President Irfaan Ali has indicated that he intends to appoint Mr Clifton Hicken as Commissioner of Police. He is currently acting in that post. The Constitution requires that before such an appointment can be made there must be meaningful consultation with the Leader of the Opposition as well as the Chair of the Police Service Commission after consulting the other members.
Mr Norton was advised of the President’s intention by letter sent through Minister of Parliamentary Affairs Gail Teixeira on September 4th, and in a response dated September 17th he listed the reasons why he considered that Mr Hicken was unsuitable for the post. In the first place, Mr Norton maintained that an exchange of letters did not constitute “meaningful dialogue,” and subsequent to that MP Ganesh Mahipaul made it known that the opposition was considering legal action to contest the process.
That technical matter aside, the Opposition Leader adverted to the various allegations which had been levelled against Mr Hicken over the years, and advocated a full investigation into the acting Commissioner’s conduct and management of the GPF. For her part Ms Teixeira laid emphasis on Mr Hicken’s qualifications which included a Master’s degree in Human Resources Management and professional development courses in law enforcement.
His academic qualifications notwithstanding, Mr Hicken’s tenure in charge of the Police Force on an acting basis has been anything but stellar. Apart from all the complaints levelled against the police cited by the Police Complaints Authority, there have also been concerns raised by the Georgetown Chamber of Commerce and Industry relating to revelations about corruption and financial mismanagement within the Force. Three months ago it called for an independent investigation into the allegations, and appealed for the GPF be held to a higher standard of accountability.
Earlier this year too the Integrity Commission had served notice on 31 public officers that they would face a fine or imprisonment if they did not submit their Declaration Form on or before April 2nd. Among those listed was acting Commissioner of Police Clifton Hicken, surely a serious indictment of someone in his position.
Then there was last year’s critical report from Chairman Justice (rtd) William Ramlall of the Police Complaints Authority who accused Mr Hicken of violating the act governing the operations of that body and recommending that the President put a stop to it. “It is my recommendation that His Excellency the President makes it clear to the Commissioner of Police that he cannot continue to violate the law…” he wrote. Whether the head of state acted on the recommendation is not known, but at least it can be said that the acting Commissioner’s contravention does not appear to have damaged his image in the eyes of the President.
There are other things which can be recited that impugn his capacity as head of the Force, but one of the more conspicuous was his failure to make any preparation for the disintegration of the peaceful protest following the Quindon Bacchus killing by the police. The killing itself aside, subsequently criminal elements joined by others used the protest as cover, violently breaking up the stalls in Mon Repos market and attacking the vendors. Given the pattern of these kinds of event in this country, it was not something which could not have been predicted.
For her part Ms Teixeira on October 2nd said that the President had carefully considered Mr Norton’s claims and had noted that none of his allegations had been raised when Mr Hicken was appointed to act as Commissioner in the first place. Many of them, she wrote, were unsubstantiated. But if one or two of the complaints lacked cogency, there were well-founded others from different sources which the President clearly chose to ignore. Ms Teixeira alluded to the significant decrease in serious crimes under Mr Hicken¸ although as Mr Norton observed, it might be noted that to date the GPF have declined to give us a breakdown of those crimes and how they are being categorised.
All of this relates to the fitness of Mr Hicken for the position of Commissioner, but lurking behind the discussion is a fundamental legal question, viz, would his appointment transgress the provisions of the Constitution. The answer appears to be in the affirmative.
Mr Hicken was first given his acting appointment by the President in March 2022, at the age of 53. This appointment was subsequently challenged in court by APNU+AFC which argued that the head of state had failed to consult the Opposition Leader as required by the Constitution. However, in August of that year Acting Chief Justice Roxane George ruled that Mr Hicken had been lawfully appointed since there was no Opposition Leader at the time, and neither had a Chair of the Police Service Commission been appointed.
The matter of Mr Hicken’s age became an issue the following year. Under the Constitution his tenure as acting Commissioner should have come to an end on the date of his retirement at 55, unless before that date his acting appointment had been converted into a substantive one. If that had been done, then the President could have legitimately extended his permanent appointment for any length of time up to the age of 60.
Mr Hicken’s retirement date was 22nd July, 2023, but instead of making a substantive appointment, the President extended his acting appointment. AG Nandlall has said that this was done on 21st July, 2023. However, former Auditor General Anand Goolsarran, supported by other observers has said that the President was “ill-advised” when he extended Mr Hicken’s acting appointment beyond his retirement age because this was unconstitutional.
So now the head of state finds himself in the position of having missed the window of opportunity to make a substantive appointment which would have allowed him to extend it, and has therefore succumbed to the idea that he can rectify this by making a substantive appointment now. Mr Goolsarran as well as others argue this cannot be done; there can be no appointments after retirement.
He writes: “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.”
The Attorney General was not prepared to make any concessions to the validity of this position, maintaining that last year the President had given Mr Hicken an indefinite duty extension in his capacity of acting Commissioner. In a reference to the decision of the Chief Justice in 2022, he said that the acting appointment had been recognised by the court. His appointment to act in the Office of Commissioner of Police, said Mr Nandlall, “aligns with the constitutional definition of Commissioner of Police: the officer, however styled, commanding the Police Force.”
In addition to this, he argued, there was Article 211 (2) of the Constitution, which 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…” He then concludes there is no prohibition against the President appointing Mr Hicken substantively to the post of Police Commissioner.
All of this is to ignore that the Constitution makes a distinction between acting and substantive appointments, and there is no conflation of these definitions as Mr Nandlall would seem to suggest. As such, in the view of the average person the President would appear to have it in mind to act unconstitutionally. Given Mr Hicken’s lacklustre record and the possibility of a constitutional violation, it can only be asked why the head of state regards it as in the public interest (as Ms Teixeira put it) to proceed with his appointment as Commissioner of Police.