THE EDITOR, Sir:
ON WEDNESDAY, April 28, 2004, it was reported in The Gleaner that the Prime Minister supported the view that the DPP, "should be required to submit reports at timely intervals to Parliament on the work and performance of the department."
The Observer of the same date, on it's front page, reported that the Prime Minister, "expressed a desire to have the Director of Public Prosecution (DPP) submit periodic reports to Parliament on the performance of his office."
I'm of the firm view that the Prime Minster's, (a Queen Counsel), statement was not his considered view, but a political or rhetorical reaction to the criticisms of the DPP's Office, arising from the Janice Allen case, in which there were lapses in the investigation and prosecution, in that case, allegedly by the DPP's office.
The powers of the DPP are defined in section 94(3) of the Constitution. That subsection gives power in any case in which the DPP considers it desirable (a) "to institute and undertake criminal proceedings against any
person .... (b) "to take over and continue any such criminal
proceedings...." (c) "to discontinue.... any such criminal proceedings instituted or undertaken by himself or any other person or authority"
It should be noted at once that the DPP is not given any power of investigation of criminal offences or given any power or control over the Police in its investigation or prosecution of offences.
Section 94 (6) reads as follows: "in the exercise of the powers conferred upon him by this section the Director of Public Prosecutions shall not be subject to the direction or control of any other person or authority."
There is a principle well known in the interpretation of Commonwealth Constitutions. It is this What cannot be done directly cannot be done indirectly. If the DPP was required to make reports to Parliament, then any Member of Parliament by virtue of section 55(1) of the Constitution, can propose a motion for debate on the DPP's reports, and such motion shall be debated and disposed of, according to the relevant Standing Orders of the House of Representatives and Senate. This clearly would be in breach of section 94(6) quoted above, because any conclusion at the end of the debate, would be calculated to be a direction to the DPP by Parliament, and thereby creating room for a disturbing incursion by the political executive into one of the protections for our liberties, freedom from political prosecutions (persecutions)
It is therefore disturbing that the Prime Minister is reported as saying that the Government may be ready to re-examine the Constitutional powers of the DPP, that is, if The Gleaner and Observer reports are correct. In any case, the provisions and powers of the DPP are entrenched, and any proposed amendment requires a six months delay in each House before being passed and can only be passed by two-thirds of the Members in each House, that is 14 in the Senate and 40 in the House of Representatives. (the specified majorities in section 49(4)(a) of the Constitution).
I am, etc.,
BERTHAN MACAULAY,
Q.C., M.A., LLB.
Attorney-at-law
20 Duke Street, Kingston
