The Tribune

By ADRIAN GIBSON

ajbahama@hotmail.com

“BASED on my examination of the administration of justice in a broad sample of Commonwealth countries, conducted between 1966 and 1968, I am convinced that, no matter how entrenched constitutional safeguards may be, in the final analysis, it is the strength of character, personal integrity and depth of commitment to the principles of independence and impartial representation of the public interest, on the part of the holders of the Office of Attorney General, which is of supreme importance. Such qualities are by no means associated exclusively with either the political or non-political nature of the Office of Attorney General.”

– Professor John Edwards in his seminal work “The Attorney General, Politics and the Public Interest”

Recently, controversy erupted over the issuance of a nolle prosequi by the Attorney General’s office that led to the discontinuance of a gun possession case against the former clients of Attorney General Allyson Maynard-Gibson. Frankly, the nolle prosequi and Prime Minister Perry Christie’s subsequent failure to inform the public and the Opposition of the so-called “national security” matter which supposedly underpinned the decision has become an explosive, hot-button issue that does not pass the smell test.

Indeed, prosecutorial decisions should not to be narrow-minded and/or based on partisan views; however, why does it appear that the Office of the Attorney General—under Mrs Maynard-Gibson—has declared war on reality? The rule of law, as noted by the great philosopher Aristotle, is preferable to that of any individual.

Inexplicably, whilst attorney Tonique Lewis was on the cusp of giving her closing submissions on December 28, 2012, a directive was—as if by some miracle—issued to stop the criminal proceedings against George and Janice Hayles. Interestingly enough, Attorney General Allyson Maynard-Gibson was the Hayles’ attorney when the case was initiated in 2010, during the tenure of then Attorney General John Delaney. Beyond wasting the court’s time, this case reeks of what many have come to see as improper political interference, it gives off the notion of an inherent conflict of interest and it has, in some quarters, perhaps even cast the Bahamas as having a bad legal climate. Without this spectacle, our justice system is already complicated by systemic failures and challenges that plague the legal process on a daily basis! Undoubtedly, there is a need for a non-partisan ethics watchdog—an Ombudsman—to insure that the people’s interest is protected and/or preserved at all times.

There are some people who have openly stated their view that the recent “nolle” was inexplicable and could be seen as a perversion of the course of justice.

Prior to the most recent issuance of a nolle prosequi, the most infamous “nolle” was issued by then Attorney General Sir Orville Turnquest relative to the prosecution of John Mosko, who was charged with the fatal shooting of Clayton Dean in 1991. Sir Lynden Pindling subsequently represented the interests of Dean’s then infant daughter in a civil suit for damages claimed under the Fatal Accidents Act “in respect of the death of (Dean) by reason of the wrongful act and/or negligence of (Mosko).” The suit was settled and some $50,000 was left in a trust account.

Dana Seetahal (Senior Counsel – equivalent to a Queen’s Counsel– of more than 30 years and a Senator in the Parliament of Trinidad and Tobago), in her book ‘Criminal Practice and Procedure’, writes that “while a nolle prosequi puts an end to proceedings, it does not operate as a bar or acquittal since there would have been no adjudication by a court of competent jurisdiction.” Frankly, this means that since there wasn’t any judgment on the recent case involving the Hayles, the so-called “national security” matter could be brought back and prosecuted at a later date. However, considering the political climate, I doubt that anyone in this current configuration of the AG’s office would go near the matter—unless, of course, there was perhaps a change of minister or of government.

What made this matter—above all others—a national security issue? Was the couple involved in a super-secret, undercover—government sanctioned—sting operation that we all don’t know about? And, why is it that former Minister of National Security Tommy Turnquest seemingly has no idea of such a super-secret operation? What would former AG John Delaney say about this supposedly highly sensitive, classified “national security” matter, especially since the prosecution of the Hayles began during his administration? At this juncture, I’m just waiting for Chuck Norris (action movie star) to jump out of the bushes, do a monkey roll (karate) and announce that he too was a secret agent in on the “national security” matter!

Holders of the Office of Attorney General in the Bahamas are some of the most powerful government officials. Frankly, the decisions of the AG are hardly scrutinised and there are no institutional safeguards—no system of checks and balances—to curb or prevent any egregious abuses of power, prohibit fanatical AGs from usurping the roles of the courts and/or encroaching on the mandate of the Chief Justice. Indeed, in the Bahamas, there should be no evisceration of rational boundaries or any notion of a selective application of the law but rather a fairness and respect for the law. Our citizenry must demand greater transparency and accountability of our political directorate.

At a ceremony to observe the opening of the legal year, Mrs Maynard-Gibson—with eyebrows furrowed and in an Ebenezer Scrooge moment—said: “The power to take over, continue and discontinue proceedings at any stage before judgment is vested in the attorney general alone, to the exclusion of anyone. In the exercise of the powers conferred upon me, I as the Attorney General am not subject to the discretion or control of any other person or authority.”

