Frank Phipps | Who benefits from DPP’s extension of tenure?

THIS IS an invitation for the Government and the Opposition to take a wider view for the consequences from legislation for the Director of Public Prosecutions (DPP) and the Auditor General (the AUDGEN) to hold office after attaining the age of 60 years. Both are public offices created by the constitution and any change of their position will require an amendment to the constitution.

The present DPP has already had an extension in office that is due to end shortly. No compelling reason is given for changing the age for holding office from 60 to 65 years. Notwithstanding, to be valid, a law for the change must follow the procedure set out in the constitution.

In a democracy, the people need to be satisfied on the merits for amending their constitution and also that the proper procedure was followed. The following review of the Office of the Director of Public Prosecutions and its functions is presented for that purpose.

The constitution provides at Section 94:

(1) There shall be a director of public prosecutions whose office shall be a public office.

(2) A person shall not be qualified to hold or act in the Office of Director of Public Prosecutions unless he is qualified for appointment as a judge of the Supreme Court.

(3) The director of public prosecutions shall have power in any case in which he considers it desirable so to do

(a) to institute and undertake criminal proceedings against any person before any court other than a court-martial in respect of any offence against the law of Jamaica;

(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 judgement is delivered, any such criminal proceedings instituted or undertaken by himself or any other person or authority.

(4) The powers conferred upon the director of public prosecutions by paragraphs (b) and (c) of subsection (3) of this section shall be vested in him to the exclusion of any other person or authority. Provided that where any other person or authority has instituted criminal proceedings, nothing in this subsection shall prevent the withdrawal of those proceedings by or at the instance of that person or authority and with the leave of the court.

(5) In the exercise of the powers conferred upon him by this section, the director of public prosecutions shall not be subject to the direction or control of any other person or authority. 96.(1) Subject to the provisions of subsections (4) to (7) (inclusive) of this section the director of public prosecutions shall hold office until he attains the age of 60 years: Provided that (a) he may at any time resign his office; and (b) the governor general, acting on the recommendation of the prime minister, after consultation with the leader of the Opposition, may permit a director of public prosecutions who has attained the age of 60 years to continue in office until he has attained such later age, not exceeding 65 years, as may (before the director of public prosecutions has attained the age of 60 years) have been agreed between them.

The awesome and unrestrained constitutional power of the DPP, overreaching parliament for the prosecution of criminal offences, runs contrary to the spirit and intendment of a constitution as the supreme law of the land.

Where the proviso permits an extension beyond the 60 years on the recommendation of the prime minister after consultation with the leader of the Opposition is understandable if, and only if, it is to complete outstanding obligations as may be agreed between them. Otherwise, a general extension would be parliament choking itself to avoid the responsibility to pass laws for the prosecution of criminal offences as part of good government in Jamaica.

Considered at a higher level, amending the constitution to increase the period for the DPP to continue in office with such power and authority will bind the present DPP and succeeding DPPs, the present government and succeeding governments, a self-inflicted blow taking away parliament’s responsibility for prosecuting criminal offences.

This situation for the auditor general is similar, with a provision at subsection (1) of Section 121 of the Constitution to hold office until the age of 60 years. The functions are set out at subsection (1) of Section 122 to audit the accounts of the courts, the accounts of both Houses of Parliament and the accounts of all departments and offices of the Government of Jamaica; outplaying what parliament should do.

With this overwhelming authority, subsection (3) states that the auditor general shall not be subject to the direction or control of any other person or authority in the exercise of these functions.

These two offices, the DPP and the AUDGEN, are not commissions nor agents of parliament. They have constitutional functions that oust the authority of parliament. A profound question of policy is whether the country should entertain an individual with such power beyond the age of 60 years, frustrating parliament.

Also relevant is whether an individual with such power would wish to go beyond the age of 60, carrying the personal responsibility to overreach the authority of the people’s representatives in parliament. Without a clear answer for these questions to justify the constitutional change, the people are left to guess: qui bono?

Frank Phipps, KC, is an attorney at law. Send feedback to columns@gleanerjm.com