Court rejects challenge to extension of acting Top Cop’s tenure

Acting Chief Justice Roxane George SC, has thrown out the case which had been filed challenging the powers of the President to extend the tenure of acting Commissioner of Police, Clifton Hicken, beyond the age of retirement.

This is according to a release from the Attorney General’s Chambers.

The action had been brought by APNU member, Carol Joseph, who had contended that there was no legal basis on which the President could extend the tenure of an acting Commissioner of Police.

Her central agrument was that the person currently occupying the office of Commissioner of Police is doing so in a temporary, acting capacity in accordance with Article 211 (2) of the Constitution, and not as a substantive Commissioner of Police.

Smith’s position was that the Constitution provides only for an acting Commissioner to serve in a temporary capacity until there is a substantive Commissioner of Police or a until a Substantive Commissioner returns to office and resumes his/her functions as Commissioner of Police.

Additionally, she submitted through her attorneys that the Public Service Rules provide for an extension of tenure of someone who has attained the age of fiftyfive years on the request of the Government; providing that that person is appointed to a “permanent pensionable position.”

“However, the position of an acting Commissioner of Police is not a permanent pensionable position and the substantive position the current acting Commissioner of Police holds at the time of attaining the prescribed age of retirement of fifty-five years was Deputy Commissioner of Police”, Joseph’s application advanced.

She then went on to argue that the Constitution (Prescribed Matters) Act, Chapter 27:12 provides for the extension of tenure of a substantive Commissioner of Police by the President and not an acting Commissioner of Police, and further that extension must be given in advance of him reaching the age of retirement.

On July 22nd last year, Hicken turned 55, and by a letter dated the day before, President Irfaan Ali extended Hicken’s term in office.

Using the very piece of legislation relied on by Joseph— the Constitution (Prescribed Matters) Act—Attorney General Anil Nandlall SC (the Respondent) in rebutting the arguments advanced by Joseph, said that the President in making the extension, acted on the recommendation of the Police Service Commission.

The press release said that the President relied on Section 2(b) of the Act which provides, “The…Commissioner of Police shall vacate their respective offices on attaining the age of … fifty-five years respectively:

(b) the President, acting on the recommendation of the Police Service Commission may permit a Commissioner of Police who has attained the age of fiftyfive 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 fifty-five years) have been agreed with the Commissioner of Police…”

The Attorney General (AG) in contesting Joseph’s arguments, said that a “Commissioner of Police” referenced in Articles 211 (2) and (3) of the Constitution, and in Section 2(b) of the Constitution (Prescribed Matters) Act, contemplates both a substantive and acting appointee.

The AG, the press release noted, had further cited Article 232(2)(b) of the Constitution which he contended “expressly” and “unambiguously” provides that “a reference to the holder of the office by the term designating his or her office shall be construed as including a reference to any person for the time being lawfully acting in or performing the functions of that office.”

Nandlall is said to have further argued that no evidence was produced to challenge the President’s compliance with both Section 2 of the Constitution (Prescribed Matters) Act and Article 211 of the Constitution, noting that the burden to so do rested squarely on Joseph (the Applicant).

According to the release, agreeing with the advancements made by the Attorney General, the Chief Justice ruled, among other things, that “the framers of the Constitution envisioned that if there is not a substantive Commissioner of Police, that the statutory provisions that are applicable to a substantive Commissioner of Police would also apply to an acting Commissioner of Police.”

“Therefore, Section 2 of the Constitution (Prescribed Matters) Act, which speaks to a “Commissioner of Police,” applies to both an acting and substantive appointee. As such, there being no substantive Commissioner of Police, the extension granted by virtue of the Constitution and the Constitution (Prescribed Matters) Act to the acting Commissioner of Police, Mr. Hicken, was lawful,” the release said.

It went on to say that the Court in the course of its judgment, made reference to its previous decision in the challenge filed by Christopher Jones, in which it validated Hicken’s acting appointment.

Against this background, the release said that in the ruling delievered yesterday, the Chief Justice further rejected the submission of Joseph’s attorey Dexter Todd, that the President was required to consult with the Leader of the Opposition with respect to Hicken’s extension.

Joseph had argued that the President did not consult with the Leader of the Opposition before issuing the letter extending the term of the acting Commissioner of Police after he attained the age of retirement and that the doctrine of necessity no longer applied to the tenure of the office of the acting Commissioner of Police.

According to the release, Court ruled that there is no provision in the law for such a requirement, while going on to add that the Chief Justice also recognised that while the Court could not direct that a substantive appointment be made to the office of Commissioner of Police, there could not, at the same time, exist a vacuum in that important office.

“As such, the Constitution and the Constitution (Prescribed Matters) Act, in their wisdom, provided for the extension in the office of acting Commissioner of Police,” the press statement concluded.

The Chief Justice dismissed the action, but made no orders as to cost.

Joseph had sought a number of declarations and orders from the court, including:

A declaration that the purported extension given by the President to the acting Commissioner of Police to continue acting in the capacity of Commissioner of Police after he has obtained the age of retirement was unlawful, ultra virus and therefore of no force or effect.

A declaration that the President of Guyana does not have the legal authority to grant an extension to the acting Commissioner of Police to continue acting in the capacity of Commissioner of Police after he has obtained the age of retirement.

A declaration that the acting Commissioner of Police is not entitled to an extension of tenure in the capacity of acting Commissioner of Police.

A declaration that an extension of tenure as given by the President, pursuant to Section 2(b) The Constitution (Prescribed Matters) Act, is only valid where such extension is granted prior to the Commissioner of Police attaining the age of fifty five.

An order directed to the acting Commissioner of Police requiring the said acting Commissioner of Police to immediately vacate the office of Commissioner of Police to pave the way for a new person below the age of retirement to take up that office.