PSC court case: Nandlall, Pieters at odds over Presidential immunity

The Police Service Commission (PSC) has named President Irfaan Ali, in his official public capacity, as a party to legal proceedings it filed challenging its June 2021 “unlawful” suspension by the Head of State. But Attorney General Anil Nandlall, SC, is contending that it is not only unlawful but unconstitutional to name the President as a party to any Court proceeding whether criminal or civil.

This was his assertion on Monday as Justice Gino Persaud entertained arguments in his application seeking to remove President Ali as a respondent in the matter. In opening his arguments, Nandlall pointed the Court to Article 182 of the Constitution of Guyana, which according to him, gives the President immunity from the judicial process.

The Attorney General reasoned that Article 182 states that 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 or her office, or any act done in the performance of those functions. “Whilst any person holds or performs the functions of the office of President, no criminal proceedings shall be instituted or continued against him or her in respect of anything done or omitted to be done by him or her in his or her private capacity,” he said.

The AG continued, “And no civil proceedings shall be instituted or continued in respect of which relief is claimed against him or her for anything done or omitted to be done in his or her private capacity,” the Attorney General said as he recited the applicable constitutional provisions.”

Nandlall said that under Article 89 of the Constitution, the President is the Head of State, the supreme executive authority, and Commander-in-Chief of the armed forces of the Republic of Guyana; and, as a consequence, all actions brought against him in his capacity as Head of State should only name the Attorney General as the respondent.

He submitted that Presidential immunity is not new as it has been in our jurisprudence from time immemorial. He said that he is “not at all” advocating that the President’s actions are barred from judicial review since the President is a creature of the Constitution and as such is not above the Constitution.

The Senior Counsel noted that any decision of the President is reviewable by the High Court which has jurisdiction to strike it down once it is found to be unlawful but in any action challenging the decision of the President, the Attorney General is the proper party to be named.

Meanwhile, the lawyer for the Police Service Commission Selwyn Pieters urged Justice Persaud to dismiss Nandlall’s application. “His Excellency [President Irfaan Ali] is indeed a proper and appropriate party being named in his official capacity,” Pieters argued as he proceeded to outline why the Head of State was named as a party to the legal proceedings.

“His actions are central to what this case is about and that is why he is named as a party,” he said, adding that the case challenges a decision made by the President in his official public office.

According to the PSC’s counsel, the absence of precedent does not mean that the naming of the President in his official capacity is unlawful. Nandlall had cited the common law and case laws from Guyana and other jurisdictions to support his case.

However, Pieters argued, “What the Constitution does not prohibit cannot be said to be prohibited by common law or case laws from other jurisdiction. The lawyer contended that some of the case laws relied on by the AG were “not properly decided” and, therefore, urged the Court not to take guidance from them.

PSC’s lawyer argued that the Attorney General’s interpretation of the law runs contrary to the Constitution, as well as to the spirit and purpose of Presidential powers, privileges, and immunities. As such, the lawyer asked the Court to dismiss the AG’s application to remove the President as a respondent in the case.

Justice Persaud will rule on Nandlall’s application on September 16.

President Ali suspended the PSC in June days after its Chairman Retired Assistant Commissioner of Police Paul Slowe and several other Commissioners were charged with defrauding the Guyana Police Force. It is alleged that they defrauded the Guyana Police Force of $10 million- which reflects payments made to them and other serving and current officers to revise the Force’s Standing Order- which they have failed to do.

Shortly after they were charged, Prime Minister Mark Phillips wrote to them asking them to show cause why the criminal charges should not result in their removal from the PSC. By way of a missive, they replied denying any wrongdoings. Instead, they told President Ali that his suspension of the PSC flagrantly violated the letter, spirit, and intent of some of the most sacrosanct constitutional provisions, and strikes at the heart of Guyana’s democracy.

They also told President Ali that Presidents and Prime Ministers, as the case may be, have been impeached for far less in democratic countries. The life of the PSC came to an end on August 9.