The root of the problem

Selwyn Ryan

Sunday, June 7th 2009

Institutions are the sites within which conflicts in society are negotiated and resolved. Often, however, the problems require more than the proverbial nine days of the policy cycle for resolution. The key economic, political and social institutions which regulate our behaviour as citizens are now overloaded, and in danger of collapsing.

The Presidency, the Prime Ministership, the Cabinet, Parliament, the Judiciary, the bureaucracy, the statutary agencies, and the police are all undergoing stress tests, and might not long survive in ways that are recognisable. The country is in deep trouble and we all need to do some serious stocktaking and thinking outside conventional political boxes.

It cannot be business as usual. One does not want to be melodramatic, but our politicians are leading us down paths that can result in institutional failure. Little wonder that few people trust many of them to do what is right. One is reminded of the sharp that controls three card games.

One can illustrate the process of decomposition by reference to the offices of the Attorney General and the Director of Public Prosecutions which have recently come on stage. Under the 1962 independence constitution, the Attorney General was the official who had the power to institute criminal proceedings.

The Attorney General was, however, a member of Cabinet and like any other minister, was answerable to and dismissible by the Prime Minister. Observers felt that responsibility for criminal proceedings should lie with a public official who was not directly responsible to the Prime Minister since it was important to ensure that justice was not only done but also seen to be done.

The Wooding Constitution Commission advised that the functions performed by the Attorney General should be split between two separate ministries. Responsibility for advising the Government should be performed by a politically appointed Minister of Legal Affairs and that the functions of a Director of Public Prosecutions should continue to be performed by the Attorney General.

The latter would, however, also perform other advisory functions such as legal adviser to the President, the Service Commissions, the Election and Boundaries Commission, the Auditor General, the Ombudsman and such other officials as Parliament may prescribe.

Unfortunately, Dr Williams did not accept Wooding's proposed division and left the AG's office with responsibility for advising the Government in respect of civil proceedings for and against the state, and the Director of Public Prosecutions in charge of criminal proceedings.

Quite apart from what was said in the 1976 Constitution, the two office holders have over the years chosen to interpret the provisions of the Constitution in accordance with their own political agendas and their dispositions towards the use of power.

Both claimed to have powers that were exclusive to them. In the extant case, Jeremie claims that the Republican Constitution makes the AG responsible for the administration of legal affairs, and that this responsibility entitled him to enquire about ongoing anti-corruption investigations.

As a "strong" Attorney General he was merely doing what he was authorised to do by the Constitution to ensure that actions which needed to be taken in the public interest were in fact being taken.

What he was doing was asking the DPP to advise him what was being done in respect of matters which the state had spent a great deal of money to investigate since he was accountable to Parliament and ultimately to the electorate.

The DPP felt that the actual terms of the constitution supported his interpretation of the division of responsibility, and that his view was supported by the High Court per Justice Bereaux. The latter ruled that "it could never have been the intention to permit the Office of DPP to be subject to any form of direction on the part of the Attorney General".

Jeremie countered that "certain constitutional powers are subject to "[his]" section 76 powers. The power is mine, he argued. One question of course is that no one knows what was in the minds of the persons who framed the constitution. These are invented when necessary to argue and clinch a case.

What we have here is a classic"clash of powers" and also a "clash of power brokers." The powers given to both overlap, and what we in fact have is a case of a mutual power grab that is rationalised in two competing versions of what constitutes the public good. Jeremie believes that crime and corruption were critical issues, and a responsible AG had to act. "In the midst of a crime wave, the political directorate cannot tell the people of Trinidad and Tobago that an acquittal was due to a learning exercise. Perhaps, it is time for less talk and greater action in the public interest".

Henderson cited other imperatives, viz, the right of the individual to the protection of the law until evidence is adduced that prosecution is warranted. He therefore refused to prosecute Panday and Duprey at the instance of the AG when his investigations were incomplete and he was still uncertain as to whether charges could be properly laid.

Henderson advised Jeremie that he was not "subject to his directions," and that his continued efforts to have him initiate charges against persons were highly improper, "and should they continue, could imperil the successful prosecution of a charge initiated in the matters under investigation".

Henderson warned Jeremie that it was important to ensure that decisions to prosecute were not politically driven. The fact that one had spent large sums of money to investigate a matter should not dictate whether charges should be laid against citizens.

Henderson feared that Jeremie, acting at the behest of the Prime Minister, wanted to lay charges against Panday and Duprey which would have been politically disabling for the former. Keith Rowley has also claimed that the AG was after him as well for reasons which have to do with political competition.

The question as to how the power should be best shared between the two officials was addressed by the Ellis Clarke draft constitution and the Round Table exercise which considered that draft. Clarke proposed that the AG should have general superintendence of the DPP.

The proposal which is currently on the table for public consideration after much debate is that the DPP shall exercise his powers in consultation with and with the prior approval of the AG in matters directly involving official state secrets, terrorism, and state to state relations.

The DPP must also consult with the AG if the latter requests such consultation Similarly, the AG must consult with the DPP if the latter requests such a consultation. In sum, neither official can operate in splendid isolation. Both share responsibility for some aspects of the administration of the law.

The document, however, makes clear what was not so clear in the 1976 constitution, viz that the DPP is under no obligation or duty to accept any direction given or proposal made by the AG following the consultations which he has had with him. It also provides that subject to what was said above in respect of official secrets and state to state relations (etc) "the DPP shall exercise his powers and discharge his functions under the constitution independently of the control and direction of any other person or authority, and shall be free and independent from political, executive and any other form of interference."

Source: Trinidad Express

See article above for continuation...