, retired Assistant Commissioner of Police, Paul Slowe, having sufficient standing in the case, can stand in its stead—though now expired.
Lawyers for the Commission and for the State had bickered over whether the Fixed Date Application (FDA) could have survived the expiration of the Commission, with Attorney General (AG) Anil Nandlall SC, arguing that it could not and should be struck out.
Attorney Dexter Smartt had argued on behalf of the Com-mission, however, that notwithstanding its expiration, the application filed could still be heard, especially since it raises important constitutional matters of public interest which need final determination.
Among other reasons, Justice Persaud would so find, ruling in favour of the Commission and dismissing the attorney general’s Notice-of-Application to throw out the challenge altogether.
In delivering his ruling yesterday afternoon, Justice Persaud said he found that the issues raised in the case are matters of public interest in light of which he says case law authority establishes that in judicial review proceedings remedies are directed to the decision-making process itself, rather than at the parties.
Against this background the judge said he was of the considered view that the substantive issue of the legality of the suspension of the commissioners should be heard and determined on its merits, being a matter of public interest.
He said, too, that judicial review is also concerned with deciding whether there has been a plain excess of jurisdiction or not—whether a decision is lawful or not—or whether a decision is ultra vires or not. “This cannot be automatically dissolved or whittled away with the end of the tenure of the Commissioners,” the judge declared.
The judge said that to hold otherwise would be to leave the legality of the suspension hanging—never to be adjudicated upon simply because of the inescapable fact that the life of the Commissioners came to an end after filing these proceedings.
“This does not seem to me either logical or fair but rather an affront to fairness, natural justice, access to justice and indeed the rule of law,” he said.
Smart, too, had reminded in his previous submissions to the court that the challenge predated the August 8th, 2021 expiration of the Commission.
A hearing and determination would serve to bring clarity to the role of the Executive in the decision made, and ensure that the constitutionally-granted autonomy of the PSC remains protected, the judge said, as he thus quoted from a legal precedent, “…It is an issue that cries out for judicial imprimatur because of the serious implications if a ruling is not made…”
Meanwhile, on the issue of whether former Chairman, Slowe, who swore to the affidavit supporting the FDA has sufficient interest and standing to continue the proceedings as a substitute applicant in place of the Commission; Justice Persaud said that this is legally permissible .
Again referencing case law, he said that the Court has an inherent jurisdiction to substitute a party in judicial review proceedings where appropriate; while noting that the concept of substitution of parties is not unknown in the context of judicial review proceedings.
Again in deference to legal authorities, the judge said, he was therefore of the view that Slowe, having sufficient interest and standing, since he is directly affected, can continue the proceedings and that the Court can properly under its inherent jurisdiction order that he be substituted as the applicant in the place of the Commission “to facilitate the just and effective resolution of the matters in dispute.”
In the circumstances, Nandlall’s application to strike out was dismissed.
With the challenge being one of public interest, the judge made no order as to costs.
Given the ruling, the State through the AG has been ordered to file its Affidavit in Defence no later than April 6th, and Slowe to file an Affidavit in Reply, if necessary, by April 20th, with both sides to file and serve written submissions no later than May 4th.
The judge has said that a date will then be fixed and communicated for oral addresses.
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 President Irfaan Ali’s suspension of the Chairman and members of the Commission.
Back in September of last year, Slowe wrote Police Commissioner Nigel Hoppie directing that he honour the promotions list published by the constitutional body on June 28th, of last year or risk legal action. Hoppie had acknowledged receipt of Slowe’s ultimatum but there was no compliance.
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.
The PSC is yet to be reconstituted.
