Faris under fire from public, pressure in the PNM
Attorney General Faris Al-Rawi is under fire from several quarters after the collapse of the Police Service Commission (PSC) left behind a tangled mess. The AG is also under heavy public scrutiny for a seemingly failed selection process for an acting Commissioner of Police and CoP, and the ongoing legal matters involving Gary Griffith, the PSC, former attorney general Anand Ramlogan and the Government.
Questions have also been asked about the Legal Notice 183 (2021) which was compared to the infamous Section 34 under the People’s Partnership government and seemed to be specifically drafted with one person in mind. Controversy surrounding Section 34 led to then justice minister Herbert Volney having to demit office.
Several legal luminaries and key office holders spoke with Guardian Media about the storm brewing for Al-Rawi and the questionable legal notice.
Attorneys Dave Persad and Martin George, as well as former PSC chairman Dr Ramesh Deosaran and political scientist Prof Hamid Ghany said the AG must be held to account for Legal Notice 183 (2021). The commentators believe it was a poorly drafted piece of legislation that appeared to compromise the selection process for a commissioner of police.
According to Deosaran, there is a political and moral obligation for Prime Minister Dr Keith Rowley and the Attorney General to account for inserting the notice he labelled “suspicious” and “confusing”.
“Given the complete collapse of the PSC, the confusing, invalid bits of related legislation by Government and the great loss of public confidence in several state institutions, the Government in the first place must now propose a serious review of the legislative and administrative framework (Act No 6 of 2006) for the powers of the police commissioner, the manner of his or her appointment, the political role of Parliament, the role of the president and whether or not this country really needs an inflated structure like the PSC,” Deosaran said.
If the Government refuses to do what is now required, then the Opposition should know what its constitutional obligation is, Deosaran added.
He said the urgency of this requirement also flows from the PM’s recent public statement that the present PSC legislation is “worse” than it was before 2006 when the PM had a direct veto over the appointment of a CoP.
“Given widespread public worry, the PM should make an announcement to this effect as soon as possible (a review of the legislative and administrative framework). The AG Faris Al-Rawi should not stand in the way of this overhaul. To do otherwise, would merely aggravate the ‘error’ as admitted by the PM and the entire mishandling of the process for appointing a CoP,” Deosaran said.
While we have now passed the stage of blaming the PSC chairman or its members, he said, there is at least “a political and moral obligation for the PM and AG to also account for inserting the confusing Legal Notice 183 with its suspicious Clause 4 and consequent political implications.”
There are too many serious unanswered questions, he said. “Who really advised PSC Chairman Bliss Seepersad to bypass the views of her fellow commissioners and take certain actions, some of which are now costing taxpayers? Who was the invisible hand?” he asked.
Prof Hamid Ghany
“Regardless of what interpretation one may put on Legal Notice 183 of 2021, the bottom line is that the AG is individually responsible for it. That individual ministerial responsibility attaches to him regardless of how many senior counsels were involved in drafting it for him,” said political scientist and Sunday Guardian columnist Prof Hamid Ghany.
As a Minister, Ghany said, Al-Rawi is entitled to departmental advice, “however, only he alone takes responsibility if there is policy error under the culpability rule of the constitutional doctrine of individual ministerial responsibility. He may take the view that he is an attorney acting on instructions, but at the end of the day, only he is ministerially responsible for the policy positions of the Ministry of the Attorney General.
“Furthermore, he is no ordinary Minister because without his office there can be no Cabinet.”
Attorney Martin Daly
While Senior Counsel Martin Daly said respect for the court’s proceedings requires him to refrain from commenting on legal issues such as the legal status of Legal Notice 183 of 2021, he did comment on the AG’s predicament.
He believed Al-Rawi’s position as attorney general may be at risk.
“Unfortunately for the AG, he already looks bad because the PM publicly embraced the opinion of (Rolston) Nelson, SC and confessed that an error was made. The AG’s political capital is clearly at risk,” he said.
“The outcome of the Court proceedings relating to that notice is not the only risk he is facing. There have been some elements of self-promotion that may be cause for irritation within a Cabinet that contains other members with high ambitions.”
In August, the Attorney General, through the Office of the Attorney General and Ministry of Legal Affairs, launched a media campaign, via social media platforms, called AG Talks.
