The constitutional framework governing the appointment of the Commissioner of Police in Guyana

Oct 05, 2024 Peeping Tom

---

Peeping Tom…

Kaieteur News – The issue of appointing someone to either act as or become the substantive Commissioner of Police in Guyana has been the subject of constitutional litigation and judicial scrutiny. In particular, the legal question arose as to whether the President can validly appoint someone to act as Commissioner of Police in the absence of formal consultations with key constitutional actors such as the Leader of the Opposition and the Chairperson of the Police Service Commission (PSC).

The August 2022 ruling by Chief Justice Roxane George, SC, has clarified this issue. It has affirmed that the President’s appointment of Clifton Hicken as acting Commissioner of Police was not unconstitutional due to unique circumstances that made full compliance with Article 211(2) impossible. However, it is essential to understand that the President’s ability to make such appointments, under normal circumstances, hinges on his meaningful consultations with the relevant authorities as outlined in the Constitution of Guyana.

It will be recalled that this column had argued that a distinction can be made between someone who is acting as Commissioner of Police and someone who is appointed to perform the duties of such a post. The Court rejected this distinction, and it is therefore a moot point now.

Therefore, once the President meaningfully consults with the Leader of the Opposition and the Chairperson of the PSC, he is constitutionally empowered to make a substantive appointment to the post of Commissioner of Police.

Constitutional Provisions:

The appointment of the Commissioner of Police is governed by Article 211(2) of the Constitution of Guyana, which requires the President to consult two key stakeholders: (i) the Leader of the Opposition and (ii) the Chairperson of the PSC after the Chairman has consulted with the members of the Commission. These consultations are intended to ensure that the appointment reflects a broad consensus among critical constitutional actors and that the choice of the Commissioner is free from political partisanship.

Specifically, Article 211(2) of the Constitution provides: “The Commissioner of Police shall be appointed by the President after meaningful consultation with the Leader of the Opposition and the Chairperson of the Police Service Commission, after the Chairperson has consulted with the other members of the Commission.”

This provision ensures that the appointment process involves substantive input from both the political opposition and the independent constitutional body responsible for police oversight. The question, however, remains: what constitutes “meaningful consultation,” and how can the President discharge this constitutional duty?

The term “meaningful consultation” is defined within the Constitution itself. According to the Constitution, “consultation” or “meaningful consultation” means that the person responsible for seeking consultation shall identify the persons or entities to be consulted and specify to them in writing the subject of the consultation and an intended date for the decision on the subject of consultation. It also entails that each person or entity to be consulted is afforded a reasonable opportunity to express a considered opinion on the subject of the consultation.

The critical elements of meaningful consultation, therefore, include the requirement that the President must formally inform the Leader of the Opposition and the Chairperson of the PSC, in writing, of the intended appointment and the timeline for the decision. The consulted parties must be given sufficient time to provide a considered opinion on the matter. The consultation process must not be rushed or tokenistic.

It is my opinion that consultations need not take place in person. The President, in my estimation, can conduct the consultation through written correspondence, ensuring that both the Leader of the Opposition and the PSC Chairperson have the opportunity to deliberate on the candidate and provide their feedback.

This consultation can be done by someone so authorized by the President. This I believe is so because the legal obligation on the President is to ensure that the views of the consulted parties are sought and considered. However, the President is not bound to act on those views. The essence of consultation is the exchange of information and the opportunity for dialogue, not necessarily agreement.

In the case concerning the appointment of Clifton Hicken as acting Commissioner of Police, the court was asked to determine whether the President had violated the Constitution by appointing Hicken without the required consultations. At the time of the appointment, the position of Leader of the Opposition was vacant, and there was no functional PSC. Chief Justice Roxane George, SC, ruled that the President’s actions were not unconstitutional, as full compliance with the consultation requirements of Article 211(2) was impossible due to circumstances beyond the President’s control.

In her judgment, Chief Justice George acknowledged that the Constitution requires meaningful consultation but noted that the absence of the necessary constitutional actors rendered full compliance impracticable. In such cases, the President must act to ensure that the office of Commissioner of Police is filled, as public safety and law enforcement cannot be compromised by political stalemate.

This ruling underscores that while the constitutional framework mandates meaningful consultation, it also allows for flexibility in extraordinary situations where consultation is impossible. However, in normal circumstances, the President must comply with the consultation requirements before making any substantive appointment.

In the case of appointing someone as the substantive Commissioner, so long as the President adheres to the constitutional requirements for meaningful consultation, he retains the ultimate authority to appoint a substantive Commissioner of Police. Consultation does not equate to concurrence. The President is required to listen to the opinions of the Leader of the Opposition and the Chairperson of the PSC, but he is not obligated to follow their recommendations. Once the consultation process is fulfilled as defined in the Constitution, the President is free to exercise his discretion in making the appointment.

This framework balances the need for checks and balances with the President’s executive authority. It ensures that the appointment process is inclusive, transparent, and participatory, while also recognizing that the final decision lies with the President. The Constitution does not give the consulted parties a veto over the President’s choice but ensures that their views are formally considered.

(The views expressed in this article are those of the author and do not necessarily reflect the opinions of this newspaper.) 

 

---

• Commission, Guyana, opposition, Police Service, President, PSC, PSC Chairperson

---