Home News Appointment of acting Top Cop: Opposition files motion for “swift” hearing of...
Of the view that acting Chief Justice (CJ) Roxane George’s validation of the President’s appointment of Clifton Hicken as Police Commissioner (ag) is a “grave and fundamental misconstruction of the Constitution”, the APNU/AFC has filed a motion requesting a swift hearing of its appeal against Justice George’s ruling.
On August 11, Justice George dismissed Opposition Chief Whip Christopher Jones’s application in which he had sought to nullify Hicken’s appointment primarily on the basis that the Head of State failed to “meaningfully consult” with the Opposition Leader as is required by the Constitution, to make such an appointment.
But Justice George, in dismissing Jones’s case, held that President Ali could not be faulted for forging ahead with the appointment because, at the time of Hicken’s appointment on March 30, there was no Opposition Leader with whom the President is constitutionally required to consult. In the absence of an Opposition Leader and the Police Service Commission (PSC), she ruled that the President 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”.
When Hicken’s appointment took effect on March 30, the Office of the Opposition Leader was vacant following the resignation of Joseph Harmon from the post on January 26. Aubrey Norton, the current Leader of the PNCR, was appointed Opposition Leader on April 13. Additionally, the previous PSC had expired on August 8, 2021, and was not reconstituted until May 31 this year.
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”.
30 grounds
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.
In his Notice of Appeal against the Chief Justice’s ruling, Jones has advanced over 30 grounds in which he contends that she erred in law and wants the Court of Appeal of Guyana to set aside her entire ruling and award him costs. In a motion filed last week, Jones, through Roysdale Forde, SC, has asked the appellate court to exercise its discretion to permit and facilitate an early hearing of the appeal.
He deposed therein that on advice from his lawyer, he believes that the impact and purport of Justice George’s decision amount to a “grave and fundamental misconstruction of the constitutional provisions which provide for the powers of the President to appoint persons to act in office established by the Constitution as well as to perform the functions of an office established by the Constitution”.
Jones further deposed that his lawyer has advised him that the resolution of the issues raised in the appeal is of “great urgency and public importance”.
Jones lodged the appeal less than one week after the Chief Justice handed down her ruling; contending, among other things, that she erred in law when she held that the President was vested with the authority to make an acting appointment to the office of Commissioner of Police under Article 111 of the Constitution.
“The Learned Chief Justice (ag) erred in law when she found that the President of Guyana could have acted out of necessity and exercised his own deliberate judgement pursuant to Article 111 of the Constitution to make an appointment for a person to act in the office of Commissioner of Police,” he further contended.
In another ground of appeal, he argued that Justice George again erred in law when she found that there was no material difference between an appointment “to act” and “to perform” the functions of the office of the Police Commissioner.
Jones had submitted that the President could have appointed someone to “perform the functions of” Police Commissioner as was done in 2020 with Nigel Hoppie, instead of appointing someone “to act”, until an Opposition Leader was appointed. Justice George, in her decision, however, explained that the language of “to act” and “perform the functions of” are interchangeable as they are “one and the same thing”.
“As in effect, they amount to the appointment of a person to fill a position in what should be a temporary or holding situation. Thus, whether appointed to act or to perform the functions would amount to the same thing, a person would be permitted to carry out the duties and responsibilities of the post,” she added.
In addition, Jones is claiming that CJ George also erred in law when she did not direct her mind properly to Article 232 (2) of the Constitution which provides that the terms of Article 232 (2) of the Constitution were only applicable “unless it was otherwise provided or required by the context”.
He argued too that in the circumstances of the instant case the Constitution did expressly otherwise provide or require by its context that the President’s power to appoint a person to the office of Commissioner of Police to act was conditional on meaningful consultation as required by Articles 211 and 232 of the Constitution.
Another ground listed in the appeal stated that the Chief Justice also “…erred in law by finding that the President could have made an acting appointment to the office of Commissioner of Police without meaningful consultation is destructive to the specific Constitutional design and principles underpinning the Constitution.”
Moreover, it was argued that Justice George’s “…conclusion that the acting appointment by the President to the office of Commissioner of Police was a temporary appointment is an improper conclusion as the said explanation did not emanate from the President at the time of making the said appointment.”
The appeal documents list Attorney General Anil Nandlall, SC, and acting Police Commissioner Hicken as the respondents.
AG Nandlall had always maintained that the President acted lawfully. He contended that after then Police Commissioner (ag) Nigel Hoppie proceeded on retirement leave, the Guyana 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.
Meanwhile, the Chief Justice had concluded in her ruling that, “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 dismissing Jones’s application, she deemed its vexatious and an abuse of the process, while declaring that Hicken was appointed lawfully.
The Chief Justice also awarded costs against Jones to Nandlall and Hicken, which is to be assessed, if not agreed upon by August 31. Costs for the respondents, jointly, have since been proposed at $3 million by the Attorney General. (G1)
