AG’s response to Paul Slowe

Sep 13, 2023 Letters

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Dear Editor,

False narratives on matters of public importance must never be left on the public record unrepudiated. For this reason, I hereby respond to a letter by Paul Slowe published in the Stabroek News dated 10 September 2023, captioned ‘Deputy Commissioner Nigel Hoppie was never appointed acting Commissioner of Police’. Mr. Slowe’s letter is a purported rejoinder to an article captioned, ‘Attorney-General exposes APNU’s constitutional atrocity” published in the Guyana Chronicle dated 2 September 2023.

The “constitutional atrocity” to which I referred, was the appointment of Mr. Nigel Hoppie, by the APNU+AFC Government, “to perform the functions of Commissioner of Police” via a letter from the Permanent Secretary, Ministry of Public Security. I maintain most resolutely that Mr. Hoppie could not have been lawfully appointed to perform the functions of that important office by a letter from the Permanent Secretary, in the face of Article 211 (1) and (2) of the Constitution.

The letter from the Permanent Secretary was not even addressed to Mr. Hoppie but to then Commissioner of Police, Leslie James. For readers’ benefit, I set out the content of this letter in extenso:

“Please be informed that approval has been granted for you to proceed on two hundred and seventy-four (274) days pre-retirement leave with effect from July 31, 2020.

Approval has also been granted for Deputy Commissioner of Police Nigel Hoppie to perform the functions of Commissioner of Police.”

To the rational reader, it must be excruciatingly clear from this letter that the Commissioner of Police was proceeding on 274 days of pre-retirement leave, after which he will retire. Therefore, the Commissioner of Police would have been unable to perform the functions of his office for 274 days after which the office will become vacant.

Let’s now turn to the relevant parts of Article 211 of the Constitution, to provide context:

211. (1) 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.

(2) If the office of Commissioner of Police is vacant or if the holder thereof is for any reason unable to perform the functions of his or her office, a person may be appointed to act in that office and the provisions of the preceding paragraph shall apply to such an appointment as they apply to the appointment of a person to hold that office; and any person appointed to act in the office of Commissioner of Police shall, subject to the provisions of paragraphs (3) and (4), continue to act until a person has been appointed to that office and has assumed the functions thereof or, as the case may be, until the holder thereof resumes those functions.                                                                                                                                                      [emphasis mine]

The pith and substance of Mr. Slowe’s bold contention is that a Permanent Secretary can, by simply employing the linguistic formulation, “to perform the functions of Commissioner of Police”, via a letter, hijack the process and procedure enshrined in the supreme Law of this land and deprive the Supreme Executive Authority of this Republic of his vested functional responsibility of appointing a person to act in the office of Commissioner of Police. In other words, by the mere use of the phrase “to perform the functions of Commissioner of Police”, a Permanent Secretary can seamlessly subvert the doctrine of constitutional supremacy. Prudent readers will quickly discern the legal heresy which inheres in Mr. Slowe’s pontification!

Mr. Slowe is obviously unaware that the law always regards substance over form. Thus, Lord Templeman in the landmark English case of Street v. Mountford (1985), “a five-pronged implement for manual digging is a ‘fork’, whatever the manufacturer chooses to call it.” In this case, the law lords had no difficulty in rejecting the creativity of lawyers who attempted to disguise a tenancy agreement by using all manner of linguistic artifices in order to defeat certain protection that the law accorded to tenants.

Likewise, an appointment “to perform the functions” of Commissioner of Police is an appointment “to act” as Commissioner of Police, however Mr. Slowe decides to label it. No amount of linguistic manipulation can justify a circumvention and subversion of the crystal language of the Constitution. The rule of law will not countenance it and a competent court of law will reject it. Moreover, it cannot be disputed that during his tenure in that office, Mr. Hoppie rightfully exercised the full plenitude of functional responsibilities of the Commissioner of Police. That he chose not to don some paraphernalic badge is really of no moment.

In the case of Christopher Jones v. Attorney General and Clifton Hicken FDA 705 of 2022, the aforementioned letter of the Permanent Secretary surfaced for the first time from Counsel for Mr. Jones. In pronouncing upon the said letter in a written judgment, the Chief Justice described Mr. Hoppie’s appointment as a constitutional “non-compliance” and reproached Counsel for Christopher Jones, thus: “…it does seem disingenuous to advance a strict application of the constitutional provisions on the appointment of the Commissioner of Police, when the letter from the PS suggests that there may have been a breach of the Constitution [in appointing Nigel Hoppie to act] as no reference was made to the art 211 process.” [para. 36]

Inexplicably, Mr. Slowe dedicated quite a few paragraphs to ranting and wailing against His Excellency’s appointment of Mr. Clifton Hicken’s to act in the office of Commissioner of Police. In a 21-page judgment rendered by George CJ in the case filed by Christopher Jones referenced above and widely carried in the local press, this appointment was upheld and declared lawful and in compliance with Article 211 of the Constitution.

In my respectful view, the remainder of Mr. Slowe’s letter does not merit any commentary.

Yours faithfully,

Mohabir Anil Nandlall, SC, MP

Attorney General & Minister of Legal Affairs

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• Attorney General & Minister of Legal Affairs, functional, Mohabir Anil Nandlall, MP, SC

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