The pros­e­cut­ing ma­chin­ery of a coun­try is giv­en co­er­cive pow­ers be­cause it is that ma­chin­ery which is giv­en the pow­er to ar­rest and pros­e­cute peo­ple for crim­i­nal of­fences. The pros­e­cu­tion of peo­ple for crim­i­nal of­fences leads to in­di­vid­u­als be­ing sent to prison to serve terms of im­pris­on­ment. If this ma­chin­ery is used to gen­uine­ly fight crime, it is an im­por­tant util­i­ty to pre­serve law and or­der and de­mo­c­ra­t­ic prin­ci­ples in any so­ci­ety.

Un­for­tu­nate­ly, the pros­e­cu­tion ma­chin­ery has been found to have been used by some gov­ern­ments to serve their po­lit­i­cal pur­pos­es.

There have been pros­e­cu­tions laid in Trinidad and To­ba­go which had that flavour of po­lit­i­cal ma­nip­u­la­tion and ha­rass­ment. We all re­mem­ber the re­cent ar­rest and im­pris­on­ment of In­shan Ish­mael. He was ar­rest­ed and pros­e­cut­ed un­der the pre­text that he com­mit­ted an of­fence un­der the an­ti-ter­ror­ism laws. George Weekes, pres­i­dent gen­er­al of the Oil­fields Work­ers Trade Union, was ar­rest­ed and pros­e­cut­ed on the premise that he com­mit­ted fraud­u­lent of­fences in re­spect of the funds of the union.

There was no ba­sis for these charges. Weekes took a ra­zor blade while he was be­fore the mag­is­trate and cut him­self sev­er­al times to demon­strate the po­lit­i­cal ha­rass­ment he suf­fered at the hands of the then gov­ern­ment. Mr Jack Kelshall, well-known San Fer­nan­do lawyer who ad­vised the OW­TU, was al­so ha­rassed by the then gov­ern­ment. He was even im­pris­oned un­der a state of emer­gency. The court lat­er de­clared that his im­pris­on­ment was un­law­ful.

Ar­rest­ed and pros­e­cut­ed

There are many oth­er in­di­vid­u­als in Trinidad and To­ba­go who were ar­rest­ed and pros­e­cut­ed for po­lit­i­cal rea­sons by ear­li­er ad­min­is­tra­tions. The In­ter­na­tion­al Move­ment in the fight against abus­es of hu­man rights has recog­nised that some gov­ern­ments used their pros­e­cu­tion ma­chin­ery to op­press and ha­rass politi­cians and those op­posed to it. This move­ment, to­geth­er with the In­ter­na­tion­al Law As­so­ci­a­tion, has been en­gaged in high­light­ing the per­se­cu­tion and ha­rass­ment of politi­cians, hu­man rights ac­tivists, trade union­ists and oth­er peo­ple op­posed to gov­ern­ments.

It is in this con­text that the 1976 Con­sti­tu­tion re­moved the At­tor­ney Gen­er­al from be­ing re­spon­si­ble for crim­i­nal pros­e­cu­tions in Trinidad and To­ba­go. That Con­sti­tu­tion took away the pow­er of the At­tor­ney Gen­er­al to com­mence and dis­con­tin­ue crim­i­nal pros­e­cu­tions. The 1976 Con­sti­tu­tion es­tab­lished an in­de­pen­dent Of­fice of Di­rec­tor of Pub­lic Pros­e­cu­tions. I am not say­ing that a gov­ern­ment can­not use a Di­rec­tor of Pub­lic Pros­e­cu­tions to ma­nip­u­late the pros­e­cu­tion process. This is the new method which some gov­ern­ments use to pros­e­cute in­di­vid­u­als for po­lit­i­cal pur­pos­es.

The pro­pos­als in the draft con­sti­tu­tion would give to any Ex­ec­u­tive Pres­i­dent the pow­er and the op­por­tu­ni­ty to make a Di­rec­tor of Pub­lic Pros­e­cu­tions com­pli­ant to the wish­es of the gov­ern­ment. These pro­pos­als, if im­ple­ment­ed as law, would re­move the safe­guards and checks and bal­ances to in­su­late a Di­rec­tor of Pub­lic Pros­e­cu­tions from the clout of the po­lit­i­cal arm of the gov­ern­ment. If these pro­pos­als are im­ple­ment­ed as law, it would there­fore mean that crim­i­nal pros­e­cu­tions can be used by any Ex­ec­u­tive Pres­i­dent un­der a new con­sti­tu­tion as a po­lit­i­cal weapon against politi­cians, trade union­ists and those op­posed to the Ex­ec­u­tive Pres­i­dent. It is not un­com­mon in cer­tain coun­tries where Ex­ec­u­tive Pres­i­dents are giv­en sim­i­lar pow­ers of con­trol over the pros­e­cut­ing ma­chin­ery, for mem­bers of the me­dia who are op­posed to them to be ar­rest­ed, pros­e­cut­ed and jailed.

