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God has a sense of humour. In 2017, Reginald Armour SC defended the Government in a Judicial Review case brought by a public servant seeking to establish the bounds of authority that the Prime Minister had on his ambassadorial posting.
By 2019, in the Court of Appeal, he won with a unanimous judgement that the Prime Minister had the authority to determine the posting of ambassadors. Now Mr Armour, as attorney-general, has to handle the complaint lodged by his predecessor against the Chief Parliamentary Counsel (CPC).
(Copyright Shaun Rambaran/ forge.co.tt)
Dr Keith Rowley, on record, said that this complaint issue was not before the Cabinet. Interesting, eh?
This matter should not be just a 24-hour news story since it deals with the question of norms and lines of authority in the public service. A fundamental plank in the public service is predictability: they should be treated consistently, and the public should expect consistency in the service being offered. The long-suffering public knows that this is observed more in the breach.
This variable service proposition has sparked several significant lawsuits in our Court of Appeal. We must delineate the boundaries so all will be able to have proper expectations.
Mr Faris Al-Rawi’s reported demand was this: “[…] I expect to receive… your written acknowledgement that you, and by extension, the Legislative Drafting Department, will receive and act upon my specific instructions without any requirement for the approval of the Prime Minister or the provision of a Cabinet Note.”
(Copyright Office of the Parliament 2022)
The Express newspaper reported that Mr Al-Rawi appended the gazetted notice of his appointment as attorney general and the schedule of matters which fall under the assignment of responsibility for the Office of the Attorney General and Ministry of Legal Affairs.
This attachment supposedly was to remind the recipient of his stature and authority since Al Rawi alleged ‘insubordination, breach of his duty to cooperate and breach of his duty to maintain trust and confidence’.
But, it did not address the counter position of the CPC, ‘…that the practice of drafting legislation on the basis of Cabinet-approved policy instructions is a long-established and well-known principle and practice in Trinidad and Tobago and the Commonwealth’.
Al-Rawi argued that the CPC ‘unilaterally developed guidelines which he’s portrayed as policy and which led to his refusal to accept instructions’.
Our top public servants generally remain out of sight, out of mind and far from the spotlight. This six-month spat is, therefore, unusual.
Most often, the minister transfers the permanent secretaries to another ministry. Yet, one expects the top public servants to provide the ministers with their candid views and best judgements.
In the face of assaults on and the decline of trust in our institutions, these faceless human beings try to keep democracy on track in an increasingly partisan world.
Some believe that elected politicians should have free rein, but governing by slogan and convincing others of their victimhood does not deliver public goods and services. Governing requires delivery of services, which requires expertise beyond loyalty.
A pliant public service that rotates with the passing of each election creates more political spoils guaranteed to reduce our standard of living and increase corruption. To silence our top public servants is to intimidate the entire service corps.
The threat of being fired or disciplined is likely to move most into silence. But being quiet, hoping to influence politicians on other later issues is a pipe dream. It will not happen. The string of Trump’s senior appointees is proof.
Also in the picture are (from left) White House chief economic adviser Larry Kudlow, Treasury Secretary Steven Mnuchin, House Minority Leader Kevin McCarth0y and Vice president Mike Pence.
(Copyright AP Photo/ Evan Vucci)
To be clear, failing to honour one’s oath to the country is a corrupt deed. But what of norms, as cited by the CPC?
The importance of customs lies in their reconstruction of social practice and judgement about behaviour. They serve as an evaluation of what is good and right. They represent a basis for accountability for actions and processes. They are an agreement that we apply to specific choices and acts, giving us a reason for or against a possible adopted course.
For example, if we were hungry and passed a street vendor, would we feel entitled to take fruit from his/her tray without paying?
Our status should not matter; to do so is wrong. That possible action will not enter most persons’ minds since we have internalised the norm of not stealing. We will only weigh whether to buy the fruit or wait until we can have lunch.
Some people, however, will steal because they can get away with it. The possible sanctions would restrain others. What kind of leaders do we wish for?
That question is of great significance since there is a pattern of abuse of the public purse via state-owned enterprises. Do we wish to have a pliant public service corps? Why do we welcome Mr Armour, a private sector lawyer, to the top of the Government’s legal arm?
What do we make of the allegations by the former agriculture minister against his top-ranking public servants in the land fraud situation? Is the question of norms at the base of all these matters?
We must be wary when there is a process afoot to kill norms. The unfortunate attempt we have witnessed appears to speak to the norm and its enforcement mechanisms as obstacles to be minimised or destroyed. In other instances, we have seen rhetorical denial that norms exist.
Will we get to a point where we consider policy options that were physically possible but were previously excluded? Do our leaders connect their actions to public trust?
(via Office of the Attorney General)
In this instance, we are fortunate that a professional saw his office needing to act consistently over time. Failure to not do so could spell governance disaster.
But this independent, courageous stance can be undermined by public opinion infused by public panic and the invocation of public interest. The law, norms and sensible restraint could then quickly become victims. We must be vigilant.
Was the CPC’s choice of an attorney cleverly designed to protect the office in the event of a change of administration? Checkmate?
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