During the hearing of the treating matter before the panel of judges at the Caribbean Court of Justice (CCJ) in December 2020, two of the justices inquired of both Senior Counsel Astaphan and Attorney-at-law Cara Shillingford on the possible intervention of the DPP in the matter prior to the request for judicial review at the High Court. The justices observed and agreed with SC that although the interference of DPP may have been a considered, such an action would have very serious political implications in a small jurisdiction as Dominica.
Both SC and Ms Shillingford acknowledged that the DPP has the constitutional authority to intervene in any criminal matter before a final judgment is rendered pursuant to section 72 of the Constitution of Dominica. However, attorney Shillingford expressed reservations before the CCJ about this being introduced in the mix at this late stage. The judges observed and agreed with SC that the interference of DPP may be seen as politically motivated in a small jurisdiction but noted that the arguments advanced by SC were rather simplistic, superfluous, and in some instances irrelevant.
Immediately upon the publication of the CCJ’s ruling, which dismissed the appeal affirmed the decision of the Court of Appeal in favour of the Respondents, ordered the reinstatement of the summonses at the magistrate court and ordered costs against the Appellants, SC Astpahan went on a media-tirade like a mad man suggesting that the DPP should intervene in the matter, take over the case, and consider declaring a Nolle Prosequio (Nolle Pros). Although this was expected, the tone and mode of operation of SC Astaphan and his team of attorneys were distasteful and troubling.
The fact that the judges at the CCJ posed questions to the attorneys was in no way a suggestion to anyone that the case should be subject to a Nolle Pros at this late stage. A Nolle Pros in such private criminal prosecution matters is not as common as SC Astaphan has been suggested. In fact, some have argued that where the police, DPP and AG have failed to prosecute a matter and citizens take it upon themselves to file a private criminal prosecution, the state should have no business intervening to stop the prosecution.
A Nolle Pros is generally declared in circumstances where;
- the evidence is lacking, insufficient, or too weak to carry the burden of proof,
- the evidence is fatally flawed in light of the claims that are brought,
iii. the charges cannot be proved because vital witnesses have become unavailable or uncooperative, the prosecutor becomes doubtful that the accused is guilty;
- the defendant’s innocence is proved;
- the defendant has died or
- where the DPP is of the opinion that there is a gross abuse of process.
None of the above circumstances exists in the present treating matter. As the CCJ has determined, the election offenses of treating and bribery are summary criminal matters different and separate from an election petition which is handled by the High Court in its capacity as an election court. The CCJ clearly stated in its judgment that all the case law quoted by SC Astaphan merely emphasized that the exclusive and exclusionary jurisdiction of the High Court is to determine the validity of elections by way of election petitions, which is essentially a parliamentary jurisdiction that is assigned to the judiciary by the Constitution and by legislation-a special jurisdiction distinct and different from the ordinary civil or even constitutional jurisdiction for that matter. Hence, the argument of SC Astaphan was largely irrelevant in that regard.
SC Astaphan has stressed that in making a decision to Nolle Pros a matter, the DPP is not entirely independent as he/she ‘shall’ act as directed by the Attorney General in discontinuing a prosecution pursuant to section 72 of the Dominica Constitution, particular section 72(6), which states, “In the exercise of the powers vested in him by subsection (2) of this section, the Director of Public Prosecutions shall not be subject to the direction or control of any other person or authority: Provided that the powers vested in him by paragraph (c) of that subsection (2) SHALL be exercised by him in accordance with such general or special directions (if any) as the Attorney General may give him. He is right on the law.
Contrary to those, who consider the request of the Attorneys for the Prime Minister and his colleagues as contempt of the CCJ’s order, this author does not share that view. Contempt of court refers to an offense of being disobedient to or disrespectful toward a court of law and its officers in the form of behavior that opposes or defies the authority, justice, and dignity of the court. Requesting Nolle pros cannot be deemed a contempt charge legally nor is it immoral or unfair. It is a procedure provided for under our Constitution. It is not an illegal act. The attorneys are acting within the law and therefore it cannot be a violation of the rule of law. By requesting the DPP to exercise a constitutional authority provided for under section 72 of our Constitution, the defense is acting in compliance with the law.
Furthermore, one cannot successfully argue that the initial motion for judicial review before the High Court was made in bad faith nor did the CCJ necessarily recognized it was an attempt to escape the requirements of the criminal statute as argued by some. Prosecutorial discretion was available to the appellants and they elected not to rely on it from the beginning. The appellants had a choice- they gambled and explored judicial review over requesting a Nolle pros from the beginning of this matter as a matter of choice -as a strategy. In this case, they gambled in favour of judicial review and failed, although succeeding at first instance before a friendly trial judge. Seeking judicial review as an option, whether one considers it a prudent legal move or not is not a threat to the majesty of the Constitution nor does it suggest that the appeal had no place before the Court. As the CCJ judges pointed out in their judgment, there is no conflict between the provisions of Section 56 of the House of Assembly Elections Act and the provisions of the Constitution Dominica, especially section 40 as unsuccessfully argued by SC Ataphan.
