Declaring that in the absence of a Leader of the Opposition and a Police Service Commission being in place, the President could not be faulted for exercising his own deliberate judgement, Chief Justice (ag) Roxane George today ruled that the President’s unilateral appointment of Clifton Hicken as Acting Police Commissioner did not breach the Constitution and was therefore legal.
In handing down her judgement, the Chief Justice noted that there was no Leader of the Opposition in place for the President to consult and that was no fault of the President.
“Given the peculiar circumstances of the case the President could have acted pursuant to Article 111 in accordance with his own deliberate judgement to make a temporary appointment to the post of Commissioner of Police. Thus, in appointing the second respondent, the President acted within the bounds of the Constitution,” the Chief Justice said as she handed down her ruling.
The current Opposition Leader, Aubrey Norton was sworn into office more than three months after his predecessor handed in his resignation. It was during that period that the President went ahead with the appointment of Hicken as Acting Police Commissioner.
The Constitution requires for there to be consultation and agreement between the President and the Opposition Leader on the appointment of a Police Commissioner. The same requirement is used for the appointment of an Acting Police Commissioner.
But in her ruling, the Chief Justice noted that because at the time of the appointment, there was no Opposition Leader in place, the Court could not agree with the applicant’s position that there was no consultation.
In appointing Hicken to act as Commissioner of Police, President Ali had indicated that he invoked the Doctrine of Necessity but the Chief Justice was keen on pointing out that the Doctrine of Necessity was not applicable in the circumstance, though the appointment was necessary and as such corresponding reliefs cannot be granted.
“Given that at the time of his appointment, there was no elected Leader of the Opposition or constituted Police Service Commission, it cannot be declared that the decision to appoint Clifton Hicken as acting Commissioner of Police violates Article 211 (1) and Article 211 (2) of the Constitution nor can it be declared that there was no consultation between the President and the Leader of the Opposition, as required and contemplated by the Constitution prior to the appointment of Clifton Hicken as acting Commissioner of Police,” the Chief Justice ruled.
The last substantive Commissioner of Police Leslie James, DSS, DSM, had proceeded on pre-retirement leave on July 31, 2020, however, his retirement took effect on May 1, 2021. Deputy Commissioner Nigel Hoppie, at the time, continued to “perform the duties” of Commissioner, however, he proceeded on pre-retirement leave on March 27, 2022.
Given the important function of the Guyana Police Force, the Chief Justice said all would agree that the post could not been left vacant.
The Chief Justice said based on the application before the Court, it would have appeared that the source of the contention was the use of the word “act.”
The Attorney for the applicant had submitted that in the absence of consultation, Hicken could have only been appointed to perform the duties of, and not to act as Police Commissioner.
However, she said “while advancing adherence to the Constitution, the applicant’s affidavit reveals seemingly similar non-compliance in the appointment of Mr. Hoppie.”
She pointed out that while there was a Leader of Opposition and Police Service Commission when the substantive Police Commissioner proceeded on pre-retirement leave on July 31, 2020, it would appear that Article 211 was not adhered to when Hoppie was appointed.
The Chief Justice also noted that to act and to perform the duties of are the same, in that, someone has to be appointed to hold the position until a substantive appointment is made in accordance with the Constitution.
The application was filed by Opposition Chief Whip Christopher Jones, who wanted the Court to declare that the appointment of Mr. Hicken was unlawful and unconstitutional.
Justice George declared that the application by Jones was vexatious and also amounted to an abuse of the Court system.