The Full Court last evening upheld a decision of Justice Gino Persaud on March 9th 2022 that the challenge filed by the Police Service Commission (PSC) and its then chairman Paul Slowe to the suspension of its Commis-sioners by President Irfaan Ali and the non-promotion of ranks can proceed.
Justice Persaud’s decision had been appealed at the Full Court by Attorney General Anil Nandlall with the Prime Minister and Commissioner of Police also as appellants.
The Full Court comprised of Justices Priya Sewnarine-Beharry and Fidela Corbin-Lincoln however varied Justice Persaud’s order so that former PSC Chairman Slowe has now been added as a party to the proceedings rather than being substituted for the PSC.
Nandlall had argued that Slowe’s Fixed Date Application could not have survived the expiration of the life of the Commission and argued that it should be struck out.
In its ruling yesterday, the Full Court said that the “The expiration of the 3 year term of the members appointed to the Commission does not affect the body itself – established by Article 137 – save that the PSC will be unable to carry out its functions without appointed members. “The PSC remains an existing constitutional body even if the term of its appointed members has expired. There is therefore no issue of the Commission ceasing to be an existing body or having no `capacity’ upon the expiration of the term of its appointed members.
“The effect of the term of the appointed members of the Commission becoming vacant is simply that there are currently no members to carry out its functions. This by itself is not a basis to strike out the claim under CPR (Civil Procedure Rules) 14.01. Members can be appointed at any time to continue to carry out the functions of the PSC. Upon their appointment those members could determine whether to continue or discontinue the claim. Of course a court would be entitled to take the continued non appointment of members to the Commission as a basis to strike out the claim as an abuse of process as this would delay the prosecution of the action.
“We therefore agree with the learned trial judge’s decision to refuse the application to strike out the claim on the basis of the expiration of the term of the members appointed to the PSC.
“We do not find that the order as framed by the learned judge had the effect of permitting a private citizen to carry out the functions of the PSC – a constitutional body. It is clear from the reasoning of the learned trial judge that he found that Mr. Slowe had an interest in his own right and not that he was continuing the action on behalf of the PSC.
“We fully agree with the learned trial judge’s reasoning as to why Paul Slowe is an interested party and should be added. However, we do not find that it was necessary to substitute Mr. Slowe in place of the PSC which remains an existing constitutional body albeit unable to properly function in the absence of appointed members. Based on the reasoning of the learned trial judge Mr. Slowe should be added as a party in his own right” .
In delivering his ruling on March 9th, 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.
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 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.