Guess what, she’s right! But, I thought, what horribly misguided, egocentric tomfoolery for her to be uttering when Bahamians are genuinely interested in knowing the details relating to the nolle prosequi. The imperial tone reflected in her statement was ostensibly dismissive of the Bahamian people, it was disingenuous and lacked humility—it was simply a fumfering, colossally arrogant statement!

In an address to the Bahamas Media Club on the 26th June, 1989, former Attorney General Sean McWeeney (Pindling Administration), in a speech entitled “A commentary on the prosecutorial role of the attorney general in the criminal justice system” said:

“Now, what makes this constitutional process of transformation of the Attorney General from a non-political public servant to a political minister of the government-cum-parliamentarian with partisan connections so very remarkable is that notwithstanding the transformation of the Attorney General into a political creature whose tentacles are curled around the Cabinet table, a seat in Parliament and the flag of his own party, he is called upon by the same constitution which has recreated him in his political mould to perpetuate the colonial model of the office in the matter of criminal prosecutions and to exercise his constitutional powers in respect thereof in a completely non-political way and in an entirely independent fashion. When it comes to this one vital area, the Attorney General, by constitutional direction, must be his own man, utterly unfettered, and answerable to no one, and not in the least bit influenced by what are popularly conceived to be partisan political considerations. Considerations of this sort are completely and utterly impermissible in the formulation of prosecution policy and, more so, in the exercise in any given case of the prosecutorial powers vested in the Attorney General by the constitution of the Bahamas. And so, Cabinet Minister, Parliamentarian, politician and party member though he may otherwise be—and he is assuredly all of these things—the Attorney General is required to operate in an entirely different intellectual gear and on an entirely different intellectual track when it comes to the matter of his prosecutorial responsibilities and powers in the criminal justice system of the Bahamas.”

In most Caribbean jurisdictions, the main authority with responsibility for prosecutions is the Director of Public Prosecutions (DPP). In many of these countries, this post is enshrined/entrenched in their respective constitutions. In the Bahamas, the DPP is a public officer and the Attorney General, by comparison, has absolute control over the prosecutorial arm of the government. Whilst the DPP has oversight over prosecutions, Dana Seetahal states that there are limitations to such powers in the Bahamas. In my opinion, once a suspect is charged by the police, the matter should come solely in the purview of the DPP.

In countries such as Jamaica, Trinidad and Tobago and Guyana, the DPP is free from control and “shall not be subject to the direction or control of any other person or authority.” Accordingly, if one applies some of the judge’s dicta in the case AG of Fiji v DPP, the Bahamas’ AG should only be responsible for the oversight, control and direction of funding; the accountability of the office and administrative powers (staffing, accommodations, etc); the dissemination of legal information; oversight of the enforcement of a particular law; the general administration of justice; and the representation of government affairs (e.g. rendering legal opinions to Cabinet on proposed Bills, policy initiatives, etc).

In the Bahamas, it should be that under no circumstance should the DPP’s prosecutorial powers be infringed upon by any over zealous AG.

Was the DPP—Vinette Graham-Allen—even consulted about the discontinuance of the case against the Hayles? If she was, what was her opinion?

Section 647-653 of St. Lucia’s Criminal Code codifies and highlights the powers and independence of the DPP, while other jurisdictions reflect similar powers in the various Magistrates Acts, Criminal Procedure Acts, etcetera. The Bahamas needs to follow suit.

In his notable 1989 speech, then AG Sean McWeeney—the current chairman of the Constitutional Commission and a Queen’s Counsel—stated:

“All the same, it is not to be denied that the framers of our constitution opted in 1973 for a much less-travelled path when they recreated the Attorney General as a political minister and combined with that office the functions of an independent, non-political, ‘civil servant style’ Director of Public Prosecutions. The great majority of Commonwealth countries—both before and since 1973—have taken the altogether different path of providing in their constitutions for an entirely separate and independent creature invariably styled ‘the Director of Public Prosecutions,’ to whom all of the prosecutorial powers which would otherwise have vested in the Attorney General, were made to devolve. The end-product of this alternative and more favoured Commonwealth approach is that the Attorney General is quite completely emasculated of his traditional powers of prosecution (although in some variations of the model he does retain some limited or residual control over prosecutions) and becomes instead the equivalent of a Minister of Justice with responsibility for the legal affairs of the state and the administration of justice generally, save, of course, for public prosecutions, the powers in relation to which are vested in, and exercisable by, a separate civil-servant-style-Director of Public Prosecutions.”

Why won’t we adopt the same stance in the Bahamas? Surely, the Constitutional Commission must seek to also interview its learned chairman before making any recommendations to government!

