Daly Bread: Excuses feeding failure; reconstituted PolSC must still account for CoP merit list

George Washington Carver was born into conditions of slavery but nevertheless became a prominent agricultural scientist and innovator in crop farming. I mention him in the context of our leaders masking reality with excuses.  

Carver stated his view in a single sentence: ‘Ninety-nine per cent of failures come from persons who make excuses…’

Photo: Prime Minister Dr Keith Rowley gives an address to the nation on Thursday 25 November 2021.

Even before Thursday’s night’s rambling and unhelpful address to the nation, while the Delta is killing us in droves, this dictum came to mind because murders have returned to rampant levels.

We have no police commissioner at the head of the Police Service. Excuses for the contamination and consequent failure of the process to appoint a commissioner of police (CoP) have been made, but controversy surrounds the duties of the reconstituted Police Service Commission (PolSC) in relation to the ‘withdrawn’ merit list.

The functus theory, touted by ‘sources’ and prominently reported in the Trinidad Express newspaper, is intended to have us believe that the merit list settled by the Police Service Commission—when it comprised a chairman and members different from the new chairman and members—is dead and buried because the outgoing members are ‘functus’.

This functus theory is plainly intended to justify sending the merit list from withdrawal to final burial and thereby seal the eradication of former CoP Gary Griffith; and my attention was drawn to a legal notice (No 277 of 2021) issued on Thursday last, which looked like the first step of a premature start over process.

Photo: Retired Justice Judith Jones is sworn in as Police Service Commission (PolSC) chair on 16 November 2021.
(Copyright Office of the Persident)

It may be useful therefore to elaborate on what is the meaning of ‘functus’. ‘Functus’ is part of a phrase ‘functus officio’ meaning that the legal authority to perform an act is lost when the person or body has completed performance of the duty it was authorised to perform.  

In my view, the PolSC has institutional continuity. This prevails over the functus officio status of the individual members who resigned because the unconstitutional August assault on the process—which shut out the Parliament from the process, interrupted and left the merit list process incomplete.

The merit list of recommendations for appointment to the office of CoP, in the words of the President, having been ‘delivered to the Office of the President on 11 August 2021 was withdrawn almost immediately thereafter that day’.  

The President was then able to claim that she had no list from which a notification could be issued to Parliament for debate. Citizens are asking, where is the ‘withdrawn’ merit list and what is its status?

Photo: Former Police Service Commission chair Bliss Seepersad.
(via Office of the President)

The PolSC ought not to wriggle out of this. It had embarked on but did not complete performance of its duty regarding a merit list. 

In my view, the reconstituted PolSC is therefore obliged  to find the list or the copy in its records, make a decision what to do with it and to give reasons for whatever decision it makes. Accountability demands nothing less. Readers will discern that there is likely more litigation ahead.

A wish to get rid of Griffith could have been realised without the unconstitutional August assault on the merit list. The Government could simply have used its majority in Parliament to vote down any recommendation that Griffith be appointed by declaring, as is now in the open, that the Prime Minister had lost confidence in Griffith.

The August manipulations were intended to avoid scrutiny in Parliament of the Prime Minister’s reasons for his loss of confidence. However, closed door manipulations of constitutional institutions and processes fundamentally undermine democracy and promote authoritarian rule.

Photo: Then Commissioner of Police Gary Griffith (second from left) with Prime Minister Dr Keith Rowley (third from left) and Minister of National Security Fitzgerald Hinds (far right).
(Copyright TTPS)

Institutional strength is necessary to support the stability provided by the rule of law and accountability. That is why we must be alarmed at our constitutional institutions piling up in the political mortuary, like bodies are piling up in the Covid-19 mortuaries.

Richard Rose and Doh Chull Shin in Democratization Backwards (Volume 31, British Journal of Political Science) state that democracy goes backward when there are competitive elections but there is a lack of basic institutions to support accountability:

‘Countries can fall into a low-level equilibrium trap in which the inadequacies of the elites are matched by low popular demands and expectations.’

We are undoubtedly feeling the squeeze of such a trap as one institution after another is pushed into disrepute.

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About Martin Daly

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.

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