Citing its national importance, and having heard all the arguments yesterday, acting Chief Justice Roxane George SC has tentatively set August 11 to rule on whether the President’s appointment of Clifton Hicken as acting Commissioner of Police was lawfully done.
A heated debate raged for almost three hours yesterday morning between Senior Counsel Roysdale Forde, who argued that the appointment was unlawfully done, and Attorney General Anil Nandlall SC, who said that not only was it lawful, but that the President was empowered to so do.
The fixed date application (FDA) on which the attorneys argued was filed back in May by APNU+AFC Chief Whip Christopher Jones, who moved to court to challenge the appointment.
His contention is that the President’s invocation of the Doctrine of Necessity for the appointment was unreasonable and unlawful and that the appointment violated Article 211(1) and (2) of the Constitution.
A discourse on the effect of those provisions dominated the arguments.
Forde’s submission had been that contrary to Article 211(1), in the absence of both an Opposition Leader and Chairman of the Police Service Commission (PSC) at the time the appointment was made, the appointment ought not to have been made.
He said that irrespective of how well-intentioned the aims of the President may have been, he flouted the law and no such appointment should have been made.
Article 211(1) provides: “The Com-missioner 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 Chairperson of the Police Service Commission after the Chairperson has consulted with the other members of the Commission.”
Could not be complied with
Pointing out, however, that the absence of an Opposition Leader was a state of affairs at the time which had nothing to do with President Irfaan Ali, and for which he therefore could not be faulted, the Chief Justice enquired from Forde how it was that he had arrived at the position that the President had breached the Constitution.
The Judge cautioned that in those circumstances it seemed quite evident that the provision just could not be complied with.
Given that state of affairs, she then pressed Forde to say what it was that the President ought to have done, especially in the context of Nandlall’s arguments that there was at the time an uncertainty as to when there would have been an Opposition Leader.
The AG had advanced also that given the need to safeguard national security, the President then resorted to the Doctrine of Necessity, thereby making the appointment.
Forde would eventually concede that since there was no Leader of the Opposition, the provision could indeed not be complied with. He then amended his submission to say that someone could therefore not have been appointed to act, since there could have been no constitutional conformity.
On this point, Forde advanced the argument that someone—even Hicken—could have been appointed to perform the functions of the office of Commissioner of Police as the President had done in the case of former Deputy Commissioner of Police Nigel Hoppie after former Assistant Commissioner of Police Leslie James retired.
Forde, however, went on to express the view that the President was keenly intent on specifically appointing Hicken to act in the position, knowing that meaningful consultation would be required, when it was public knowledge that there was not only no PSC Chair, but also no Opposition Leader at the time.
Citing Article 232(2) of the Constitution, Forde said that a distinction needed to be drawn between appointing someone to act as Commissioner of Police, and appointing someone to perform the functions of the office.
Article 232(2) provides “a reference to power to make appointments to any office shall be construed as including a reference to power to make appointments on promotion and transfer and to confirm appointments and to power to appoint a person to act in or perform the functions of that office at any time when the office is vacant or the holder thereof is unable (whether by reason of absence or infirmity of mind or body or any other cause) to perform the functions of that office; a reference to the holder the office by the term designating his or her office shall be construed as including a reference to any person for the time being lawfully acting in or performing the functions of that office.”
Aborting the need for consultation
Firing back, however, Nandlall dismissed Forde’s arguments as being “preposterous,” submitting that he was being inconsistent with his own advancements of the need for constitutional compliance.
The Attorney General (AG) said that appointing someone merely to “perform the duties” of the office would be aborting the very need for consultation. He said that both subsection (1) and (2) of Article 211 speak of either an acting or a substantive appointment.
Nandlall said nowhere does it speak of appointing someone to “perform the duties of…” and to so do would be “galloping on an unruly horse,” and “creating a constitutional beast difficult to harness after a while.”
Nandlall then went on to submit that quite apart from the need for consultation, the importance of which he acknowledged, the president in Article 211(1) is endowed with the power to make the appointment.
On this point Nandlall argued that while the latter part of 211(1) is important, it explains the procedure by which the appointment has to be made; and that the distinction needed to be appreciated.
The lawyers then squabbled over what needed to be established to satisfy President Ali’s resort to the Doctrine of Necessity.
Forde said that in the first place, the State needed to demonstrate that there was some matter of urgency or a crisis and that no other options were available to the President which thus necessitated the resort to the doctrine.
On this latter point, Forde reiterated that the President could have resorted to Article 232(2) and appointed someone to perform the duties of Commissioner of Police, to which Nandlall reaffirmed his position of this amounting to a constitutional breach
He then went on to argue that while the Doctrine of Necessity may have been birthed out of extreme security national crises, it is not limited to those circumstances only. In fact, he argued that the nation’s security apparatus could not just sit back and await such a situation.
The AG said the President had to make a judgement call as to whether to leave the office vacant and expose to the country to perils, or make the appointment in the interest of national security so as to ensure that the administrative business of the State did not grind to halt.
Nandlall said that in those circumstances the President could not just sit and wait in uncertainty until there was an Opposition Leader.
Minister of Home Affairs Robeson Benn in an affidavit in defence supporting the President’s appointment had contended, among other things, that “having regard to his experience and ranks…I am of the considered view that Mr. Hicken is qualified to act in and perform the functions of the office of Commissioner of Police.”
Nandlall is asking that in all the circumstances, and having regard to the case put forward by the State, Jones’ application should be dismissed.
Among the reliefs being sought by Jones is for the Court to nullify all acts he would have undertaken since his appointment.
Forde was, however, unable to identify those acts to which his client refers. Describing that as being an onerous exercise to undertake, Forde then abandoned that relief, but asked that all promotions of police ranks made since Hicken’s appointment be nullified.
Noting that such a calling affects the entitlements of third parties, the Chief Justice then enquired from Forde “what is the Court to do in those circumstances?”
He submitted that while there may be an honestly-held belief among those persons that they may have been promoted, it does not bar the Court from granting the declaration his client is seeking if it is found that Hicken’s appointment was unlawful.
Following the conclusion of the arguments, Chief Justice George said she intends to deliver her ruling at 1:30 on the afternoon of Thursday, August 11.
Government officials had said that Ali had employed the Doctrine of Necessity in naming Hicken as the position had become vacant with the retirement of Hoppie.
Meanwhile, Opposition Leader Aubrey Norton has since filed a notice of application (NoA) seeking the Court’s guidance on what constitutes meaningful consultation.
The request for consultation from the President appeared baffling as Ali had already appointed Hicken to act on March 30th of this year.
At a hearing before the Chief Justice last Friday, Nandlall gave an undertaking that Norton is no longer under an obligation to respond to the President request for consultation regarding the Hicken’s appointment.
That consultative process has been paused until it has been fully heard and determined by the Court.
Norton wants the Court to declare what he calls the President’s “termination of the consultation process,” as being “arbitrary, unreasonable and unconstitutional.”
