High Court rules: President’s appointment of Clifton Hicken to act as Police Commissioner constitutional

Last Updated on Thursday, 11 August 2022, 14:49 by Denis Chabrol

Chief Justice Roxane George-Wiltshire on Thursday ruled that President Irfaan Ali’s appointment of Mr Clifton Hicken to act as Police Commissioner out of necessity and his “own deliberate judgement” was constitutional because there was no Opposition Leader and Police Service Commission (PSC) at the time.

“There could be no disregard of and thereby a breach of the requirement for meaningful consultation when it was impossible to So engage. The applicant therefore is relying on an impossibility to ground the claim of unconstitutionality,” she said.

In her decision, the Chief Justice said the use of the words “act” and “perform the functions of” could be used interchangeably.

She said the High Court could not declare that there was no consultation because at the time there was no Opposition Leader through no fault of the President.

She said based on her decision, Mr Hicken does not have to provide proof of his authority.

On the point by the applicant, Christopher Jones, that President Ali failed to consult with then Opposition Leader Joseph Harmon between August 2 and January 26, 2022 was “to engage in speculation.”

She said reliefs such as the quashing of promotions would have posed serious problems as those members of the police force would have had a claim of legitimate expectation and, at any rate, if she had found that the appointment of Mr Hicken as acting Police Commissioner, she would have ordered that they be saved.

The Chief Justice deemed the application by Mr Jones, the Chief Whip of the opposition A Partnership for National Unity+Alliance For Change, “vexatious and an abuse of the process of the court.”

Ms George-Wiltshire also reasoned that the Public Service Commission rules do not strictly bind the President to appoint the next most senior officer, in this case Deputy Police Commissioner Paul Williams, to act as P0lice Commissioner after then acting Police Commissioner  Nigel Hoppie had proceeded on pre-retirement leave.

The Chief Justice highlighted that there was uncertainty not only because the Police Service Commission was not in being since August 8 2021 but because some three months since January 26 2022, the Leader of the Opposition had not been elected and it was unclear when such an election would have occurred.

She said Guyana’s Constitution permits the President to act in his own deliberate judgment and according to the provision and not on the advice or a recommendation of anyone or any entity.

According to the High Court decision, there was a necessity to as distinct from the doctrine of necessity which is applied to legalizing otherwise unlawful or unconstitutional acts and necessity to act in order to ensure that the machinery of administration is not hindered. “This is a case of a necessity not to cure an illegality, but to ensure that the unexpected lacuna that resulted in the impossibilities comply with article 211 did not result in a situation that would have left the Guyana Police Force and, therefore the nation, without a commissioner.