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It is well known that in a functioning democracy checks and balances to guard against abuses of power are required in the public interest.
In addition to the separation of the respective powers of the political executive (principally the Cabinet), the legislature and the judiciary, there are additional constitutional provisions designed to insulate specified offices from political interference.
(Copyright Office of Parliament 2021)
For example, an over ambitious attorney general might make eyebrow-raising deals with a tainted witness but he cannot deal with criminal prosecutions that he or the government of which he is a member may wish to control. The Constitution puts criminal prosecutions in the control of the Director of Public Prosecutions (the DPP) and insulates them from the Office of Attorney General.
The service commissions are also intended to operate as a form of insulation. As the Privy Council stated in the landmark Endell Thomas case, in which I was counsel: ‘the whole purpose [of the service commissions] is to insulate members of the civil service, the teaching service and the police service in Trinidad and Tobago from political influence exercised directly upon them by the government of the day.
‘The means adopted for doing this was to vest in autonomous commissions—to the exclusion of any other person or authority—power to make appointments to the relevant service, promotions and transfers within the service and power to remove and exercise disciplinary control over members of the service.’
Referring to public servants, teachers and policemen, the Privy Council asserted that, without such insulation, a government might be ‘prepared to treat the proper performance of their public duties as subordinate to the furtherance of that party’s political aims’.
(Copyright TTPS)
In respect of the grim possibility of a government being able to subjugate the police service to its political aims, the Privy Council stated this:
“In the case of an armed police force with the potentiality for harassment that such a force possesses, the power of summary dismissal opens up the prospect of converting it into what in effect might function as a private army of the political party that had obtained a majority of the seats in Parliament at the last election.”
We have trouble currently with torn insulation. A now former member of the Police Service Commission (the PolSC) at the material time has alleged that, on 12 August, the Chair of the PolSC went to the venue of the highest constitutional office in the nation where she was met by an unnamed public official, and apparently as a result did not fulfill her duty to deliver to the President an agreed list of candidates for appointment to the office of commissioner of police.
This act of interference and subsequent events precipitated the collapse of the PolSC.
(Copyright Office of the President)
The government says that this collapse is not an event which should provoke too much concern, but readers will recall the emergence elsewhere in the region of Tontons Macoutes and mongoose gangs used to silence critics.
Yet, here we are in Trinidad and Tobago in a situation where the PolSC has collapsed as a result of the resignation of all its members following an alleged act of interference with delivery of the list of candidates.
To add to the confusion, it is now being alleged—contrary to the Roger Kawalsingh allegation—that the list was in fact delivered but the appointment process stalled.
The service commission system may need re-examination of its fitness for purpose but permitting it to be mashed under the heel of the political executive may lead to abuses of power. In any event, until the President appoints new members to the PolSC, a substantive commissioner of police cannot be appointed.
In assessing the strength of the checks and balances in our democracy, we also have the considerable disadvantage of an Opposition that carries heavy and unattractive political baggage. No doubt this constitutional embarrassment will now be feasted upon by the gladiators in the political gayelle.
(via TTPS)
Regardless of the distractions and attacks, my last word on this subject at the moment is to question who is effectively guarding the public interest in the maintenance of the strength of constitutional provisions intended to establish institutional independence and integrity.
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Martin G Daly SC is a prominent attorney-at-law. He is a former Independent Senator and past president of the Law Association of Trinidad and Tobago.
He is chairman of the Pat Bishop Foundation and a steelpan music enthusiast.
“…who is effectively guarding the public interest in the maintenance of the strength of constitutional provisions intended to establish institutional independence and integrity.”
It is the responsibility of all citizens. Case in point, Reginald Dumas used the powerful tool of judicial review to correctly identify the law regarding who can bring judicial review on the actions of public bodies… The short answer is any person affected by that action.
Further, that case also provided clear guidance – “the President shall not be answerable to any Court for the performance of the functions of his office or for any act done by him in the performance of those functions” but “The protection which the sub-section gives to the President does not prevent the courts from examining the validity of his acts.”