EDITORIAL - The DPP in an age of transparency

The office of the Director of Public Prosecutions (DPP) confers on its holder substantial, constitutionally protected powers.

Once installed, and unless he or she reaches the mandatory retirement age of 60, or becomes infirm, a DPP can only be removed on account of misbehaviour - and then only after a tribunal that includes at least two judges recommends, after a hearing, revocation of the appointment.

The DPP, under Section 94 of the Constitution, has the power to "institute or undertake" criminal proceedings against persons accused of breaching the law, and can "take over and continue prosecution begun by any other authority".

Additionally, the DPP can, before a judgment is delivered, discontinue criminal proceedings, whether it was begun by his/her office or anyone else.

Significantly, the Office of the DPP has no counsel for the decisions it takes. There is no boss to whom the office must account.

Indeed, the Constitution makes clear that the "powers conferred upon the director of public prosecutions ... shall be vested in him to the exclusion of any other person or authority".

There are good reasons for this constitutional protection of the powers of the DPP.

Walking a thin line

In a small society with a close and easy mingling of relations, the authority of the DPP to make decisions at his or her sole discretion insulates the office from political pressure, especially in a circumstance where a confident chief prosecutor embraces the independence.

But as almost anyone who is afforded such power, or has observed anyone who has held it, can appreciate, there can often be a thin line between independence and arrogance and a lack of accountability.

A half-century ago, when the framers of the Jamaican Constitution were conferring these powers on the office of the DPP, it was not with the assumption, we believe, that holders of the post would consider themselves to be accountable to no one. Nor do we believe that Jamaica's DPPs, including the current incumbent, felt this to be case.

All have been outstanding public servants who appreciated that they worked on behalf of the people and that their job, as an essential part of the system of justice, is critical to democracy.

Independence undermined

Unfortunately, the framers of the Constitution devised no formula for giving expression to this accountability without undermining the necessary independence of the DPP. However, new and evolving demands for transparency in governance suggest that this must be among the issues placed on the national agenda.

During the tenure of the previous incumbent, there was a suggestion that the DPP voluntarily make annual declarations to Parliament on the work of the office, thereby accounting to stakeholders. A first, skimpy report was delivered, but the process was short-lived.

In the absence of any other arrangement, or careful constitutional amendment after robust debate, we suggest that the DPP should revive these reports, which would provide information about the performance of the office, but in a formal forum from which to speak about the constraints to its effective operation.

In such a circumstance, the public would be in a better position to judge the merit of observations such as those in the report of the Office of the Contractor General (OCG) for 2009 that suggest that the Office of the DPP was tardy in pursuing criminal proceedings for corruption based on referrals from the OCG.

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