Hicken’s appointment to act as Top Cop constitutional – Chief Justice rules

…orders APNU/AFC MP pay costs for “vexatious” challenge
…says vacant office could have had negative impact on national security.

By Feona Morrison

Chief Justice (ag) Roxane George, SC, has upheld President Dr Irfaan Ali’s appointment of Deputy Commissioner of Police Clifton Hicken to act as Police Commissioner, deeming an APNU/AFC parliamentarian’s challenge to the appointment “vexatious and an abuse of the court process”.

In her ruling on Thursday to APNU/AFC Chief Whip Christopher Jones’s application, in which he sought to nullify the March 30 appointment, mainly on the ground that the Head of State failed to “meaningfully consult” with the Opposition Leader as is constitutionally required, Justice George found that the President always had properly executed his discretion.
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.

Cannot be faulted
When Hicken’s appointment took effect, 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 tenure of the previous PSC expired on August 8, 2021; it was reconstituted on May 31 by President Ali. As a result, the Chief Justice said that President Ali could not be faulted for making the appointment when there was no one for him to consult, adding that it was not within his power to appoint an Opposition Leader.

In the absence of an Opposition Leader and the PSC, she held that President Ali, who is also the Commander-in-Chief of the Armed Forces, acted “out of necessity” and it was reasonable for him to take action in his “own deliberate judgement” to appoint someone to act as Top Cop.
“As of March 30, the position of Leader of the Opposition was vacant and the Police Service Commission had not been reconstituted. It, therefore, meant that at that date, compliance with Article 211 as regard to the appointment of Police Commissioner was impossible because of circumstances beyond the control of the President,” said the Chief Justice.

She reasoned that it is “hardly likely” that the framers of the Constitution would have contemplated a situation where an important constitutional office such as the Leader of the Opposition, who plays an integral role in the appointment to other constitutional offices, would have been vacant for such an extended period.
Highlighting that this was not a case where the President had to act on the advice of anyone or any entity, she pointed out, “this is a case where the President is authorised to make an appointment albeit to certain circumstances under Article 211.” While those conditions could not be met, this does not mean that the President could not act, she said, noting that there was uncertainty, not only because the PSC was not reconstituted but because since January 26, an Opposition Leader had not been elected and it was unclear when such an election would occur.

Negative impact
Moreover, she added that there could have been a negative impact on national security if the highest office of such an important law enforcement agency was left vacant.
In relation to Jones’s argument that the President was required to appoint the next senior officer, in this case, Deputy Police Commissioner Paul Williams, to act as Police Commissioner, Justice George said that this is not instructed by the Public Service Commission rules.
Further, 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”, untilw an Opposition Leader was appointed.
The Chief Justice, 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 further went on to explain.
She also addressed Home Affairs Minister Robeson Benn’s affidavit in which he deposed that assuming but not admitting that the President acted unlawfully, the doctrine of necessity would justify a departure from what is required by the Constitution because there was an impossibility in securing constitutional compliance. But according to her, there was a need to distinct from the doctrine of necessity which is applied to legalising otherwise unlawful or unconstitutional acts, and necessity to act in order to ensure that the machinery of administration is not hindered.

“This is a case of a necessity not to cure an illegality, but to ensure that the unexpected lacuna that resulted in the impossibilities comply with Article 211 did not result in a situation that would have left the Guyana Police Force and, therefore the nation, without a Commissioner.”
According to her, the Opposition parliamentarian’s argument that President Ali, upon assuming office, had refused to engage with former Opposition Leader Joseph Harmon until the APNU/AFC recognised the legitimacy of the PPP/C Government, was to “engage in speculation”.
Even if she had declared Hicken’s appointment unconstitutional, the Chief Justice made it clear that she would have applied the defacto officer doctrine, to save all actions carried out by him, including the recent promotion of dozens of junior Police ranks.
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.”
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Dismissed with costs
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In the end, Jones’s application was dismissed, with costs to the respondents, namely, Attorney General Anil Nandlall, SC, and Hicken, to be assessed, if not agreed upon by August 31. Jones was represented by Senior Counsel Roysdale Forde and Attorney Selwyn Pieters. Appearing on behalf of the respondents were the Attorney General and a battery of lawyers from his chambers.
Meanwhile, Hicken was appointed to act in the office of Commissioner of Police after former Commissioner of Police (ag) Nigel Hoppie proceeded on pre-retirement leave.
Before ascending to the helm of the Police Force, Hicken, one of the longest serving members of the Police Force, performed duties as Deputy Commissioner in charge of operations.
He became prominent to the public during his tenure as Commander of Police A and B Divisions. He also served as Head of the Police Force’s Training Centre.