Dear Editor,
President, Dr. Irfaan Ali appointed Assistant Commissioner of Police, Clifton Hicken to act as Commissioner of Police with effect from March 30, 2022 after Deputy Commissioner Nigel Hoppie who was performing the duties of Commissioner proceeded on leave prior to retirement. Hicken therefore, has all the powers, privileges and immunities of a Com-missioner of Police. He pre-empted the course of action as on March 28, 2022 he was photographed in office wearing the rank of Commissioner in an inappropriate manner.
According to the President’s Chief Legal Advisor, the President acted lawfully under the Doctrine of Necessity in the appointment of Hicken as acting Commissioner of Police. I am not an attorney-at-law, but I have some legal training. I have been associated with Law Enforcement for over forty-nine years. This knowledge was acquired through specialised training, direct instructions, legal research and osmosis. I can easily comprehend basic legal concepts. I have common sense which is not common in everyone and common place. It is apparent that the appointment of Clifton Hicken as the Acting Commissioner of Police is a flagrant violation of the letter, spirit and intent of some of the most sacrosanct constitutional procedures manifestly established in Article 211 (1) of the Constitu-tion of the Cooperative Republic of Guyana. The Article 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 after the Chairperson has consulted with other members of the Commission.” This Article is pellucid. The President has to have meaningful consultation with the Leader of the Opposition and the Chairperson of the Police Service Commission before he appoints a Commissioner of Police or Deputy Commissioner. Presently there is no Leader of the Opposition and Chairperson of the Police Service Commission for the President to consult with. Therefore, any reasonable layman like myself will conclude that Article 211 (1) of the Constitution of the Cooperative Republic of Guyana was fatally breached which must render the appointment of Clifton Hicken null and void.
The Attorney General in a presentation on his programme “Issues in the News”, argued that the appointment of Clifton Hicken was a necessity and it fits within the ambit of the Doctrine of Necessity. He further stated among other issues that the Guyana Police Force cannot be headless. Hence, the appointment of Clifton Hicken as acting Commissioner of Police. There are many technical and legal elements as it relates to the Doctrine of Necessity. Time and space do not permit me to go into details. There are other persons who are both competent and compelling to do so. I hope they do. However, my little research revealed that the Doctrine of Necessity is a term used to describe the basis in which extraconstitutional actions by administrative authorities which are designed to restore order or attain power on the pretext of stability are found to be constitutional even if such action normally be deemed to be in contravention to establish norms and conventions. It also includes the ability of a private person to violate a law without punishment where the violation of the law was necessary to prevent worse harm. The Maxim which the Doctrine of Necessity is based on is an old and seldom used one. It has its genesis in medieval times made popular by legal writings of jurist Henry de Bracton and advanced in the modern era by legal authorities including William Blackstone. The Maxim is, “That which is otherwise not lawful is made lawful by necessity.” It was used by Pakistan in 1954, Grenada in 1985 and Nigeria in 2010.
The vexing questions are: Was the appointment of Clifton Hicken lawful in accordance with the ancient and rarely used Doctrine of Necessity? Was the President sheltered under the Doctrine of Necessity? Why he did not use the Doctrine of Necessity to appoint two Deputy Commissioners of Police to full the two vacant positions of Deputy Commissioners as the GPF appears to me to also be neckless. The AG intimated that the GPF was headless, hence the appointment of Hicken. The neck (four Deputy Commissioners), supports and even controls the head at times. Why the President did not use the Doctrine of Necessity when he unlawfully disbanded the last Police Service Commission led by Paul Slowe, Retired Assistant Commissioner of Police of which I was a member? Why not use the Doctrine of Necessity to appoint the Chancellor of the Judiciary and the Chief Justice of the Supreme Court of Judicature knowing that there is no Leader of the Opposition to consult with? Was it a matter of necessity that the very junior officer, Assistant Commissioner, Clifton Hicken was appointed to act as Commissioner instead of the more senior rank Deputy Commissioner, Paul Williams contrary to Rule 35 of the Public Service Commission Rules? It would appear as though Paul Williams who was unlawfully posted at the Covid-19 Secretariat is too busy checking on Covid-19 deaths, negative and positive reported cases, even though the curve has flattened. He has no medical training. Maybe, those enforced activities which he is carrying out will prevent him from performing the duties of acting Commissioner of Police. Why not use the Doctrine of Necessity to withdraw much needed money from the Natural Resource Fund for urgent National Development Programmes? Why the Doctrine of Necessity was not used to confirm or appoint Nigel Hoppie as acting Commissioner of Police. He performed the duties of Commissioner of Police for over twenty months. He was not an Acting Commissioner, neither was he sworn or given the Instrument to perform such duties. Maybe, during that period the Guyana Police Force was not headless. There are many more pertinent questions to be answered. It is not clear what were the defining principles of the Doctrine of Necessity the legal advisers presented to influence the President to unlawfully appoint Clifton Hicken as Acting Commissioner of Police. There are dissenting views. It is not a good thing to be nibbling around the edges of justice. Urgent clarity is required.
Clinton Conway
Assistant Commissioner of Police
(Retired)
