Attorney RAMESH LAWRENCE MAHARAJ, SC, explores the Defence and Police Complaints Bill which needs a two thirds majority to be passed in both the House of Representatives and the Senate.It is because of the serious impact this bill, if made law, can have on democracy in our country, Maharaj said, that he considered it necessary to publish this legal opinion so that the public can be informed of the seriousness of the issue which has arisen from this bill.
The people at Independence agreed that certain safeguards to protect the population against abuse of power would be entrenched in the Constitution of our country. The population saw this entrenchment as a guarantee against dictatorial rule. Sections 122 and 123 provide for the independent Police Service Commission as the governing body for police officers. This was the mechanism used in the Constitution for police officers to be insulated and free from political influence and control by the government of the day.
This protection and safeguard which is entrenched in the Constitution is being threatened by the Government in the bill to give soldiers police powers. The Miscellaneous Provisions (Defence and Police Complaints) Bill was passed in the House of Representatives. It is now part heard in the Senate.
2. If it passes and becomes law, Trinidad and Tobago would have soldiers under the control and influence of the Government exercising powers of arrest and other police duties.
3. The Privy Council which is the highest court for Trinidad and Tobago, in the case of Endell Thomas and the AG of Trinidad and Tobago years ago, stated that if police officers are under the control of the Government andpoliticians they can become a private army of the Government in power. History has shown that in several countries private armies have been used by leaders of those countries to harass those who oppose them politically. Some of those countries have been transformed from democracies to military dictatorships.
4. It is because of the serious impact this bill, if made law, can have on democracy in our country I considered it necessary to publish this legal opinion so that the public can be informed of the seriousness of the issue which has arisen from this bill.
5. The bill which was passed in the House of Representatives is unconstitutional because it purports to give soldiers who are not under the administration of the Police Service Commission the powers of police officers. This bill is endorsed as one which is inconsistent with Sections 4 and 5 of the Constitution pursuant to Section 13 of the Constitution. The bill, however, if made law would alter Sections 122 and 123 of the Constitution.
6. The Judicial Committee of the Privy Council in Endell Thomas v the Attorney General of Trinidad and Tobago (1982) AC 113 decided that the provisions of the Constitution which entrench the Police Service Commission (and other Service Commissions) was to protect the Police Service from direct political influence by the political party which formed the government of the day.
It decided that the Police Service Commission insulated members of the Police Service from political influence being exercised directly upon them in the exercise of their duties. The Constitution gave them security of tenure as their appointments, promotions, transfers and the power to remove and exercise disciplinary control over them were done by an independent Police Service Commission.
7. Soldiers on the other hand do not have this security of tenure as police officers as they are not administered by an independent service commission. The appointment and direction of the senior command of the Defence Force are in the hands of the government of the day, senior officers in command are subject to the control and influence of the government of the day.
The Defence Council which administers the Defence Force comprises mostly members of the Cabinet [Section 7(1) of Defence Act]. The Defence Council is responsible for command, administration and discipline of the Force [Section 8(1) and the Chief of Defence Staff who is under the control of the Minister of National Security is responsible for operational matters [Section 8(2)].
The Chief of Defence Staff is appointed by the Government [Section 191(1)]. The Chief of Defence Staff is responsible for operational use of the Force and shall in the exercise of any power conform with any special or general directions of the Minister of National Security [Section 191(2)]. Officers above the rank of Major/Lieutenant Commander are appointed in the same way as the Chief of Defence, that is, by the Government [Section 12].
8. The Privy Council in three cases, Hinds and Others v The Queen (1976) INUER 353, Endell Thomas v AG of Trinidad and Tobago (1981) 82 WIR 375 and Independent Jamaica Council for Human Rights v Marshall-Burnett (3/2/2005) made it clear that where an entrenched provision gives protection to a group of officers of the State, Parliament could not confer those powers to other individuals without altering the entrenched provision of the Constitution which gave that protection.
It said that if it were otherwise it would amount to a mockery of the Constitution.
9. The Government's actions in its efforts to make this bill law amount to a mockery of the Constitution because it is trying, without getting the required two thirds majority, for Parliament to alter Sections 122 and 123 of the Constitution. It is only if Sections 122 and 123 of the Constitution are altered soldiers can exercise the powers of police.
The powers characteristic of the police officers which reside in the Police Service are protected by Sections 122 and 123 of the Constitution. These powers include most of those at Sections 43, 45 and 46 of the Police Service Act which include the police power to arrest people. These powers of arrest therefore cannot be given to soldiers who are under the control and influence of the government of the day without Sections 122 and 123 of the Constitution being altered by a two thirds majority.
10. This bill purports to confer police powers on soldiers without the bill giving the protection of the entrenched provisions (Sections 122 and 123). This amounts to an attempt to alter Sections 122 and 123 of the Constitution which by Section 54(2)(a) requires a two thirds majority and which by Section 54(5) of the Constitution, it must be stated that it is an act for the purpose of amending the Constitution.
Since there is no such endorsement, the bill which was passed in the House of Representatives is unconstitutional, null and void and of no effect.