Hicken is fit, proper and duly qualified to act as Top Cop- Benn tells Chief Justice

Not only is Clifton Hicken fit, proper and qualified to act in and perform the functions of the office of the Commissioner of Police, but he is also the longest-serving member of the Guyana Police Force (GPF). This was among the plethora of grounds advanced by Home Affairs Minister Robeson Benn in his bid to have Chief Justice Roxane George, SC dismiss an application for Hicken’s appointment to be overturned. The application was filed in May by Opposition Chief Whip Christopher Jones.

In court documents, Jones, an executive member of the PNC– the largest party in the APNU/AFC Coalition– contends that President Dr. Irfaan Ali did not engage in meaningful consultation with Opposition Leader Aubrey Norton prior to Hicken’s appointment.

As a result of this and President Ali’s invocation of the “doctrine of necessity” in appointing Hicken, Jones argues that the appointment is unreasonable and ultra-vires the Constitution, Common Law, and as such, is illegal, null, and void.

Article 211 of the Constitution states: “The Commissioner of Police and every Deputy Commissioner of Police shall be appointed by the President acting after meaningful consultation with the Leader of the Opposition and Chairperson of the Police Service Commission [PSC] after the Chairperson has consulted with other members of the Commission.”

After Nigel Hoppie, who was also acting in the office of Police Commissioner, proceeded on pre-retirement leave on March 30, Benn, in an Affidavit in Defence filed on behalf of Hicken– a respondent in Jones’s application– deposed that there was no PSC nor was there a Leader of the Opposition for President Ali to consult with.

Given that the GPF which has a strength of 7,035 ranks is not only the country’s premier law enforcement agency but also has legal authority to perform military duties, and there being no Opposition Leader for the President to consult with at the time, Benn said that the President appointed Hicken to the helm of the Force.

He submitted that he believes that the vacancy which existed in the Office of the Leader of the Opposition was in no way occasioned by President Ali, but rather through acts/omissions of the Opposition.

Under Article 211 of the Constitution, the Home Affairs Minister said that the President exercised his exclusive authority and chose Hicken “as a fit, proper and duly qualified person, holding the ranks of Assistant Commissioner of Police, to act temporarily in the office of Commissioner of Police.”

According to the minister, in its 183 years of existence, the GPF has never been without a Commissioner of Police, who pursuant to the Police Act, among other things, has command and superintendence of the GPF and is responsible for peace and good order in Guyana.

“I am of the considered view that a vacuum in the office of the Commissioner of Police would not only place in jeopardy peace, order and good government but would significantly affect the discharge of the multiplicity of functions, powers and duties which legislations confer upon the Commissioner of Police,” Benn argues.

In outlining reasons for the urgency of the appointment, the minister referred to the ongoing border dispute between Guyana and Venezuela which is currently engaging the World Court.

Benn said that Aubrey Norton was appointed Opposition Leader on April 13, and President Ali has commenced a process of meaningful consultation with him on the appointment of members of several constitutional commissions, including the PSC.

Out of those consultations, a four-member PSC was appointed on May 31. They are businessmen Ernesto Choo-a-Fat and Hakeem Mohamed, and Attorney Lloyd Mark Conway, as members and Bishop Patrick Anthony Findlay as Commission’s Chairman.

He said that a mere week after the PSC was reconstituted, President Ali “acted with promptitude” to initiate a process of meaningful consultation with Norton for the purpose of appointing a person to act in the office of the Commissioner of Police.

That process of consultation, Benn said, is still ongoing. Considering that Hicken is duly qualified for the post, Benn contends that the President’s decision in this regard, being a matter of executive policy, is not subject to judicial review.

Considering all of the above, the Home Affairs Minister submitted: “Having regard to the preponderance of duties and responsibilities upon the President, including duties and responsibilities which require him to host international delegation, including Heads of State, coupled with obligations that require him to attend engagements overseas, the President at all material times acted reasonably and with every convenient speed in respect to his duties and responsibilities impose by Article 211 of the Constitution.”

The Affidavit in Defence which was drafted by Attorney General and Legal Affairs Minister Anil Nandlall, SC– the other respondent– has  been served on Jones’s lawyers, Dexter Todd and Selwyn Pieters. Arguments in this matter will commence on July 20.

Meanwhile, in a separate case, Norton is challenging the President’s appointment of the PSC on the ground that there was no meaningful consultation between him and the Head of State.

Norton, who is also the leader of the PNCR—the largest party in the APNU/AFC coalition—complained that he was not given a reasonable opportunity to express a considered opinion on the matter of consultation with respect to the appointment of the PSC.