Last week, during the budget debate, Attorney General Faris Al-Rawi raised the issue of interrogating the grounds on which certain actions were taken during the period of the state of emergency between August 21 and December 4, 2011.
In an article by Andre Bagoo in Newsday on October 13, 2015, Al-Rawi is reported by Bagoo to have said:
“Madam Speaker, I instructed attorneys at the Ministry of the Attorney General to write to the Member for Siparia, the past attorney general Anand Ramlogan, the past minister of national security Brigadier (John) Sandy and one (retired deputy police commissioner) Mervyn Richardson to tell them they have an obligation to give evidence which is outstanding in these matters.”
According to the report, he went on further to say:
“Because Trinidad and Tobago is now facing a case where we are in court and we can’t get the evidence as to the root of what caused people to be detained.”
Bagoo reported that “Al-Rawi said he instructed lawyers to first write the former Cabinet members and, if they decline to testify, compel them to appear in court under orders.”
Further quotations of what Al-Rawi said included:
“I instructed the lawyers saying, write them and if they don’t respond, subpoena them in court and treat them as hostile witnesses.”
The central issue here is the question of interrogating the state of emergency of 2011 insofar as ministerial responsibility for it is concerned. For four years there has been a running battle between the PNM and the former People’s Partnership administration about that state of emergency.
Based on the line of argument being pursued, it would appear that the actions of the State taken at that time by the relevant public officials on whatever intelligence was available is likely to be interrogated in open court based on the publicly stated intention of the Attorney General.
His determination in this matter extends to treating those public officials as hostile witnesses in open court if they should refuse to testify. In this instance, the State would be using a line of argument against itself in order to seek to establish a political divide between one set of public officials from a previous administration and the current one.
The rotation of power between political parties is a normal feature of functioning democracies. Using the resources of the State to attack the State itself in a matter where state liability is involved might score political points with costs to the taxpayer.
According to the Bagoo story in Newsday, the Attorney General is very much aware of that:
“I don’t say that other than to say that the ultimate people who will pay the award for damages are taxpayers. Perhaps it is that the Member for Siparia will say she did not know about it. If so then we will hear her. But the fact is that my obligation, the Government’s obligation, the role and function I must perform is to deal with the taxpaying dollars of Trinidad and Tobago.”
The question that would lie at the heart of this matter is whether the state of emergency was lawfully instituted or not. If it was, then there should be no question about what the legal position of the State should be. If, in the opinion of the Attorney General, the state of emergency was not lawfully instituted, then the State might as well concede the case and start making settlements.
The political conundrum for the Attorney General is whether he should adopt a position of publicly defending the state of emergency in court which would go against the grain of everything that the PNM said on this matter while in opposition or should he seek to treat former public officials as hostile witnesses in court which may undermine the state’s defence in order to address the political differences between the current and the former administrations on this matter?
Central to this issue will be the legality of the proclamation issued by former president George Maxwell Richards on August 21, 2011, in Legal Notice No 162 published in Volume 50, Number 108 of the Trinidad and Tobago Gazette at page 435.
That proclamation was extended for three months on September 4, 2011, after a debate in the House of Representatives that started the day before and was held in accordance with Section 9 of the Constitution.
The intention of the Attorney General seems to be placing emphasis on decisions made on the basis of intelligence that was shared with the then leader of the opposition at the request of the then prime minister. There was public disagreement between the two about that intelligence which would seem to make the requested testimony of former deputy commissioner of police Mervyn Richardson central to the case.
Will the State establish the precedent of treating senior police officers and the ministers that they briefed as “hostile witnesses” after a change of government on matters of security and state intelligence?
The instructions have already been issued by the Attorney General. Let us see how the cases proceed.