Dana See­ta­hal

Prime Min­is­ter Kam­la Per­sad-Bisses­sar is to be con­grat­u­lat­ed in hav­ing led a part­ner­ship that sound­ly de­feat­ed the PNM, the par­ty that con­sti­tut­ed the gov­ern­ment in pow­er. The mar­gin of the de­feat was as un­ex­pect­ed, and, per­haps, just as dev­as­tat­ing to PNM sup­port­ers and mem­bers of the out­go­ing gov­ern­ment, as was the fact that an elec­tion was called at all, less that mid­way through the last gov­ern­ment's term. One won­ders how many of the for­mer min­is­ters will now fare in the cold world out­side of the en­clave of gov­ern­ment. Such is life in the trop­ics, how­ev­er, and we now move on to see how the cur­rent gov­ern­ment per­forms. In that re­gard, one of the mat­ters that I have ques­tions about is the Min­istry of Jus­tice. As I write this col­umn, there has yet been no Min­is­ter of Jus­tice ap­point­ed. My con­cern, though, is how such a min­istry will func­tion with­in the pro­vi­sions of our con­sti­tu­tion.

Sec­tion 76 (2) of the con­sti­tu­tion pro­vides that the AG is re­spon­si­ble for the "ad­min­is­tra­tion of le­gal af­fairs" in T&T. This, how­ev­er, is sub­ject to sec­tion 79, which al­lows the PM to ad­vise the Pres­i­dent to as­sign re­spon­si­bil­i­ty for the ad­min­is­tra­tion of any de­part­ment to any min­is­ter. It ap­pears, there­fore, that the PM may ef­fec­tive­ly as­sign re­spon­si­bil­i­ty for ad­min­is­tra­tion of "le­gal af­fairs" to any min­is­ter. But can she as­sign re­spon­si­bil­i­ty for the Crim­i­nal Law De­part­ment to a Min­is­ter of Jus­tice? If so, what is to be the na­ture of such a re­spon­si­bil­i­ty? Un­der sec­tion 90 of the con­sti­tu­tion, the Di­rec­tor of Pub­lic Pros­e­cu­tions may in­sti­tute and un­der­take crim­i­nal pros­e­cu­tions against any­one, in any court in re­spect of any of­fence.

Ex­clu­sive pow­er

He al­so has ex­clu­sive pow­er to take over crim­i­nal pros­e­cu­tions be­gun by any­one else. He may dis­con­tin­ue pro­ceed­ings at any stage. While the DPP's pow­er is "sub­ject to" those of the AG (or oth­er as­signed min­is­ter) un­der sec­tion 76 (2), the courts have made it clear that this does not mean that a DPP is un­der any oblig­a­tion to obey any in­struc­tion or di­rec­tion from the AG. In De­cem­ber, 2006, our Court of Ap­peal clar­i­fied that the AG is to be more con­cerned with pol­i­cy, as it re­lat­ed to the de­vel­op­ment of the law. In so far as the DPP's of­fice is con­cerned, he is re­spon­si­ble for (1) fi­nan­cial mat­ters, (2) the pro­vi­sions of ac­com­mo­da­tion and fa­cil­i­ties for the run­ning of the Of­fice of DPP, and (3) ac­count­ing to Par­lia­ment. The DPP is to keep the AG in­formed of ma­jor and im­por­tant mat­ters, but he takes no di­rec­tion from the AG in the ex­er­cise of the DPP's con­sti­tu­tion­al func­tions.

Where does this leave a Min­is­ter of Jus­tice? It seems to me that the PM may con­sti­tute a Min­istry of Jus­tice and as­sign re­spon­si­bil­i­ty for any gov­ern­ment de­part­ment to that min­istry. This is the pre­rog­a­tive of the PM un­der the con­sti­tu­tion. Thus, the Of­fice of the DPP may be as­signed to this min­istry, al­though it has tra­di­tion­al­ly fall­en un­der the purview of the AG. Such re­spon­si­bil­i­ty, how­ev­er, does not mean that the min­is­ter may is­sue di­rec­tions or in­struc­tions to the DPP, in re­spect of crim­i­nal pros­e­cu­tions. If he does, the DPP is not re­quired to fol­low them, as the courts have made clear in re­spect of the AG. In so far as the ju­di­cia­ry is con­cerned, it does not fall un­der the purview of ei­ther the AG or any oth­er min­is­ter, since it is not a de­part­ment of gov­ern­ment.

Sep­a­ra­tion of pow­ers

Un­der the sep­a­ra­tion of pow­ers doc­trine en­trenched in the con­sti­tu­tion, the ju­di­cia­ry is in­de­pen­dent of the ex­ec­u­tive, and no min­is­ter can have con­trol over it. What, then, may fit with­in the purview of such a min­is­ter? In Ja­maica, there ex­ists a Min­istry of Jus­tice, which is said to "co-or­di­nate and op­er­ate the func­tion" of the ju­di­cial in­sti­tu­tions and the le­gal de­part­ments. Un­der this min­istry falls the At­tor­ney Gen­er­al's Of­fice, the DPP, the Par­lia­men­tary Coun­sel, Le­gal Aid and the courts, among oth­ers. The AG, un­der the Ja­maican Con­sti­tu­tion, is the prin­ci­pal le­gal ad­vis­er to the Gov­ern­ment of Ja­maica, but is not a Min­is­ter. The Of­fice of the Min­is­ter of Jus­tice is, there­fore, akin to our Min­istry of the AG, as far as what the port­fo­lio in­cludes.

In the UK since 2007, a Min­istry of Jus­tice has ex­ist­ed when parts of the Home Of­fice were de­tached to join with the De­part­ment of Con­sti­tu­tion­al Af­fairs to con­sti­tute this min­istry. As such, the min­istry is now re­spon­si­ble for courts, pris­ons and pro­ba­tion in Eng­land. Un­der its purview, al­so, fall sen­tenc­ing pol­i­cy, youth jus­tice, pa­role and le­gal aid. The min­istry's re­spon­si­bil­i­ty for the courts means ser­vic­ing the courts them­selves–the phys­i­cal in­fra­struc­ture and oth­er ad­min­is­tra­tive mat­ters. This min­istry, there­fore, com­bines some of the func­tions of our Min­istry of Na­tion­al Se­cu­ri­ty and our AG, who has, tra­di­tion­al­ly, been the fa­cil­i­ta­tor for the ju­di­cia­ry with the ex­ec­u­tive.

Since we have an AG who is a min­is­ter (un­like Ja­maica), a Min­is­ter of Na­tion­al Se­cu­ri­ty, a Min­is­ter of Le­gal Af­fairs, a con­sti­tu­tion­al­ly in­de­pen­dent DPP (un­like Eng­land, where he falls un­der the su­per­vi­sion of the AG) and an in­de­pen­dent ju­di­cia­ry, what re­al­ly will be the re­spon­si­bil­i­ties of the Min­is­ter of Jus­tice? Even if crim­i­nal mat­ters and the courts are as­signed to him, he will re­al­ly have lit­tle to do as re­gard them, since the DPP and the ju­di­cia­ry are both in­de­pen­dent in­sti­tu­tions. It is an at­trac­tive idea to con­sti­tute a sep­a­rate Min­istry of Jus­tice, but giv­en our cur­rent con­sti­tu­tion­al arrange­ments, one won­ders how it will pan out. We wait to see.