Chief Justice dismisses GPSU challenge to PSC Nominee

– Orders $1.5M in costs

1.   On   June   28,  2023,   the   Guyana   Public   Service  Union  (GPSU)  filed  legal proceedings challenging the decision of the Standing Committee on Appointments of the National Assembly and the National Assembly to consider nominations   from   the   Public   Service  Senior  Staff  Association (PSSSA)  to nominate Mr. Mohandatt Goosarran for appointment to the Public Service Commission (PSC).

2.   The Speaker of the National Assembly and the Attorney General were named as respondents. Mandisa Breddy appeared for GPSU. Mr. Ralph Ramkarran SC and Kamal Ramkarran appeared for the First Named Respondent, the Speaker. Attorney General Mohabir Anil Nandlall SC MP, Nigel Hawke, Deborah Kumar,  Shoshanna  V.  Lall,  Loretta  Noel, Ocelisa Marks and Pierre Squires appeared for the Second Named Respondent, the Attorney General.

3.   The  GPSU’s  argument  was  that  the  PSSSA  is  not  a  certified  trade  union recognised by the Trade Union Recognition Act for the purpose of representing public officers for the appointment to the PSC, and hence could not properly nominate Mr. Goolsarran for appointment to the PSC in accordance with Article 200(1)(b) of the Constitution of Guyana.

4.   Article 200(1) (b) provides, that the Public Service Commission shall consist of six members, two of whom shall be appointed by the President “upon nomination by the National Assembly after it has consulted  such  bodies  as  appear  to  it  to represent public officers or classes of public officers.”

5.   Oral arguments were heard by the Hon. Madame Chief Justice Roxane George SC, yesterday, 27 July 2023.

6.  The Attorney General in his arguments firstly contended that Applicant has abysmally failed to establish a case of violation of the Constitution or any principle of law or any provision of any statute law.

7.   Furthermore,  it  was  argued  by  the  Attorney  General  that  the framers of the Constitution deliberately and intentionally used the term ‘such bodies as may appear’  in  order  to lend to the widest possible interpretation. Any attempt to narrow this clear intention would violate or fetter the supremacy of the Constitution. Accordingly, an attempt to use the Trade Union Recognition Act to constrict the language of the Constitution is without any basis and would be an obvious unconstitutional exercise. The framers of the Constitution also applied and used the term ‘trade union’ in various other provisions, but deliberately chose to use the word “bodies” in Article 200 (1) of the Constitution.

8.   The Attorney General also highlighted that the framers of the Constitution are familiar with the manner in which public officers can be represented and that this is seen in the widely recognised fundamental right of the freedom of association. This right to associate freely is further reinforced in Article 200(1) by the   recognition   of   any   “body”,   be   it   an   association,   a   non-government organisation or trade union, of public officers or classes of public officers. There is no requirement, under Article 200(1) for the PSSSA to be registered anywhere in pursuance of their exercise of the freedom of association.

9.  Additionally, the Attorney General emphasised the concept of parliamentary privilege, which is grounded in the common law, subject only to the supremacy of the Constitution. Essentially, it was argued that as long as the National Assembly acted intra vires the Constitution, the court has no reason, and or ought not, to meddle into its internal affairs.

10. Mr.   Ramkarran   SC   made   similar   submissions   on   behalf   of  the  Speaker.

Additionally, he pointed out that the Trade Union Recognition Act has no application to the case, and in any event, would have only been relevant if there was a dispute between or among unions in respect of representations of employees, as that is the main objective of that Act. In this case, there is no such dispute and both the GPSU and the PSSSA are recognised as representatives of public officers or classes of public officers.

11. The Attorney General also underscored that Article 200(1) of the Constitution vests the power to determine the bodies to be consulted, solely with the National Assembly. Accordingly, the National Assembly by Resolution 24 of 2003, decided that the PSSSA would be among the bodies to be consulted pursuant to Article 200(1). For the past 20 years, the PSSSA has been invited to submit nominees to the Public Service Commission, which it has accordingly done, and its nominees have correspondingly been accepted, adopted by the outer Assembly, and thereafter appointed to the Public Service Commission. Accordingly, the GPSU is now, after 20 years, estopped from now instituting a claim.

12. After hearing oral arguments from the Attorneys-at-Law for all the parties, Hon.

Chief Justice found that the Applicant’s case contained not a “scintilla of evidence, was unmeritorious, frivolous and vexatious”.

13. In dismissing the GPSU’s case, the Chief Justice awarded costs in the sum of $750,000.00 each, to the Attorney General of Guyana and to the Speaker of the National Assembly each.