The CCJ issued its ruling and the rest was up to the Chief Magistrate in Dominica to take appropriate action. In defense of her tardiness to act, the Chief Magistrate attempted to blame the Registrar of the court (unclear whether the High Count or CCJ) for not promptly communicating the final decision of the CCJ. In the interim, the lawyers for the defendants acted in their usual aggressive manner and wrote a letter to influence the DPP and the AG to issue a Nolle pros. While we await the result of the DPP’s consideration whether based on her independent judgment or on the direction and pressure of the partisan Attorney General on the question of Nolle pros, the intrigue of this legal matter continued with two new developments.
- the release of an announcement for filling ‘the vacant post of the DPP’ and
- the announcement that the Chief Magistrate has set a date for commencement of hearing into the matter on May 13, 2021.
The announcement to fill the ‘vacant’ post of DPP invites applications from suitably qualified persons to fill the post of DPP within the Public Prosecution’s Office, Ministry of National Security and Home Affairs. However, the vacancy announcement appears to be faulty in several ways.
Under duties, the announcement states that the DPP functions, ‘Under the supervision of the Attorney General.’ This is a fatal error as the Leader of Opposition and others have highlighted. The DPP is an independent Constitutional function with the exception of the single provision under section 72(6) of our Constitution, which allows the AG to direct the DPP ONLY on matters pertaining to the discontinuance of a criminal matter, the AG has no other supervisory authority over the DPP. The functions of the Attorney General are clearly indicated under section 71 of the Constitution as the principal legal adviser to the Government. Although the Constitution allows the Attorney General to act in the capacity of DPP at any time when the office of Attorney-general is a public office, if qualified so to do but of course in our present circumstances our AG is not qualified to act as DPP as he has not completed an LEC from a law school in our jurisdiction.
The announcement does not take into account that the CCJ has replaced the Privy Council as the Apex Court of Dominica. The vacancy states, “serving whether personally or through counsel acting on his/her behalf as Public Prosecutor in the Appeal Court and Supreme Court and where necessary the Judicial Committee of the Privy Council.” In Dominica, a Public Prosecutor in the Eastern Caribbean Supreme Court (ECSC) system acts at the High Court, Court of Appeal , and the Caribbean Court of Justice (CCJ).
Under the heading ‘qualification’, several academic qualifications are listed including;
- Legal Education Certificate (LEC) with no appropriate waiver from the Attorney
- General, Bachelor of Law Degree (LLB);
iii. A minimum of ten (10) years as Attorney-at-Law and
- At least seven (7) years practice in the Criminal Court
As per Section 88.4 of the Constitution, a person shall not be qualified to be appointed to hold the office of DPP unless he holds one of the specified qualifications and has held one or other of those qualifications for a total period of not less than seven (7) years. It is unclear why the vacancy announcement stipulates 10 years as an attorney-at-law unless this refers to one being an attorney-at-law but not necessarily having obtained a LEC to practice Criminal law for seven years, in which case the current AG would not meet the qualification to be DPP.
The 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 unconstitutional but may not be as per case law from our jurisdiction. A DPP could be said to have 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. In the Holdip case, Attorney General of Grenada v The Grenada Bar Association, Grenada Civil Appeal No 8 of 1999 (unreported), the Court of Appeal 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.
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. Before tendering advice for the purposes, the Public Service Commission must consult the Prime Minister.
Noting that 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) i.e., If the Prime Minister or the chairman of the Public Service Commission represents to the President that the question of removing the Director of Public Prosecutions under this section ought to be investigated, then (a) the President shall appoint a tribunal which shall consist of a chairman and not less than two other members, selected by the Chief Justice from among persons who hold or have held office as a judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or a court having jurisdiction in appeals from such a court; and (b) the tribunal shall enquire into the matter and report on the facts thereof to the President and recommend to him whether the Director ought to be removed from office. Consequently, a strict interpretation and application of the Constitutional provisions, there ought to be nothing known in law as an acting DPP as that office is a Constitutional position with unfettered constitutional rights.
As most Dominicans have now realized, it would be improper for the DPP to Nolle pros the treating matter at this juncture. This would not be in the best interest of the public and would undermine our judicial system for political expediency. Therefore, the matter ought to be heard. It should be the court and not the DPP to make a determination on adequacy, relevancy, sufficiency, and/or appropriateness of evidence adduced by the Complainants. Anything short of this will cause significant political turmoil in Dominica to the detriment of the DLP and the country.