Saying that there is no legal consequence for President Irfaan Ali on his choice of Deputy Commissioner Clifton Hicken for the position of acting Commissioner of Police, Attorney General Anil Nandlall says that the appointment was done in keeping with the constitution.
“No one can substitute their opinion or their choice for that of the President…. The President may choose who he wishes,” Nandlall said on his weekly ‘Issues in the News’ programme aired on his Facebook page.
Ali on Monday appointed Hicken to act as the country’s Commissioner of Police as his predecessor, Nigel Hoppie who held the position in an acting capacity heads into pre-retirement leave.
Stabroek News was informed that Hoppie’s accumulated leave will run until late this year. He is slated to retire in early 2023. Hicken’s appointment took effect yesterday.
It is believed that Hicken has been appointed to hold the position temporarily until there is a selection process and a new Commissioner of Police is named.
Guyana’s Constitution states that the President can appoint a Commissioner of Police and Deputy Commissioners of Police only after consulting with the Opposition Leader and Chairperson of the Police Service Commission (PSC) after the Chairperson has consulted with the other members of the Commission.
There is presently no Leader of the Opposition and a new PSC is still to be composed.
According to Nandlall, the law will justify the President’s action of making the appointment since bodies/agencies which he is required to consult with are not available for consultation.
“Currently, you don’t have a Leader of the Opposition and you don’t have a Police Service Commission. It’s no fault of the Government or the President that there is no leader of the Opposition. It’s no fault of the Government or the President that there is no Police Service Commission because the appointment of the Police Service Commission comes through a process which again involves consultation with the Leader of the Opposition. And there is no Leader of the Opposition,” Nandlall said.
In this instance, he explained that the President cannot abandon his responsibility and allow the Guyana Police Force to be without an administrative head.
“There is a doctrine in law called necessity. It is said that necessity knows no law. Meaning that whenever there is a gap in the law, wherever there is a lacuna in the law. Whenever there is an impossibility to comply with legal requirements, the doctrine of necessity is necessarily activated and allows for normalcy to resume or to continue until that which is absent, that which is not available is rectified,” Nandlall stated.
He added that it is against this backdrop that the President is “completely justified” in proceeding to appoint someone to perform the functions of a Commissioner of Police.
“The bodies and agencies with whom the president is required to consult in this instance are non-existence. They are not available. It cannot be the law that the process will grind to a halt or the country must go without a Commissioner of Police if a recalcitrant opposition cannot get its house in order and appoint a Leader of the Opposition,” Nandlall said.
Prerogative powers
The People’s National Congress Reform (PNCR) in a statement issued on Monday afternoon warned that it will be moving to the courts over what it said was the “illegal” appointment of Hicken.
According to the hierarchy of the force, Deputy Commissioner of Police Paul Williams is the most senior rank after Hoppie. The PNCR said that they believed that Williams was overlooked for the position.
The PNCR reminded the Government of the Public Service Rule which states that acting appointments must be given to the most senior officer. “Based on the current structure and line of statutory succession, Deputy Police Commissioner Paul Williams remains the next in line. Mr Clifton Hicken is an Assistant Commissioner and therefore, is junior in rank to Mr Williams,” the party said.
“To promote Mr. Hicken to the rank of Deputy Commissioner of Police or to have him act in the office is a blatant violation of the Constitution, and will be challenged in a court of law,” it added.
It further stated that in the temporary absence of a Leader of the Opposition and the Police Service Commission, any appointment of a Commissioner of Police or Deputy Commissioners of Police is “plainly unconstitutional”.
The party therefore called on the Government to rescind Hicken’s appointment and allow for a process of “full transparency, legality and meritocracy” within the force.
However, according to Nandlall, the choice lies “exclusively” with the President and has nothing to do with “seniority or meritocracy”.
“…There are certain powers in the constitution that are called prerogative powers…..In the exercise of that power or in the exercise of that choice, he is to comply with a process….That process is to consult with the Leader of the Opposition. Not agreement. Consult with the Leader of the Opposition and to consult with the chairperson of the Police Service Commission. That has nothing to do with the choice. The choice remains that of the President,” Nandlall said.
“Of course, the President may be guided or may guide himself by many factors. He may guide himself by seniority. He may guide himself by meritocracy. He may guide himself by any combination of factors but that power of the president to appoint. That latitude of choice cannot be circumscribed,” he further stated.
Nandlall pointed out that former President David Granger had done the same when he appointed Leslie James as the Commissioner of Police back in 2018. “Based on my recollection, Mr James was not the most senior officer. In fact, it was argued at the time that there were about three or four officers who were more experienced than Mr James but Mr James was chosen by President Granger and Mr Granger was entitled to do so,” he said.
“There is no rule, there is no provision in any law that requires the most senior officer to be chosen. Seniority and meritocracy are not the same thing. Seniority and excellence in performance are not the same thing,” Nandlall said.
Hicken has served the Guyana Police Force in a number of capacities over the years, including as Commander of the then ‘A’ Division (Georgetown) and ‘B’ Division (Berbice). He was also the Head of the Force Training Centre.
Before he was appointed as acting Commissioner of Police he headed the Police Force’s Operations.
In January 2020, Hicken was posted to the Ministry of the Presidency’s, Department of Citizenship. The reason for that move remains unknown.
In August of the same year, he was appointed to head the force’s Operations. He replaced Deputy Commissioner, Maxine Graham who had proceeded on pre-retirement leave.
