The recently published vacancy announcement to fill the post of Director of Prosecution (DPP) of Dominica said to be vacant continues to raise serious concerns considering the constitutional nature of that office, which differentiates it from the other lower-level positions such as magistrates and registrar of the court. These concerns have been amplified by what many citizens now consider to be an attempt by certain political sections of the society to highjack, undermine, instruct, direct, control, or even usurp the independent constitutional authority of the DPP.
The published job opening states that the DPP is expected to functions ‘under the supervision of the Attorney General (AG),’ a statement which is unfortunate and which may be factually incorrect. On that basis alone, the advertisement should be withdrawn. The Leader of Opposition and others have properly cited this as a fundamental error in fact and law.
As the Acting DPP herself stated in a recent interview with a local media, the office of the DPP is supposed to be “an independent and impartial office and she is not working with anyone in the Treating matter or taking instructions from anyone in the matter.”
The settled fact is that the DPP is an independent constitutional function. As per section 72 of the Constitution of Dominica,
“there shall be a Director of Public Prosecutions whose office shall be a public office, who shall have power in any case in which s/he considers it desirable so to do. The DPP may institute and undertake criminal proceedings against any person before any court of law (other than a court-martial) in respect of any offence alleged to have been committed by that person. S/he may take over and continue any criminal proceedings that have been instituted or undertaken by any other person or authority; and can discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by himself or any other person or authority. The powers of the DPP under subsection 72 (2) may be exercised by him in person or through other persons acting under and in accordance with his general or special instructions.
The powers conferred on the DPP are generally vested in him/her to the exclusion or no other person or authority-including the AG provided a person or authority has instituted criminal may withdraw those proceedings and the DPP cannot exercise such authority in relation to any appeal by a person convicted in any criminal proceedings or to any case stated or question of law reserved at the instance of such a person.
The Leader of Opposition is correct that it is only under section 72(6) of our Constitution that the AG has limited authority to direct the DPP on matters pertaining to the discontinuance of a criminal matter. Other than this provision, unlike other jurisdiction like Canada, where the AG via legislative authority may have a wider supervisory role over the DPP, the AG of Dominica has no such supervisory authority over the DPP.
Section 71 of the Dominica Constitution provides for the office of the AG, who shall be the principal legal adviser to the Government. The AG may be either a public office or the office of a Minister. At any time when the office of AG is a public office the same person may if qualified, be appointed to hold or act in the office of AG and DPP.
Unlike the case in other Commonwealth jurisdictions, where the possibility exists that the AG may delegate additional functions to the DP, this is not the case in Dominica. For example, in Canada under the DDP Act, the AG is said to be fully accountable to Parliament for the prosecution function, there is a measure of oversight for the exercise of the DPP’s prosecutorial discretion such that it is provided that the DPP acts “under and on behalf of the Attorney General”. The Act provides that the DPP may exercise any other power, duty, or function assigned by the AG that is compatible with the Office of the DPP. The Act makes the DPP accountable to the AG and upholds the independence principle but does not confer on the DPP any investigative powers. The AG cannot direct the DPP to work on a specific investigation.
The Canadian legislation also provides that the AG may issue directives in respect of specific prosecutions or in respect of prosecutions more generally. It also requires the DPP to notify the AG about important questions of general interest, and give the AG the power to intervene in proceedings or to assume conduct of prosecution similar to the powers under section 72(6) of the Dominica Constitution. However, the Act counterbalances the AG’s oversight function and safeguards the independence of the DPP from the AG by requiring that the issuance of directives and assuming conduct of prosecution must be in writing and made public.
The functions of the AG of Dominica are clearly outlined under section 71 of the Constitution. The AG is said to be the principal legal adviser to the Government-meaning the State and not the party in power as PM Skerrit and AG Levi would have us believe. This, despite the fact, that our Constitution allows the AG to act in the capacity of DPP at any time when the office of AG is a public office. But of course, in our present circumstances, AG Levi Peters is not qualified to act as DPP as he has not completed a LEC from a law school in our jurisdiction. A waiver of that requirement to serve as AG would not suffice to serve as DPP.
Additionally, the DPP is responsible for initiate and conducting prosecutions on behalf of the state and can therefore intervene in any preceding that raises a question of public interest that may affect the conduct of prosecutions or related investigations. In that regard, there are instances that will require the DPP to work closely with the AG when advising law enforcement agencies on certain matters related to prosecutions generally and particular investigations that may lead to a prosecution, without dictating and while maintaining their independence. With the exception of section 72(6) of our Constitution, which allows the AG to direct the DPP on matters pertaining to the discontinuance of a criminal matter, the AG has no supervisory authority over the DPP.
It is a core constitutional tenet that both the AG and DPP are bound by the principle of independence in respect of their advisory and prosecution functions. As the Supreme Court of Canada stated in Law Society of Alberta v Krieger, “It is a constitutional principle in this country that the Attorney General must act independently of partisan concerns when supervising prosecutorial decisions.” The function of the DPP evokes the oft-quoted 1924 aphorism of Lord Chief Justice Hewart that “Justice should not only be done but should manifestly and undoubtedly be seen to be done.
The constitutional position of DPP is designed to strengthen the goals of institutional independence, justice, and ultimate accountability. The office must actually be and seen to be independent in exercising its prosecutorial decision-making function from any and all inappropriate political control, direction and influence.