During the series, Al-Rawi discussed policy at length with journalists, including Kejan Haynes and Desha Rambhajan.
Attorney Martin George
Former member of the PSC Martin George described Notice 183 of 2021 as a badly drafted piece of legislation that the Government and its legal officers must account for.
He said the notice was part of the problem in the PSC debacle, believing that it constrained all parties involved in the process of appointing an acting commissioner.
“It says nothing about what the President is to do in receipt of that list, so her hands would have been tied. It would appear, respectively, in that regard, if there is nothing to indicate to her what to do with that list. So then you ask yourself, what was the purpose, intent and objective behind this legislation being so hastily drafted and rushed through Parliament at the last minute? t
“Particularly when you knew in a couple of months, there would be the vacancy arising at the end of the three-year term appointment of the substantive sitting commissioner of police.”
George said the nation must demand responsibility, explanations and answers, so the issue can be fully understood and so the error won’t be repeated.
“When one has regard to the comparator of Section 34 and that massive scandal which resulted, we saw the minister of justice then, Mr Herbert Volney, he had to leave office as a result of that fiasco. So, in a similar way, we are saying, there must be some reckoning and accounting, in terms of what has happened here in this particular scenario,” he said.
The attorney said the call for accountability from the Government does not absolve the PSC. He said the commission, now devoid of members, committed numerous errors and breaches during the process.
“At the end of the day, there have been people who have been lured into this trap or seduced into this unfortunate piece of legislation. If they had simply stuck to the basics and fundamentals, which were before them…you would have avoided this legal pitfall which has been dug and set here in this legislation…not necessarily suggesting it was done deliberately,” George added.
Attorney Seenath Jairam
Former president of the law association and PSC member Seenath Jairam believes the Attorney General has nothing to answer for in relation to the legal notice.
He called criticism of Al-Rawi in this matter “political nonsense and cheap politics.”
The senior counsel said an Attorney General does not draft legislation in isolation and there are multiple steps and checks and balances in place.
He said, for instance, there are trained draftsmen who draft legislation, adding that the AG also takes proposed law to the Cabinet and Parliament for review, while also getting advice from senior counsels.
“Much ado about nothing…The courts will make sure it conforms to the Constitution,” Jairam said.
Opposition Leader Kamla Persad-Bisesssar
Calling for the AG’s removal from office, Opposition Leader Kamla Persad-Bissessar said Thursday’s resignation of Bliss Seepersad as PSC chairman, “shows how dangerous and incompetent Attorney General Faris Al-Rawi has become.”
She claimed in a press conference that the entire CoP appointment crisis was “birthed from his tampering with the process so he can have some influence over the TTPS.”
Paragraph 4 of the notice
Paragraph 4 of the notice, in its entirety, reads, “Where either the post of commissioner of police or deputy commissioner of police is vacant or is about to become vacant, the Commission may submit to the President a list of suitably qualified persons from amongst the ranks of the Police Service, including those on contract or previously on contract, as nominees to act in the offices of Commissioner of Police or Deputy Commissioner of Police, pending the conclusion of the procedure prescribed in paragraph 3.”
A previous legal notice, Legal Notice 103 (2009), only allowed for a person holding or acting in the office of deputy commissioner to act as commissioner of police if the Office of the Commissioner of Police is vacant and the appointment of his successor is pending.
The previous notice would have, in theory, ruled former substantive Commissioner of Police Gary Griffith ineligible to act in the position.
At the time legal notice 183 (2021) was tabled in Parliament, Griffith was on contract. His contract expired on August 17, 2021.
Letter from the President
In an August 13 letter to the former PSC chairman from President Paula-Mae Weekes, the President confirmed receipt of a list of nominees to act as Commissioner of Police, but expressed concern with paragraph 4 of Legal Notice 183 (2021).
The President said, “a reading of paragraph 4 of the notice raised for me immediate concern, as nowhere within its four walls does it set out any role or function, power or authority in the President. The President, being a creature of statute, has no inherent jurisdiction and must find all power and authority within some law. I have found none beyond receiving the relevant list.”
The President expressed further concern, suggesting that she was unsure whether paragraph 4 implied that she ought to select one of the nominees from the list.
