– Chief Justice rules President Ali acted lawfully in ‘Top Cop’ appointment

CHIEF Justice (ag) Roxane George, on Thursday, ruled that President, Dr. Irfaan Ali acted lawfully when he appointed Clifton Hicken to act as Police Commissioner.
The matter challenging Hicken’s appointment was brought to Court by Opposition Chief Whip Christopher Jones.

The Chief Justice, through her ruling, refused to grant the orders sought by the A Partnership for National Unity+Alliance For Change (APNU+AFC) to have the appointment of Hicken quashed and declared null and void.

Chief Justice George noted in her ruling that in the absence of an Opposition Leader and the Chairman of the Police Service Commission (PSC) at the time, the President, in keeping with Article 111 of the Constitution, had the capacity to make a deliberate judgement.

“In an absence of a leader in the opposition to meaningfully consult with, I am of the view that out of necessity, the President could have acted and it was reasonable for him to take action in his own deliberate judgement, pursuant to Article 111, to address the circumstances of this case,” the Chief Justice said.

Under usual circumstances, the President is required to consult with both the Opposition Leader and the Chairperson of the Police Service Commission in keeping with Article 211 (2) of Guyana’s Constitution, before appointing a substantive Commissioner of Police.
However, the Chief Justice ruled that given the circumstances in which there was an absence of both officials integral to the process, the President had to act to ensure there was a Commissioner of Police in place.

“There could have been negative impact to national security if the highest office of such an important law enforcement agency was left vacant,” Justice George noted.
In appointing Hicken to act as Commissioner of Police, President Ali had indicated that he invoked the doctrine of necessity.

“There is something called the ‘doctrine of necessity’. Should I allow the country to fall through without an acting commissioner? It’s the doctrine of necessity, and in the doctrine of necessity, I appointed an acting commissioner,” President Ali had said some time ago in a media scrum defending his decision.
Meanwhile, another court ruling on a similar matter is set for August 23.

Opposition Leader Aubrey Norton had moved to the High Court seeking to quash the appointment of the PSC Chairman, claiming that it was “illegal, null, void and of no legal effect.” His legal challenge is also against the appointment of the Integrity Commission.
Patrick Findlay currently sits as Chairman of the reconstituted PSC which also includes Attorney-at-Law Mark Conway, and businessmen Ernesto Choo-a-Fat, and Hakeem Mohammed.

As it relates to the Integrity Commissioners, Norton, in his challenge, is contending that President, Dr Irfaan Ali did not afford him “a reasonable opportunity to express a considered opinion on the subject of the consultation.”

He maintained that this is a breach of the Integrity Commission Act.
The Integrity Commission comprises Demerara Bank Corporate Secretary, Chandra Gajraj as Chairperson, along with attorney Mohamed Haniff, and former Solicitor General Kim Kyte-Thomas. Hardesh Tiwari and Chris Wayne Bowman are also members.

Attorney General and Legal Affairs Minister Anil Nandlall, S.C., in his submissions on that matter, contended that “undisputed evidence” reveals that Norton was informed in writing that Mr. Findlay was the President’s nominee for PSC Chairman.

According to Nandlall, Norton himself, on April 13, voted in the National Assembly in support of the Official Report of the Appointments Committee that recommended Findlay as a member of the PSC.

Norton had claimed that Findlay is politically tainted since he is a “known and public supporter of the PPP/C and was a candidate for the PPP/C [in the] 2015 general and regional elections.”
However, in his submissions, Nandlall said, “Significantly, it has already been made painfully clear that no such allegation was made at the Appointments Committee or in the National Assembly when the report from that committee was unanimously approved containing the names of the persons to be appointed by the President to the PSC.”

He further asserted that Norton wrote a total of four of those letters in the exchange and attended one in-person meeting.
“In the entirety of those engagements he offered no nominees of his own, neither did he offer any objection of any type whatsoever to Mr. Findlay, either in a letter or in the in-person meeting,” AG Nandlall said.

The President, after consultation with Findlay, officially nominated Hicken to act in the position of Police Commissioner.
In a letter dated June 29, the Minister of Parliamentary Affairs and Governance, Gail Teixeira, had outlined to Norton the reasons why Hicken was appointed back in March. This letter also invited Norton to give his opinion on the subject.

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

It further 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.
Norton was given up to July 19 to give his opinion on the matter in writing. However, on July 15, his response was “put on hold” pending the outcome of the legal challenge.