After appointing Clifton Hicken as the acting Commissioner of Police citing the doctrine of necessity, President Irfaan Ali has invited the Leader of the Opposition Aubrey Norton to make written submissions on a temporary appointment.
In a letter dated June 29, 2022, Minister of Parliamentary Affairs and Governance Gail Teixeira informed Norton that Nigel Hoppie, who was performing the functions of Commissioner of Police, proceeded on pre-retirement leave on March 30, 2022. She added that since there was no active Police Service Commission and Leader of the Opposition at the time, a decision had to be taken by the President.
Hoppie is slated to retire in early 2023.
In her letter, Teixeira said “Having regard to the preponderance of statutory functions and duties which devolve upon the Office of the Commissioner of Police and the Guyana Police Force by extension, including, the preservation of law and order, the preservation of peace and the due enforcement of all laws and regulations within Guyana, in the nation’s best interest and in the interest of national security, His Excellency, President Dr Mohamed Irfan Ali considered it his constitutional duty to appoint Mr Clifton Hicken, to act in the Office of Commissioner of Police with effect from the 30th day of March 2022, rather than leave a vacuum in the command and superintendence of the Guyana Police Force.
She added, “Pursuant to Article 211 (2) of the Constitution of Guyana, His Excellency has conducted and concluded meaningful consultation with the Chairperson with the Police Service Commission (PSC). His Excellency is now engaging you in meaningful consultation in respect of the appointment at caption. His Excellency is nominating Mr Clifton Hicken to act in the Office of Commissioner of Police, I am attaching Mr Hicken’s Curriculum Vitae (CV) for your easy reference.”
Minister Teixeira concluded her letter by informing Norton that he should deliver his written opinion on or before Monday, July 04, 2022 – which is a national holiday.
Guyana’s Constitution states that the President can appoint a Commissioner of Police and Deputy Commissioners of Police only after consulting with the Opposition Leader and Chairperson of the Police Service Commission (PSC) after the Chairperson has consulted with the other members of the Commission.
Article 211 (2) adds, “If the office of Commissioner of Police is vacant or if the holder thereof is for any reason unable to perform the functions of his office, a person may be appointed to act in that office and the provisions of the preceding paragraph shall apply to such an appointment as they apply to the appointment of a person to hold that office; and any person appointed to act in the office of Commissioner of Police shall, subject to the provisions of paragraphs (3) and (4), continue to act until a person has been appointed to that office and has assumed the functions thereof or, as the case may be, until the holder thereof resumes those functions.”
Following the announcement of Hicken’s appointment, the People’s National Congress Reform (PNCR) had warned that it will be moving to the courts over what it said was the “illegal” appointment of Hicken.
The PNCR reminded the Government of the Public Service Rule which states that acting appointments must be given to the most senior officer. “Based on the current structure and line of statutory succession, Deputy Police Commissioner Paul Williams remains the next in line. Mr Clifton Hicken is an Assistant Commissioner and therefore, is junior in rank to Mr Williams,” the party said.
“To promote Mr Hicken to the rank of Deputy Commissioner of Police or to have him act in the office is a blatant violation of the Constitution, and will be challenged in a court of law,” it added.
It further stated that in the temporary absence of a Leader of the Opposition and the Police Service Commission, any appointment of Commissioner of Police or Deputy Commissioners of Police is “plainly unconstitutional”.
Norton took up the post as Opposition Leader on April 13, 2022, and President Irfaan Ali appointed the new PSC on May 31, 2022. The Commission is being chaired by Pastor Patrick Findlay and includes Mark Conway, Hakeem Mohammed and Ernesto Choo-a-Fat.
Meaningful consultation
Article 232 of the Constitution defines ‘consultation’ or ‘meaningful consultation’ as meaning that the person seeking consultation shall specify the subject of the consultation and the intended date of the decision; afford a reasonable opportunity to express a considered opinion; cause to be prepared and archived a written record of the consultation.
In his June 5 Conversation Tree column in the Sunday Stabroek, former Speaker of the National Assembly Senior Counsel Ralph Ramkarran said that the single definition of both terms suggests that they mean the same thing. He also reminded the Caribbean Court of Justice in the case of Mustapha v AG and Chairman of the Guyana Elections Commission touched on consultation but added nothing to existing law.
However, he did point out that ‘Sedley principles on consultation’ outlines that – (i) the consultation must be at a time when proposals are still at a formative stage; (ii) the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response; (iii) adequate time must be given for consideration and response; (iv) the product of consultation is conscientiously taken into account when finalizing the decision.
Norton and President Ali met for the first time on May 13 to discuss the appointment of members to the Police Service Commission, Integrity Commission, and Judicial and Teaching Service Commissions. That meeting was adjourned after Norton requested the CVs of the nominees along with the grounds for their selection. The CVs were provided and Teixeira had said that the President is not required to provide grounds.
The leaders were supposed to meet one week after the May 13 engagement but the government did not keep its end of the bargain. Instead, on May 27, Teixeira wrote to Norton inviting him to meet with President Ali on May 30 but Norton did not show up and cited prior commitments. The President went ahead with the process and swore in the members of the Police Service Commission and the Integrity Commission.
On June 7, Norton said that he will be seeking an interpretation of the term “meaningful consultation” from the courts and promised not to engage President Ali until the parameters of meaningful consultation are defined.
Yesterday, efforts to contact both Norton and his chief legal adviser Roysdale Forde were unsuccessful.
However, Stabroek News’ source in the Office of the Leader of the Opposition said that Norton believes that the government has no interest in adhering to the constitution and that the letter was “farcical”.
“We are sure that the government is not interested in anything that is meaningful and such it would just be a waste of time to participate in this process. We have made our case clear that there should be adherence to the constitution. Even as we are challenging the very decision to appoint Hicken as acting Police Commissioner, the government wants to go ahead with appointing him, that is utter nonsense but then again we cannot expect better from this regime,” the source related.
The source added “Inviting Mr Norton to submit reasons to either accept or refuse the nomination is not meaningful consultation. There will be no avenue for discussion and meeting a consensus. This is all a farce so I do not see it going anywhere.”
Legal challenge
In May, APNU+AFC Chief Whip Christopher Jones 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.
Among the ten declarations he is seeking, Jones wants the court to declare 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.
The case was scheduled to come up before acting Chief Justice Roxane George-Wiltshire on July 8.
On June 29, Attorney General Anil Nandlall filed a notice of application requesting 5 days from the 8th July 2022 which was the date for the hearing of the case, to file his response to Christopher Jones Affidavit. He is alleging late service.
Nandlall is seeking to have the court grant him an extension of time to file and serve an affidavit in defence along with relief from sanctions for the failure to adhere to the timelines for response.
He argues that while Jones’ Fixed Date Application was filed on May 20, 2022, it was only served on Hicken on June 8 which is some 19 days later. He added that Jones is seeking declarations that require detailed instructions from the acting Commissioner of Police.
“The Acting Commissioner of Police was out of the jurisdiction on more than one occasion after the service of the Fixed Date Application herein, attending official engagements. His absence from the jurisdiction, coupled with the many duties and responsibilities to which he is required to attend, including but not limited to, the recent unrest which occurred and remains ongoing on the East Coast of Demerara for the past several days aggregated to prevent the Acting Commissioner of Police from giving full instructions for the preparation of the Affidavit in Defence herein, including making available, documents from the Guyana Police Force, which are necessary for the preparation of the said Affidavit,” Nandlall argued.
He noted that the matter is of high national and constitutional importance adding that they should have adequate time to file a response. He said that their failure to file a response is not intentional.
