President breached constitution in appointing Hicken

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—attorney says Ali, in the circumstances, could not have relied on the doctrine of necessity

By Svetlana Marshall

Prominent Guyanese-Canadian Attorney-at-Law, Selwyn Pieters said the appointment of Clifton Hicken as the country’s Acting Commissioner of Police is in breach of the Constitution as the President, Irfaan Ali, in the circumstances, could not have relied on the doctrine of necessity to facilitate the appointment.

Pieters, in offering his legal position on Wednesday, April 20, 2022, analysed a number of facts surrounding the appointment. “After considering documents and the facts provided, the relevant statutes and case law, my advice is…the common law doctrine of necessity was not available in the circumstances [and] Articles 211 (1) and or 211 (2) of the Constitution was in fact breached as the processes under it were disregarded to allow for an improper appointment,” Pieters concluded.

Though the Constitution requires the President to engage in meaningful consultation with the Leader of the Opposition and the Chairman of the Police Service Commission before a Commissioner of Police is appointed, there was no such engagement. To justify his action, the President, along with the Attorney General and Minister of Legal Affairs, Anil Nandlall, argued that there was no Leader of the Opposition or Chairman of the Police Service Commission at the time of Hicken’s appointment on March 30.

In making his case, Pieters pointed out that the last substantive Commissioner of Police was Leslie James, DSS, DSM, who was appointed on August 30, 2018, however, he proceeded on 274 days of pre-retirement leave on July 31, 2020. Deputy Commissioner Nigel Hoppie was made to “perform the duties” of the Commissioner during that period, until the appointment of a substantive Commissioner. Notably, James retirement took effect on May 1, 2021. Hoppie proceeded on pre-retirement leave in late March and it was then that Hicken was appointed to act as Commissioner of Police.

The Canadian-based Guyanese Attorney was keen on pointing out that at the time of James’ retirement, there was a Leader of the Opposition in place, however, President Ali had made it clear that he would not engage the then Opposition Leader, Joseph Harmon until the Government is recognised as legitimate. There was also a functional Police Service Commission, headed by Assistant Commissioner of Police (Ret’d) Paul Slowe. “…the Guyana Police Force was without a constitutionally appointed Commissioner of Police or acting Commissioner of Police when both a Leader of Opposition and Chairman of the Police Service Commission were in place,” the Attorney said while further noting that there was no consultation between the President and the Leader of the Opposition between August 2020 and January 2022. Notably, the Office of the Leader of the Opposition only became vacant on January 26, 2022. “…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 3, 2020 and January 25, 2022. The legitimacy of the Doctrine of Necessity as a tool to override the sanctity of the Constitution is therefore a matter for the Supreme Court of the Judicature and higher Courts to determine in light the factual matrix,” Pieters said.

He noted that the President’s refusal to engage in “meaningful consultation” with the Opposition Leader between August 3, 2020 and January 26, 2022 on vacancies in several constitutional offices on the insistence that Opposition must recognise the Government as legitimate cannot be viewed in isolation, and must therefore be thoroughly analysed.

Further, he said based on evidence given under oath by former Commissioner of Police Seelall Persaud, Paul Williams, DSM, in the circumstance, as the sole Deputy Commissioner of Police was next in line to perform the duties of Commissioner upon the departure of Hoppie on pre-retirement leave

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