Ruling that no stay would be granted, or additional time for appeals to first be heard on interlocutory issues, Justice Gino Persaud yesterday cleared the way for the substantive action challenging the suspension of the previous Police Service Commission (PSC) to move forward.
Owing to a number of interlocutory applications with which the Court had to first dispense, the substantive case has been in limbo since it was filed a year ago. And because a number of other cases with issues which touched and concerned the matter were set for ruling, Justice Persaud has repeatedly had to defer moving ahead.
Back in September, there were contentions over whether appeals should first be determined on the Chief Justice’s ruling invalidating the composition of the new PSC. Those contentions snared progress in the substantive action filed before Justice Persaud challenging the suspension of the previous members of the body.
At that hearing, Attorney General Anil Nandlall SC, for the state, and Darshan Ramdhani KC, who represents the PSC, made applications for a stay; with Ramdhani further making an application for the substantive action brought by the former Commission to be thrown out, since the new body signalled no interest in pursuing such a challenge.
Nandlall’s position was that in light of the Chief Justice’s ruling being the subject of appeals, the substantive case of the suspension of the members of the former PSC should await the determination of those appeals before moving any further.
In her judgment in August, acting Chief Justice Roxane George SC saved the police promotions made by the PSC, but ruled that it (the Commission) had been unlawfully constituted.
About two weeks earlier, she also delivered a ruling affirming the appointment of Clifton Hicken as acting Commissioner of Police, which also touched and concerned the action before Justice Persaud.
Speaking of appeals already filed and still to be filed, both Nandlall and Ramdhani had asked Justice Persaud to continue staying his hand on moving forward with the matter.
This application had, however, been met with vigorous objection from attorney Dexter Todd, who represents retired Assistant Commissioner of Police and immediate former Chairman of the previous PSC Paul Slowe, who along with the members of that Commission, is challenging the suspension.
No stay
Justice Persaud in his ruling yesterday noted that the application for a stay was premised on the pending appeal in the separate case challenging the CJ’s ruling invalidating the composition of the PSC.
Noting that there is no stay on that ruling, and also that there can be no stay of a declaratory order, Justice Persaud said he was not going to stay the proceedings before him pending the appeal of the CJ’s ruling, as he said it would leave the proceedings before him in limbo; as that appeal would take time to be heard and determined, with no indication of how long that would take.
Further, he said that that appeal in no way impacts upon, or precludes Slowe’s right to have the lawfulness of the suspension adjudicated; while adding that it was also an “access to justice issue” for Slowe.
“How long should he wait as a litigant who is entitled to access to justice, to have the legality of his suspension ruled upon, while the Respondents file interlocutory applications, upon interlocutory applications delaying the substantive issue,” Justice Persaud asked.
Meanwhile, noting Ramdhani’s application on behalf of the now nullified PSC to discontinue the substantive action, and the Chief Justice’s ruling, Justice Persaud said, “it is patently clear that the application cannot be sustained, since the Police Service Commission is not properly constituted, and cannot participate in these proceedings.”
Against that background, Ramdhani’s application to discontinue the substantive action, was refused.
Noting that a primary issue in the substantive action is that of a challenge to the suspension of the former PSC by the President and whether that was lawfully done, Justice Persaud noted his previous ruling that that issue had not come to an end when the term of office of the pervious members expired.
Underscoring that the Full Court has also agreed with him on that determination, Justice Persaud went on to note that the “Police Service Commission cannot come again now” through Ramdhani’s application, in an attempt to obtain the same relief in a different way to bring about the termination of the substantive proceedings.
The issue of the legality of the suspension, Justice Persaud stressed, cannot be withdrawn by the nullified Police Service Commission and remains to be adjudicated upon as a substantive issue.
He said that Ramdhani’s application would have been “crippled” by the Chief Justice’s ruling.
Noting that Judicial Review proceedings are directed at the decision and not the parties, Justice Persaud said that he was of the considered view that the substantive issue of the legality of the suspension of the former Commissioners should be heard, and determined on its merits, “being a matter of public interest.”
Justice Persaud had previously made this determination and the Full Court had upheld it in a ruling which it had affirmed that Slowe can remain a party to the proceeding, since he has an interest in the matter, notwithstanding his suspension by the president which will now engage the attention of the Court for a full hearing as the substantive action.
The PSC which the CJ nullified for having been unlawfully constituted, had tried through Ramdhani to oust Slowe as a party, but the Full Court restored him (Slowe) as an interested party to the substantive case.
In all the circumstances, Justice Persaud said he found no grounds on which he should grant a stay of the proceedings, pending the appeal of the CJ’s ruling; and further that there are no reasonable grounds which would allow the PSC to withdraw the substantive case.
“The Police Service Commission cannot withdraw Mr. Slowe’s right to have the legality of the suspension challenged,” the Judge said
After delivering his ruling, Justice Persaud set timelines by which the parties are to file and serve their submissions and ordered the attorneys to be prepared to deliver their arguments in the substantive action, at 1:15pm on January 16th, 2023.
The Judge made it clear, however, that given the Chief Justice’s ruling nullifying the composition of the PSC, Ramdhani would be allowed only to file written submissions on points of law because of the public interest nature of the litigation, but that the PSC is not entitled to file any affidavit in defence.
It has always been Todd’s contention that contrary to Nandlall and Ramdhani’s contention, his client’s case should be allowed to proceed and not protracted any further than it already has been.
He had said that aside from the issues of the composition of the PSC which the Chief Justice invalidated and the police promotions, which she affirmed, the core issue before Justice Persaud remains the suspension by the President of Slowe and the previous PSC.
That issue, he had said, with all the initial legal hurdles having been determined, should be allowed to proceed.
Previously referring to Ramdhani’s application for the PSC to be removed from the action and to strike his client’s claim, Todd had said he could not to see why Ramdhani was even requesting a stay when they have demonstrated wanting no part in the matter.
Todd had stressed that the matter which falls for consideration before Justice Persaud is whether, procedurally and legally, the President was acting within his powers when he suspended the members of the former Commission and he argued that his client and those affected members, have a right to challenge their suspension.
Background
In the action before Justice Persaud, Slowe, who along with the members of the previous PSC were suspended by President Ali last year, is challenging that decision and seeking a number of declarations, including that the Commission’s Secretary 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.
They also want the Court to nullify President Ali’s suspension of the Chairman and members of the Commission.
Back in September of last year, Slowe wrote to then acting 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 George had dismissed a challenge, which had delayed the promotions for more than six months.
Days before the Chief Justice handed down her ruling, however, President Ali, by letters dated 15 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 Chief Justice’s June 28th, 2021 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.
