‘Proceedings cannot continue on auto-pilot’ – AG says of case from expired Police Service Commission

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By Vishani Ragobeer

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Attorney General and Minister of Legal Affairs Anil Nandlall SC has asked the High Court to strike out the lawsuit brought by the now-expired Police Service Commission (PSC) against President Dr. Irfaan Ali and others, contending the body’s non-existence means it can no longer pursue legal action.

In proceedings before Justice Gino Persaud on Wednesday, Nandlall contended that since the life of the PSC came to an end on August 8, 2021, the body’s lawsuit cannot continue. And he provided several explanations for his assertions.

“…. when the life of the commission expires, it has the same effect as when a party who is before the court in the form of a human being, dies.

“The proceedings are not defeated but abated,” the Attorney General stated.

And though parties can be substituted in legal proceedings if someone dies, the Attorney General posited that this cannot happen in this case. This is so because the constitutional body is made up of nominated and sworn-in representatives.

Additionally, Nandlall contended that as a constitutional body, the Commission can only legally act if it has a quorum (a minimum number of members to make decisions and proceedings valid). If the Commission is not constituted, as it is currently, Nandlall posited that there is no quorum.

Further, he posited that the attorneys-at-law represent clients based on an ‘agency and principal’ relationship, and without the clients (the expired PSC) as the principle, the lawyers ought not to be ‘driving’ the case.

In such cases, he said that the attorneys would be representing a “phantom client” and were appearing without authority.  And so, the Attorney General stated: “Legal proceedings when they are launched cannot continue on auto-pilot.

“It must be continued as a result of the presence of parties that have a capacity in law to continue those proceedings.”

THE LAWSUIT

The PSC had instituted proceedings in the High Court against President Ali, Prime Minister Brigadier (retired) Mark Phillips, Police Commissioner (ag) Nigel Hoppie and the Attorney General.

In the application, the PSC wants a declaration that the suspension of the Chairman and members of the PSC by President Ali was contrary to and in violation of the Constitution of Guyana, in particular articles 225 (6) and 210 (3). The PSC was suspended by President Ali on June 16, 2021.

The fixed date application, also against the Secretary of the PSC, was filed by attorneys Selwyn Pieters, Dexter Todd and Dexter Smartt on behalf of the PSC.

Earlier, Nandlall challenged the naming of President Ali as a respondent since the constitution shields the President from prosecution through Presidential immunity articulated under Article 182 (1) of the Constitution.

In September, Justice Persaud upheld this constitutional shield and ordered that Dr. Ali’s name be removed from constitutional action.

During the proceedings on Wednesday, Smartt told the court that the proceedings were “peculiar” owed to the Commission becoming expired after the lawsuit was filed.

And according to him, since the Court has jurisdiction when the case initially commenced, the Court also has jurisdiction going forward as a matter of public interest.  But the Attorney General disagreed based on his earlier articulated explanations. And, he also emphasised that the Court’s jurisdiction is decided based on what the law allows and not whether a matter is of public importance.

Justice Persaud agreed that the proceedings were both peculiar (because of the Commission’s expiry) and of constitutional importance.

Justice Persaud, however, reserved his decision and asked both the parties to engage in further research to find case law that would address the peculiar circumstances of the case.

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