Home Affairs Minister asks court to dismiss challenge to Hicken’s appointment

…says President acted in interest of national security

Home Affairs Minister Robeson Benn has defended President Dr Irfaan Ali’s appointment of Clifton Hicken as acting Police Commissioner, insisting that in the absence of an Opposition Leader with whom the Head of State must consult, the Guyana Police Force (GPF) could not have been left headless in the interest of national security.

Benn advanced these, along with other grounds, in an Affidavit in Defence in response to Opposition Chief Whip Christopher Jones’s application in which he is asking Chief Justice (ag) Roxane George, SC, to declare that the appointment violates Article 211 (1) and 211 (2) of the Constitution because there was no consultation between the President and Opposition Leader Aubrey Norton.
Article 211 (1) 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”.

Benn deposed that the tenure of the previous PSC expired on August 8, 2021, and Joseph Harmon, who at that time, was Leader of the Opposition, resigned on January 26.

National security
Considering this, Benn said that President Ali informed him that it would be inimical, if not catastrophic to the public’s interest, law and public order, national security, and the territorial integrity of Guyana, to leave a vacuum in the office of the Commissioner of Police while he awaits the appointment of an Opposition Leader with whom he would be required to consult.
According to Benn, the process and procedures to reconstitute and appoint a Chairperson of the PSC and then again engage in meaningful consultation to appoint a person to act in the office of Commissioner of Police could take months to be properly completed.

Based on those circumstances, Benn submitted that rather than leaving a vacuum in the office of the Commissioner of Police and having regard to the preponderance of statutory functions and duties which devolve upon the Police Force, including the preservation of law and order, the public’s best interest and the interest of national security” and there being no Opposition Leader and members of the PSC, President Ali appointed Hicken on March 30. Importantly, Benn noted that during its 183 years of existence, the Police Force, which is widely regarded as a paramilitary force and currently has a raft of 7035 ranks, has never been without a Police Commissioner.
As it relates to national security, the Home Affairs Minister referenced Venezuela’s longstanding claim to a large portion of the sovereign territory of Guyana, which has, over the years, been followed by actions in certain border communities, including unlawful presence in Guyana’s territorial waters.
“This threat to Guyana’s territorial integrity is compounded by the fact that there is a constant flow of persons from Venezuela into Guyana, which requires both the Police Force and the Guyana Defence Force to be engaged in daily monitoring of the situation, as well as be ready to take action, when necessary, in order to protect Guyana’s territorial integrity, as well as to protect national security and public order,” Benn argued.

Qualified
According to the Minister, he is familiar with the personal life of Hicken, who joined the GPF in August 1986 as a Special Constable, and thereafter, has held the ranks of Lance Corporal, Corporal, Sergeant, Inspector, Assistant Superintendent, Superintendent, Senior Superintendent, Assistant Commissioner, and now Commissioner (ag).
Having examined the relevant records, Benn said that the acting Police Commissioner is currently the longest serving member of GPF. Having regard to his experience and the ranks he has held over the years, Benn said, “I am of the considered view that Mr Hicken is qualified to act in and perform the functions of the office of Commissioner of Police.
“His Excellency, the President choose Mr Clifton Hicken as a fit, proper, and duly qualified person, holding the rank of Assistant Commissioner of Police, to act temporarily in the office of Commissioner of Police,” submitted the Home Affairs Minister.
Moreover, he said that he believed that the vacancy which existed in the Office of the Leader of the Opposition was in no way occasioned by the President nor the public, but rather through acts or omissions of the A Partnership for National Unity/Alliance For Change (APNU/AFC) coalition. He further said that Hicken’s appointment was intended to be transient until the appointment of the PSC and its Chairman and an Opposition Leader.
As such, Benn deposed that he was advised by Attorney General Anil Nandlall, SC, and believes that “it would have been a gross dereliction of constitutional duties on the part of the President to undermine and jeopardise the public’s interest, national security, public order, the rule of law and the territorial integrity of Guyana, to have left the office of the Commissioner of Police without an occupant.”

Consultations ongoing
With Norton having been elected Opposition Leader on April 13, Benn said that President Ali commenced a process of meaningful consultations on April 29 with him for the appointment of several constitutional commissions, including the PSC. Those consultations, he said, concluded on May 30, and led to a four-member PSC, inclusive of a Chairman being appointed on May 31.
They are Attorney-at-Law Mark Conway, businessmen Ernesto Choo-a-Fat and Hakeem Mohammed, as members; and Pastor Patrick Findlay, who will serve as Chairman.
Pastor Findlay, Benn pointed out, after consulting with other members of the PSC, indicated that they had no objection to the President’s nominee, Hicken.
A mere week after the PSC was appointed, Benn pointed out , the President acted with “promptitude” to initiate a process of meaningful consultations with Norton to appoint a person to act in the office of Commissioner of Police; that process is still ongoing.
In the circumstances, the Home Affairs Minister said he was advised by Nandlall and believes that the President’s decision is intra-vires and reasonable as Hicken is qualified to function, making his decision in that regard, a matter of executive policy which is not subject to judicial review.
As such, Benn is asking the High Court to dismiss Jones’s application with costs.

Doctrine of necessity
On the heels of criticism from the People’s National Congress (PNC) – the largest party in the coalition – Nandlall had 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 had argued.
He had 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.
Jones, in his application, argues that when President Ali assumed office he had refused to engage with Harmon until the APNU/AFC recognised the legitimacy of the People’s Progressive Party/Civic (PPP/C) Government.
The parliamentarian complained that there is no publication in the Official Gazette or any other published legal document which attests to or substantively proves that Hicken is legally in office.
Against this backdrop, Jones, among other things, is seeking an order compelling Hicken to show under what authority he is discharging the functions of the office of the Police Commissioner in an acting capacity, and a declaration that President Ali’s invocation of the “doctrine of necessity” in appointing Hicken is not only unreasonable but ultra vires the Constitution, and Common Law.
The acting Chief Justice will hear arguments on Jones’s application on July 20. (G1)