Acting Top Cop’s appointment: AG proposes losing APNU/AFC Chief Whip pay $3M in legal costs

…welcomes High Court ruling on lawfulness of President’s decision

Attorney General Anil Nandlall, SC, has welcomed Thursday’s ruling by Chief Justice (ag) Roxane George, SC, that President Dr Irfaan Ali did not violate the Constitution when he appointed Deputy Commissioner of Police Clifton Hicken to act as the country’s Police Commissioner.
APNU/AFC Opposition Chief Whip Christopher Jones had asked the High Court to nullify Hicken’s appointment, primarily on the ground that, prior to the appointment, the Head of State failed to “meaningfully consult” with the Opposition Leader as is required by the Constitution.
Article 211 (1) of the Constitution mandates that “the Commissioner of Police and every Deputy Commissioner of Police shall be appointed by the President acting after meaningful consultation with the Leader of the Opposition and the Chairperson of the Police Service Commission [PSC] after the Chairperson has consulted with the other members of the Commission”.
Meanwhile, provisions for a person to act in the office of the Police Commissioner are outlined under Article 211 (2) of the Constitution, and the provisions contained in Article 211 (1), shall apply to such an appointment as they apply to the appointment of a person to hold that office.
When Hicken’s appointment took effect on March 30, the Office of the Opposition Leader was vacant following the resignation of Joseph Harmon on January 26. Aubrey Norton—Leader of the PNCR—was appointed Opposition Leader on April 13. The PSC’s previous Commission expired on August 8, 2021. It was reconstituted on May 31.
In light of the unusual circumstances that confronted the President, Justice George, in dismissing Jones’s case, held that President Ali could not be faulted for moving ahead with the appointment because, at that time, there was no Opposition Leader with whom he is constitutionally required to consult. In the absence of an Opposition Leader and the PSC, she ruled that the Head of State acted “out of necessity”, and in the interest of national security, adding that it was reasonable for him to take action in his “own deliberate judgement”.

National security at stake
The Attorney General has always maintained that the President acted lawfully.
During an interview shortly after the Chief Justice’s ruling, he noted, “There [was] no Opposition Leader through no fault of the President but because of their [APNU/AFC] own infighting between [then Opposition Leader Joseph] Harmon and Norton. And even after Norton won the contest at their party level, they took another few months to make him the Opposition Leader. Again, the people of Guyana are not at fault, the Government of Guyana is not at fault.”
After then Police Commissioner (ag) Nigel Hoppie proceeded on retirement leave, he said that the Police Force, which has never been without a head in its 183 years of existence, could not have been left without a leader, and as such, the President after “looking around” and finding no one to consult, had to make a “judgement call” to appoint someone to fill the post.
“The President of Guyana is the Commander-in-Chief of the Armed Forces. He is the Minister with responsibility for national security and the defence of Guyana. The Minister of Home Affairs is the one who has responsibility for the Police Force. The Police Force has statutory and constitutional responsibility for the defence of Guyana, for the enforcement of all laws, and the prosecution and detection of all crimes committed. The Police Commissioner has a multitude of functional responsibilities under the Police Act and dozens of pieces of legislation. National security and internal security are at stake,” said Nandlall as he defended the President’s decision.

Wrong and strong
In light of the vacuum in the office of the Opposition Leader, the Attorney General reiterated that Jones’s case should have never been filed. He, therefore, called out the APNU/AFC for refusing to accept when it is wrong, noting that the party is always quick to file lawsuits against the Government. He stressed that there is a modus operandi evident in the way the Opposition approaches many matters, including litigation. “They have this wrong and strong attitude, this approach of attempting to bully their way through any given matter,” he reasoned.
But this does not surprise him since it has been unending. Alluding to former AFC member Charrandas Persaud’s “yes” vote on the PPP/C-sponsored No-Confidence Motion in 2018 which led to the collapse of the former APNU/AFC Government, Nandlall said that despite this, the coalition, determined to still rule, challenged the legality of the motion of no-confidence in the courts. He pointed out that as a result of the passage of the motion, the then ruling party was supposed to resign and call general elections within three months.
But instead, he said, the party remained in Government and challenged the No-Confidence Motion on the “ridiculous proposition” that 34 is the majority of the 65-member Parliament and on the ground that Persaud, who is a citizen of Guyana and Canada, was not allowed to vote in the National Assembly because of him holding dual citizenship.
Fast forward to 2020, he reflected on the protracted national elections that the APNU/AFC tried to “rig” in front of the whole world. “Each time they were caught red-handed, they became confrontational, rushing to the court. Of course, they lost,” added the Attorney General.

$3M in legal costs
Considering her findings, the Chief Justice concluded, “There could be no disregard of and thereby a breach of the requirement for meaningful consultation when it was impossible to so engage. [Jones] therefore, is relying on an impossibility to ground the claim of unconstitutionality…this application is vexatious and an abuse of the process of the court.”
In the end, she dismissed Jones’s application, declaring that Hicken was appointed lawfully. Accordingly, all actions taken by the acting Police Commissioner, including the recent promotion of dozens of junior Police ranks, were saved. Jones was ordered to pay court costs to the respondents, namely, Nandlall, and Hicken, to be assessed, if not agreed upon by August 31.
“Cost can run into millions of dollars,” the Attorney General has explained. In fact, in a letter to Jones’s lawyer, Roysdale Forde, SC, Nandlall has proposed $3 million as costs.
Forde was given seven days to respond to this proposal.
According to Nandlall, the Chief Justice, in her judgement, used the word disingenuous thrice to describe Jones’s challenge, and also “incongruous”. “I say all of that to demonstrate the type of case that they presented. No sensible person would file a proceeding in relation to an appointment when the person to be consulted is not present or not appointed,” he added.

Regrettable
Meanwhile, Forde has signalled his intention to appeal the Chief Justice’s “regrettable” ruling.
In a statement, he, among other things, expressed, “The decision delivered by the acting Chief Justice must be cause for great concern and it is regrettable that it is to be considered as a judicial green light to unilateral appointments by the presidency and of course by Irfaan Ali, the current President.” He said that the impact of the judgement is too grave for it to be left standing. (G1)