The recent involvement by members of the Police, the Army and Ministers in the Ministry of National Security in the demolition of the camp of the Highway Re-Route Movement at Debe has raised questions about the respective roles of each. Without any clear appreciation of the facts in that situation, since so far the reports are chiefly from the newspapers and statements (sometimes conflicting) of the various parties involved, it would be premature to pronounce on the propriety of the actions of anyone. Nonetheless it is relevant to consider the law on the respective roles of the armed forces and the Minister relative to such an occurrence.
The Police Service and the Defence Force both fall within the ambit of the Minister of National Security as they are and have traditionally been departments of Government assigned to that Minister. Section 85 of the Constitution provides that a Minister shall exercise general direction and control over any department that has been assigned to his responsibility. Although a separate budget has been assigned to the Commissioner of Police in the Heads of Expenditure in the Annual Budget the Service still falls under the Minister in so far as general direction and control is concerned.
This term has been considered to mean policy matters as well as matters that are necessary for the Minister to inform both Parliament and Cabinet as to the functioning of these departments. It does not include specific orders, for example, what the police or army must do in carrying out their respective mandates. That would remain within the provenance of the heads of the respective department: the Commissioner of Police and the Chief of Defence Staff.
Thus no Minister can tell a police officer to go and arrest or charge any individual.
In so far as the Defence Force is concerned the Chief of Defence Staff is "vested with responsibility for the operational use of the Force and shall in the exercise of any power connected with such responsibility conform to any special or general directions of the Minister". While directions may be given by the Minister as to how certain disturbances should be dealt with it cannot be the business of the Minister to direct the army or Coast Guard as to the details of carrying out of specific exercises. Furthermore he cannot attribute to the Defence Force powers that they do not have – unless legislation is passed to do so.
The Defence Force is a body of military forces consisting of—
"(a) a unit of land forces (hereinafter referred to as "the Regiment");
(b) a Coast Guard; and
(c) such other units as the President may from time to time think fit to be formed…"
The function of the Regiment is stated as being "charged with the defence of Trinidad and Tobago and with such other duties as may from time to time be defined by the Council." This Council is the Defence Council under the Act which comprises of among others the Minister (Chairman), the Chief of the Defence Staff, two other Ministers and the Permanent Secretary. Nowhere in the Act is any power given to a member of the Regiment to arrest or charge any person for any offence, other than a person subject to military law where he is found committing an offence against the Defence Act. While the Defence Council may assign other duties to members of the Regiment (such as in times of natural disasters) the Council cannot assign powers of arrest to them.
In contrast a member of the Coast Guard may, with reasonable cause, stop, board and search, with any assistance, any vessel he suspects is engaged in any unlawful operation whatever within the territorial archipelagic or internal waters of T& T. Such an officer in doing so may (a) pursue and detain any person whom he has reason to believe is involved in any such unlawful operation and; (b) use such force as necessary to compel a vessel to comply with any directions he may give as to the vessel's movements.
From the Defence Act it should be reasonably clear that a member of the Regiment has little power within T&T to use force outside of what a regular citizen has – unless it could be shown that he is acting in defence of T&T presumably against an enemy of the State (such as in a coup, for example). A soldier may however be called upon, as would any other citizen, to assist the police in, for instance, effecting an arrest.
By contrast while a member of the Police Service has little training or specific duty to defend the country from attack he has a duty to "preserve the peace and detect crime and other breaches of the law" (Police Service Act, section 45). He also has a duty to repress internal disturbances. In carrying out these functions a police officer has wide powers of arrest. Ultimately he may (usually by warrant) search and charge.
Two things must be made clear: a police officer does not take direction from any person to arrest anyone if he has no reasonable grounds to do so, as in where an offence has been committed in his presence, a breach of the peace is threatened, he has reasonable grounds to suspect that an offence has been committed (which could be based on instructions from a senior) or by warrant of arrest. Secondly, a police officer may call on anyone to assist him in effecting an arrest where he thinks it is necessary.
Finally it must be said that if a person believes that a breach of the peace may occur he may ask for the assistance of the police in preventing an anticipated breach. Such a person may include a Minister. It goes without saying of course that should any arrest ensue as a result it ought to be effected by the police – certainly not by a member of the Regiment.
Dana S Seetahal is a former