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.
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.