Appointment of Top Cop: Consultations between President Ali, Norton put on hold

…await Chief Justice’s ruling on legality of constitutional commissions

Attorney General Anil Nandlall, SC, has given an undertaking that the process of meaningful consultation between President Dr Irfaan Ali and Opposition Leader Aubrey Norton on the appointment of Clifton Hicken as Commissioner of Police will be put on hold.

This process of consultation will be held in abeyance until Chief Justice Roxane George, SC, rules on Norton’s challenge to the President’s appointment of Patrick Findlay as Chairman of the Police Service Commission (PSC), as well as the appointment of the Integrity Commission.
The Opposition Leader is arguing that Findlay’s appointment is illegal, null, void, and of no legal effect on the ground that President Ali did not “meaningfully consult” with him, as is required by Article 211 of the Constitution of Guyana.
In addition to a Fixed Date Application (FDA) in which he has asked the court to declare Findlay’s appointment unconstitutional, Norton has also filed a Notice of Application (NoA) requesting a conservatory order staying the consultation process until his FDA is determined.

During a hearing of the NoA on Friday, Justice George agreed with Norton’s lawyer, Roysdale Forde, SC, that the order was necessary to maintain the status quo. As such, she granted it. But after Nandlall gave the undertaking, she recalled the order and fixed August 8 for arguments.
In a letter dated July 7, Nandlall wrote to Forde, seeking meaningful consultation between Norton and the President on the appointment of Hicken as Top Cop, with the Opposition Leader given on or before July 19 to express in writing his considered opinion on the subject. In light of Friday’s court proceedings, Norton is no longer required to respond to that letter.

Also, on Friday, QC Darshan Ramdhani entered an appearance on behalf of Findlay.
Meanwhile, the Chief Justice has committed to hearing the FDA expeditiously, noting that, “I wouldn’t want to prolong this matter.” She said she desires to render a decision within one or two weeks after hearing arguments.

Quashing of appointments
Last month, Norton lodged the FDA, asking the High Court to quash the recent appointments of the Chairmen and members of the Police Service and Integrity Commissions, who were sworn in before President Dr Ali on May 31 at the Office of the President, Georgetown.

Besides Findlay as Chairman, Attorney-at-Law Mark Conway and businessmen Ernesto Choo-a-Fat and Hakeem Mohammed are the new members of the PSC.
The Integrity Commission has Demerara Bank Corporate Secretary Chandra Gajraj as Chairperson, along with Mohamed Haniff, former Solicitor General Dr Kim Kyte-Thomas, Hardesh Tiwari, and Reverend Wayne Chris Bowman as members.
Norton, who is also Leader of the PNCR — the largest party in the APNU/AFC coalition — has complained that he was not afforded a “reasonable opportunity” to express a considered opinion on the matter of consultation with respect to the appointments of the constitutional commissions. He deposed that President Ali did not provide adequate information to him in respect of his rationale, reasons and/or grounds, having regard to the respective persons’ suitability and/or competence for appointment to the respective public offices.
Against this backdrop, he has argued that the spirit and letter of the Constitution in respect to consultation and meaningful consultation were violently violated by the President.
Among other things, this politician is seeking an order quashing the appointment of Findlay and Gajraj as the Chairmen of the PSC and Integrity Commission respectively, and an order declaring that all actions taken by those Commissions are null, void, and are of no force and effect.
According to Norton, the President’s appointment of Hicken as the acting Commissioner of Police was unilateral, and not in keeping with Article 211 of the Constitution.
Given that the life of the last Police Service Commission (PSC) expired on August 8, 2021, and there has been no Chairman of the Public Service Commission, and that no Public Service Commission has been constituted under the Constitution, Norton argues that, as of June 29, the Chairman of the PSC and the President could not have lawfully engaged in any consultation, as required by Article 211 (1) of the Constitution.
Moreover, Norton has submitted that Findlay is a politician, was a candidate for the PPP at the 2011 and 2015 National Elections, and was appointed as Permanent Secretary by that very party.
Noting that the Constitution contemplates that the PSC is not politicised, he pointed out that, up to May 2021, Findlay had identified himself as a member and supporter of the PPP/C.
In addition, the Chief Justice has set July 20 to hear a case filed by Opposition Chief Whip Christopher Jones, which challenges the constitutionality of President Ali’s appointment of Hicken.
Jones, in his FDA, contended that Hicken’s appointment is “unreasonable, ultra vires the Constitution and Common Law, and is illegal, null, void, and of no legal effect.”
Meanwhile, on the heels of criticism from the PNC, Nandlall has defended the Head of State’s decision to appoint Hicken.
“The President is completely justified in proceeding to put someone to perform the functions of the Commissioner of Police. National security and public safety, and the need for there to be an administrative head of the [GPF] would trump the need for procedural regularity, and the doctrine of necessity would justify a departure from what is required by the Constitution in this case, because there is an impossibility in securing constitutional compliance…” he has argued.
He has said, “It cannot be the law that the process would grind to a halt or the country must go without a Commissioner of Police if a recalcitrant Opposition cannot get its house in order and appoint a Leader of the Opposition. Since those with whom the President was supposed to consult were not available for consultation, his actions of going ahead with making the appointment are justified under this legal principle.”
Then, on June 28, immediate past Chairman of the PSC, retired Assistant Commissioner of Police Paul Slowe, petitioned the High Court to block the recently reconstituted PSC from promoting or publishing a promotions list of officers of the GPF until the challenge mounted by the previous PSC, challenging its June 2021 suspension by the President, is adjudicated.
But shortly after Slowe had filed this application, the PSC announced the promotion of scores of senior Police officers.
With the Full Court on Thursday refusing applications for leave to appeal and a stay, the way is cleared for High Court Judge Gino Persaud to proceed with hearing the challenge to the President’s decision.
The Full Court held that it found no merit in Nandlall’s application for leave to appeal to the Court of Appeal its May decision upholding Justice Persaud’s ruling to hear the substantive matter. Slowe was added as a party to the case by the Full Court, since he is contending that his appointment as Chairman of the PSC was wrongly terminated.