‘Appointment of Hicken as Police Commissioner would be legally flawed’ – AFC leader

Oct 12, 2024 News

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Kaieteur News – Leader of the Alliance for Change (AFC) Nigel Hughes on Friday said that the government’s intention to appoint acting Police Commissioner Clifton Hicken to the substantive post would be legally flawed.

Hughes when asked to speak to the issue by this publication said that a commissioner can only be appointed if that person was substantively in the post before they retired from the Force.

“I don’t believe you can appoint a commissioner who was granted an extension or who is on contract and then deem them commissioner. I certainly believe that’s legally flawed and believe that this ought to be challenged in court,” he told Kaieteur News.

Further, the AFC leader said that it is not in the interest of the society to have the concerns expressed by the Opposition Leader disregarded particularly when that person has an integral role to play in the selection and appointment process.

“This is not a question of politics.  This is a question of upholding the law in the land and it is a question of law and order, and, if you have such strong objections coming from the leader of the opposition Mr. Norton, particularly his lack of confidence in that particular candidate, I believe it’s dangerous waters to persist with that candidate, because what happened is unfortunate for Mr. Hicken (but it) is going to be perceived as the political candidate of the government of the day,” Hughes stated.

Hughes believes that it will be perceived that the government is not interested in appointing a person who would have cross political support as the head of law enforcement. The party leader noted should Hicken be appointed then the citizenry will lose confidence in the Police Force.

“So, you will end up with police officers going into difficult situations where the law ought to be enforced,” Hughes, who is also an attorney said.

Hicken’s tenure as the acting head of the Force was extended by President Ali although he is over the age of 55 – the age of retirement.

The very sentiment was expressed by Retired Assistant Police Commission (ACP), Clinton Conway. In a recent letter to the editor, Conway said to appoint Hicken as the Police Commission after he would have passed the age of retirement would be unconstitutional.

Conway noted that the appointment of a Commissioner of Police and Deputy Commissioner of Police is enshrined in the Constitution of the Cooperative Republic of Guyana. Article 211 (1) of the Constitution 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.”

Conway said it is pellucid that there is no need for any agreement with the parties for the appointment in question. “The vex question is whether or not the President can confirm Clifton Hicken who has passed the age of retirement as Commissioner of Police,” Conway reasoned.

The retired ASP said the Constitution speaks about appointment, exercising disciplinary control and removal from office of the Commissioner of Police. It does not mention anything about extending the service of the Commissioner of Police after he has passed the age of retirement, 55 years. However, he said 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 sixty years. Section (b) states: “the President acting on the recommendation of the Police Service Commission tendered after the Prime Minister has concurred on the recommendation, may permit a Commissioner of Police who has attained the age of 55 years to continue in office until he has attained such later age, not exceeding sixty years, as may (before the Commissioner of Police has attained the age of 55 years) have been agreed with the Commissioner of Police.”

No precedent

Conway said it is apposite to note that former Commissioners: Balram Raguber, Laurie Lewis, Floyd McDonald, Henry Greene and Leroy Brummel services were extended, but before they reached the age of retirement. He said according to the legal document alluded to above, a Commissioner of Police cannot be extended or confirmed after he has passed the age of retirement, 55 years.

“The extension or confirmation must be done before the Commissioner reaches the age of retirement, 55 years. Clifton Hicken has passed the age of retirement; hence he cannot be legally confirmed as Commissioner of Police. To confirm him will be unconstitutional, ultra vires, null and void and of no legal effect.  I rest my case.”

On Thursday, Vice President Bharrat Jagdeo said that the Attorney General, Anil Nandlall has been instructed to check out the legal ramifications of appointing Hicken.

Speaking at his weekly press conference held at Freedom House Jagdeo said, “I have listened to the Attorney General and I spoke with him in Parliament and I told him that he needs to get more information out about the legality of the process. So first of all, I saw in the comments he made, he dealt with the powers vested in the President, and there is a view that because Hicken has an extension now, he might not be eligible to be confirmed. So that issue needs to be dealt with by the Attorney General…” Jagdeo said.

Jagdeo said the President is required to have meaningful consultation with the Leader of the Opposition but noted that does not mean the opposition leader has to agree with the President.

President Irfaan Ali through Minister of Governance and Parliamentary Affairs Gail Teixeira dispatched letters to the Opposition Leader.

Notwithstanding, Jagdeo said that the AG will assess the law and determine whether the appointment would be lawful. He said he is not of the opinion that it would be an unlawful appointment but in the interest of quieting the “big noise” all checks and balances will be made.

“He [the AG] assured me that we have complied with the process to get the extension done and also the process to have the confirmation also done,” Jagdeo said.

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• AFC, Commissioner, Hicken, legally flawed, opposition

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