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Lawyers: Minister can’t order soldiers and cops
Published:
Friday, June 29, 2012
OWTU president general Ancel Roget, centre, joined members of the Highway Re-route movement at their sit-down protest outside the Office of the Prime Minister in St Clair yesterday. Roget was among several union leaders and COP party members who came out in support of the movement. PHOTO: BRIAN NG FATT
There is no provision under the Police Service Act or the Defence Act which allows a Government Minister to give directives to the police or the army, several top attorneys said yesterday. “That would be a straight case of a breach of the separation of powers of the Executive and the police, who are supposed to be independent,” attorney Dana Seetahal said. “The police are supposed to take reports and initiate investigations after which they can act,” she added. Seetahal said neither did the army, outside the special powers given it under a state of emergency, have the power to make arrests. Asked whether a minister can gives orders to the police and the army, attorney Robin Montano said: “The short answer is, no.” But, he added, that was being a little naive. He added: “It will be naive to think a Government cannot, or will not, get the police to do its will.
There are ways to do it quite constitutionally. “All sorts of arguments can be made. The minister can say he didn’t give an order but a directive.” Another attorney, who asked not to be identified, said a minister could not give orders to the army chief or the head of the Police Service. “He cannot even give a constable directions, according to the Police Act and the Defence Act. The Police Act says the commissioner gives orders to the police and the Defence Act says the President gives orders to the Defence Force,” he added. The attorneys all agreed that under the law, the President of the Republic is the Commander in Chief of the Armed Forces.
However, according to political scientist, Dr Bishnu Ragoonath, the President and the Executive can give policy directives to the military. And what is a policy directive? “They can say to the military that the policy of the Government is not to entertain protestors and to do what is required,” Dr Ragoonath said.
Outlining the law, Seetahal said Section 22 of the Constitution gives the President the title, Commander in Chief of the Armed Forces. Section 80, however, she said, shifted that a little. “It says in the exercise of his function, he shall act in accordance with the advice of Cabinet, or a minister under the general authority of the Cabinet, except in certain cases where he can act on his own discretion, like in the appointment of independent senators, members of commissions and the Chief Justice,” she quoted. According to Seetahal, the President, in reality, does not really give advice to the army and usually acts under the advice of Cabinet, like in the establishment of a state of emergency. Ragoonath agreed that a minister was not supposed to give orders to the police or the army but noted he could communicate policy directives to the heads of the protective services. Ragoonath said the President’s role as Commander in Chief of the Armed Forces was only ceremonial. “The Commander in Chief along with the Executive can give policy directives to the military,” he added. As to whether the minister has to be present to ensure that the policy is carried out, Ragoonath believes that is not necessarily required.
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