KEN­NETH R LAL­LA SC

Since the reap­point­ment of John Je­re­mie as At­tor­ney Gen­er­al (AG), three ma­jor is­sues of pub­lic in­ter­est have come in­to sharp fo­cus: the first be­ing whether the Di­rec­tor of Pub­lic Pros­e­cu­tions (DPP) is in­de­pen­dent of the AG; the sec­ond, whether the AG sought to pres­sure the for­mer DPP Ge­of­frey Hen­der­son (now a judge of the High Court) to pros­e­cute peo­ple for po­lit­i­cal pur­pos­es; third­ly, whether the AG has the pow­er to pros­e­cute in crim­i­nal mat­ters notwith­stand­ing the pow­ers vest­ed in the DPP.

With re­gard to the first ques­tion, the Court of Ap­peal held in the case of Seero­manie Ma­haraj-Nara-yans­ingh and El­ton Ra­masir that "the idea be­hind giv­ing the DPP a sep­a­rate con­sti­tu­tion­al role is to in­su­late the pros­e­cu­to­r­i­al process from po­lit­i­cal in­ter­fer­ence." On the ba­sis of that de­ci­sion it would seem clear that the DPP is un­der no oblig­a­tion to sub­mit to or obey any in­struc­tions or di­rec­tion from the AG in the per­for­mance of his func­tions. The gen­e­sis of the of­fice of the AG and his right to pros­e­cute in crim­i­nal cas­es may be traced to about 400 years ago when the king ap­point­ed his AG as the up­hold­er of his pre­rog­a­tive and his ad­vis­er which func­tions the AG ex­er­cised in a qua­si-ju­di­cial man­ner.

While that tra­di­tion and con­ven­tion have re­mained pe­cu­liar to Britain, it would ap­pear that they are ar­cha­ic and anachro­nis­tic to T&T since this coun­try is a re­pub­lic and has as its head of state an elect­ed pres­i­dent and not a hered­i­tary monarch. Un­der the British Con­sti­tu­tion the AG is a politi­cian, ap­point­ed by but not a mem­ber of Cab­i­net and is re­spon­si­ble for all crim­i­nal pros­e­cu­tions while the DPP is a pub­lic of­fi­cer ap­point­ed by the AG and is un­der his di­rec­tion and con­trol in re­spect of pros­e­cu­tions. On the oth­er hand, the DPP in T&T is a pub­lic of­fi­cer ap­point­ed by the Ju­di­cial and Le­gal Ser­vice Com­mis­sion but un­like the DPP in Eng­land, the DPP in T&T is not un­der the di­rec­tion and con­trol of the AG.

In 1924, a ques­tion for con­sid­er­a­tion arose in Eng­land as to whether the AG, be­ing a politi­cian, was un­der the con­trol and in­flu­ence of Cab­i­net and fur­ther, what was his re­spon­si­bil­i­ty to Par­lia­ment since he was sole­ly re­spon­si­ble for pros­e­cu­tions. In that year, how­ev­er, the AG had com­menced pros­e­cu­tion against JR Camp­bell, the act­ing ed­i­tor of a Com­mu­nist week­ly, for pub­li­ca­tion of an ar­ti­cle but had to with­draw the pro­ceed­ings on the in­struc­tions of Cab­i­net.

The Cab­i­net's in­ter­fer­ence with the AG's de­ci­sion was sub­ject­ed to cen­sure and was held not on­ly to be im­prop­er and un­con­sti­tu­tion­al but re­sult­ed in the ig­no­min­ious col­lapse of the Labour Gov­ern­ment. That, how­ev­er, was and con­tin­ues to be the force and ef­fect of con­sti­tu­tion­al con­ven­tions in Eng­land un­der the West­min­ster sys­tem of gov­ern­ment. While T&T was still a colony in 1961, the British Gov­ern­ment pro­mul­gat­ed for it a con­sti­tu­tion with ad­vanced po­lit­i­cal sta­tus and pro­vid­ing for a DPP in Sec­tion 79 with pow­ers sim­i­lar to those now ap­pear­ing in Sec­tion 90 of the Re­pub­li­can Con­sti­tu­tion. How­ev­er, in our In­de­pen­dence Con­sti­tu­tion 1962, the gov­ern­ment for what­ev­er rea­son ex­clud­ed the Of­fice of DPP.

On Feb­ru­ary 27, 1970, I moved a mo­tion in Par­lia­ment call­ing for an amend­ment of the Con­sti­tu­tion to pro­vide for the Of­fice of DPP with the same pow­ers and in­de­pen­dence as were pro­vid­ed for in Sec­tion 79 of the 1961 Con­sti­tu­tion and al­though my mo­tion was re­ject­ed by the gov­ern­ment on that oc­ca­sion, the Of­fice of DPP was sub­se­quent­ly em­bod­ied in the 1976 Re­pub­li­can Con­sti­tu­tion. The ra­tio­nale for di­vest­ing the AG (in T&T) of the pow­er to pros­e­cute would ap­pear to be clear­ly root­ed in the doc­trine of sep­a­ra­tion of pow­ers, which is in­deed ba­sic and fun­da­men­tal to the main­te­nance of the rule of law in a democ­ra­cy and the pro­tec­tion of cit­i­zens, who may be per­sona non gra­ta with the gov­ern­ment, from po­lit­i­cal pros­e­cu­tion.

More­over, it is in­deed a well es­tab­lished ax­iom that pol­i­tics means pow­er and pow­er gen­er­al­ly gen­er­ates hate. On the oth­er hand em­pir­i­cal ev­i­dence has es­tab­lished that there can be no lib­er­ty when leg­isla­tive and ex­ec­u­tive pow­ers are vest­ed or unit­ed in one per­son or a body of peo­ple. On the sec­ond ques­tion, whether the AG sought to in­flu­ence or pres­sure the DPP to pros­e­cute cer­tain in­di­vid­u­als, it would seem that the DPP had to vig­or­ous­ly de­fend the in­de­pen­dence of his of­fice against po­lit­i­cal pres­sure from the AG, which the DPP deemed to have been high­ly im­prop­er and in­deed un­con­sti­tu­tion­al. In so far as the third ques­tion is con­cerned, it is abun­dant­ly clear from Sec­tion 90 of the Con­sti­tu­tion that the AG has no pow­er or au­thor­i­ty to pros­e­cute in crim­i­nal cas­es.

Ac­cord­ing­ly the ar­gu­ment and opin­ions hold­ing that since the AG is re­spon­si­ble for the ad­min­is­tra­tion of le­gal af­fairs he is con­sti­tu­tion­al­ly em­pow­ered to con­duct pros­e­cu­tions would ap­pear to be in­con­sis­tent with and re­pug­nant to the pur­port, in­tent and phi­los­o­phy un­der­ly­ing the es­tab­lish­ment of the Of­fice of DPP and his in­su­la­tion from po­lit­i­cal in­flu­ence or di­rec­tives. This, how­ev­er, does not mean that the AG is pro­hib­it­ed from com­mu­ni­cat­ing with the DPP on any is­sue pro­vid­ed that he keeps with­in the lim­its of his au­thor­i­ty.