Mr McWeeney went on to say: “The popularity in the Commonwealth of this alternative constitutional model has doubtless derived in large measure from a widely-held sense that the intrinsically-sensitive matter of criminal prosecutions can best be immunized against political controversy and abuse by vesting the powers of prosecution in a completely non-political individual who functions, and is seen to function, in an entirely independent context, far from the Cabinet table, far from the halls of Parliament and without even so much as the appearance of a party flag on the horizons of his office. The great majority of Commonwealth countries have, as I have said, embraced and applied this model; as far as I am aware the only Commonwealth countries which have embraced the Bahamian-style model of infusing the Office of the Attorney General with the powers and functions of a Director of Public Prosecutions are India, Kenya, Singapore, Pakistan, Sri Lanka, Malta, Cyprus, Botswana, The Seychelles and, of course, The Bahamas.”

He said: “As yet, notwithstanding the historic choice of model which was thus made in 1973 for the Office of the Attorney General that we continue to have today, it is of no less interest to note that that choice was not cast in the stone of eternity. Indeed, the provisions of Article 78 of the constitution which set out the several prosecutorial powers of the Attorney General are not entrenched provisions at all and are therefore amenable to change by ordinary legislation. Thus, if it were to be decided in the future to effect a transfer of the powers of prosecution from the Attorney General to a Director of Public Prosecutions, Article 78 of the constitution could be amended for that purpose without the special majorities and the convulsive process of popular referendum which would otherwise be required if the provisions of that Article were of the entrenched variety. Clearly, then, it was not the intention of the framers of our constitution that we be irrevocably married to the model of the Office of Attorney General introduced in 1973; had that been the intention, the provisions of Article 78 would have been entrenched which clearly they are not.”

“It follows, therefore, that if there is to be a divorce in the future between the Attorney General and his constitutional powers of prosecution that divorce can be solemnized as painlessly as the subsequent remarriage of those same powers to the interloping constitutional figure of a Director of Public Prosecutions. As to whether that day will come is preeminently a question for soothsayers although the process of constitutional evolution being what it is, it cannot be dismissed as an unlikely prospect,” he said.

According to the former attorney general (McWeeney):

“The Constitution of the Bahamas sets out three specific powers which the Attorney General is to have in relation to criminal prosecutions. These powers, which are to be found in Article 78, are largely a replication of the powers conferred upon the Attorney General by the colonial constitutions of 1964 and 1969 and are as follows:

• The power ‘to institute and undertake criminal proceedings against any person before any court in respect of any offence against the laws of the Bahamas’;

• The power ‘to take over and continue any such criminal proceedings that may have been instituted by any other person or authority’;

• The power ‘to discontinue, at any stage before judgment is delivered, any such criminal proceedings instituted or undertaken by himself or any other person or authority.’”

In my opinion, there is much that can be done to further empower a DPP and ensure the independence of public prosecutions, whilst also restricting the power of any political sitting as AG.

That said, I have a few questions relative to the issuance of the nolle prosequi:

• Why did the matter have to be addressed whilst the substantive AG was travelling? Why didn’t she—Allyson Maynard-Gibson—leave it to be addressed by herself upon her return as opposed to being handled by then Acting Attorney General Jerome Fitzgerald?

• Did the substantive AG, relative to this case, demonstrate any dereliction of her constitutionally-sanctioned duties?

• Is the AG not a defender of the Constitution, an enforcer of the laws of the land?

• Per article 78 (2) of the Constitution, did the Acting Attorney General act “under general or specific instructions” of the substantive Attorney General and, as such, is the Attorney General thereby liable for conflict of interest?

• Why has the Leader of the Opposition, even after writing two formal letters of request, not been given unfettered access to all files related to the nolle prosequi issued to George and Janice Hayles by the (acting/substantive) Attorney General?

• What are the national security reasons for which these charges were dismissed? Or, was it a political?

• Whatever happened to the concept of swift justice?

Indeed, at no material time should it be perceived that prosecutorial decisions are based on partisan views or favouritism and all Attorneys General must ensure the integrity of their office. The decisions of any Attorney General should not be immune from review and one would ask that the prosecutorial guidelines—currently utilized by the AG’s office—be published.

I totally agree with Sean McWeeney when he, in his 1989 speech, said: “The decision to prosecute or not to prosecute in any given case, being the inherently discretionary matter that it is, cannot be circumscribed by hard-and-fast rules. Because of the potentially devastating consequences which ensue, however, it is obviously of the very greatest importance that meticulous care be taken in the formulation of any such decision. It cannot be made frivolously or carelessly and it cannot, of course, be made by reference to illegitimate criteria of the kind to which I have already referred.”

As Professor John Edwards said: “The strength if the character and personal integrity of (any) holder of the Office of the Attorney General is of paramount importance.”

I couldn’t agree more.