GEORGETOWN, Guyana– The Senior Counsel, who represented Opposition Chief Whip Christopher Jones, is challenging the appointment of Clifton Hicken as acting Police Commissioner and has signaled his intention to appeal a ruling by Chief Justice Roxane George-Wiltshire that the work was done in keeping with the Guyana Constitution.
“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,” attorney Rossdale Forde said Thursday night, describing the ruling as “regrettable.”
Forde said that the High Court did not consider that President Irfaan Ali benefitted from his decision to suspend the Police Service Commission (PSC), failed to appoint a new body, and then benefited from its absence by unilaterally establishing the Hicken to perform the duties of Police Commissioner.
“The decision, while 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 Forde.
In her ruling earlier this week, Justice George-Wiltshire said that the President acted out of necessity and in his deliberate judgment to appoint Hicken because there had been no Opposition Leader for several months for consultations to be held.
“There could be no disregard and thereby a breach of the requirement for meaningful consultation when it was impossible to 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 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 Hicken does not have to provide proof of his authority based on her decision.
But Forde said the High Court’s decision 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 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 recognize 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 constitute the said Commission after that,” 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. Still, 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.
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, had obliterated the material distinction between an acting appointment, which can only be made 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 objecting to the Chief Justice’s ruling that the President could have appointed Hicken out of necessity and in his deliberate judgment based on the authority under Article 111 of the Constitution.
He spoke. Unfortunately, that issue was not raised in any of the written submissions, nor was Counsel for Jones called upon or allowed to address this issue.
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