Challenge to extension of Top Cop’s tenure dismissed

Months after his tenure as Commissioner of Police was extended beyond the age of retirement, Chief Justice (ag) Roxanne George, SC on Tuesday dismissed a challenge seeking to vacate Clifton Hicken from office.

The Police Commissioner (ag) is older than the age of retirement which is set at 55 years old for the Guyana Police Force.

The legal proceedings were filed by opposition activist Carol Joseph on August 22, 2023.

Among other things, Joseph argued that only the tenure of a substantive Commissioner of Police could be extended.

This, she said could not have applied in the case of Hicken said he was acting in the capacity.

As such, she rendered President Dr. Irfaan Ali’s extension of Hicken’s tenure as “unlawful, unconstitutional, and ultra vires.”

In August last year, President Ali announced that Hicken’s tenure as Top Cop was extended to a “date to be determined”.

Hicken acted as the country’s Commissioner of Police since March 2022.

The move was made to fill the gap after the then Commissioner of Police, Nigel Hoppie proceeded on pre-retirement leave. Before this, Hicken headed the Police Force’s Operations.

Joseph was represented by attorney Dexter Smart, who argued that Hicken is now considered a civilian and no longer a member of the Guyana Police Force having attained the age of 55.

However, Attorney General Anil Nandlall, who appeared on behalf of Hicken contended that under Articles 211 (2) and (3) of the Constitution of Guyana, and in section 2(b) of the Constitution (Prescribed Matters) Act, an extension can be granted for both substantive and acting Commissioner of Police.

“The Attorney General further cited Article 232(2)(b) of the Constitution which 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,” a statement from the Attorney General Chambers noted on Tuesday.

Having considered written and oral submissions from both parties, the Chief Justice dismissed the challenge.

“The Honourable Chief Justice (ag) agreed with the Attorney General’s arguments and ruled, inter alia, “the framers of the Constitution envisioned that if there is not a substantive Commissioner of Police, the statutory provisions that apply 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 statement said.

In the judgment, the court also referenced a previous decision in a challenge on the same issue which was filed by Opposition Chip Whip Christopher Hones.

In that proceeding, the court had ruled that the Court ruled that there is no provision in the law for such a requirement.

Under the Constitution of Guyana, the President can appoint a Commissioner of Police and Deputy Commissioners of Police only after consulting with the Opposition Leader and Chairperson of the Police Service Commission (PSC).

The Chairperson also has to consult with the other members of the Commission.