Hoppie’s appointment to “perform the functions” of Top Cop by APNU/AFC was unlawful – AG

Almost two years after Nigel Hoppie was appointed to “perform the functions” of the office of the Commissioner of Police, Attorney General Anil Nandlall, SC, on Friday, was adamant that the appointment was unlawful as it violated Article 211 of the Constitution of Guyana.

He premised his argument on the fact that the Constitution only makes provisions for a person to be appointed as substantive Police Commission or for them to act in that post.
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 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.
“There is no provision in Article 211 that speaks to anybody performing the functions of [the Commissioner of Police],” Nandlall pointed out during an interview with Guyana Times.
He sought to point this out in light of contentions by Shadow Home Affairs Minister, Roysdale Forde, SC, that President Dr Irfaan Ali could have appointed someone to “perform the functions”, of Police Commissioner as was done in 2020, instead of appointing someone to act, until an Opposition Leader with whom he is constitutionally required to consult was appointed.

Forde, on behalf of Opposition Chief Whip Christopher Jones, has filed a legal challenge to the Head of State’s March 30 decision to appoint Clifton Hicken to act as Police Commissioner.
Ultimately, the Opposition parliamentarian is seeking a declaration that Hicken’s appointment is “unreasonable, ultra vires the Constitution, Common Law and is illegal, null, void and of no legal effect” because President Ali failed to “meaningfully consult” with the Leader of the Opposition, as is constitutionally required and an order nullifying all acts by him, which would include the recent promotions of scores of junior and senior Police ranks. The Attorney General is listed as a respondent in Jones’s action.
“For the period after the retirement of Commissioner of Police Leslie James, there was no person appointed to the office of Commissioner of Police as Deputy Commissioner of Police Nigel Hoppie only perform the functions of Commissioner of Police.

This evidence also establishes that the Deputy Commissioner of Police, Nigel Hoppie, could have been asked to defer proceeding on retirement leave or an officer appointed to perform the functions of the Office of Commissioner of Police until the office of the Leader of the Opposition was filled and the Police Service Commission constituted,” Forde said in submissions to Chief Justice Roxane George, SC. However, Nandlall noted that Hicken and Hoppie’s situations are not the same.

Difference
According to Nandlall, Hoppie’s appointment became effective on July 30, 2020, and at that time, David Granger was still Guyana’s President, and Vice President Bharrat Jagdeo was the Leader of the Opposition. Irfaan Ali was declared President by GECOM on August 2, 2020 – five months after citizens went out and cast their ballots in the March 2, 2020, national elections.
At the time of Hicken’s appointment, the office of the Leader of the Opposition remained vacant following the resignation of Joseph Harmon on January 26. Aubrey Norton – the leader of the PNCR, the largest party in the APNU/AFC – was appointed Leader of the Opposition on April 13.
In the absence of an Opposition Leader to consult, Nandlall said that President Ali went ahead with appointing Hicken, the most senior official in the Police Force to act as Top Cop, as leaving the post vacant after Hoppie proceeded on pre-retirement leave would have undermined the public’s interest, national security, public order, the rule of law, and the territorial integrity of Guyana. Forde is hinging his case on a letter.
The document, which has been submitted as an exhibit in the case, according to Nandlall, “shows that [Irfaan] Ali was not the President at the time Hoppie was appointed. Hoppie was appointed on the July 30, 2020, and the only evidence of Hoppie’s appointment was [this] letter from the Permanent Secretary of the then Public Security Ministry saying that Hoppie was appointed to perform the functions.”
“A Commissioner of Police must only be appointed to act or substantively and that appointment must be made by the President after consultation with the Leader of the Opposition. There was a President on July 30, 2020, and there was a Leader of the Opposition,” the AG added.
As such, he rejected Forde’s submissions, noting that it was only putting Hoppie’s appointment under the microscope.
Speaking on Hoppie’s appointment, Nandlall said, “The President [Granger] did not appoint…. The President did not consult but the [Public Security] Ministry appointed [Hoppie]… completely violating the Constitution.”
He explained that when an acting or substantive Police Commissioner is appointed “an instrument is issued under the hand of the President which is published in the Official Gazette. Hicken has one of that. There is none for Hoppie…[just the letter from the Permanent Secretary].”
Forde, however, has submitted that there has been no publication in the Official Gazette or any other published legal document which attests to or substantively proves that Hicken is legally acting in the office of the Commissioner of Police.
Forde had also told the Chief Justice that there was nothing wrong with the Permanent Secretary’s letter on the appointment because the person is a high-ranking Government official.
Nandlall admitted that it was only until recently that the PPP became aware that Hoppie’s appointment was not done in accordance with the Constitution. “We assumed that Hoppie was appointed properly. Nobody never checked on it.”
Against this background, Nandlall pointed out that the APNU/AFC “keeps doing wrong and wants to benefit from that wrong”. This, he said, has become a common thread for the party.
Forde, by his submissions, Nandlall noted, is asking “that every time consultation has to be done, all you can do is circumvent the constitutional requirement and then just put somebody to perform the functions and defeat the entire requirement of consultation.”
“That can’t be!” he made clear. The Chief Justice will rule on the constitutionality of Hicken’s appointment on August 11.