Colonial Constitution undermines DPP's independence

Matondo Mukulu, Contributor

The recent passing of David Coore, QC, has left the Jamaican and Caribbean legal and political landscape in a state where it is calling out for men and women who are thinkers and shapers of a new and more certain landscape, influenced not so much by our colonial experience, but by the context that says we wish to make our own mark by making institutions relevant to our reality.

Edward Seaga and, perhaps, Richard Hart are the only living and direct links that we have today to those who played a role in the drafting of our Constitution, which is not very Jamaican, for understandable reasons.

While we should not administeri too heavy a critical lashing on the men (for there were no women at the table) who delivered this most colonial document to independent Jamaica, we should administer a modern-day lashing on those among us who fail to see that it needs a serious rethink, as it does not match either regional or international legal changes and challenges. Imagination is required.

Yes, I agree, we have taken steps to amend Chapter III with the enactment of the Charter of Rights, but something tells me that our collective intelligence, imagination and experience demand a reconfiguration of the office and role of the director of public prosecutions (DPP), as outlined in Section 94 of the Jamaica (Constitution) Order in Council 1962.

Colonial Origins

Within the English jurisdiction, the first DPP was appointed in 1880 following a recommendation made by a Law Commission. The driving rationale was to ensure that persons who were the victims of crimes were not saddled with the burden of having to incur the expense and plain burden associated with prosecuting a case in which they were the victim. Immediately prior to Jamaica's Independence in 1962, the DPP was appointed by the attorney general and his or her responsibility expanded significantly in 1964, with the creation of the body with the sole responsibility of conducting all criminal prosecutions - the Crown Prosecution Service. This is a major development within the jurisdiction from which we inherited our present system of public prosecution.

The Power

In Jamaica, Section 94 of the Constitution, in stating that there shall be a person appointed as a DPP, sets in effect only two job specifications. The first is that the person appointed cannot be appointed to the public office if he or she would not have been eligible to be appointed to sit as a judge of the Jamaican Supreme Court. In practical terms, this means that you can only be appointed to the office of DPP if you have been a lawyer for a minimum period of 10 years in any of the following jurisdictions: Jamaica, England, Scotland or Northern Ireland.

Alternatively, if the number of years one has been a resident magistrate and a member of the Bar amounts to no less than 10 years, you will be eligible for appointment as a DPP. The second job requirement for being appointed to the Office of the DPP is that you are under 60 years.

The Constitution, in reflecting the era when it was drafted, while dealing with the prosecutorial powers of the office holder at Section 94 (3), is unashamedly silent on the administrative powers of this office holder, who undoubtedly, as the tenure of both Kent Pantry and the present DPP has shown, has a great deal of non-prosecutorial duties to perform.

Most observers have commented, and rightfully so, on the rather extensive powers granted to the DPP in the performance of the role of the state's chief prosecutor. Of course, there is clear logic in ensuring that the important decisions of which cases should or should not be prosecuted are free from any irrelevant considerations or interference. As such, Section 94 (6) makes the point that in performing the prosecutorial function, the DPP shall not be subject to the control or direction of any individual or authority. This, in effect, gives the DPP what can only be described as absolute power to perform the difficult task.

The Privy Council has set the parameters as to when a successful challenge can be made with respect to the exercise of the powers conferred by Section 94 (6) of the Constitution. By setting limits, undoubtedly the judiciary is saying, from my reading, that the principle of prosecutorial independence demands that, save where a case cries out for judicial intervention (some say Janice Allen is still such a case), it defers to the supremacy of what is contained in the Constitution and, ultimately, the presumed wisdom of the officer holder.

Reform

While agreeing that there must be prosecutorial independence, it is equally imperative that we give consideration to the fact that a public office so shrouded in a veil of secrecy (in its decision-making) can never truly secure the confidence of the people. It is simply not sustainable in modern-day Jamaica for a DPP not to have a set of factors, beyond a purely legal test, which are relevant to the decision to commence, not to commence or discontinue a prosecution.

Just last Wednesday, it was reported that Supreme Court judge, Justice Lennox Campbell, dismissed a matter because it had been on the court's list for the past 11 years, and the case had been unsuccessfully set for trial almost 40 times. The current DPP was not impressed with the court's decision, and she observed that this was a serious matter.

However, I am forced to ask the DPP two questions: What factors convinced you and your officers to continue with this prosecution? Second, were you only motivated by a desire to secure a conviction, despite the significant passage of time and the obvious impact that this could have on the prospects of the defendants having their constitutional right to have a fair trial?

What this most recent case has shown us is that while we must maintain the right of the DPP to perform her prosecutorial functions without control and direction from any person or authority, there also needs to be, to retain public confidence in such a system, a set of clear guideline factors, which the DPP must consider and apply, in arriving at the decision whether or not to prosecute or discontinue a prosecution.

Among the relevant factors, the following would be relevant: (a) whether a case is made out on the facts, and given the circumstances, there is a reasonable prospect of securing a conviction; (b) whether the defendant will have a fair trial; and (c) whether it is in the public interest to initiate, continue or discontinue the prosecution.

With these or any similar guidelines, it would appear to me that a DPP would be forced to consider seriously how he/she goes about not only taking the decision to initiate a prosecution, but, more important, the DPP would be compelled, by fear of a court challenge, to review that said decision as though it might have been correct to commence, it does not always follow that it is in the public interest to continue such a prosecution.

As it stands, we will never know what factors influenced the DPP's decision to continue an 11-year-old murder case, despite the fact we are the ones paying for this luxurious waste. Our current understanding of governance, where we have a right to information under the Access to Information Act, and where we have now accepted that even prisoners have rights, is not a threat to the independence of the DPP.

What I am proposing, in the form of guidelines for the DPP, would actually strengthen that cherished independence.

To demonstrate that point, we should take the concerns raised by Contractor General Greg Christie, and consider whether the public interest is being served by a DPP who rarely initiates prosecution following a recommendation made by the Office of the Contractor General (OCG). I am of the view that this issue raised by the contractor general is a legitimate one, and if we were to table the guidelines being proposed in Parliament, it would give the contractor general or any interested citizen the ability to initiate a judicial-review claim raised by the OCG to ascertain whether the right factors are being considered by the DPP.
This is how you bring about accountability, by having objective factors against which we can assess performance. Certainly, the DPP should be asking for such guidelines, as it will reduce the level of personal critique to which she has been subjected.

Finally, the requirement which sees lawyers from other Caribbean countries being effectively barred from becoming DPP in Jamaica must be adjusted without hesitation, not only because it runs contrary to the aims of CARICOM, but it is reflective of the colonial origins of our laws, as Scottish or English lawyers were not excluded. This is no longer sustainable and it should be dealt with by amending the Judicature (Supreme Court) Act.

Of course, we needed to start somewhere in 1962, but the more I think about the role of the DPP, and the required independence, my conviction is deepened as to the urgency of strengthening that independence, not through further absolute power, but through clear prosecutorial guidelines. Ms Paula Llewellyn, your voice should be the loudest in the call for reformation. The public interest demands it.

Matondo K. Mukulu is a practising barrister. Email feedback to columns@gleanerjm.com and m.kmukulu@yahoo.co.uk.