Prosecution Commission & The DPP

It will be recalled that after the elections of December 2014, police investigated several cases involving the former Prime Minister, Navin Ramgoolam.

He was serially arrested on various charges and the results of investigations were lodged with the Office of the Director of Public Prosecutions (DPP) for eventual prosecution.

However, when the cases were presented in court over the past several months, the majority of them have been dropped so far in view of the DPP’s decision not to proceed with them. Either there was lack of adequate evidence or no offence was found to have been committed against the substantive law capable of being proved in court.

The fact is that the person being cleared of the charges in court under the stand taken by the DPP’s Office is a high-profile political character. The consequent decisions of the court not to proceed with the cases is therefore also being viewed in the political context. Indeed, the former Prime Minister has, upon being cleared by the court, alleged that the cases, which had been instituted by the police against him after his fall from power, would have been politically motivated.

On the other hand, the government side which flourished at the time the cases being brought against the former Prime Minister may not be feeling comfortable with the decisions of the court under the stand being taken by the DPP. It appears to be publicly losing face against so many prosecutions being simply dropped at the level of the court.

It may be said that, right from the beginning, even before the DPP’s office asked the court for leave to appeal to the Privy Council against its decision in the MedPoint case, overturning that of the Intermediate Court, the government was uneasy with the DPP. Initiatives were taken from the start to bring the DPP’s Office under the control of the Attorney General’s Office, itself headed by a politician. All these charges having now been dropped against the former PM, as instructed by the DPP, must have sharpened differences.

It is in this context that many observers perceive the on-going current initiative of the government to institute a separate ‘Prosecution Commission’ which would have, among its responsibilities, the review of the DPP’s decision to prosecute or not cases coming to it from investigating bodies. It is said that the matter will be brought for discussion at the Cabinet meeting this Friday. If it goes ahead, the Bill advocating the establishment of a ‘Prosecution Commission’ will require amending the Constitution.

For, section 72 of our Constitution states that the DPP:

“shall have power in any case in which he considers it desirable so to do –

(a) to institute and undertake criminal proceedings before any court of law (not being a court established by a disciplinary law);

(b) to take over and continue any such criminal proceedings that may have been instituted by any other person or authority; and

(c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by himself or any other person or authority.”

Moreover, the section 72(6) of the Constitution guarantees that: “In the exercise of powers conferred upon him by this section, the Director of Public Prosecutions shall not be subject to the direction or control of any person or authority”.

This means that if the objective is to install a supervening authority (the said ‘Prosecution Commission’) putting in question the absolute discretion the DPP currently enjoys whether to prosecute a case or otherwise in the light of available evidence and/or substantive law, a Constitutional amendment will be necessary to do so.

It seems this further step is now being contemplated despite provisions in the existing administrative framework that the decisions of the DPP to prosecute or not to prosecute is not a prerogative authority but is a reviewable and accountable exercise of power, notably by the court itself. Thus, the DPP is currently amenable to justify his decisions under existing judicial process, if called upon to do so in a judicial review.

Notwithstanding, comforted possibly by its numerical strength in the Assembly, the government may take the risk to amend the Constitution. This, as we know, becomes irreversible unless future governments command the required majority to put back prosecutorial discretion, a pivotal factor in the administration of justice, into the hands of the DPP again. So far, the independent set-up of the DPP’s Office has prevented it “being polluted by the inflow of noxious political contamination”, to quote from the Constitutional Commissioner, Prof SA De Smith in 1964.

It goes to the credit of the current DPP that he has explained from time to time his decisions to prosecute or not to prosecute. In the Betamax case, for example, he recently explained why the case could not be stood up successfully in court in the presence of existing legislation and the various procedures followed by the then government to award the oil transport contract to this company.

At the end of the day, it is critical that we preserve both the independence and strength of our public institutions. This should include maintaining absolute prosecutorial discretion without direct or indirect interference by other arms of the government. The administration of justice should be seen to be as neat and irreproachable as Caesar’s wife – above suspicion.

M.K.