The citizens of this country would do well to take the advice of Chief Justice Ivor Archie, at the opening of the 2009/2010 Law Term, to make meaningful and productive the extensive national consultation that has been promised by the Executive to discuss the provisions of the draft constitution (hereinafter referred to as "the draft"). In his presentation, the Chief Justice correctly and admirably seized the opportunity to address the public in a candid fashion about certain clauses in the Draft which in their current form create a clear and present danger to undermine the independence of the judiciary.
With surgical precision the Chief Justice identified and removed for academic debate provisions in the draft that if left unattended would cripple the paramountcy of the rule of law, the separation of powers and the independence of the judiciary. That this matter has already been the subject of several articles written by individuals who are understandably afraid of the irreparable harm that will be caused if the offensive provisions were ever made law does not detract from the potency and persuasiveness of the case put forward by the Chief Justice that clauses 121-125, 136 and 142 of the draft which refer to the judiciary, "stem from a fundamental misunderstanding of our role and function and have disturbing implications for judicial independence." The challenge is to awaken the interest of the public and excite its cerebrum so that a great debate can begin on this matter of urgent public importance.
Keep on message
The fact that this objective, comprehensive and analytical assessment made simple for all to appreciate has come from the mouth of a messenger who is well-versed and knowledgeable in his area of expertise and ever mindful of his role as leader of an institution considered the firmest pillar in any democracy means that the citizenry is duty-bound, at the very least, to heed his words and pay more than lip-service to his observations. It is not being suggested that the public must swallow blindly hook, line and sinker the statements that have been made by the Chief Justice, but rather the approach suggested by the learned man himself is one of careful examination of the fruit before biting into what may well be the poisoned apple.
Determining our destiny
We are a nation of talkers and so it is disappointing to note that when it really matters and when the subject of debate or conversation calls for thorough and analytical discourse, we fall ashamedly way below the benchmark. And because it is never too late for redemption, the time is ripe now for academics and laymen to begin the dialogue so that before a final decision is made, we would have benefitted from views expressed by the widest cross-section of individuals. Having been invited to participate in the national discussion it would be a dereliction of duty if the chance to determine our collective destiny was simply thrown away and the matter left to those who promote the supremacy of politics above all else.
Somehow people prefer to believe the sensational without proof of its truth rather than rely on the words of experts who have no ulterior or personal agenda and can support their respective positions with uncontroverted logic or scientific data. And the politicians, who are well aware that the masses are easily carried away with propaganda, use platforms to win support for their ideas instead of facing their worthy opponents in a controlled and intellectual environment. It is therefore not surprising that few have taken the opportunity to subject the provisions of the draft to careful scrutiny and even much less have chosen to enter the great debate.
Over to the DPP
And following the statements of the Chief Justice and his call to examine the provisions in the draft as it relates to the judiciary, a similar plea is made to citizens to analyse the clauses that relate to the office of the DPP and the Attorney General. Put simply, the independence of the DPP has the potential to be seriously undermined by the provisions in the draft that relate to this office and its contemplated relationship of consultation with and accountability to the Attorney General.
The main provisions that cause concern are as follows:
110. (3) The Director of Public Prosecutions shall exercise his powers and discharge his functions under this Constitution and any other law as follows:
(a) in matters directly involving official secrets, terrorism and state to state relations, with the prior approval of the Attorney General; and
(b) in relation to criminal proceedings, in his discretion.
(4) The Attorney General shall, if requested to do so by the Director of Public Prosecutions, consult with the Director of Public Prosecutions with respect to matters concerning the exercise of the powers and discharge of the functions of the Director of Public Prosecutions under this Constitution and any other law.
(5) The Director of Public Prosecutions shall, if requested to do so by the Attorney General, consult with the Attorney General with respect to matters concerning the exercise of the powers and discharge of the functions of the Director of Public Prosecutions under this Constitution and any other law.
(6) Notwithstanding subsections (4) and (5), the Director of Public Prosecutions shall be under no obligation or duty to accept any direction given or proposal made by the Attorney General during the consultations mentioned in subsections (4) and (5).
(7) Subject to subsection (3)(a), the Director of Public Prosecutions shall exercise his powers and discharge his functions under this Constitution and any other law independent 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.
(12) The Director of Public Prosecutions shall submit to the Attorney General, before August 31 in each year, an annual report on the administration of his office and the exercise of his powers and discharge of his functions under this Constitution and any other law, and the Attorney General shall cause the report to be laid within 60 days thereafter in each House.
The clauses have been stated in detail for ease of reference and to save the time of those too burdened to obtain a personal extract.
And so, with immediate effect, let the great debate begin.