Declaring the President’s appointment of Clifton Hicken to act as Commissioner of Police, lawful; Chief Justice (Ag) Roxane George SC said the Head of State acted well within the Constitution, given the peculiar circumstances with which he was confronted.
Given the ruling, all the promotions of police officers authorized by Hicken following his appointment, were saved by the Court.
In throwing out the action brought by the main APNU+AFC Opposition, Justice George said the fact there was no Opposition Leader when Hicken was appointed, there could also be no consultation between the two political figureheads on making the appointment, as envisioned by the Constitution.
Describing the Opposition’s challenge as “vexatious,” Justice George made it clear, that the absence of an Opposition Leader has nothing to do with the President and for which he cannot be faulted.
Against this background she said that notwithstanding the provisions of Article 211 of the Constitution, it could not be the intention of the framers that without an Opposition Leader, the smooth functioning of the Guyana Police Force ought to be hindered without a Commissioner of Police.
The Opposition’s fixed date application (FDA) challenging Hicken’s appointment was filed back in May by its Whip, Christopher Jones, whose main contention was that the President Irfaan Ali’s invocation of the Doctrine of Necessity for the appointment was unreasonable and unlawful and that the appointment violated Article 211.
Article 211(1) provides: “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 Chairperson of the Police Service Commission after the Chairperson has consulted with the other members of the Commission.”
In dispensing with the issue of compliance with Article 211 which calls for consultation, Justice George in citing a number of case law authorities, noted that where consultation has not materialized due to no fault of the decision-maker, it does not mean that the decision-maker is precluded from acting.
“The appointment of the Leader of the Opposition was not within the mandate of the President,” she stressed, while adding that the circumstances beyond his control by which he was confronted with there being no Opposition Leader at the material time the appointment was made, meant that compliance with Article 211 would have been impossible.
“The Applicant therefore is relying on an impossibility to ground a claim of unconstitutionality,” Justice George asserted.
She then said it was hardly likely that the framers of the Constitution would have contemplated a situation where an important constitutional office such as the Leader of the Opposition, who plays in integral role in appointments of other constitutional offices would have been vacant for the extended period as was the case before Aubrey Norton was appointed Opposition Leader on April 13th, 2022—three months after his predecessor resigned.
In dispensing with the issue of the Doctrine of Necessity, the Chief Justice said she agreed with the Attorney General’s (AG) submission on behalf of the State that it was irrelevant. She said that while the President may have made a statement to that effect, it is for the Court to determine whether indeed in the circumstances of the case, the doctrine applied.
Justice George said that while she agrees that there were no extreme situations of emergency that led to a suspension of the Constitution for which resort is usually made to the doctrine; the absence of a Leader of the Opposition to meaningfully consult with led to the necessity for the President to make the appointment, which she described as being “reasonable…in his own deliberate judgement.”
She said that he was so entitled pursuant to Article 111 of the Constitution to address the “unexpected circumstances” by which he had been confronted and to also address the administrative deficiency that had arisen.
The Judge reasoned that there could have been a negative impact on national security if the highest office of such an important law enforcement agency was left vacant, given what at March 30th, 2022 when Hicken was appointed— was still an uncertainty of when an Opposition Leader would have been appointed.
Article 111 states “In the exercise of his functions under the Constitution or any other law, the President shall act in accordance with his own deliberate judgment except in cases where, by this Constitution or by any other law, he is required to act in accordance with the advice or on the recommendation of any person or authority.”
Justice George said that the instant case is one in which the President is authorized to make an appointment, albeit under certain circumstances pursuant to Article 211. Stressing again that the Article 211 circumstances could not be met, she said it does not mean that the President could not take action towards addressing the situation.
Regarding the argument advanced by counsel for the Opposition, Roysdale Forde SC that the President could have resorted to Article 232(2) and appointed someone to “perform the duties” of Commissioner of Police, which he sought to specifically distinguish from appointing to “act,” the Chief Justice said that the two terms were only used interchangeably, but that each results in the same effect as the other.
She said that the sub-articles of 232 allow for the person who has the power to make an appointment to any office to appoint a person to act or perform the functions of that office. She said that “act” and “perform the functions of,” are interchangeable and amount to the appointment of a person to fill a position on what should be a temporary or holding situation.
She said that thus, whether appointed to act or to perform the functions would amount to the same thing—a person would be permitted to carry out the duties and responsibilities of the post.
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 of 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.”
Chief Justice George said that “ultimately, it is the President who must appoint the Commissioner of Police,” while stating that in the context of the instant case, it could not be that the President should be rendered incapable of appointing someone to act in or perform the functions of the office of Commissioner of Police, so as to ensure that the machinery of administration was not hindered.
Justice George said that given the circumstances of the case before her, she did not find that appointing Hicken to act in the post “was anything more than ensuring that the position of Commissioner of Police was not vacant.”
Against that background she said she concluded that the distinction sought to be made by Forde between an acting appointment grounded in meaningful consultation which could not be achieved, as against a performing duties appointment “appears to be splitting hairs and making much ado about nothing.”
She said that in any event the State’s defending affidavit disclosed that the appointment is meant to be temporary until an Opposition Leader was in place and a Police Service Commission appointed to then allow for compliance with Article 211.
“There is no evidence to rebut this assertion,” the Judge further noted.
Given the Chief Justice’s ruling, the relief sought that the promotions of police officers authorized by Hicken be nullified was also not granted.
Noting that the rights and entitlements of such police officers would be affected, the Judge said that even if she did rule that Hicken’s appointment was unlawful, those promotions he authorized would have been saved.
The Opposition has to pay costs to the AG and Hicken which will be determined by the Court if the parties are unable to agree on a sum by August 31st, 2022.
In support of the President’s appointment of Hicken, Attorney General Anil Nandlall SC had argued that the President had to make a judgment call as to whether to leave the office of Commissioner of Police 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.
