Hicken’s appointment was necessary to fill police force vacuum – AG

Jul 21, 2022 News

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By Rehanna Ramsay

Kaieteur News – In seeking to carry out the constitutional mandate to maintain law and order and safeguard national security in Guyana, President Irfaan Ali was left with no choice, in the absence of an Opposition Leader and a Police Service Commission (PSC) but to act on the basis of necessity and appoint an acting Commissioner of Police to lead the Guyana Police Force.

This was the crux of the arguments presented by Attorney General (AG), Anil Nandlall, SC, as he addressed Chief Justice (ag) Roxane George- Wiltshire on Wednesday in the matter which was filed to challenge the appointment of Commissioner of Police (ag) Clifton Hicken.

Nandlall noted that the “The Constitution declares that the President is the Commander-in-Chief of the Armed Forces of Guyana…the President in making his decision had regard to the preponderance of statutory  functions and duties which devolve upon the Office of the Commissioner of Police and by extension the Police including the preservation of law and order.”

He continued that “Having this overall command of the armed forces and direct responsibility for national security interests, the President is empowered to appoint a Commissioner of Police and even the Deputy Commissioner of Police pursuant to Article 211 of the Constitution.”

The Attorney General noted that in the absence of the Opposition Leader and a PSC, the President is empowered to appoint someone to lead the police force. “That empowerment,” he said, is legally secured by “the doctrine of necessity.”

Nandlall was at the time seeking to respond to the contentions raised by Senior Counsel Roysdale Forde, who is the attorney for A Partnership for National Unity+ Alliance For Change’s (APNU+AFC) Chief Whip, Christopher Jones.

Jones brought the court action challenging Hicken’s appointment as Commission of Police (ag). Through his lawyers, Jones contended that the President breached the Constitution by appointing an acting P0lice Commissioner.

In his arguments before the Court, Forde noted that the President acted in breach of the provisions article 211 of the Constitution which requires that the President does such appointment after he consults with the Chairman of the Police Service Commission (PSC) and the Leader of the Opposition.

Forde noted that given neither the opposition leader nor the PSC were in place the President had a number of other options than to confer an appointment on Hicken as acting Commissioner.

He said, “The constitution clearly spells out that these persons must be in place if the president were to appoint a substantive Commissioner of Police of an acting Commissioner of Police… In the absence of these required functionaries, the President had several options. One of which he could have assigned someone to carry out the function of the Police Commissioner.”

According to Forde, this option is catered for under Article 232 of the Constitution.  The Senior Counsel alluded to the manner in which the previous head of the police force Nigel Hoppie was in place to perform the functions of Police Commissioner by the APNU+AFC administration in 2020 after then substantive Police Commissioner Leslie James had proceeded on pre-retirement leave.

He pointed to a letter which signalled Hoppie assignment to the post. But Nandlall questioned the constitutionality of that correspondence to Mr. Hoppie.

According to him, the fact that the letter had been signed by the Permanent Secretary of the Ministry of Public Security, Daniella McAlmon, rather than the President is a matter for concern.

The Attorney General noted too that the letter signed by the Permanent Secretary to perform the functions of the Police Commissioner was without the due regard for the circumstances.

“This power is being exercised by a Permanent Secretary instructing a person to perform the functions of Commissioner of Police, completely subverting Article 211 and Mr. Forde relies on this document. Your Honour, this characterises the entire case that is before the Court,” he said.

Nandlall pointed out too that at the time, the option would not have been necessary since the Opposition Leader and PSC were in place.

The Chief Justice agreed that the contention on that point lacked merit because at that time there had been a sitting Opposition Leader and Police Service Commission on July 30, 2020.

But Forde was adamant that Ali had other options one of wish was to allow Hoppie, who was then proceeding on preretirement leave, to remain in place.

Nandlall, nevertheless, stated that the position taken by Senior Counsel Forde was preposterous, since this option would depend on whether Hoppie was willing to stay in position until the President was able to appoint a Commissioner or Acting Commissioner following consultations with the Opposition Leader who has only been in place for the past two months.

Meanwhile, Forde attempted to convince the court that “all decisions” taken by Hicken should be declared as “unlawful”. He, however, had no evidence of “all” the decisions. The lawyer said instead that all recent promotions should be reversed.

“I would have to know what those ‘all acts’ are because they may have some serious repercussions…You would have to produce the evidence in relation to ‘all” otherwise that can create chaos,” the Chief Justice said.

Forde said he and his client could not produce evidence of all those acts because they do not have the database, a collection of all acts done by Mr. Hicken.

In this regard, he said, “We seek to rely and to have that order amended to reflect that we can only produce evidence in relation to this (police promotions) so that any other act, necessarily by consequence, will not be affected by it.” Toward the end of his presentation, Forde held that the issue of the matter is whether the President had wrongfully invoked the doctrine of necessity to appoint Hicken as top cop.

To this end, Justice George-Wiltshire set August 11, 2022 as the date to hand down her determination on this and other merits of the case.

 

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