COME August 11, Acting Chief Justice Roxane George, S.C., will deliver her ruling in the Opposition’s challenge to the constitutionality of President Dr Irfaan Ali’s appointment of Clifton Hicken as acting Commissioner of Police.

During a virtual hearing on Wednesday, the Chief Justice concluded hearing oral submissions from Attorney-General and Minister of Legal Affairs, Anil Nandlall, S.C., and the applicant’s attorney, Roysdale Forde, S.C.

She later adjourned the case to August 11 at 13:30 hours for ruling.

In his Fixed Date Application (FDA), Opposition Chief Whip Christopher Jones is seeking to overturn Hicken’s appointment since it is “unreasonable, ultra vires the Constitution, common law and is illegal, null, void and of no legal effect.”

He is also seeking a declaration that the President’s decision to appoint Hicken violates Articles 211 (1) and 211 (2) of the Constitution of Guyana.

Against this backdrop, he is also contending that there were no consultations between the President and the Leader of the Opposition as is required by the Constitution, prior to Hicken’s appointment.

On Wednesday, Nandlall argued that the constitution provides for the appointment of a commissioner by the President.

He said that that appointment is to be made by the President after he would have engaged in meaningful consultation with the Leader of the Opposition and the chairperson of the Police Service Commission after that person would have consulted with the other members of the commission.

He added that former Commissioner of Police (ag), Nigel Hoppie, proceeded on pre-retirement leave on March 30, and at that time, there was no constituted Police Service Commission, nor was there a person holding the post of Leader of the Opposition.

Nandlall submitted that having regard to a number of factors, including the preservation of law and order, the preservation of peace, and the due enforcement of all laws and regulations within Guyana, in the nation’s best interest and in the interest of national security, the president reasonably opted to make the appointment rather than leave a “vacuum” in command and superintendence of the force.

Despite this situation, the AG noted that the GPF “cannot be headless” as it is important for there to be a top cop since this is the person who is responsible for the overall management of the force’s operations.

He opined that the laws of Guyana would not provide for the process of appointing a head of the force to grind to a halt nor would the constitution see the country go without a Commissioner of Police if a recalcitrant opposition cannot “get its house in order” and appoint a leader.

He contended that leaving a vacuum would “expose the nation to all the perils that the President, that the executive would be ultimately responsible for.”

He added, “Your Honour, I believe that the President made a judgement call…He chose a person who was the most senior functionary of the Guyana Police Force, holding several ranks as he graduated in his upward mobility over the years.”

Nandlall then submitted that while the process regarding the selection of the Commissioner of Police is laid out in the constitution, the power to choose the individual that will fill the role lies solely with the President.

He noted that the President has the right to “utilise deliberate judgement” in appointing the top cop and can do so based on merit, seniority, or service.

AG Nandlall expressed disagreement with Forde’s claim that the President’ decision was illegal and maintained that the President acted within the legal perimeters of the Constitution in making the appointment.

“I respectfully submit that there was no constitutional breach. The constitutional requirements could not have been physically satisfied. So, we have to have a sensible, rational approach to these matters,” Nandlall told the court.

Meanwhile, Forde told the court that Hoppie could have been asked to defer proceeding on retirement leave or an officer be appointed to perform the functions of the office of Commissioner of Police until the office of the Leader of the Opposition was filled and the Police Service Commission constituted.

Among other things, Forde submitted that there exists no power vested in the President by virtue of the Constitution to appoint Hicken as the acting top cop.

“There is, therefore, no basis for an implication that the President can act under the prerogative in disregard of the process of meaningful consultation as it would be an implication which is at odds with Articles 8 and 211 (1) and (2) of the Constitution,” Forde said.

He added that the doctrine of state necessity and/or necessity cannot be relied on to validate the action of the President to appoint Hicken.

Additionally, he said that Nandlall failed to adduce the evidence necessary to establish the existence of an emergency or necessity.

The Chief Justice in replying to Forde said, “You don’t have to necessarily wait for a state of unrest in the circumstances.”

Recently, the President, after consultation with Chairperson of the Police Service Commission (PSC), Patrick Findlay, officially nominated Hicken as Guyana’s acting Police Commissioner.

In a letter dated June 29, the Minister of Parliamentary Affairs and Governance, Gail Teixeira, outlined to Leader of the Opposition, Aubrey Norton, the reasons why Hicken was appointed back in March. The letter also invited Norton to give his opinion on the subject.

The letter stated that having regard to a number of factors, including “the preservation of law and order, the preservation of peace, and the due enforcement of all laws and regulations within Guyana, in the nation’s best interest and in the interest of national security,” President Ali opted to make the appointment rather than leave a vacuum in command and superintendence of the force.

Following consultations with Findlay, the President sought to engage Norton in “meaningful consultation”, Teixeira added in her letter.

However, he moved to the High Court seeking to quash the appointment of Findlay and the other PSC members, claiming it was “illegal, null, void and of no legal effect.”

In his legal challenge, the Opposition Leader is contending that the President did not afford him “a reasonable opportunity to express a considered opinion on the subject of the consultation”.

He maintains that this is a breach of the Integrity Commission Act.

As such, he is arguing that any consultation between the President and Findlay on the subject of the appointment of a Police Commissioner is unconstitutional, null, void, and of no legal effect.

The parties have since agreed that consultations between President Ali and Norton, regarding the appointment of Hicken will be put on hold pending the outcome of the challenge to the appointment of the PSC, which is also before the Chief Justice.