With the life of the Police Service Commission (PSC) having expired, Attorney General Anil Nandlall SC, has advanced that the Fixed Date Application (FDA) it filed challenging its suspension by the President and the non-promotion of ranks ought to be struck out.
Nandlall was at the time making submissions before High Court Judge, Gino Persaud who is hearing the State’s application to have the case thrown out.
During arguments yesterday, the AG contended that since the Commission is now “dead,” whatever action it would have purportedly filed, can no longer subsist, since the body has lost the constitutional standing by which it could have ordinarily pursued a claim.
Attorney Dexter Smartt who represents the Commission argued, however, that notwithstanding the expiration of the life of the Commission, the application filed can still be heard by the Court, especially since it raises important constitutional matters of public interest.
According to Nandlall, the PSC is a body established by the Constitution and must function in accordance therewith. He said that Article 226 provides that the decisions of the Commission are to be made by votes and that it can only act where there is a quorum.
He said that inferentially, if the Commission is no longer in existence, then it cannot act, nor can it be quorate.
“It [the Commission] can’t operate on auto pilot,” the AG said.
Against this background he said that whatever would have been filed by the Commission becomes non-existent as the Com-mission itself currently is.
Citing a number of case law authorities, Nandlall said that in these circumstances the Court would have no power to hear the case, and any attempt to so do would result in a nullity.
He then went on to advance that since there is no Commission, there can be no members from whom lawyers purporting to represent it can be instructed on any action before the court. On this point he said that “a lawyer cannot drive a case.”
Again referencing legal authorities, he said that the lawyer client/client relationship is one of agent and principal—the lawyer being the agent—and the client the principal. He then went on to state that it is the principal who drives the case and from whom instructions flow.
Nandlall then rhetorically asked, “If their client is dead, who are they taking instructions from?”
“The lawyers in this case are on a frolic of their own. They have a phantom client,” the AG continued.
“If the Commission can only act by votes and if quorate, then paradoxically it cannot act if it is dead,” he stressed.
Meanwhile, in his address, Smartt reminded that the action by the Commission had been filed before its August 8th, 2021 expiration—sometime in July—while arguing that the Court can therefore continue to hear the case.
He said that it is a matter of public interest and importance and the issues contained therein need finality over which he argues the Court has the power and jurisdiction to preside.
“To leave these important constitutional issues hanging could result in further violations,” he contended.
Nandlall pointed, however, that jurisdiction is a matter of law and has nothing to do with whether issues are of public importance or not.
He said it is a legal determination a Court must make in satisfying itself that it can hear a case.
Having heard the arguments, Justice Persaud noted that he would reserve his judgment for delivery at a date to be announced.
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.
Over two 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 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, Presi-dent 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.
