GEORGETOWN, Guyana, August 12, 2022 - Consequent upon yesterday’s decision by the acting Chief Justice that President Irfaan Ali did not violate the Constitution when he unilaterally appointed Clifton Hicken to act as Commissioner of Police in the absence of consultations, Senior Counsel and member of Parliament Roysdale Forde says he will file an Appeal to set aside this decision.
In a statement, Mr. Forde who is Shadow Attorney General and Minister of Legal Affairs, said “the ruling that President Irfaan Ali did not violate the Constitution when he unilaterally appointed Mr. Hicken to act as Commissioner of Police in the absence of consultations, is regrettable.”
“The decision delivered by the acting Chief Justice this afternoon in the matter of Jones v Attorney General must be cause for great concern and it is regrettable that it is to be considered as a judicial green light to unilateral appointments by the Presidency and of course by Irfan Ali, the current President,” Forde said in a statement today.
The Chief Justice in her ruling said the President could not be faulted for exercising his own deliberate judgment when there was no Leader of the Opposition or Police Service Commission in place when the appointment was made on March 30.
Senior Counsel Forde, who represented the applicant Christopher Jones in the matter said “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,” Forde said.
“On the Court’s own analysis 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.
The life of the Police Service Commission expired in August 2021 after the entire Commission had already been suspended by the President. It wasn’t until May 31, 2022 that a new Commission was reconstituted by the President.
“Thus, the Court permitted the President to benefit from his own failure to discharge his Constitutional duty to appoint the Police Service Commission.It is unfortunate that the decision therefore saw the 30th day of March, 2022 as a static and or singular event and not a ongoing continuum of unconstitutional conduct by the President,” the Senior Counsel lamented.
The Chief Justice went on to rule that “to act and to perform the duties of” are the same, in that, someone has to be appointed to hold the position until a substantive appointment is made in accordance with the Constitution.
However, Senior Counsel Forde maintained that “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.
"The Court proceeded to determine that the President could have acted in the manner he did as he was conferred with authority under Article 111 of the Constitution.
"Regrettably, the 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," he pointed out.
The Senior Counsel in his conclusion pointed out that "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."