ACTING Chief Justice Roxane George, SC, on Tuesday dismissed APNU member Carol Joseph’s application challenging the President’s authority to keep the acting Commissioner of Police in office beyond the retirement age of 55.

The case, which was filed on August 22, 2023, by the Dexter Todd and Associates Law Firm, contended that President Dr. Irfaan Ali lacked the legal authority to prolong the term of acting ‘Top Cop’ Clifton Hicken. Hicken turned 55 on July 22, 2023 and, by a later dated July 21, 2023, the Head of Sate extended his term in office indefinitely.

The crux of Joseph’s challenge was that only the tenure of a substantive Commissioner of Police could be extended, and that since Hicken was acting in the position, the extension granted by President Ali was unlawful, unconstitutional and ultra vires.

A statement from the Attorney General’s Chambers following the dismissal of the case, stated that the President extended Hicken’s term based on the Police Service Commission’s (PSC) recommendation under section 2(b) of the Constitution (Prescribed Matters) Act, Chapter 27:12.

This provision reads: “The…Commissioner of Police shall vacate their respective offices on attaining the age of … fifty-five years respectively: Provided that – 1 (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…”

Moreover, Joseph’s counsel Dexter Smartt, according to the statement, also argued that having attained the age of 55 years, Hicken was now a civilian and no longer a member of the Guyana Police Force (GPF). As such, he sought an order requiring the Court to direct Hicken to vacate the office.

Attorney-General Anil Nandlall, SC, rejected Joseph’s contention, stating, among other things, that a Commissioner of Police, as mentioned in the Constitution’s Articles 211(2) and (3) and in section 2(b) of the Constitution (Prescribed Matters) Act, is intended to serve as both an acting and substantive appointment.

He 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.”

Nandlall further argued that no evidence was produced to challenge the President’s compliance with both section 2 (b) of the Constitution (Prescribed Matters) Act and Article 211 of the Constitution, and the burden to do so was squarely placed on Joseph.

After reviewing written submissions and oral arguments from both sides, the Chief Justice agreed with the AG’s arguments and ruled, among other things, that the framers of the Constitution envisioned that the statutory provisions that are applicable to a substantive Commissioner of Police would also apply to an acting Commissioner of Police, the Attorney General’s Chambers statement continued.

The Chambers said the Chief Justice found that 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 missive added.

After dismissing the application, Justice George made no order in respect of cost.