DIRECTOR OF PUBLIC PROSECUTIONS, KENT PANTRYA.J Nicholson, Contributor
IN OUR societal arrangements here in Jamaica, the functions performed by persons who man the office of the Director of Public Prosecutions (DPP) constitute a seminal plank of the means by which the pursuit of good order and strict adherence to the rule of law must be maintained.
Recently, there have been wide-ranging discussions in all sections of the media concerning the activities of that office. Contributions have flowed from attorneys-at-law within and outside of Parliament and from several members of the public.
Queen's Counsel Berthan Macaulay has commented adversely on the letter addressed to the DPP by the Prime Minister, enjoining the Director to begin to provide reports to Parliament on the activities of his office.
A letter writer in The Gleaner of Tuesday, May 11, Michael Brown of Washington D.C., suggests that that the "invitation by the Prime Minister" was an attempt at a "subtle power grab" on the part of the Executive and the Legislature.
So that the public may be fully informed of the functions of the department of the DPP, the areas of responsibility concerning that office and the kind of accountability that is called for in this information age, I wish to address and explain certain issues.
PRIME MINISTERIAL
RESPONSIBILITY
According to Section 70 (1) of the Constitution of Jamaica, the Governor-General "shall, acting on the advice of the Prime Minister, appoint from among the members of the two Houses such number of other ministers as the Prime Minister may advise".
It is under that section of the Constitution that all ministers, including the Prime Minister, are appointed.
Since the Prime Minister is in charge of the Government, how is the workload shared among ministers?
By Section 77 (1) of the Constitution, subject to the provisions of the Constitution, the Governor-General, acting in accordance with the advice of the Prime Minister, may, by direction in writing, charge any minister with the responsibility for any subject or any department of Government. Importantly, the Prime Minister retains overall responsibility.
When the Governor-General is making such assignments of responsibility for departments of Government, those assignments must therefore be made "subject to the provisions of the Constitution" if there are, in fact, constitutional provisions to be taken into account.
So that, for example, the assignment of the department of the DPP to the Minister of Justice was made by the Governor-General "subject to the provisions of Chapter VI of the Constitution".
This is so, because in Chapter VI of the Constitution, at Section 94, there are certain functions that the DPP is empowered to exercise and, by that same section, "in the exercise of those powers the DPP shall not be subject to the direction and control of any other person or authority".
The functions to which this empowerment refers are the Director's powers to institute and undertake, to take over and continue, and to discontinue any criminal proceedings (other than a court-martial) in respect of any offence against the law of Jamaica.
In dealing with such matters, the Director cannot be controlled or dictated to by any person or authority. And this, of course, covers all persons who are members of staff of that department, or any other person acting under and in accordance with his general or special instructions.
WHITHER CONTROL
AND AUTHORITY?
The questions therefore arise: What does the assignment of the department of the DPP to the Minister of Justice really mean?
Do the constitutional provisions at Section 94 mean that the Director has full control of all matters pertaining to the activities of his department to the exclusion of all other persons and of any authority?
Can directions be given to the Director and, if so, concerning what subject areas? In short, what are the areas within which the Director's independence is guaranteed and insulated from control?
These very issues came on for determination by our highest court, the Judicial Committee of the Privy Council, in a case on appeal from Fiji in 1983. (Fiji has, since then, abolished all appeals to the Judicial Commit-tee of the Privy Council).
The constitutional provisions touching on the powers of the DPP in Fiji are, in all material particulars, the same as the provisions in our Constitution.
In 1981, Fiji's Attorney- General was appointed a minister of Government and assigned responsibility for the department of the DPP, subject to the provisions of the Constitution, in like manner as is done in Jamaica from time to time.
Both Constitutions provide that: "Where any Minister has been charged with responsibility for the administration of any department of government, he shall exercise general direction and control over that department and, subject to such direction and control any department in the charge of a Minister shall be under the control of a Permanent Secretary."
FORMAL ASSIGNMENT
In Fiji, in January 1981, the Governor-General, acting on the advice of the Prime Minister, gave directions in writing, assigning to each minister responsibility for the conduct of particular subject matters and responsibility for the administration of particular ministries and departments of Government.
Included in the assignment made to the Attorney-General was responsibility for the "Ministry of the Attorney-General together with office of the DPP (subject to section of the Constitution).
