Attorney General and Legal Affairs Minister Anil Nandlall, SC, has dismissed questions raised about the extension of acting Commissioner of Police Clifton Hicken’s tenure in office, saying that there are no provisions in the Constitution to prevent such a move.
Hicken qualified for requirement in July, after he turned 55 years of age. However, earlier this month, President Dr Irfaan Ali announced that he has extended Hicken’s tenure – a move which is being questioned.
In fact, Opposition Leader Aubrey Norton is contending that the extension is unlawful. He believes that only substantive appointments to the Top Cop office can be extended.
“It is my considered and respective view that there is nothing in the Constitution or in any other law which confines the extension of tenure of the holder of that office to substantive appointees only. In my considered and respective view, the holder of that office, whether acting or substantively, enjoys all the powers, all the facilities and all the privileges of that office,” AG Nandlall said during the recent episode of his weekly programme – Issues in the News.
The Legal Affairs Minister pointed out that the method of appointment for both the substantive and acting post is identical, that is, both require meaningful consultations with the Leader of the Opposition and a recommendation from the Chairman of the Police Service Commission (PSC) after consultations with its members.
Article 211 (1) of the Constitution mandates that “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 the Chairperson of the Police Service Commission [PSC] after the Chairperson has consulted with the other members of the Commission”.
Meanwhile, provisions for a person to act in the office of the Police Commissioner are outlined under Article 211 (2) of the Constitution, and the provisions contained in Article 211 (1), shall apply to such an appointment as they apply to the appointment of a person to hold that office. It states that “…a person may be appointed to act in that office and the provisions of the preceding paragraph shall apply to such an appointment as they apply to the appointment of a person to hold the office.”
On this note, Nandlall argued that, “…if the holder of that office, whether substantively or by virtue of an acting appointment, can be extended then I see no reason and no principle which confines that extension only to a substantive appointee and not an acting appointee. There is nothing in the Constitution that makes that distinction.”
“I wish to confirm in my humble and respectful view that His Excellency, the President, complied with the Constitution and complied with the laws in relation to Mr Hicken’s acting tenure beyond his age of retirement.”
The Attorney General went on to further highlight that while the Constitution itself does not cater for an extension to any holder of the Police Commissioner, it is provided for in the Constitution (Prescribed Matters) Act Chapter 27:12, Act No 21 of 1967.
Opposition Leader Aubrey Norton
This piece of legislation permits for the President to, inter alia, extend the tenure of a Commissioner of Police beyond his retirement age providing that the President receives a recommendation from the Police Service Commission to that effect.
According to Nandlall, President Ali did receive a recommendation from the Police Service Commission prior to extending Hicken’s tenure.
Hicken was appointed as acting Top Cop in March 2022 – a promotion from his then post as Deputy Commissioner of Police with responsibility for Operations.
Following his appointment, APNU/AFC Chief Whip Christopher Jones moved to the court to nullify the March 30 appointment, mainly on the ground that the Head of State failed to “meaningfully consult” with the Opposition Leader as is constitutionally required.
However last August, Chief Justice (ag) Roxane George, SC, upheld President Ali’s appointment of Hicken as acting Police Commissioner, deeming an APNU/AFC parliamentarian’s challenge to the appointment “vexatious and an abuse of the court process”. Justice George found that the President had always properly executed his discretion.
In the absence of an Opposition Leader and the PSC, the Chief Justice held that President Ali, who is also the Commander-in-Chief of the Armed Forces, acted “out of necessity” and it was reasonable for him to take action in his “own deliberate judgement” to appoint someone to act as Top Cop.
Norton was sworn-in as Leader of the Opposition in April 2022. He replaced Joseph Harmon who had resigned as Opposition Leader in January 2022.
