‘No legal bars in President appointing Hicken’- Nandlall

Oct 15, 2024 News

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Kaieteur News – Attorney General, Anil Nandlall said that there is no legal impediment to Clifton Hicken being appointed substantively as Commissioner of Police although he has reached the age of retirement.

In an 11-point statement to the media on Monday, Nandlall referenced clauses from the constitution of Guyana to support his stance. The AG acknowledged that the question has arisen in the public domain and therefore he felt the need to address it. However, last week Vice President Bharrat Jagdeo said he had instructed the AG to look into public concerns as to whether Hicken who has passed age of retirement could still be appointed to the substantive post.

Going back to when the Leader of the Opposition Aubrey Norton brought a legal challenge against appointing Hicken to act as the commissioner, he noted that the allegation that President Ali did not comply with the Constitution of Guyana was dismissed, because the Chief Justice confirmed that the president acted lawfully. The AG pointed out that, 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. He said 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.

He argued that, “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 fifty-five: provided that (b) the President, acting on the recommendation of the Police Service Commission may permit a Commissioner of Police who attained the age if fifty-five to continue in office until he has attained such later age not exceeding 60 years, as may before the Commissioner has attained.”

Nandlall highlighted that it was a letter from the Police Service Commission dated July 21^st 2023 that influenced the extension granted to Hicken who turned 55 on July 22^nd 2023 and since his appointment to act as Commissioner, he has been “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].”

Furthermore, “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…”

Nandlall stressed that in respect of having regards for the relevant provisions of the Constitution and the Constitutions (Prescribed Matters) Act as well as 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.” Additionally, “To the contrary, the conjoint effect of the relevant provisions of the Constitution and the Constitutions (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.”

Leader of the Alliance For Change (AFC) Nigel Hughes, himself a lawyer on Friday said that the government’s intention to appoint Hicken 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.

Retired Assistant Police Commission (ACP), Clinton Conway in a recent letter to the editor last week 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.

 

(‘No legal bars in President appointing Hicken’- Nandlall)

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• AG, Commissioner, Constitution, Hicken, police, President

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