AG schools Norton on legality of extension to Top Cop’s tenure

The decision to extend the tenure of acting Commissioner of Police, Clifton Hicken after he reached the retirement age is lawful and constitutional and was made in accordance with a recommendation from the Police Service Commission.

This is according to Attorney General and Minister of Legal Affairs, Anil Nandlall, SC on his weekly televised programme ‘Issues in the News’ on Tuesday.

He was at the time responding to claims by the Opposition Leader, Aubrey Norton, that the extension of the appointment was ‘unlawful’ and ‘unconstitutional’.

The opposition leader had posited that the extension can only be granted in an instance where the holder of the position enjoys a substantive title.

However, according to the AG, there is no provision in the constitution or any other law that confines the extension of tenure of the holder of that office to substantive appointees only.

“The holder of that office, whether acting or substantively, enjoys all the powers, facilities, and privileges of that office. Significantly, the method of appointment to that substantive post and to the acting post is identical. Both require meaningful consultation with the leader of the opposition,” he said.

Article 211 (1) of the Constitution allows for the appointment of the Commissioner of Police and every Deputy Commissioner of Police by the President following meaningful consultations with the Leader of the Opposition.

Additionally, Article 211 (2) provides that if the office of Commissioner of Police is vacant or the holder of that office is unable to perform the functions, then a person may be appointed to act in that office and the same provisions will apply in this case.

“Logically it follows that if the appointment process is the same, then the disappointment process will be the same and the constitution so prescribes. 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 that confines that extension only to a substantive appointee and not an acting appointee,” AG Nandlall explained.

He also addressed criticism by Former Assistant Commissioner of Police, Clinton Conway, who had a similar argument with regards to the legality of the extension.

While pointing out that the Constitution in itself does not provide for the extension of tenure for the Commissioner of Police in either a substantive or acting capacity, AG Nandlall identified a piece of legislation that does – the Constitution (Prescribed Matters) Act, Cap 27:12.

This piece of legislation allows for the President to extend the tenure of a commissioner of police beyond his retirement age, provided that he receives a recommendation from the Police Service Commission to this effect.

In keeping with this, the AG said that His Excellency, Dr Mohamed Irfaan Ali has received such a recommendation, and hence, the decision was in compliance with this legislation as well.