The Tribune

By ADRIAN GIBSON

ajbahama@hotmail.com

IT is high-time that an independent prosecutorial service is established in The Bahamas and the Director of Public Prosecutions is no longer situated within the Office of the Attorney General, subordinated and subject to the whims and control of any holder of that political office.

To use the words of my learned friend Murrio Ducille, such a concept “runs afoul of the whole principle of justice.” As it stands, the DPP is subject to political dictates.

According to Senior Justice Stephen Isaacs: “If the DPP is independent, it removes the Attorney General, who is a politician, a Cabinet minister and historically a policy maker who sits in the Senate. It creates a buffer against those decisions that the Attorney General is now required to make that may be unpopular politically, unpopular socially, and the Attorney General can then focus on policy and politics as opposed to prosecutions.

“We speak of fixing but think the proper concept would be improving and I think with an independent DPP there are certain things that could be improved to take some of the heat off of the Office of the Attorney General, specifically.”

In a 21st century Bahamas, the Attorney General has control of all prosecutions matters as well as political, legislative and policy matters. Recently, the Organisation of American States (OAS) strongly recommended the establishment of an independent prosecutorial service. An independent DPP, I believe, would serve as a guardian of the public interest.

Carl Bethel, QC, a former Attorney General himself, shares the view that the system is broken and desperately in need of a constitutionally-protected independent prosecution body.

At a Bahamas Bar Association debate on the merits of an independent DPP, Mr Bethel said: “If you look at our penal code and several other specialty statutes, it is replete with offences that cannot be started even without the fiat of the Attorney General and we all know the provisions of the constitution that vest an almost unfettered discretion in the Attorney General to (issue a nolle prosequi for) any matter and bring it to an end.”

What guarantees do we have that the integrity of the criminal justice system is being protected?

What are the chances of a Bahamian Attorney General, serving in the Cabinet of a Prime Minister, having the gravitas and grit to charge a sitting or past Prime Minister or Minister with an offence?

By contrast, in Trinidad and Tobago, former Prime Minister Basdeo Panday was charged by the DPP after he failed to declare an account at the National Westminster Bank in Wimbledon, London, to the Integrity Commission for the years 1997, 1998 and 1999. Of course, we have seen countless instances of Bahamian politicians breaking the law and not abiding by the Public Disclosures Act, but yet no one has prosecuted.

Is there any wonder why Bahamians have lost faith in the justice system? Is there any wonder why Bahamians believe there is an unaccountable elite?

In most Caribbean jurisdictions, the main authority with responsibility for prosecutions is the 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, the late Dana Seetahal – a senior Trindidad and Tobago legal figure and senator – stated 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 Attorney General of Fiji v DPP, The Bahamas’ Attorney General 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 Attorney General.

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 recent months, the DPP of Trinidad and Tobago was liaising closely with the police to investigate a probe into the leak of confidential correspondence from the US Department of Justice. According to the Trinidad Express newspaper, deputy DPP Joan Honore-Paul “issued a six-page press release stating that the Prime Minister, Kamla Persad-Bissessar, and former Attorney General, Anand Ramlogan, were not cleared in the Emailgate probe as had been claimed. She had also sent a three-page letter to the AG with the same concerns.”

According to the Trinidad Express, the deputy DPP stated that “to give the impression that there had been some finality in this regard was misleading and it was wrong for the Prime Minister to publicly divulge documents pertaining to the case whilst the investigation was ongoing.”

The deputy DPP wrote: “Any parallel investigation by interested parties and the public airing of the supposed results are palpably self-serving and bring to mind the need for the legal maxim ‘no man should be a judge in his own cause’ ... This is a bedrock principle of natural justice, the rule of law and due process. It exists to ensure impartiality by the disqualification of potentially biased or interested parties in the investigations.”

Can you imagine the current Attorney General, or any other who previously served in the post, saying this to the Prime Minister? Could you imagine our current, impotent version of the post of DPP saying this to a Prime Minister or Cabinet Minister? Heck no. No Attorney General has the autonomy to do so! Honestly, they are political functionaries.

Though Garvin Gaskin – a reasonable and intelligent individual – acts in the post as DPP, he has not been confirmed since the departure of Vinette Graham-Allen more than two years ago. As it stands, he remains an acting DPP, which essentially amounts to the government dangling a carrot in front of his face and teasing him with the position, keeping him at bay and in check and, perhaps, in fear that he would not be confirmed in the post. There’s something wrong about that and it must cause Mr Gaskin concern over his security of tenure.

As it stands, there is a patent conflict of interest that exists when the Attorney General, who is first the government’s lawyer and a representative of the government’s interest, also possesses all power in criminal prosecutions. The Attorney General has the power to institute proceedings; to take over proceedings started as private prosecutions and even stop them; and to issue nolle prosequis in proceedings that are already ongoing. What’s more, there is nothing by law that requires the Attorney General to give reasons to anyone as to why or how proceedings were instituted, taken over or stopped. The conduct of a fair trial and fairness of process comes into question. We live in a small state and so, unless such a situation is carefully managed, it can be abused or be perceived by the public as being open to abuse.

A few years ago, 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 became an explosive, hot-button issue that did not, and still does not, pass the smell test.

I argued then that “prosecutorial decisions should not be narrow-minded and/or based on partisan views.” Indeed, as I have said time and time again, 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, Mrs Maynard-Gibson was the Hayles’ attorney when the case was initiated in 2010, during the tenure of then Attorney General John Delaney.

I wrote then: “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 ensure that the people’s interest is protected and/or preserved at all times.”

Prior to that, 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.

The late Dana Seetahal, 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”.

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 had no idea of such a super-secret operation? What would former Attorney General Delaney say about this supposedly highly sensitive, classified “national security” matter, especially since the prosecution of the Hayles began during his administration?

We have not yet received a fitting explanation.

Holders of the Office of Attorney General in The Bahamas are some of the most powerful government officials. Frankly, the decisions of the Attorney General 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 incumbents 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 the 2013 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.”

In an address to the Bahamas Media Club on June 26, 1989, former Attorney General Sean McWeeney (Pindling Administration), 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.”

I totally agree with Mr McWeeney – the current chairman of the Constitutional Commission and a Queen’s Counsel – when he went on to say: “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.”

When I speak about a Department of Public Prosecutions, I am talking about an office that functions autonomously; that has its own budgetary allocation that is fixed by statute and subject to increases due to inflation; and one where the holder of the post of DPP has security of tenure so that when they carry out their duties, they do so freely, without favour, without duress and without interference or influence.

The DPP, like judges, should perhaps be appointed by an independent Judicial and Legal Services Commission. Frankly, as it stands, the Prime Minister appoints this Commission and it purportedly operates quite independent of him thereafter. However, I believe much more could be done to heighten the independence of this committee.

I believe that an independent DPP and Attorney General could co-exist harmoniously.

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