Third-World USA
SO THIS is the little banana republic in the Third World, where our head of government can whimsically fire the head of our national police, especially when there are allegations that his agents are investigating matters that may incriminate him or that may have compromised national security. This is the Third World country where Supreme Court judges are selected based on the assurances that the political leader can predict their political leanings. On this little piece of rock between two oceans, its lower court judges are directly elected like regular politicians in parochial elections in more than half of its jurisdictions. And its district police officers are also creatures of politics.
By now you must know that I am speaking about the fledgling democracy up north, which is getting a reality check about how undemocratic and pliable its laws and entire system of governance are. Don’t get me wrong. It is an amazing and wonderful nation. However, the ascendancy of Donald Trump to the presidency must be a reality check and great disillusionment about how much farther the land of the free has to go in order to achieve the ideals it constantly espouses.
Today is the beginning of Workers’ Week in this country, and we have two labour parties in our legislature. Surprising as it might sound, Jamaica has an entrenched system of labour management relations and
mechanisms for the protection from abuse of power regarding the critical agents of our justice system.
Whatever we might think, this country has relative independence in the appointment of our judges and our senior police personnel. Our prosecutors, headed by the director of public prosecutions (DPP), report to no one except Parliament. Similarly, Jamaica has an Independent Commission of Investigations (INDECOM), whose commissioner takes no instruction from the prime minister or governor general.
Indeed, only the head of INDECOM himself or the DPP can determine when an investigation or prosecution must stop. Nothing in our statutes or common-law practices empowers any elected official, or even the chief justice, to interfere in any matter under investigation or being pursued in the judicial system.
It is important to note that our principal characters in our judicial and law-enforcement system cannot be dismissed in a willy-nilly fashion. We have in place a Labour Relations and Industrial Disputes Act (LRIDA), passed in 1975, which provides for conciliation and arbitration in dismissal cases. Our Industrial Disputes Tribunal (IDT), a quasi-judicial institution, has the power to reinstate a dismissed worker if it is found that he has been unjustifiably dismissed. True, the statute in Section 10 makes it clear that the act does not make
the IDT accessible to public servants, except those employed to publicly owned corporations and statutory bodies.
However, every employee of central and local government, including the police, has the right to appeal to the appropriate services commission. This body of men and women has ultimate oversight regarding the employment and, importantly, dismissal of public officers, and has been known to appoint and procure the dismissal of public servants against the wishes of the political directorate.
Yet, it must be noted that as Florida Representative Walter Bryan ‘Mike’ Hill went to great pains to explain last October in a pre-election forum here at the University of the West Indies, in which I participated, America is a ‘republic’, not a ‘democracy’. It means that it established laws and rules that when followed, lead to particular patterns of governance. It has less to do with the overall will of the people. Rather, it has to do with what the ruling classes have been empowered to do. It is an important distinction.
Thus, for all the furore regarding the non-disclosure of his tax returns or non-payment of taxes, or his myriad declarations of bankruptcy, which he used to his advantage, Donald Trump broke no laws. Similarly, when he dismissed director of the Federal Bureau of Investigation (FBI), James Comey, he did nothing illegal. Remember, Hill did state that the USA is not a democracy. Under American law, Comey, the head of the American police corps, served at the pleasure of the president. Therefore, he had no security of tenure and could be fired without cause at any time by the president.
NO STATUTORY CONDITIONS
As a Congressional Research Service study of the director’s office revealed in 2014, “There are no statutory conditions on the president’s authority to remove the FBI director.” And for that matter, it does not make a difference if the FBI was investigating any allegation of misconduct in law against the president or anyone connected to him. In fact, given that the FBI director is an agent of the presidency, there is opinion that the president has the power in law to direct that an investigation commence or cease. Of course, it appears that Trump wanted a guarantee from Comey that he would end the investigations that surrounded a possible Russian connection and his campaign. This guarantee he did not get.
Still, if you ask me, I think Comey should have been dismissed for revealing that there was a red-herring investigation into Hillary Clinton’s email fiasco in high election season. His admission of it being a minor discomfort is the least. It is likely that he swayed the election, and, ultimately, gave to Trump the fillip he needed despite scoring two million fewer electors in the popular vote. Indeed, it is a case of no good deed going unpunished and a sort of poetic justice.
Nevertheless, inasmuch as I believe that there is just cause, our system, based on the International Labour Organisation’s fundamental human-rights conventions, has implied in all dismissal matters the rules of natural justice. America has only signed on to two of the eight, while we have ratified all, for a total of 30. In contrast, the US has ratified only 12.
Anyway, on a historical note, since we are on the subject of removal from office because of misconduct, Democrat President Andrew Johnson, between 1865 and 1869, tried to reverse all the gains Republican Abraham Lincoln gave to black Americans. Though unsuccessful, his attempted impeachment in 1867 brought a shift in the presidency to Republican Ulysses Grant two years later. Interestingly, Democrat Bill Clinton was impeached in 1998 for perjury and obstruction of justice. He was acquitted, but Republican George W. Bush won three years later.