1.   On   June   28,  2023,   the   Guyana   Public   Service  Union  (GPSU)  filed  legal proceedings challenging the decision of the Standing Committee on Appointments of the National Assembly and the National Assembly to consider nominations   from   the   Public   Service  Senior  Staff  Association  (PSSSA)  to nominate Mr. Mohandatt Goosarran for appointment to the Public Service Commission (PSC).

2.   The Speaker of the National Assembly and the Attorney General were named as respondents. Mandisa Breddy appeared for GPSU. Mr. Ralph Ramkarran SC and Kamal Ramkarran appeared for the First Named Respondent, the Speaker. Attorney General Mohabir Anil Nandlall SC MP, Nigel Hawke, Deborah Kumar,  Shoshanna  V.  Lall,  Loretta  Noel, Ocelisa Marks and Pierre Squires appeared for the Second Named Respondent, the Attorney General.

3.   The  GPSU’s  argument  was  that  the  PSSSA  is  not  a  certified  trade  union recognised by the Trade Union Recognition Act for the purpose of representing public officers for the appointment to the PSC, and hence could not properly nominate Mr. Goolsarran for appointment to the PSC in accordance with Article 200(1)(b) of the Constitution of Guyana.

4.   Article 200(1) (b) provides, that the Public Service Commission shall consist of six members, two of whom shall be appointed by the President “upon nomination by the National Assembly after it has consulted  such  bodies  as  appear  to  it  to represent public officers or classes of public officers.”

5.   Oral arguments were heard by the Hon. Madame Chief Justice Roxane George SC, yesterday, 27 July 2023.

6.  The Attorney General in his arguments firstly contended that Applicant has abysmally failed to establish a case of violation of the Constitution or any principle of law or any provision of any statute law.

7.   Furthermore,  it  was  argued  by  the  Attorney  General  that  the framers of the Constitution deliberately and intentionally used the term ‘such bodies as may appear’  in  order  to lend to the widest possible interpretation. Any attempt to narrow this clear intention would violate or fetter the supremacy of the Constitution. Accordingly, an attempt to use the Trade Union Recognition Act to constrict the language of the Constitution is without any basis and would be an obvious unconstitutional exercise. The framers of the Constitution also applied and used the term ‘trade union’ in various other provisions, but deliberately chose to use the word “bodies” in Article 200 (1) of the Constitution.

8.   The Attorney General also highlighted that the framers of the Constitution are familiar with the manner in which public officers can be represented and that this is seen in the widely recognised fundamental right of the freedom of association. This right to associate freely is further reinforced in Article 200(1) by the   recognition   of   any   “body”,   be   it   an   association,   a   non-government organisation or trade union, of public officers or classes of public officers. There is no requirement, under Article 200(1) for the PSSSA to be registered anywhere in pursuance of their exercise of the freedom of association.

9.  Additionally, the Attorney General emphasised the concept of parliamentary privilege, which is grounded in the common law, subject only to the supremacy of the Constitution. Essentially, it was argued that as long as the National Assembly acted intra vires the Constitution, the court has no reason, and or ought not, to meddle into its internal affairs.

10. Mr.   Ramkarran   SC   made   similar   submissions   on   behalf   of  the  Speaker.

Additionally, he pointed out that the Trade Union Recognition Act has no application to the case, and in any event, would have only been relevant if there was a dispute between or among unions in respect of representations of employees, as that is the main objective of that Act. In this case, there is no such dispute and both the GPSU and the PSSSA are recognised as representatives of public officers or classes of public officers.

11. The Attorney General also underscored that Article 200(1) of the Constitution vests the power to determine the bodies to be consulted, solely with the National Assembly. Accordingly, the National Assembly by Resolution 24 of 2003, decided that the PSSSA would be among the bodies to be consulted pursuant to Article 200(1). For the past 20 years, the PSSSA has been invited to submit nominees to the Public Service Commission, which it has accordingly done, and its nominees have correspondingly been accepted, adopted by the outer Assembly, and thereafter appointed to the Public Service Commission. Accordingly, the GPSU is now, after 20 years, estopped from now instituting a claim.

12. After hearing oral arguments from the Attorneys-at-Law for all the parties, Hon.

Chief Justice found that the Applicant’s case contained not a “scintilla of evidence, was unmeritorious, frivolous and vexatious”.

13. In dismissing the GPSU’s case, the Chief Justice awarded costs in the sum of $750,000.00 each, to the Attorney General of Guyana and to the Speaker of the National Assembly each.