Chief Justice dismisses challenge to Hicken’s extension in office

1.   This morning, the Honourable Chief Justice (ag), Roxane George SC, dismissed legal proceedings filed by Carol Joseph on 22nd August 2023, challenging the extension in office of the acting Commissioner of Police, Mr. Clifton Hicken, upon attaining the age of retirement.

2.   Mr. Hicken turned 55 on the 22nd of July, 2023, and by letter dated 21st July 2023, His Excellency President Mohamed Irfaan Ali extended Mr. Hicken’s term in office as Commissioner of Police. In so doing, His Excellency acted on the recommendation of the Police Service Commission under section 2(b) of the Constitution (Prescribed Matters) Act, Chapter 27:12 which reads:

The…Commissioner of Police shall vacate their respective offices on attaining the age of … fifty-five  years  respectively:

Provided that –

(b)   The President, acting on the recommendation of the Police Service Commission may permit a Commissioner of Police who has attained the age of fifty-five 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…”

3.   The crux of the Applicant’s challenge was that only the tenure of a substantive Commissioner of Police could be extended, and that since Mr. Hicken was acting in the office of Commissioner of Police, the extension granted by His Excellency President Mohamed Irfaan Ali was unlawful, unconstitutional and ultra vires.

4.   The Applicant’s Counsel, Mr. Dexter Smartt, also argued that having attained the age of 55 years, Mr. Hicken was now a civilian and no longer a member of the Guyana Police Force, and sought an order requiring the Court to direct Mr. Hicken to vacate the office of acting Commissioner of Police.

5.   The Attorney General, Honourable Mohabir Anil Nandlall SC MP, rejected the Applicant’s arguments and contended, inter alia, that a “Commissioner of Police” referenced in Articles 211 (2) and (3) of the Constitution of Guyana, and in section 2(b) of the Constitution (Prescribed Matters) Act, contemplates both a substantive and acting appointee. 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.”

6.   The Attorney General 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, and the burden to do so was squarely placed upon the Applicant.

7.   Having considered written submissions and oral arguments of both parties, 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, 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.

8.   In the course of the judgment, the Court made reference to its previous decision in a challenge filed by Christopher Jones, in which the Court validated Mr. Hicken’s acting appointment (see Jones v the Attorney General of Guyana and Clifton  Hicken:  2022-HC-DEM-CIV-FDA-705). In this ruling, the Chief Justice further rejected the submission of Attorney-at-Law for Carol Joseph, that the President was required to consult with the Leader of the Opposition with respect to Mr. Hicken’s extension. The Court ruled that there is no provision in the law for such a requirement.

9.  The Chief Justice also recognised that while the Court cannot direct that a substantive appointment be made to the office of Commissioner of Police, there cannot, 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. No order in respect of costs was made.

10. The Applicant was represented by Attorney-at-Law, Dexter Smart. The Attorney General Mohabir   Anil Nandlall SC MP appeared in person along with Shoshanna V. Lall – Assistant Solicitor General, Laurel Dundas and Shania S. Persaud – State Counsel for the Respondent.