July 20 set for hearing of Opposition’s challenge to Top Cop’s appointment
Chief Justice Roxane George, SC, on Friday, fixed July 20 to hear a case filed by Opposition Chief Whip Christopher Jones which challenges the constitutionality of President Dr Irfaan Ali’s appointment of Clifton Hicken as acting Commissioner of Police.
During a hearing on Friday, Justice George granted Attorney General Anil Nandlall, SC – a respondent in the legal challenge – his request to file further evidence by way of an affidavit.
He has to file this as well as an affidavit on behalf of Hicken, the other respondent, on or before July 11.
But before Nandlall effects service of these documents on the applicant – Jones – he has to pay him $50,000 in costs. The Chief Justice granted an order for costs against Nandlall after he failed to file an Affidavit in Defence within two to four days before the matter’s scheduled hearing which was also set for Friday.
The Attorney General had filed a notice of application requesting an additional five days to file his response. However, after examining the application, Justice George held that Nandlall advanced no valid reason for his failure to file the affidavit on time, and thus, made the costs order against him.
Jones’s lawyer, Roysdale Forde, SC, who had objected to Nandlall filing further evidence on the ground that they were not relevant to the case, has to file an affidavit in reply, if necessary, on or before July 13. The parties have to file their written submissions by July 18 and the hearing of the case has been deferred to July 20.
Challenge
Jones, in his Fixed Date Application (FDA), contended that Hicken’s appointment is “unreasonable, ultra vires the Constitution, Common Law and is illegal, null, void and of no legal effect.”
The appointment, Jones argued, violates Article 211 (1) and 211 (2) of the Constitution since there was no consultation between the President and the Leader of the Opposition, Aubrey Norton, as is required and contemplated by the Constitution prior to the appointment.
As such, Jones is seeking an order quashing Hicken’s appointment, another order declaring that all actions taken by him while acting in the office of Police Commissioner are null and void and to be of no force and effect, and an order compelling him to produce his authority to exercise and or discharge the functions of the office an acting capacity or any capacity whatsoever.
Grounds for the application also arose out of the President’s decision to invoke the doctrine of necessity to make the appointment.
The Opposition parliamentarian wants the High Court to consider the legality of the President’s decision since it has immediate, long-term effects and serious consequences.
Hicken was appointed acting Commissioner of Police on March 30, after Deputy Commissioner Nigel Hoppie, who was also made to act in that very post following the retirement of substantive Police Commissioner Leslie James, proceeded on pre-retirement leave.
Justified
On the heels of criticism from the People’s National Congress Reform (PNCR) – the largest party on the A Partnership for National Unity/Alliance for Change (APNU/AFC) coalition – Nandlall had defended Hicken’s appointment.
He had argued that with no Leader of the Opposition in place nor a Police Service Commission (PSC), there was no one for the Head of State to consult with before making this critical decision.
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 after the Chairperson has consulted with the other members of the Commission”.
“It’s no fault of the Government or the President that there is no Opposition Leader. It’s no fault of the Government or the President that there is no Police Service Commission because the appointment of Police Service Commission comes through a process which, again, involves consultations with the Opposition Leader, and there is no Leader of the Opposition,” he had said.
The Attorney General had also noted that the President’s action was completely justified in going ahead with the appointment of a Top Cop in the absence of those he had to consult with since the Guyana Police Force (GPF) which maintains law and order, cannot be left headless.
“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…”
“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,” Nandlall had argued.
Since those with whom the President was supposed to consult were not available for consultation, his actions of going ahead with making the appointment would be justified under the doctrine of necessity, Nandlall had maintained.