APNU+AFC Chief Whip Christopher Jones has moved to court to challenge the appointment of Clifton Hicken as acting Commissioner of Police.
In a Fixed Date Application, Jones contends that the invocation of the Doctrine of Necessity for the appointment is unreasonable and ultra vires. He also contends that the appointment violates Article 211(1) and 211(2) of the Constitution.
Hicken and the Attorney General are named as the respondents.
Jones is seeking a number of declarations.
He wants a declaration that the invocation of the Doctrine of Necessity to appoint Hicken as acting Commissioner of Police is unreasonable, ultra vires the Constitution, Common Law and is illegal, null, void and of no legal effect.
He is also seeking a declaration that the decision to appoint Hicken as acting Commissioner of Police violates Article 211(1) and 211(2) of the Constitution.
Further, Jones is seeking a declaration 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 Hicken.
Jones also wants the court to quash the appointment of Hicken as acting Commissioner of Police and to declare that all actions taken by him since are null and void and of no effect.
Jones argues that the last substantive Commissioner of Police Leslie James was appointed on August 30, 2018. Four Deputy Com-missioners were also appointed on that date: Lyndon Alves, Maxine Graham, Nigel Hoppie and Paul Williams. Jones said that these appointments followed consultations between then President David Granger and the Leader of the Opposition, Bharrat Jagdeo, as the Constitution mandates, at State House. Meaningful consultation also took place with the Chairman of the Police Service Commission as required by the Constitution.
Jones noted that Commissioner of Police James proceeded on 274 days pre-retirement leave on July 31, 2020. At the time Commissioner James proceeded on pre-retirement leave the government of the day continued to be led by President Granger.
Jones said that Deputy Commissioner Hoppie was made to “perform the duties” of Commissioner during that period, until a substantive Commissioner of Police could be selected and the usual consultations were done. Hoppie was the most senior of the Deputies, his appointment being effective June 01, 2018.
Jones noted Irfaan Ali was sworn in as the President of Guyana on August 2, 2020 and refused to hold any “meaningful consultations” with the Leader of the Opposition, Joseph Harmon, until he and his party recognised the Government.
James retired on May 1, 2021 and Hoppie continued to “perform the duties” of Commissioner in the absence of an Instrument of Office.
In or around August 08, 2021, Jones said that the Police Service Commission’s (PSC’s) term expired after having been “unconstitutionally suspended by the President in June 2021 and which suspension remains the subject of litigation in the Supreme Court of the Judicature”.
Jones asserts that Guyana has effectively been without a constitutionally appointed Commissioner of Police since May 1, 2021. He argues that Ali appointed Hicken as acting Commissioner of Police without any requisite consultation and then improperly sought recourse to the Doctrine of Necessity.
Jones cited the Department of Public Information website as stating:
“President Ali made the statement Monday evening, while engaging journalists on the sidelines of the launch of the master’s degree programme in strategic development studies, at the University of Guyana, Turkeyen Campus, Georgetown.
`There is something called the doctrine of necessity, should I allow the country to function without an acting commissioner? There is a doctrine of necessity and in the doctrine of necessity, I appointed an acting commissioner,’ Dr. Ali emphasized.”
Jones argued that the common law doctrine of necessity was not available in the circumstances. In his affidavit in support of his application, Jones said that in the Guyana context, history has shown that where there exists a sitting Deputy Commissioner the acting appointment would have taken place based on seniority.
Jones deposed that the absence of a Leader of the Opposition and a Police Service Commission as the stated basis on which the President of Guyana said he acted in March 2022 is not borne out in light of his actions between August 03, 2020 and January 25, 2022.
Jones argued that the refusal to “meaningfully consult” with the Leader of the Opposition between August 03, 2020 and January 26, 2022 on vacancies in several constitutional offices and the insistence that the Opposition must “recognize” the government before any consultation or meeting could take place has a meaningful impact on how the exercise of the purported necessity has to be evaluated and analyzed.
Furthermore, Jones said that the qualification to perform the duties of Com-missioner of Police is the next most senior officer.
“In the circumstances, Paul Williams, DSM, the sole Deputy Commissioner of Police was next in line to perform the duties of Commissioner of Police upon the departure of Nigel Hoppie on pre-retirement leave and Rule 35 of the Public Service Com-mission Rules would have applied, in any event”, Jones said.
