The law sets bound­aries, but bound­aries are of­ten test­ed by the force of cir­cum­stances and per­son­al­i­ty dif­fer­ences be­tween of­fice­hold­ers. At­tor­neys Gen­er­al (AGs) of both po­lit­i­cal par­ties have been in­volved in pub­lic dis­agree­ments over the last 20 years; be­tween the AG and Di­rec­tor of Pub­lic Pros­e­cu­tions (DPP), the AG and Chief Jus­tice (CJ), the DPP and the CJ, and be­tween the CJ and the Prime Min­is­ter. Some have spilt over in­to the pub­lic do­main. In such cir­cum­stances, of­fice­hold­ers need to ex­er­cise self-re­straint and con­sid­er the wider na­tion­al in­ter­est.  

Many com­ment­ed in­ci­sive­ly on last week’s ar­ti­cle which sought to por­tray the cur­rent CJ/AG/DPP “dis­agree­ment” as an or­gan­i­sa­tion prob­lem twined with per­son­al­i­ty dif­fer­ences. On­ly in­for­ma­tion avail­able in the pub­lic do­main is used in this and the pre­vi­ous ar­ti­cle and I have had no con­ver­sa­tion with the DPP, his staff, or con­nect­ed par­ties.

A se­nior coun­sel sup­port­ed the AG’s po­si­tion by in­vok­ing S12(3) Ju­di­cial and Le­gal Ser­vices Act which makes it clear that the DPP is a Chief Le­gal Of­fi­cer. It al­so says that Chief Le­gal Of­fi­cers are per­ma­nent sec­re­taries for the pur­pos­es of sec­tion 85 of the Con­sti­tu­tion. There­fore, the DPP as an ac­count­ing of­fi­cer can hire con­tract of­fi­cers to do the job giv­ing them an­oth­er name as is done in oth­er state de­part­ments. The on­ly ques­tion is whether hav­ing the DPP or the PS con­tract with staff is more pru­dent.

Con­cern­ing the fund­ing, the se­nior coun­sel ar­gued that many state or­gans do not have fund­ing for all le­gal ser­vices but still re­tain out­side lawyers with the per­mis­sion of the AG be­cause of the crit­i­cal na­ture of the le­gal ser­vices re­quired. Fur­ther, ex­ter­nal at­tor­neys have been con­tract­ed in the past to do crim­i­nal cas­es for the DPP. No­table ex­am­ples of this prac­tice were Is­rael Khan, Dana See­ta­hal, Gilbert Pe­ter­son, Elaine Green, and Rangee Dols­ingh. Mr Dols­ingh worked in the de­part­ment for years be­fore be­ing ap­point­ed to the ser­vice and rose to Deputy DPP.

On this con­struc­tion, the DPP is be­ing un­rea­son­able and bud­get is­sues do not mat­ter as no rea­son­able re­quest will be re­fused by the AG. There­fore, it fol­lows that the AG is the DPP’s boss and the DPP must ask the AG for ad­di­tion­al re­sources. In prac­tice, this must be a source of con­fu­sion, if not fric­tion as the DPP’s bud­get is in­clud­ed in the AG’s de­part­men­tal bud­get. In prac­ti­cal terms, this makes the DPP (who is meant to be in­de­pen­dent) sub­servient to the AG.  What oth­er in­flu­ences might the AG bring to bear in these cir­cum­stances?  

There are coun­ter­vail­ing ar­gu­ments.  First, the DPP has hu­man re­source is­sues (in­ad­e­quate staff, not suf­fi­cient­ly trained) and no in­ter­nal ca­pac­i­ty to ad­dress same. One suc­cess­ful pri­vate prac­tice at­tor­ney ar­gued that the DPP can­not be both pros­e­cu­tor and hu­man re­source man­ag­er si­mul­ta­ne­ous­ly. Who is do­ing the per­son­nel func­tions and re­cruit­ment as a se­nior le­gal of­fi­cer? To serve as both lawyer and man­ag­er is to set him up for fail­ure. He rec­om­mend­ed that the DPP’s Of­fice should have a PS or man­ag­er (or what­ev­er is ap­pro­pri­ate ter­mi­nol­o­gy) to as­sume the re­spon­si­bil­i­ty for man­ag­ing the Of­fice in­clud­ing phys­i­cal ac­com­mo­da­tion equip­ment tech­nol­o­gy and train­ing (non-le­gal).  

Sec­ond, there is a staff com­ple­ment agreed by Cab­i­net some ten years ago which the DPP has not been able to fill be­cause he does not have the bud­getary re­sources to do so. The Cab­i­net note mak­ing that rec­om­men­da­tion should have been sup­port­ed by a re­port from the CPO’s of­fice rec­om­mend­ing the same af­ter a man­pow­er needs as­sess­ment. The is­sue, there­fore, is not about hir­ing high-priced pri­vate at­tor­neys to tem­porar­i­ly fill a man­pow­er gap. Nor is hir­ing con­tract of­fi­cers the best long-term so­lu­tion. While it may sat­is­fy an im­me­di­ate need for warm bod­ies, it caus­es a dys­func­tion­al sit­u­a­tion by cre­at­ing two class­es of of­fi­cers with dif­fer­ent re­mu­ner­a­tion terms.  

The DPP’s of­fice has a heavy and im­por­tant work­load es­pe­cial­ly giv­en the cur­rent crime sit­u­a­tion. It is an or­gan­i­sa­tion that must be built for con­ti­nu­ity to meet the cur­rent de­mands rather than find­ing a tem­po­rary workaround that on­ly al­le­vi­ates the prob­lem in the short term.  There­fore, while the law may equate him with a per­ma­nent sec­re­tary thus giv­ing the DPP the pow­er to hire, the is­sue goes be­yond the pow­er to do an act. Is it the best fix for the DPP’s of­fice and how that of­fice or­gan­i­sa­tion is struc­tured? A more per­ma­nent so­lu­tion is re­quired as fail­ure to ad­dress this will have longer-term con­se­quences for the jus­tice sys­tem.

The CJ ought to be sen­si­tive to this is­sue es­pe­cial­ly since he is on record as say­ing that the cur­rent case back­log will take years to clear with­out adding new cas­es, even though the CJ’s bench is big­ger than the DPP’s of­fice and the CJ’s bud­get is seg­re­gat­ed and a pri­or claim on the re­sources of the State. Fur­ther, the DPP of­fice is a “re­cruit­ment pool” for judges since more than ten per cent of the cur­rent bench have served in the DPP’s of­fice. A poor­ly per­form­ing DPP’s of­fice weak­ens the crim­i­nal jus­tice sys­tem, which is in no one’s in­ter­est.  

The Civ­il Ser­vice has many or­gan­i­sa­tion­al dys­func­tion­al­i­ties which re­duce its op­er­a­tional ef­fec­tive­ness. The is­sue here is not the law but short-sight­ed­ness which can on­ly be cor­rect­ed by ma­ture lead­er­ship and man­age­ment.

Mar­i­ano Browne is the Chief Ex­ec­u­tive Of­fi­cer of the UWI Arthur Lok Jack Glob­al School of Busi­ness.