The guiding principle of independence of function is so well respected that even the police are expected to function independently from political control and from the control of both the AG and the DPP when investigating crimes. In the same way, the DPP ought to be independent from police in the prosecution function. Generally, investigative agencies or investigating bodies within a government department are normally not vested with power to instruct the prosecution to pursue or discontinue a particular prosecution or to undertake a specific appeal.
Although the investigation and prosecution functions are distinct, there is nevertheless a great deal of cooperation and consultation between police, investigative agencies and prosecutors even at the investigative stage. It is expected that the AG is expected to consult with the Prime Minister and his Cabinet colleagues before exercising his/her powers with respect to certain criminal proceedings as it is necessary to do so in order to be cognizant of the overall, pan-government perspectives.
As the AG of England, Sir Hartley Shawcross (later Lord Shawcross) stated 1951,
“the true doctrine is that it is the duty of an Attorney-General, ( and by extension the DPP) in deciding whether or not to authorize the prosecution, to acquaint her/himself with all the relevant facts, including, for instance, the effect which he prosecution, successful or unsuccessful as the case may be, would have upon public morale and order, and with any other considerations affecting public policy….In order so to inform himself, he may, although I do not think he is obliged to, consult with any of his colleagues in the Government; and indeed, as Lord Simon once said, he would in some cases be a fool if he did not. On the other hand, the assistance of his colleagues is confined to informing him of particular considerations, which might affect his own decision, and does not consist, and must not consist in telling him what that decision ought to be. The responsibility for the eventual decision rests with the Attorney-General, and he is not to be put and is not put, under pressure by his colleagues in the matter. Nor, of course, can the Attorney-General shift his responsibility for making the decision on to the shoulders of his colleagues. If political considerations which, in the broad sense that I have indicated, affect government in the abstract arise, it is the Attorney-General, applying his judicial mind, who has to be the sole judge of those considerations.”
Secondly, the said vacancy also states under the heading ‘TERMS’ that the successful candidate will be contracted for a period of one (1) year in the first instance, which on the surface appears to be a significant political tool to undermine the independent professional judgment of the DPP and arguably an unconstitutional act. Beyond the fact that the Constitution does not envision an acting DPP, it also protects the tenure of the DPP and does not envisage a short term contractual position for the DPP for the obvious reasons. This places the tenure and conduct of the occupier of the office at the mercy of government in office rather than being subject to the Constitution.
Pursuant to section 88 (1) of the Constitution of Dominica, the DPP is appointed by the President, acting in accordance with the advice of the Public Service Commission, where the office is vacant or the holder of that office is for any reason unable to exercise the functions of the office. Per section 88 (6), the DPP shall vacate his office when s/he attains the prescribed age, the office becomes vacant and is filed thereafter by another DPP. The prescribed age for the purposes of subsection (6) of this section is the age of fifty-five (55yrs) or such other age, as may be prescribed by Parliament provided that any law enacted by Parliament, to the extent to which it alters the prescribed age after a person has been appointed to be or to act as DPP, shall not have effect in relation to that person unless he consents that it should have effect. Indeed, per Section 88 (7), a person holding the office of DPP may be removed from office only for inability to exercise the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehavior and shall not be so removed except in accordance with the provisions of this section. A DPP shall be removed from office by the President if the question of his removal from office has been referred to a tribunal appointed under subsection (9).
The Office of DPP is a Constitutional one with unfettered constitutional rights. Contrary to the argument advanced by SC Astaphan and others in the St Lucian Civil Appeal No.24 of 2004 between the Judicial Service Commission and Horace Fraser, where SC Astaphan represented the AG of St Lucia and advanced the view that a Constitutional appointment could be employed on Contract, in the AG of Grenada v The Grenada Bar Association, Grenada Civil Appeal No.8 of 1999.(unreported, the Holdip case), it was unsuccessfully argued on behalf of the AG that the DPP by entering into a contract for a specified period had waived his right to remain in office until he reached the constitutionally specified retirement age or was estopped from insisting on his right to so remain by having agreed to a fixed term appointment.
The Court of Appeal rejected that argument and concluded that the office of DPP was endowed by the Constitution with the same qualities of independence as members of the judiciary and the holder of that office could not be removed from office on the basis of the effluxion of time. i.e. by the expiration of a contract. This was the similar position adopted in the AG of St. Christopher and Nevis v Angela Jasmine Innis, Appeal No.6 of 2000.
In light of the above, therefore, whereas one understands why many Dominicans, especially supporters of the Opposition United Workers Party may be a little apprehensive about what may appears to be a lack of independence of the AG and especially the Acting DPP and the allegations of impropriety, potential unprofessional conduct, conflict of interest and suspicion of undermined professional independence are abounding, which negatively impact the level of trust and confidence in these Constitutional offices, Dominicans must continue to believe and have hope in the system, while remaining vigilant.
These functionaries have certain constitutional powers that they can execute as empowered by the Constitution. It is the respectful opinion of the author that in the treating matter, which is currently before the court, the Acting DPP has so far acted squarely within her Constitutional authority and one has no firm reason to conclusively state that her professional independence has been compromised nor ambushed.
We continue to be confident that upon review of the evidence adduced by the Complaints and shared with the DPP upon her request or as a result of an order by the assigned magistrate, that in the best interest of the state and for augmenting our jurisprudence, this matter will not suffer from a nolle prosequi but will benefit from a hearing and determined by a magistrate.