“What should President [Dr Irfaan Ali] do when the office he is to consult is vacant?”
This was among the many questions asked by Attorney General Anil Nandlall, SC, on Wednesday as he defended the President’s appointment of Clifton Hicken to act in the office of Commissioner of Police.
The Government’s main legal advisor was at the time presenting arguments in the challenge to the President’s decision brought by Opposition Chief Whip Christopher Jones. Chief Justice (ag) Roxane George, SC, will render her ruling on the legality of the President’s decision on August 11 at 13:30h.
In the absence of an Opposition Leader with whom the Head of State is constitutionally required to consult on the appointment, Nandlall contended that President Ali made a “judgement call” and did the “most reasonable thing” when he went ahead with appointing Hicken to act in the highest office in the Guyana Police Force (GPF) – the country’s premier law enforcement agency.
Jones of the A Partnership for National Unity/Alliance For Change (APNU/AFC) wants Justice George to declare Hicken’s appointment unlawful as well as the recent promotion of several senior Police Officers, on the ground that the Head of State violated Articles 211 (1) and 211 (2) of the Constitution when he failed to “meaningfully consult” with the Opposition Leader.
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”.
At the time of Hicken’s appointment on March 30, the office of the Leader of the Opposition remained vacant following the resignation of Joseph Harmon on January 26. Aubrey Norton was appointed Leader of the Opposition on April 13. Then on May 31, the President appointed a four-member PSC, inclusive of a Chairman. They are Attorney-at-Law Mark Conway, businessmen Ernesto Choo-a-Fat and Hakeem Mohammed (members) and Patrick Findlay (Chairman).
Nandlall reasoned 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 APNU/AFC coalition.
To leave the office of the Police Commissioner vacant any longer in light of the uncertainty of when a new Opposition Leader would have been appointed would have been a gross dereliction of constitutional duties on the part of the President which would have undermined and jeopardised the public’s interest, national security, public order, the rule of law, and the territorial integrity of Guyana, the Attorney General argued.
Assuming but not admitting that a breach of the Constitution occurred, Nandlall submitted that he was pleading the defence of the doctrine of necessity, which according to him, would justify a departure from what is required by the Constitution.
Jones’s lawyer, Roysdale Forde, SC, however, advanced that Home Affairs Minister Robeson Benn’s Affidavit in Defence failed to establish the invocation of the doctrine of necessity.
For context, Benn had contended that “not once in that 183-year history [of the Guyana Police Force] has there been a vacuum in the office of Commissioner of Police”.
But, according to Forde, this overlooks the fact that 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 “performed the functions of Commissioner of Police”.
This evidence, he argued, also establishes that 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 PSC was reconstituted.
Forde said that the security minister’s pleadings failed to provide any evidence of a state of affairs in the country that could have constituted an emergency or crisis and failed to provide any rational basis for the decision by the President to appoint Hicken in the view of the unchallenged evidence that after James proceeded on pre-retirement leave, Hoppie performed the duties of the office of Commissioner of Police for over one year until he proceeded on pre-retirement leave.
As such, he took issue with the President appointing Hicken “to act”, submitting that the Constitution makes provisions for the President to appoint someone to “perform the functions” of the office of the Commissioner of Police in the absence of an Opposition Leader and PSC as was done previously.
Given that Hicken is the most senior functionary in the Police Force and having regard to his experience and the ranks he has held over the years, Nandlall questioned how can the President’s decision be faulted, adding that “he certainly did not act ultra vires”.
If Hicken’s appointment is found to be unlawful, the Attorney General told the Chief Justice (ag) that she would be required to make an order in accordance with the de facto officer doctrine to bring legality to everything done by the acting Commissioner of Police, including the promotion of several senior Police ranks.
Forde rejected Nandlall’s position, arguing, “It is further submitted that the de facto officer doctrine cannot be applied where its application would result in the overriding of constitutional values, policies, rights, and principles. It cannot be seriously contended that an appointment in breach of Articles 211 (1) and (2) for want of meaningful consultation can result in [Hicken’s] actions being given constitutional validity, for the exercise of the powers and duties attendant to the office of Commissioner of Police to which he was purportedly appointed, all flow from the Constitution.”
He further submitted that President Ali was required to act only in accordance with Articles 8 and 211 (1) and (2) of the Constitution to appoint an acting Commissioner of Police and that the President’s decision to appoint Hicken without any meaningful consultation whatsoever as required rendered his decision unconstitutional, null, and void. The Attorney General, however, maintained that the President’s decision was constitutional and a matter of executive policy.
Following the appointment of Opposition Leader Norton and the PSC, President Ali commenced a process of meaningful consultation with the Opposition Leader to appoint Hicken to act in the post. Those consultations were halted last week after Nandlall gave an undertaking to the acting Chief Justice before whom Norton’s application for an order staying any process of meaningful consultation, came up.
Norton had sought the order pending a ruling on an application in which he asked the court for an interpretation of the term “meaningful consultation” as well as his challenge to the President’s appointment of the PSC and Integrity Commission.
