By Selwyn A. Pieters B.A., LL.B., L.E.C.
Lawyer & Notary Public (Ontario, Canada)Attorney-at-Law (Republic of Guyana, Island of Trinidad)
Pieters Law Office
Created April 2022
1. I
am pleased to provide my opinion and overview of the issues of surrounding the
recent appointment of Mr. Clifton Hicken as acting Commissioner of Police by
His Excellency Mohamed Irfaan Ali, President of Guyana. My opinion letter is
divided into five categories:
I. Assumptions and Qualifications
II. Relevant Facts
III. Issues and The Law
IV. Conclusions
V. Recommendations and Comments.
ASSUMPTIONS
AND QUALIFICATIONS
2. I
have been asked to advise on whether the President of
Guyana can appoint an Acting Commissioner of Police (COP) using the common law
doctrine of “Necessity” in the absence of abiding by the law stated under the
Constitution,[1]
a sitting Leader of the Opposition and in the absence of a constitutionally
appointed Police Service Commission.
3. In
rendering my opinion, I have assumed the
following:
i. the
genuineness of all signatures, the authenticity of all documents submitted to
us (whether originals or copies), and the conformity to original documents of
all documents submitted to us as copies, whether facsimile, photostatic,
certified or otherwise.
ii. the
accuracy, completeness and truthfulness of all statements, allegations,
recollections and interpretations contained in all submitted material.
4. After
considering documents and the facts provided, the relevant statutes and case
law, my advice is as follows:
i)
The common law doctrine
of necessity was not available in the circumstances.
ii) Articles 211(1) and/or 211(2) of the Constitution was in fact breached as the processes under it were disregarded to allow for an improper appointment.
CONCLUSION
59. The factual context including the social, political and legal context had significant bearing on the conclusion I have reached in this matter.
60. The President of Guyana cannot rely on the Doctrine of Necessity as case law has supported protection and preservation of a country’s Constitution. While the Constitution of Guyana is silent as to the processes to undertake in the absence of constitutional office holders imperative to such an appointment process contemplated in Article 211 of the Constitution, the evidence reveals that the President had no interest in consulting with the Leader of the Official Opposition whilst one was in place between August 2020 and January 2022 and his unconstitutional actions in suspending the Police Service Commission as autocratic, therefore the resort to the doctrine of Necessity in making this appointment, in the absence of a functioning Police Service Commission and the vacancy of the Leader of the Opposition, was opportunistic, ill-advised, in bad faith and not captured by circumstances that would support the invocation and use of the doctrine of necessity to make the appointment of acting Commissioner of Police.
RECCOMMENDATIONS AND COMMENTS
61. The appointment is manifestly ultra vires Article 211 (2) of the Constitution, unlawful, illegal, premature and of no legal force, import or effect. Given the unconstitutional appointment has been made, in the absence of a resignation, it is for a Court of competent jurisdiction to adjudicate. An application in the nature of judicial review would be recommended in the circumstances.
62. These matters as past history would dictate are complex, time—consuming, expensive and uncertain.
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