It appears that this was the first time that any such formal assignment of responsibilities to ministers were being made in Fiji. In so far as it concerned the activities of his office, the DPP rebelled and complained to the Prime Minister that such an assignment was unconstitutional.
He initiated proceedings in the Supreme Court of Fiji seeking a declaration to that effect and that led to the appeal before the Judicial Committee of the Privy Council. The Judicial Committee advised that the office of the DPP was "a department of the Government", concerned with the "business of the Government".
"It follows therefore", the Judicial Committee advised, "that assignment of responsibility in respect of that office is permissible in principle, provided that the assignment does not offend against (the Constitution) by encroaching upon the powers conferred on the Director of Public Prosecutions by (the provisions of the Constitution)".
The Judicial Committee continued: "but his functions under the Constitution are not exhaustive of all his responsibilities. There are other areas of his responsibility which might fall under the 'general direction and control' of the Attorney-General by virtue of the assignment without contravening (the provisions of the Constitution). For example, his department will require supply from public funds, and communications with the Cabinet and Parliament to justify estimates for the office as well as responsibility for provision of appropriate accommodation and facilities might be proper matters to be under the general direction and control of the Attorney-General without eroding the independence of the Director of Public Prosecutions''.
The Judicial Committee even dealt with the matter of the deployment of staff.
"Responsibility for approving and reviewing the establishment of the department is vested in the Public Service Commission but matters concerning the economical and efficient deployment of staff might fall under the general direction and control of the Attorney-General.
Their Lordships say 'might' because they wish to avoid the appearance of drawing up a list of matters for which responsibility has been assigned, and also to allow for the possibility that circumstances might arise in which a government behaved so unreasonably, for example by exercising such excessive financial pressure on the Director of Public Prosecutions' department, that the inference would be that they were really seeking to interfere with his independence. There is, of course, no suggestion that such a possibility has been realised".
Again, the Attorney-General, as principal legal adviser to the Government, is surely entitled to seek the opinion of the DPP on a legal matter within his competence.
I have quoted at length from that judgement to make it plain that there are functions to be exercised and matters to be
addressed, concerning the department, which fall outside of the powers of the director as set out in the Constitution.
As far as those functions and matters that fall outside of the Constitution are concerned, the powers and duties of the Executive and the Legislature are no different from those that must be exercised in relation to any other department of Government.
And what of the letter of 30th April, 2004 from the Prime Minister to the Director of Public Prosecutions? Is this to be regarded as a thin edge of the wedge of encroaching on the exclusive domain of the DPP, as has been suggested by some commentators?
The Prime Minister pointed out that, in this age, there is an imperative that access to information is a key component of transparency, accountability and the process of development. We recall that he has overall responsibility for the "business of government".
The message he was sending was not only to the office of the DPP but to the public at large.
Because of the importance of that department and the assistance that is required, for its efficient operation, from the public and Parliament, information concerning the activities of the office is all important.
For example, the report to Parliament may include information as to why more cases did not come on for trial. This may have been caused by a variety of reasons, including issues to do with lack of proper investigation, shortage of jurors, absence of witnesses, too few prosecutors and the length of time taken to complete trials because of the latitude granted to defence attorneys.
These are mere examples, but if the public and the Members of Parliament do not have the facts, their ability to assist will be severely curtailed. In this information age, the call is for governance that embraces an inclusionary component. The "business of government" in this age calls for even greater concentration on the core functions that fall to be exercised by public officials.
In the case of the Office of the DPP, the exercise of the core constitutional functions has become exponentially more difficult as a result of the sophisticated and pernicious nature of criminal activities and attempts on the part of criminals to cover their tracks.
Those public officials cannot, therefore, allow themselves the luxury of being distracted from the exercise of their core functions.
SENDING A MESSAGE
All well-thinking Jamaicans understand that the "business of government" requires a collaborative effort. There has to be a wholesome co-existence among all segments of that 'business'.
The Prime Minister has sent the signal by reminding that all public officials are servants of the people, accountable to the people.
He has commented that the judiciary, on their own steam, even in the absence of any legal or constitutional requirement, have begun to provide Parliament with a report of their activities over stated periods.
The Ministry of Justice also views that initiative as a forward thinking and helpful exercise. And so, the Prime Minister's letter is meant to enhance the processes of the business of Government.
The public, MPs, the persons who man the office of the DPP and all public officials alike are enjoined to see the intent of that letter in that light.
A. J. Nicholson, QC is Attorney-General and
Minister of Justice.
