The swearing of an oath by our presidents is an expression of a specific intention to others. It is not limited to the moment when the person articulates the words. It commits to act in a certain way in the future.
This action is a deliberate exercise of one’s free will, and it is taken in the case of our high public officials in front of witnesses. These witnesses are representatives of the entire community. Such officials do not commit themselves to a partisan political agenda, a cult of personality, or the judgement of popular opinion.
The oath of office does not focus on preserving their reputations. We must examine this before we demand any particular performance.
The president’s oath is unique; they swear to ‘preserve and defend the Constitution and the law […] to conscientiously and impartially discharge the functions of the President and […] devote myself to the service and well-being of the people of Trinidad and Tobago’.
The relationships between the officeholders are specified in our Constitution. The president shall act per advice from the cabinet or a minister acting under the general authority of the cabinet.
The president has two other avenues: (s)he also works based on his/her own discretion and, at different times, after consultation with others. Acting in his/her discretion does not eliminate the ability to seek advice from others, as in selecting the prime minister or the leader of the opposition. But in the end, it is his/her decision.
When (s)he is mandated to consult, one expects meaningful consultation—but it is his/her decision again. In all events, (s)he cannot act outside the law.
Our Constitution directs: ‘the prime minister shall keep the president fully informed concerning the general conduct of the Government of Trinidad and Tobago and shall furnish the president with such information as s/he may request with respect to any particular matter relating to the Government of Trinidad and Tobago.’
The Police Service Commission must be appreciated in its historical context and the fears it was designed to settle. Lionel Seukeran (2006) and Dr Selwyn Ryan (2009) are valuable to grasp how the nettlesome issue of race relations was handled.
At Malborough House, the leader of the Democratic Labour Party stated what they desired: ‘We want a judiciary which is independent; we want provisions which really guarantee effectively the rights and freedoms which ought to exist in a democratic society: we want Parliament democratically constituted; we want a procedure for the amendment of the Constitution which effectively protects us from the arbitrary exercises of the power to amend; we want the various commissions so constituted as to ensure that they function effectively and impartially.’
However, in the negotiations, Seukeran recollects:
‘[Dr Rudranath] Capildeo sprang a surprise on us. We were in the room allotted to us for private discussion. He said that he would seek to have the views of the Indian Association of Trinidad incorporated in the Constitution.’
Seukeran reasoned that the delegation was dealing with a national issue, freedom for all the people of Trinidad and Tobago. Tajmool Hosein, Peter Farquahar and Seukeran refused to support Capildeo’s desire and threatened to fly home. Capildeo eventually capitulated.
Why was this inclusion deemed to be a problem? The Indian Association was considered by most in the DLP to be an extremist minority of the Indian community.
‘The Indian Association is a many-sided thing. Cranks who have weird ideas of removing governments […] are prepared to destroy left, right and centre if they do not get what they want. They conspire, intrigue and undermine. They, most of them, have chips on their shoulders.’ (Statesman, 30 November 1962)
Capildeo came to understand the challenges.
‘At the start of the Conference, the decision confronting the leaders of the DLP was whether they should plunge the country into chaos with civil commotion and strife, or try to explore whatever reasonable avenues may be presented to us as the Conference developed… It is easy to let slip the dogs of war; it is impossible to return to the positions before they were unleashed.’ (Statesman, 19 August 1962)
During this period, the politicians of both parties were irresponsible. This quote comes from the Nation newspaper:
‘The longer sections of the electorate believe they are unfairly and unjustly treated by reason of race, the easier it is to organise such resentment under the guise of a political party. I am far from satisfied that the PNM is entirely blameless for this unfortunate state of affairs.
‘Living in harmony is, after all, a two–way process. And every member of the PNM has his part to play in ensuring that we here do, in fact, live in unity.’ (Lynn Beckles, Nation, 9 February 1962)
Capildeo and Dr Eric Williams worked closely in the post-Independence period, and the former was criticised for so doing. Capildeo explained that being a more active opposition leader would have consolidated the PNM.
It was a delicate dance between both men, and the victor would be different according to whom you listened to. But this is the nature of a good deal.
There were two crucial challenges concerning the Police Service Commission. The Thomas one (1981) dealt with terms and conditions of employment and security of tenure of members in the public service, particularly the Police Service.
The Privy Council judgement underscored the need for constitutional insulation in the light of the nature of the Police Service. However, the Privy Council ruled that the Commission was the appropriate body to act, since the Constitution gave them the right to act.
This right is an important step to acknowledge in discussing the independent role and power of the Commission. The Privy Council described the local court’s judgement as ‘incorporating a detailed and erudite examination of judicial decisions and dicta’.
The Reginald Dumas case (2017) highlighted that a legal challenge could be mounted to interpret specific criteria circumscribed by the president’s actions. To wit:
‘The respondent, Mr Dumas, as an engaged citizen with an interest in the good governance of the Republic, seeks a determination of the meaning of the phrase ‘qualified and experienced’ in section 122(3) of the Constitution and declarations that the nomination and appointment of two persons to the Police Service Commission under that section of the Constitution were invalid because, he asserts, the nominees lacked the specified qualifications and experience.
‘Mr Dumas claims no personal interest in the appointments. He asserts a right as a citizen to seek the assistance of the courts in the upholding of the Constitution.’
After a back and forth between the local courts, Justice Peter Jamadar summarised the Court of Appeal’s position:
‘In our opinion, barring any specific legislative prohibition, the court, in the exercise of its supervisory jurisdiction and as guardian of the Constitution, is entitled to entertain public interest litigation for constitutional review of alleged non-Bill of Rights unlawful constitutional action; provided the litigation is bona fide, arguable with sufficient merit to have a real and not fanciful prospect of success, grounded in a legitimate and concrete public interest, capable of being reasonably and effectively disposed of, and provided further that such actions are not frivolous, vexatious or otherwise an abuse of the court’s process.’
The Privy Council said:
‘The Board accepted ‘with little or no reservation’ (para 13) the role of the Trinidadian courts and the Board itself as the ultimate guardians of constitutional compliance and stated (para 14): The rule of law requires that those exercising public power should do so lawfully. They must act in accordance with the Constitution and any other relevant law.’
They pointed to the local courts as the authority to interpret the meaning of the criteria. They clarified the scope of protection offered to the president and used the judgement of the 1990 situation as a reference.
‘It has long been recognised that a statutory ouster clause, which provides that a determination shall not be called into question in any court of law, will not protect a purported determination from a legal challenge that it is ultra vires and therefore a nullity: Anisminic Ltd v Foreign Compensation Commission  2 AC 147.
‘Thus in Attorney-General of Trinidad and Tobago v Phillip  1 AC 396, the Board considered the validity of a pardon which the president had purported to grant during the armed insurrection in July 1990.’ (my emphasis)
In 2012, Dumas had opined that the courts should and could intervene over the Jack Ewatski challenge to the Police Service Commission about his appraisal. That went away when Ewatski and Dwayne Gibbs and the Government reached an agreement for them to leave.
We must not ignore the Privy Council’s views in both cases that our Judiciary performed well. Justice Nadia Kangaloo’s recent quick judgement proves that the ‘brandy was not watered down’.
Why then are those who are fearful about the erosion of democratic rights not proceeding to the courts? Why the drama and appeal to public opinion on Facebook?
Are they not mindful of the delicate balance achieved by our predecessors? What is the best way to handle this disagreement to maintain peace?