Constitutional Illiteracy

By R.V.

It was Professor S.A. de Smith, the Constitutional Commissioner, who when drawing up his Report in 1964, urged our political leaders that the process of prosecution vested in the Director of Public  Prosecutions (DPP) should be completely independent of the political executive. Three years earlier the final communiqué of the Mauritius Review Conference of 1961 had mentioned the agreement reached by all parties for the creation of an Office of the Director of Public Prosecutions (ODPP) independent of the Office of the Attorney General.

In his book, ‘The New Commonwealth and its Constitution’, published in 1964, De Smith explained that the independent constitutional status of the DPP stemmed from the need “to safeguard the stream of criminal justice from being polluted by the inflow of noxious political contamination… to segregate the process of prosecution entirely from general political considerations.” The framers of our Constitution wisely adopted the recommendations of De Smith which translated in any event the best constitutional practices that had emerged in the newly independent Commonwealth countries.

Section 72 of our Constitution reflects that policy by providing that “in instituting, conducting, taking over, continuing and discontinuing prosecutions, the DPP is not to be subject to the direction of any person; and in the exercise of all these functions other than of instituting prosecutions his responsibilities are to be exclusive.”

It is in virtue of these exclusive powers that the DPP, when triggering the prosecutorial process, can request a Magistrate to ascertain whether a prima facie case has been established in relation to a serious offence (murder, manslaughter, etc.,) so as to commit an accused party for trial before a presiding Judge and a jury consisting of nine persons who are qualified as jurors. All Preliminary Inquiries are held at the request of the DPP. It is a filtering procedure of the evidence. At the end of the enquiry, the Magistrate has three options.

First, he may discharge the accused party but the discharge shall not have the effect of an acquittal since the DPP may charge the person anew with the same offence.

Second, the Magistrate may commit an accused for trial. He shall transmit to the Director of Public Prosecutions all the information, depositions, statements, recognizances and other documents in the case, except the articles of evidence, which shall remain in the custody of the clerk to be produced by him at the trial.

Third, the Magistrate may find that the accused has committed another offence and charge him accordingly.

Whatever be the findings of the Magistrate in all three scenarios, it will be up to the DPP to decide whether to prosecute or not and what the charges should be.

Preliminary Inquiry has never been the province of the judiciary. It is within the exclusive prosecutorial process of the DPP. The findings of a Magistrate following a preliminary enquiry does not in any event bind the DPP. To argue that there may have been usurpation of the powers of the Magistrate is sheer legal fiction. The DPP, lest we forget, does not belong to the political executive.

The Preliminary Inquiry (Miscellaneous Provisions) Bill which the Attorney General has laid on the table of Parliament is part of his wider campaign to reform the administration of justice and see to it that litigants get a better service. As I understand it, the aim of the Bill is to give the DPP the choice of not resorting to a preliminary inquiry where there is no need for one. It will enable the prosecution to expedite matters and ensure the trial of an accused party occurs within a reasonable time especially where the evidence is straightforward and the accused has given a clear indication of his intention to plead guilty. We should not at the same time overlook the fact that today’s criminal landscape has evolved considerably and the requirement on the part of the prosecution to disclose its case to the defence is a well-entrenched practice.

In the case of Re R v Arviv (1985) 19 CCC(3d) 395, the Ontario Court of Appeal has affirmed that as long as pre-trial disclosure is made to the defence, a preliminary inquiry is not a necessary means for effecting it. Of course, it can be argued that the opportunity to see witnesses being examined and cross-examined may reveal more information to the defence than a mere perusal of written statements. However, human rights obligations do not extend as far as enabling the defence to cross-examine witnesses in advance of trial and, as discussed above, there are other considerations such as the inconvenience and distress caused to witnesses that need to be taken into account in deciding the extent to which the prosecution or defence should be entitled to examine and cross-examine witnesses at committal.

What is all the hullabaloo about when all the rights of an accused will still be available to him when the trial proper takes place?

* Published in print edition on 3 June 2011

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