APNU member, Carol Joseph, a resident of Hopetown, Berbice, through her attorneys-at-law at Dexter Todd and Associates Law Firm has filed an action in court challenging the powers of the President of Guyana to extend the tenure of the acting commissioner of police beyond the age of retirement.
A release from Todd’s office yesterday said that Joseph contends that there is no legal basis on which the President of Guyana can extend the tenure of an acting Commissioner of Police, Clifton Hicken.
The application underscores that the person currently occupying the office of the Commissioner of Police is doing so in a temporary, acting capacity in accordance to Article 211 (2) of the Constitution of the Co-operative Republic of Guyana and not as a substantive Commissioner of Police.
The release said that it further notes that the said appointment of the current acting Commissioner of Police was allegedly based on necessity, in the absence of a duly constituted Police Service Commission and the appointment of an official Leader of the Opposition, however those circumstances no longer exists.
The applicant contends 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 of Police returns to office and resumes his/her functions as Commissioner of Police. Additionally, the press release said that the Public Service Rules provides for an extension of tenure of someone who has attained the age of fifty-five 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 avers.
The application further said 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.
The application also argued that the President 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 and that the doctrine of necessity no longer applies to the tenure of the office of the acting Commissioner of Police.
Joseph therefore seeks 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 is 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 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.