“…The legislation does not provide any guidance, parameters or information of which the President should be seized before making a selection. Presidential discretion could hardly be exercised on ‘town say’ or other arbitrary method,” an excerpt of the letter read.
According to President Weekes, Legal Notice 103 of 2009, which states in part that–the Commission may, as it thinks fit, appoint to act in the office of the Commissioner of Police, a person holding or acting in the office of the Deputy Commissioner of Police–where, (b) the office of the Commissioner of Police is vacant for whatever reason and the appointment of his successor is pending–remains good law and was not revoked by legal notice 183 (2021).
“I can only conclude that in his wisdom the draftsman of Legal Notice 183 of 2021 considered it desirable that the President be informed of the list from which the acting Commissioner of Police is selected,” she said.
The list, for reasons yet to be revealed, was not sent to Parliament.
When Al-Rawi spoke to the Sunday Guardain last week, he acknowledged that the list ought to have been presented to Parliament, as stated in the Constitution. He insisted Legal Notice 183 (2021) was not to blame, as suggested by some.
He said, as evidence of this, “the notice is not being challenged before the courts–not even by the Opposition.”
“What is in court is the interpretation of the Constitution, nothing to do with the order. If you look at what Mr Nelson says, Mr Nelson makes a passing reference as to whether the order should be viewed in one way or the other,” he said.
“We are certain, in the Government, that this matter needs to be dealt with quickly, it is a very important issue.”
Al-Rawi defends Legal Notice 183 of 2021
Al-Rawi last week defended Legal Notice 183 of 2021.
According to Al-Rawi, contrary to what is being claimed by some, he did not take it upon himself to draft Legal Notice 183 of 2021 but was asked to do so by the PSC.
He said the law was drafted by his attorney, current Law Association President Douglas Mendes.
After being drafted, he said, the notice was examined by three prominent attorneys, including Michael Quamina and Senior Counsel Russell Martineau, also subjected to further examination by legislative review, and then approved by Cabinet and Parliament.
“Mr Mendes’ written opinion is that the legal notice is perfectly lawful. It reflects upon the fact that he drafted it and he also, nonetheless, comes to the conclusion that the appointment (of Griffith as acting commissioner) is invalid. So, the Government agrees with Mr Ramlogan’s case and we have said so to the court and we agree the matter should have come to the Parliament,” he said.
Currently, there are three matters before the court in relation to the PSC selection process issue.
- In the first case, Acting Senior Superintendent Anand Ramesar is pursuing a lawsuit against the PSC over its handling of the selection of the Police Commissioner.
- In the second case, senior counsel and former attorney general Anand Ramlogan is representing activist Ravi Balgobin Maharaj in a constitutional challenge against Griffith’s appointment as acting commissioner.
- In the third case, Gary Griffith is challenging the PSC’s decision to suspend him from the role of the acting commissioner until an investigation into the firearm user’s licence system is completed.
The PSC, in a press release dated August 20, confirmed the appointment of Griffith as acting commissioner under paragraph 4 of Legal Notice 183 (2021).
Upon subsequent legal advice from senior counsel Rolston Nelson, however, the Prime Minister later acknowledged Griffith’s appointment was improper.
According to the legal opinion provided by Nelson, paragraph 4 of Legal Notice 183 (2021) lacked vires, saying that even if it had vires, the nomination was not submitted to or approved by Parliament as constitutionally required.
Nelson said, “…In a significant departure from its previous incarnations, the order also canvasses the question of acting appointments. Paragraph 4 provides that where the office of Commissioner of Police is vacant or about to be vacant, the PSC may submit to the President a list of suitably qualified persons from the ranks of the Police Service, including contract officers, as nominees to act as Commissioner or Deputy Commissioner pending the conclusion of the selection process.”
He believed that while the notice makes provision for the phase between the expiration of a commissioner’s terms and the selection and appointment of a new commissioner, it does not flow naturally from Section 123(2) of the Constitution.
Nelson believed there was no need for provision to be made for the appointment of an acting commissioner by way of subsidiary legislation given that Section 123(1) (a) of the Constitution empowers the PSC to make such an appointment.
AG denies anything suspicious about relationship with Kawalsingh
Questions have also been raised about Al-Rawi’s relationship with Gary Griffith, as well as with former PSC member, attorney Roger Kawalsingh.
