Special prosecutor bill unconstitutional - Mullings
Published:Wednesday | April 6, 2011 | 12:00 AM
Edmond Campbell, Senior Staff Reporter
IF ATTORNEY-AT-LAW and Government backbencher Clive Mullings' legal opinion is grounded in law, the proposed establishment of the Office of the Special Prosecutor could hit a major constitutional roadblock.
Mullings sought relentlessly to convince his colleague lawmakers yesterday that the Office of the Special Prosecutor could not be established as set out in the proposed legislation.
Section 31 of the Corruption Prevention (Special Prosecutor) Act, 2011, indicates that the special prosecutor is to be appointed by the governor general acting on the advice of the Public Service Commission (PSC).
However, Mullings argued during a committee meeting of the whole House yesterday that this approach would be unconstitutional.
"If the process of establishing a special prosecutor is not corrected, then we are wasting our time, with respect," Mullings insisted.
He contended that the PSC would not be able to appoint a special prosecutor unless the Constitution was amended to establish the Office of the Special Prosecutor as a "public office".
The Constitution defines public office as any office of emolument in the public service. It also defines public service as "the service of the Crown in a civil capacity in respect of the Government ... and includes public service in respect of the former colony of Jamaica.
"If the Public Service Commission, deriving its authority from the Constitution to appoint public officers engaging in a public service and in a civil capacity, how then does the special prosecutor fit? We have a problem," he reasoned.
The special prosecutor would not act in a civil, but prosecutorial, capacity.
Mullings explained that while the PSC appointed a director of public prosecutions, it was the Constitution which deemed that a public office.
pm disagrees
"What it, therefore, means is that we would have to establish the special prosecutor as a public office. So the Constitution would have to be amended because the definition of public office and public service is clear in the Constitution, and it is on those instances that the Public Service Commission can appoint."
Prime Minister Bruce Golding, who piloted the bill when it was debated in the House, disagreed with Mullings.
"... Government has gone around and established a whole lot of public offices since the Constitution (was crafted)... . All we would be doing in this instance is establishing other public offices," he pointed out.
Leader of Government Business in the House, Andrew Holness, sought legal counsel from Solicitor General Douglas Leys.
In relation to the point made by Mullings, Holness said: "We have consulted with the solicitor general ... and there is really no distinction between civil and prosecutorial. All those functions are considered to be civil functions."
However, The Gleaner yesterday reviewed a legal opinion, dated December 29, 2009, offered by the solicitor general to Justice Minister Dorothy Lightbourne, on whether, under the Jamaica Constitution, the appointment of the special prosecutor by the PSC would be regarded as valid and constitutional.
The solicitor general stated that among the offices excluded from the definition of the public service are all those dealing with the legislature.
"It can, therefore, be implied that any office subsequently created by an act of the legislature and which attaches and is answerable to the legislative branch would be similarly excluded from the public service and appointments to such office could not be made by the Public Service Commission."
He said appointment to the Office of the Special Prosecutor by the PSC which was contemplated by the bill as belonging to the legislative branch would also be excluded.
The solicitor general argued that based on the strictures of the Constitution, it could not be considered a public office.
Yesterday, unable to resolve issues relating to the proposed legislation the House approved a motion for the bill to be carried over to the new parliamentary term that begins next week.