Forde signals appeal of Chief Justice’s “regrettable” decision on constitutionality of Hicken’s appointment as Police Commissioner

Last Updated on Thursday, 11 August 2022, 20:18 by Denis Chabrol

Attorney-at-Law Roysdale Forde on Thursday night  said he would be appealing Chief Justice Roxane George-Wiltshire’s “regrettable” ruling that President Irfaan Ali’s appointment of Mr Clifton Hicken as acting Police Commissioner was constitutional.

“The impact of this Judgment is too grave for it to be left standing. In the circumstances, an Appeal will be filed to set aside this decision,” he said.

He said the High Court did not consider the fact that  Dr Ali benefitted from his own decision to suspend the Police Service Commission (PSC), failed to appoint a new body and then  benefit from its absence by unilaterally appointing the Mr Hicken to perform the duties of Police Commissioner. “The decision whilst strangely and eerily silent on the unilateral removal of the entire Police Service Commission by Irfan Ali, is preoccupied with the impact and purport of the then vacancy in the office of the Leader of the Opposition, without any consideration that the President failed to appoint the Police Service Commission for months substantially contributing to the state of affairs that led to the action being filed in the Court,” said Mr Forde on behalf of his client Opposition Chief Whip Christopher Jones.

While Justice George-Wiltshire said in her decision that the President acted out of necessity and in his own deliberate judgement to appoint Mr Hicken because there had been no Opposition Leader for several months for consultations to be held,  Senior Counsel Forde said the High Court’s decision instead provides a “judicial green light to unilateral appointments by the Presidency and of course by Irfan Ali, the current President.”

The Shadow Attorney General and Minister of Legal Affairs said the failure of the President to constitute the Police Service Commission must therefore be an operating reason for the court approved unilateral appointment of Mr. Hicken, presumably as much as the absence of a person occupying the office of Leader of the Opposition.

“It is disappointing that the Court failed to recognise and or consider that state of affairs was created by the unconstitutional removal of the Police Service Commission and the failure by the President to thereafter constitute the said Commission,” he added. The High Court is yet to rule on the constitutionality of the suspension of the PSC. Its life subsequently expired and a new one was appointed but the constitutionality of the PSC Chairman is being challenged in the High Court on the ground of no consultation between the President and the Opposition Leader.

Mr Forde also took issue with the Chief Justice’s assertion that an “acting appointment” and “performing the functions of the office” as interchangeable. He said the Court by this decision has obliterated the material distinction between an acting appointment which can only be made in when there is a Leader of the Opposition and Police Service Commission and an appointment to perform the functions of an office which can be made whether there is a Leader of the Opposition and or Police Service Commission in place or not.

“The Judicial merger of these two distinct types of appointments will cause havoc in our Constitutional system and further weaken rather than strengthen the Constitutional edifice of Guyana,” he said.

Also the subject of Mr Forde’s objection was the the Chief Justice’s ruling that the President could have appointed Mr Hicken out of necessity and in his own deliberate judgement based on authority under Article 111 of the Constitution. He said  that regrettably, that issue was not raised in any of the Written Submissions nor was Counsel for Jones called upon or afforded the opportunity to address this issue.

On whether the President on assuming office on August 2, 2022 failed to consult with the Opposition Leader for the appointment of a Police Service Commission, the Chief Justice earlier Thursday said that would amount to speculation.

Then substantive Police Commissioner Leslie James proceeded on preretirement leave on July 31, 2020 and Deputy Police Commissioner Nigel Hoppie acted as Police Commissioner from June 1, 2018 to March 27, 2022 when he proceeded on preretirement leave.  Mr. Hicken was appointed to act as Police Commissioner from March 28, 2022.

While Mr Norton won the leadership of his People’s National Congress Reform on December 19, 2021, months of internal wrangling in his party had seen him becoming a parliamentarian and Opposition Leader  on April 13, 2022.  President Ali then appointed a new PSC on May 31, 2022 and then moved to appoint a Police Commissioner.