Earlier this week, it was revealed that Al-Rawi sold a Porsche vehicle to Kawalsingh in 2016 with some suggesting it was a sign of a close relationship between the two, something Al-Rawi denied.
“I’ve known Kawalsingh and most other lawyers for decades. Mr Kawalsingh, of course, I’ve had interactions with over the years, but Mr Kawalsingh also very much assisted in a number of matters for both governments,” Al-Rawi said on Thursday, denying there was anything suspicious about their relationship.
Kawalsingh, who resigned from the PSC on September 27, was appointed to the commission in 2019.
Persad-Bissessar has written to the Director of Public Prosecutions and the acting CoP on the sale of the AG’s Porsche to Kawalsingh.
Faris under the microscope
The PSC issue is not the first controversy the Attorney General has found himself in.
*He has faced heavy criticism for his family allegedly receiving more than $20 million in annual rental fees for properties leased by the State.
*In 2016, photographs of Al-Rawi’s children holding high-powered weapons at the shooting range in Camp Cumuto were brought into the national spotlight by MP for Oropouche East Dr Roodal Moonilal.
Al-Rawi subsequently said his family had been invited by the army for a “threat assessment” after he received death threats after assuming office in September 2015.
In November 2019, Commissioner of Police Gary Griffith said the investigation into how Al-Rawi’s children were allowed to use the gun was almost at a close. However, days later Griffith said the probe had hit a bump in the road due to a lack of cooperation from the TTDF.
*In March 2021, the Prime Minister expressed disappointment with Al-Rawi for not wearing a face mask during a live stream event, Vibes with Voicey, stating people in leadership positions must act responsibly. Al-Rawi later apologised for his action, admitting that he should have acted better.
*In June 2021, Al-Rawi promised the “mother of all Carnivals” in 2022 during a Twitter Spaces conversation with entertainers as the Government ramps up its vaccination drive to come out of the pandemic. Responding to Al-Rawi’s public statement, Prime Minister Rowley said it was too early to discuss Carnival 2022, as the first hurdle they had to cross was reopening schools.
In response to the mounting pressure on Al-Rawi from the PSC issue, the executive of the San Fernando West Constituency of the PNM condemned, what they called, unwarranted and unsubstantiated attacks against its MP.
In a press release, issued on Friday, the executive said, “The Honourable Faris Al-Rawi, in his capacity as the Attorney General of Trinidad and Tobago has worked tirelessly towards achieving a safe, just and better Trinidad and Tobago by piloting much-needed legislation before the Parliament.”
Under pressure within the PNM
Al-Rawi is also under pressure from forces within the People’s National Movement Government.
Sunday Guardian asked the Attorney General whether he believed there was substance to claims that the Legal Notice issue was being used by some people within the party to paint him in a negative light, but he did not answer.
He, however, pledged his loyalty to the party and the Prime Minister.
A source close to the Government said there seems to be a fight for leadership within the party that is causing issues. They said that a small group within the Cabinet “with its own agenda” was working to undermine Al-Rawi.
A cabinet source suggested likewise, believing that a group of cabinet members see Al-Rawi as a threat to their aspirations of climbing the leadership ranks when Prime Minister Dr Keith Rowley eventually steps down as party leader.
They suggested that there may be party members who see the complex PSC saga as an opportunity to put the attorney general under pressure. One party insider said that the “PNM had no intention of gettingf rid of Al-Rawi because the party stands to lose more if they get rid of him.”
Following the PNM’s general election success in August 2020, the Prime Minister suggested that he would not be leading the party into the 2025 general election.
“Ladies and gentleman, this can easily be my last term in politics in Trinidad and Tobago. I am not one of those politicians who believe that when you come into office you should go out feet first. I have places to go and people to see,” Dr Rowley said in his victory speech.
“But more importantly, I have a commitment to ensure that this is a period of transition in the PNM.”
With internal elections expected in 2022, there has been no subsequent confirmation of the Prime Minister’s plans to step down as party leader. He recently stated, though, that there was no vacancy for leadership of the party. However, party insiders believe that Rowley will not be contesting the next leadership election.
By: Joshua Seemungal