Opposition appeals Chief Justice’s ruling on appointment of acting Top Cop

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Acting Top Cop, Clifton Hicken

…says decision “erred in law” on over 30 grounds

Less than one week after Chief Justice Roxane George upheld President Dr Irfaan Ali’s appointment of Clifton Hicken as Commissioner of Police, APNU/AFC Chief Whip Christopher Jones has moved to challenge the decision in the Court of Appeal.

Last Thursday, Justice George dismissed an application filed by Jones, ruling that the President did not violate the Constitution earlier this year when he appointed then Deputy Commissioner Hicken to act as the country’s Police Commissioner.

The Opposition Chief Whip had asked the High Court to nullify Hicken’s appointment, primarily on the ground that, prior to the appointment, the Head of State failed to “meaningfully consult” with the Opposition Leader as is required by the Constitution.

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”.

Opposition Cheif Whip, Christopher Jones

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.

However, when Hicken’s appointment took effect on March 30, the Office of the Opposition Leader was vacant following the resignation of Joseph Harmon from the post on January 26. Aubrey Norton, the current Leader of the PNCR, was appointed Opposition Leader on April 13. Additionally, the previous PSC had expired on August 8, 2021, and was not reconstituted until May 31 this year.

In light of these circumstances, Justice George, in dismissing Jones’s case, held that President Ali could not be faulted for moving ahead with the appointment because, at that time, there was no Opposition Leader with whom he is constitutionally required to consult. In the absence of an Opposition Leader and the PSC, she ruled that the Head of State acted “out of necessity”, and in the interest of national security, adding that it was reasonable for him to take action in his “own deliberate judgement”.

Chief Justice Roxane George

But in this appeal, Jones is contending that the Chief Justice erred in law when she held that the President was vested with the authority to make an acting appointment to the office of Commissioner of Police under Article 111 of the Constitution of Guyana.

“The Learned Chief Justice (ag.) erred in law when she found that the President of Guyana could have acted out of necessity and exercised his own deliberate judgment pursuant to Article 111 of the Constitution to make an appointment for a person to act in the office of Commissioner of Police,” another ground in the appeal stated.

It is also being argued that Justice George again erred in law when she found that there was no material difference between an appointment “to act” and “to perform” the functions of the office of the Police Commissioner.

The Notice of Appeal further detailed that the Chief Justice erred in law when she misconstrued Article 232 (2) of the Constitution and found that the terms “to appoint a person to act or to perform the functions of that office…” were used interchangeably and not disjunctively.

In addition, Jones is claiming that CJ George also erred in law when she did not direct her mind properly to Article 232 (2) of the Constitution which provides that the terms of Article 232 (2) of the Constitution was only applicable “unless it was otherwise provided or required by the context” and that in the circumstances of the instant case the Constitution did expressly otherwise provide or require by its context that the President’s power to appoint a person to the office of Commissioner of Police to act was conditional on meaningful consultation as required by Articles 211 and 232 of the Constitution.

Another ground listed in the appeal states that the Chief Justice also “…erred in law by finding that the President could have made an acting appointment to the office of Commissioner of Police without meaningful consultation is destructive to the specific Constitutional design and principles underpinning the Constitution.”

Moreover, it was argued that Justice George’s “…conclusion that the acting appointment by the President to the office of Commissioner of Police was a temporary appointment is an improper conclusion as the said explanation did not emanate from the President at the time of making the said appointment.”

Police Commissioner (ag) Clifton Hicken

The Appeal, which lists a total of 35 grounds, was filed by Roysdale Forde, SC, and listed Attorney General Anil Nandlall, SC, and Police Commissioner Hicken as the respondents.

AG Nandlall had always maintained that the President acted lawfully. He contended that after then Police Commissioner (ag) Nigel Hoppie proceeded on retirement leave, the Guyana Police Force, which has never been without a head in its 183 years of existence, could not have been left without a leader, and as such, the President after “looking around” and finding no one to consult with, had to make a “judgement call” to appoint someone to fill the post.

Meanwhile, the Chief Justice had concluded in her ruling that, “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.”

In dismissing Jones’s application, she declared that Hicken was appointed lawfully and ordered Jones to pay court costs to Nandlall and Hicken, which has since been proposed as $3 million each.