Attorney General Anil Nandlall has defended his advice to President Irfaan Ali that Acting Commissioner of Police Clifton Hicken could be appointed substantively, stating that Ali had last year given Hicken an indefinite duty extension in that capacity.
Nandlall pointed to Hicken’s acting appointment being recognized by the court given that at the time there were circumstances beyond his control and the President had no choice, and said that the same argument is extended in this case. Back then, the reason the President could not have ensured full compliance with the Constitution was because there was no elected leader of the opposition, nor was a chair of the Police Service Commission appointed.
“By letter dated 21st July 2023, acting on the recommendation of the Police Service Commission, His Excellency granted Mr Hicken, whose 55th birthday was on the 22nd July 2023, “permission to continue to act in the office of Commissioner of Police and to perform those functions until a time to be determined,” Nandlall, who is currently in Geneva on work duty, stated on his Facebook page.
“Undoubtedly, since his appointment to act in the Office of Commissioner of Police, Mr Hicken has been and is the officer in charge of superintending and commanding the Guyana Police Force. This indubitable state of affairs aligns with the constitutional definition of Commissioner of Police: “the officer, however styled, commanding the Police Force” [as per Article 232],” he added.
The Attorney General said that the question of appointing the acting commissioner was in the public, with some saying this was illegal and he felt “compelled” to address it.
Nandlall continued, “Article 211 (3) of the Constitution provides that the Commissioner of Police shall vacate office when he ‘attains such age as may be prescribed by Parliament’. Parliament has so prescribed in the Constitution (Prescribed Matters) Act, Cap. 27:12. Section 2 of this Act provides that the retirement age of the Commissioner of Police is 55 years.”
Former auditor general Anand Goolsarran this week said that substantively appointing Hicken, who is one year past his retirement age, would be unconstitutional and illegal.
“Mr Hicken’s tenure as Acting Commissioner of Police should have ended in July 2023, unless he was substantively appointed before that date in which case it would have been entirely appropriate for the President to extend his appointment to a date not later than age 60,” Goolsarran wrote in his Accountability column published on Monday.
“In the circumstances, it would appear that the President was ill-advised when he extended Mr Hicken’s acting appointment beyond his retirement age. Indeed, the continuation of Mr Hicken as Acting Commissioner of Police beyond July 2023 lacks legal/constitutional support,” he added.
His views mirror that of the opposition and observers who include former and retired assistant commissioner of police Clinton Conway.
Goolsarran said that a substantive appointment without breaching the Constitution could not be created now. “It has been suggested that Mr Hicken should proceed on retirement, after which he could be re-employed as Commissioner of Police on a contractual basis. This is a non-starter in that the Constitution prescribes how the Commissioner is appointed and on what basis he/she should demit. These provisions cannot be replaced by a contractual agreement,” he contended.
Goolsarran laid out the constitutional position on the issue given that it has been reported by some media that President Ali was set to appoint Hicken to the position of Commissioner of Police, although he passed the retirement age of 55 some 14 months ago.
He also pointed to Earle John, a Human Resources Consultant, who said that there was no precedent for someone to be appointed to a position after attaining the retirement age.
Conway backed John, stating that former commissioners, Balram Raghubir, Laurie Lewis, Floyd Mc Donald, Henry Greene and Leroy Brummel all had their services extended before they reached the age of retirement.
“By Article 211 (2) of the Constitution, if the office of the Commissioner of Police is vacant, the President shall appoint a person to act in the position until such time that the substantive holder resumes position, or a person has been appointed as Commissioner. Once appointed, the person is required to vacate office upon reaching the retirement prescribed by Parliament,” Goolsarran highlighted.
“Mr Clifton Hicken was appointed to act as Commissioner of Police in March 2022 when he was 53 years old. He reached retirement age of 55 in July 2023,” he added.
Conway said that the Constitution speaks about appointment, exercising disciplinary control and removal from office of the Commissioner of Police but it does not mention anything about extending the service of the Commissioner of Police after he has passed the age of retirement.
“However, the Constitution (Prescribed matters) 27:02 dated 20/09/1967 under the caption, ‘Age of vacating of office by the holder of certain offices’ gives the President the authority to permit the Commissioner who has attained the age of 55 years to continue in office until he has attained such later age, not exceeding 60 years,” Conway wrote in a Letter to the Editor.
Nandlall stated that “significantly, Section 2 (b) authorises the President to permit the Commissioner of Police to continue in Office but not beyond age 60. The relevant parts of the section reads: “The … Commissioner of Police shall vacate [his] … office on attaining the age of 55: Provided that – (b) the President, acting on the recommendation of the Police Service Commission may permit a Commissioner of Police who attained the age of 55 years to continue in office until he has attained such later age, not exceeding 60 years…”
He said that President Ali last year July granted Hicken the permission to continue to act in office as Commissioner of Police.
The Attorney General also noted that Article 211 (2) of the Constitution states: “… any person appointed to act in the office of Commissioner of Police shall … continue to act until a person has been appointed to that office and has assumed the functions thereof…” Therefore, he stated, “having regard to the relevant provisions of the Constitution and the Constitution (Prescribed Matters) Act and the relevant factual configuration under review, wherein lies the prohibition against the President appointing Mr Hicken (substantively) to the post of Commissioner of Police? I conceive none.
“To the contrary, the conjoint effect of the relevant provisions of the Constitution and the Constitution (Prescribed Matters) Act impel to the imminent potentiality of Mr Hicken being appointed to that office. The contention, therefore, that he cannot, is an affront to both common sense and law,” he added.
