DPP, trust and accountability

P. Devon Stokely, Contributor

It is time to enact separate, stand-alone legislation that would supplement the existing constitutional provisions and serve to clarify the responsibilities of the Office of the Director of Public Prosecutions (DPP).

In the DPP's brushes with Resident Magistrate Judith Pusey, the Internal and External Affairs Committee of Parliament, as well as in the Joseph Hibbert case, the position has been that compliance with the request would interfere with the independence given to the office by Section 94(6) of the Jamaican Constitution. I believe this position is a mere attempt at avoiding accountability.

Section 94(6) provides that "in the exercise of the powers conferred upon [her] by this section, the director of public prosecutions shall not be subject to the direction or control of any other person or authority."

The section speaks to the decision-making functions and capacity of the DPP in relation to the conduct of criminal prosecutions. Unless the matter at issue is one affecting or compromising the decision-making authority and discretion of the DPP, to institute, take over and discontinue criminal proceedings, Section 94(6) and the issue of constitutional independence do not arise.

There are good reasons for a provision such as Section 94(6): criminal prosecutors wield extraordinary power in that they can exert a significant influence on the freedom and even the life of their fellow citizens. It is, therefore, essential that the prosecuting authority be, and be seen to be, independent in the performance of its duties. In that perspective, the provision of Section 94(6) of the Jamaican Constitution is to seen for what it really is - a safeguard of the prosecution function against inappropriate influences.

However, independence is not to be confused with accountability. Accountability has to do with administration, governance and implementation, although it can cover matters related to decision-making. So long, however, as calls for accountability respect the DPP's independence related to decision-making on matters regarding the conduct of criminal prosecutions, there can be no harm in the Office of the DPP engaging the governance process.

Undermining trust

The seemingly intransigent conception of independence by the Office of the DPP, to the exclusion of accountability, has the effect of undermining trust in the institution and reducing its efficiency. In a democratic society, accountability is in many respects the obverse side of the concept of independence. Many aspects of the social and economic situation in Jamaica have changed since the promulgation of the Independence Constitution in 1962, and as a result, the time has come for a number of important matters regarding the status and functioning of the prosecution service to be examined and reviewed, if necessary.

For example, under our present political system, all matters (except for cases that are before the courts) are subject to parliamentary scrutiny. Why, then, should an issue as important as the institution of criminal proceedings not be subject to the same requirement? In 2011, prosecutors should expect neither to be exempt from public scrutiny nor shielded from public accountability.

The veil given to the DPP by the Constitution is available only when there is an attempt to interfere with the DPP's decision-making authority regarding the conduct of criminal prosecutions.

The Constitution describes in broad strokes the power of the DPP to institute, take over and terminate criminal proceedings. There is nothing, however, which really gives us any detailed sense of what the actual responsibilities of the DPP are in the exercise of these broad powers. Suppose the Office of the DPP acts unlawfully while exercising the powers conferred on it by the Constitution, should the DPP be able to hide behind the veil of Section 94(6)?

It is hard to imagine how appearing before a bipartisan body of the nation's Parliament could result in any type of interference with the prosecutorial functions of the Office of the DPP. It is equally hard to imagine how directions from the judiciary - a body charged with ensuring adherence to the rule of law by all persons - could result in interference with prosecutorial functions.

The learned DPP is wont to point out the vast experience in her office. It is, therefore, inconceivable that with all those years of experience, there is no capacity in that office to keep the public apprised of developments in a matter of national importance and interest - the Hibbert case - without breaching confidentiality or compromising the investigation of the matter.

Like other governance institutions in Jamaica, the Office of the DPP needs to operate as a modern institution that is governed by contemporary principles and practices of public-sector management, among which openness and accountability are key.

Email feedback to columns@gleanerjm.com.