Monday, January 22, 2018

Soldiers cannot be part-time police, part-time soldiers

The Constitution does not permit soldiers to perform the duties of police officers in the investigation, detection and prosecution of crime. The Constitution and the Defence Act make it abundantly clear that a police officer must be independent of political control in the execution of his duties while a soldier is subject to political control in the execution of his duties.

The Government, however, seems adamant to use its majority in the House of Representatives to secure passage of the bill. Such a bill, if made law, would be unconstitutional. This bill must be withdrawn; it cannot be saved.

The complete independence of the police from political control and/or influence is guaranteed in the Constitution of Trinidad and Tobago. This independence was emphasised by the final Court of Appeal for Trinidad and TobagoŚ The Judicial Committee of the Privy Council. In the case of Endell Thomas v the AG of Trinidad and Tobago [1982] AC113, the Privy Council decided that the cumulative effect of Sections 122 and 123 of the Constitution and the Police Service Act demonstrate that the Constitution intended by the constitutional safeguard of the Police Service Commission to protect the police from direct political influence by the government of the day. Lord Diplock stated on Page 124 of the judgment of the Privy Council:

"The whole purpose of chapter VIII of the Constitution, which bears the rubric 'The Public Service', is to insulate members of the Civil Service, the Teaching Service and the Police Service in Trinidad and Tobago from political influence exercised directly upon them by the government of the day. The means adopted for doing this was to vest in autonomous commissions, to the exclusion of any other person or authority, power to make appointments to the relevant service, promotions and transfers within the service, and power to remove and exercise disciplinary control over members of the service."

Members of the Defence Force do not have the same protections as police and, therefore, the members of the public would not have the same protection against political interference in the execution of police duties by soldiers.

The constitutional protection of the independence of the Police Service from political control is contrasted with the provisions of the Defence Act, in that the appointment, administration and direction of the senior command of the Defence Force is under the control of politicians of the government of the day.

It would be a mockery of the constitutional protection given to the Police Service and to the members of the public if members of the Defence Force are permitted to do police work. The Constitution does not permit a soldier to exercise police powers. If the Government wants a soldier to exercise such powers, the soldier has to agree to resign and to apply to the Commissioner of Police and the Police Service Commission to become police.

Soldiers, after they resign, would then have to undergo the training and pass the entrance requirements of the Police Service to be appointed police. Soldiers cannot be part-time police and part-time army personnel.

Ramesh Lawrence Maharaj, SC

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