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|Acting Chief Justice (CJ) Roxane George-Wiltshire SC on Thursday ruled President Irfaan Ali’s appointment of Mr. Clifton Hicken to act as Commissioner of Police (COP) was constitutional. The CJ highlighted there was uncertainty not only because the Police Service Commission was not in being since August 8, 2021, but because some three months since January 26, 2022, the Leader of the Opposition had not been elected and it was unclear when such an election would have occurred.
But attorney-at-law Roysdale Forde S.C, who represented Applicant Christopher Jones against Respondent Attorney General and Minister of Legal Affairs, Anil Nandlall S.C, begs to differ. In a statement, the Senior Counsel said, “having the highest regard for our Courts, the acting CJ and the sanctity of our Constitution, the decision delivered in the matter of Jones v Attorney General must be cause for great concern and it is regrettable that it is to be considered as a judicial green light to unilateral appointments by the Presidency and of course by Irfan Ali, the current President.”
The President, in making the appointment of COP argued it was done without the input of the Leader of the Opposition out of necessity and in his “own deliberate judgement” because the position of Leader of the Opposition was vacant and there was no Police Service Commission at the time. The CJ agreed.
Forde is however contending “the decision whilst strangely and eerily silent on the unilateral removal of the entire Police Service Commission by President Ali, is preoccupied with the impact and purport of the then vacancy in the office of the Leader of the Opposition, without any consideration that the President failed to appoint the Police Service Commission for months substantially contributing to the state of affairs that led to the action being filed in the Court.”
On the Court’s own analysis, the failure of the President to constitute the Police Service Commission must therefore be an operating reason for the court approved unilateral appointment of Mr. Hicken, presumably as much as the absence of a person occupying the office of Leader of the Opposition, said Forde.
The Senior Counsel further contends that “it is disappointing that the Court failed to recognise and or consider that state of affairs was created by the unconstitutional removal of the Police Service Commission and the failure by the President to thereafter constitute the said Commission.
Thus, the Court permitted the President to benefit from his own failure to discharge his Constitutional duty to appoint the Police Service Commission.”
Forde further opined that it is unfortunate the Court in its decision therefore saw March 30, 2022 as a static and or singular event and not an ongoing continuum of unconstitutional conduct by the President.
Hicken was appointed to act COP on March 30, 2022. On June 15, 2021 the President suspended the five-man Police Service Commission which was headed by retired Assistant Commissioner of Police, Paul Slowe. The matter of the suspension is before the court. The life of the Slowe Commission constitutionally ended on August 8, 2021.
Turning attention to consultation, the CJ ruled the High Court could not declare that there was no consultation because at the time there was no Leader of the Opposition through no fault of the President. The Court also ruled the Public Service Commission rules do not strictly bind the President to appoint the next most senior officer to act as Police Commissioner after then acting Police Commissioner Nigel Hoppie had proceeded on pre-retirement leave.
However, Forde contends that “the Court by this decision has obliterated the material distinction between an acting appointment which can only be made when there is a Leader of the Opposition and Police Service Commission and an appointment to perform the functions of an office which can be made whether there is a Leader of the Opposition and or Police Service Commission in place or not.
It is the CJ’s verdict “This is a case of a necessity not to cure an illegality, but to ensure that the unexpected lacuna that resulted in the impossibilities comply with Article 211 did not result in a situation that would have left the Guyana Police Force and, therefore the nation, without a commissioner.” Article 211 deals with “Appointment, etc., of Commissioner of Police and Deputy Commissioners.”
“The Judicial merger of these two distinct types of appointments will cause havoc in our Constitutional system and further weaken rather than strengthen the Constitutional edifice of Guyana. The Court proceeded to determine that the President could have acted in the manner he did as he was conferred with authority under Article 111 of the Constitution.” Article 111 deals with the “Exercise of President’s powers.” Forde pointed out that the issue was not raised in any of the Written Submissions nor was Counsel for Jones called upon or afforded the opportunity to address this issue.
The CJ ruled, “There could be no disregard of and thereby a breach of the requirement for meaningful consultation when it was impossible to so engage. The applicant therefore is relying on an impossibility to ground the claim of unconstitutionality.” It was also ruled that the use of the word “act” and “perform the functions of” could be used interchangeably.
It is the Senior Counsel’s considered opinion “the impact of this Judgment is too grave for it to be left standing. In the circumstances, thus an Appeal will be filed to set aside this decision.”