APNU member Carol Smith-Joseph is challenging President Dr Irfaan Ali’s decision to extend Clifton Hicken’s tenure as acting Commissioner of Police indefinitely, claiming that this unlawful extra time in office prohibits the upward movement of ranks for no plausible reason.
In a Fixed Date Application (FDA) filed on her behalf by Dexter Todd and Associates law firm, Joseph, a resident of Hopetown, Berbice, inter alia, contended that there is no legal basis upon which the Head of State can extend the tenure of an acting Police Commissioner.
Hicken turned 55—the age of retirement—last month.
In the legal filings, Joseph, the Chief Scrutineer for the PNC-led A Partnership for National Unity (APNU) Opposition argued that Hicken is currently occupying the office of the Commissioner of Police in a temporary, acting capacity in accordance with Article 211 (2) of the Constitution of Guyana and not as a substantive Commissioner of Police.
The FDA noted that Hicken’s appointment as Police Commissioner was allegedly based on necessity, in the absence of a duly constituted Police Service Commission (PSC) and a Leader of the Opposition; however, those circumstances no longer exist.
In August of last year, Chief Justice (ag) Roxane George, SC affirmed President Ali’s appointment of Hicken as acting Police Commissioner, calling a challenge to his appointment filed by the Opposition Chief Whip Christopher Jones, “vexatious and an abuse of the court process”.
Justice George had ruled that the President, who is also the Commander-in-Chief of the Armed Forces, had consistently exercised his judgement in an appropriate manner and acted “out of necessity” and that it was legitimate for him to take action in his “own deliberate judgement” to choose someone to serve as acting Top Cop in the absence of an Opposition Leader and the PSC.
According to Joseph’s FDA, the Constitution provides only for an acting Commissioner of Police to serve in a temporary capacity until there is a substantive Commissioner of Police or until a substantive Commissioner of Police returns to office and resumes his/her functions.
Additionally, the application said that the Public Service Rules provide for an extension of tenure of someone who has attained the age of 55 years on the request of the Government, providing that that person is appointed to a “permanent pensionable position”.
Smith-Joseph, however, contended that the position of an acting Commissioner of Police is not a permanent pensionable position and that the substantive position Hicken held at the time of attaining the prescribed age of retirement was Deputy Commissioner of Police.
The FDA further contended that the Constitution (Prescribed Matters) Act provides for the extension of tenure of a substantive Commissioner of Police by the President and not an acting Commissioner of Police and that that extension must be given in advance of retirement.
Further Smith-Joseph argued that President Ali did not consult with the Leader of the Opposition before issuing the letter to extend the term of the acting Commissioner of Police after he attained the age of retirement, that the doctrine of necessity no longer applies to the tenure of the office of the acting Commissioner of Police, and that there is no legal basis for the President to extend the tenure of the current acting Commissioner of Police.
She further contended that the President has no authority to extend the tenure of the acting Commissioner of Police and that the powers of the President are subject to and constrained by the Constitution and that any order, direction, or action made by the said executive President in violation of or ultra vires the Constitution is of no force or effect. Additionally, the application noted that there is no matter of necessity as there are currently multiple Assistant and Deputy Commissioners of Police in the Guyana Police Force (GPF), an official Leader of the Opposition, a PSC with a duly appointed chairman and there is no state of national emergency in Guyana.
She, therefore, seeks a number of declarations and orders from the court, including a declaration that the purported extension given by the President is unlawful, ultra virus, and therefore of no force or effect; that the President has no 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 and an order directing Hicken to immediately vacate the office of acting Commissioner of Police to pave the way for a new person below the age of retirement.
President complied with Constitution
Last week, Attorney General and Legal Affairs Minister Anil Nandlall, SC dismissed questions raised about the extension of Hicken’s tenure in office, saying that there are no provisions in the Constitution to prevent such a move.
A recommendation from the Chairman of the PSC following consultations with its members and meaningful consultations with the Leader of the Opposition are requirements for both the substantive and acting positions, the Legal Affairs Minister noted.
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 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,” Nandlall had noted while highlighting that it is the Constitution (Prescribed Matters) Act Chapter 27:12, Act No 21 of 1967 that caters for an extension of tenure for the person holding the office of the Commissioner of Police and not the Constitution itself.