Changes to of­fice of DPP

I am dis­cussing with you to­day, the pro­pos­als in the draft con­sti­tu­tion which re­late to changes to the Of­fice of the Di­rec­tor of Pub­lic Pros­e­cu­tions. In Clause 110 (4) there would be fun­da­men­tal changes to the in­de­pen­dent func­tions of the Of­fice of the Di­rec­tor of Pub­lic Pros­e­cu­tions. The Di­rec­tor of Pub­lic Pros­e­cu­tions would be re­quired, "if re­quest­ed to do so by the At­tor­ney Gen­er­al," con­sult with the At­tor­ney Gen­er­al with re­spect to mat­ters con­cern­ing the ex­er­cise of the pow­ers and dis­charge of the func­tions of the Di­rec­tor of Pub­lic Pros­e­cu­tions un­der the Con­sti­tu­tion and any oth­er law. Let us ex­am­ine a hy­po­thet­i­cal sce­nario.

Un­der the ex­ist­ing Con­sti­tu­tion, if the Di­rec­tor of Pub­lic Pros­e­cu­tions in the ex­er­cise of his func­tions and pow­ers de­cides, on the sub­mis­sion of the re­port of the Com­mis­sion of En­quiry on Ude­cott, that crim­i­nal pros­e­cu­tion ought to be in­sti­tut­ed against cer­tain of­fi­cials of Ude­cott, the Di­rec­tor of Pub­lic Pros­e­cu­tions does not have to in­form the At­tor­ney Gen­er­al or con­sult with the At­tor­ney Gen­er­al in re­spect to his pro­posed ac­tions. The DPP is en­ti­tled, un­der the Con­sti­tu­tion, to com­mence the pros­e­cu­tions with­out the in­put of the At­tor­ney Gen­er­al. A new Con­sti­tu­tion with these draft pro­pos­als would change this in that the At­tor­ney Gen­er­al would be en­ti­tled to com­pel the DPP to con­sult with him in re­spect of the pro­posed pros­e­cu­tions.

The At­tor­ney Gen­er­al would be able to com­pel the DPP to pro­duce to him the ev­i­dence in sup­port of the pros­e­cu­tion. The At­tor­ney Gen­er­al would be en­ti­tled to make rep­re­sen­ta­tions to the DPP for the pros­e­cu­tions not to be laid against the of­fi­cials on the ground that the At­tor­ney Gen­er­al con­sid­ers that it would not be in the pub­lic in­ter­est for the pros­e­cu­tions to be laid. These are some of the le­gal re­quire­ments of con­sul­ta­tion which the law gives to peo­ple who are en­ti­tled to be con­sult­ed. If the DPP does not com­ply with the wish­es of the At­tor­ney Gen­er­al, the At­tor­ney Gen­er­al would be en­ti­tled to ap­ply for ju­di­cial re­view of the de­ci­sion of the DPP and to ap­ply to the High Court for a stay of the de­ci­sion to pros­e­cute, and to even al­lege that the DPP is bi­ased against him or against the peo­ple against whom the pros­e­cu­tions are sup­posed to be laid.

This change to the role and func­tions of the DPP can there­fore frus­trate the du­ties and func­tions of the Di­rec­tor of Pub­lic Pros­e­cu­tions in the ex­er­cise of those func­tions and du­ties to pros­e­cute, and would be a recipe for po­lit­i­cal in­ter­fer­ence and ma­nip­u­la­tion of the crim­i­nal pros­e­cu­tion process. The Of­fice of the Di­rec­tor of Pub­lic Pros­e­cu­tions would no longer have the safe­guards for be­ing in­de­pen­dent and im­par­tial. It is no de­fence for this clause for it to be con­tend­ed that in Clause 110 (4) there are sim­i­lar pow­ers of con­sul­ta­tion for the Di­rec­tor of Pub­lic Pros­e­cu­tions to de­mand con­sul­ta­tion with the At­tor­ney Gen­er­al in re­spect of mat­ters con­cern­ing the ex­er­cise of func­tions and du­ties of the Di­rec­tor of Pub­lic Pros­e­cu­tions.

This clause pro­motes a Di­rec­tor of Pub­lic Pros­e­cu­tions to be de­pen­dent on an At­tor­ney Gen­er­al and to be com­pli­ant with an At­tor­ney Gen­er­al. It sub­verts and un­der­mines the in­de­pen­dence of the Of­fice of the Di­rec­tor of Pub­lic Pros­e­cu­tions. Clause 110 (6) states that the Di­rec­tor of Pub­lic Pros­e­cu­tions shall be un­der no du­ty to ac­cept the di­rec­tions giv­en by the At­tor­ney Gen­er­al dur­ing the con­sul­ta­tions, and in Clause 110 (7) that the Di­rec­tor of Pub­lic Pros­e­cu­tions shall ex­er­cise his pow­ers in­de­pen­dent of the con­trol and di­rec­tion of any per­son. These two sub-sec­tions are an ad­mis­sion that the in­de­pen­dence and im­par­tial­i­ty of the Of­fice of the Di­rec­tor of Pub­lic Pros­e­cu­tions would be com­pro­mised by the sub-claus­es dis­cussed above.

These two sub-claus­es how­ev­er, can­not se­cure the in­de­pen­dence of the Di­rec­tor of Pub­lic Pros­e­cu­tions where the pre­vi­ous sub-claus­es de­stroy the func­tion­al in­de­pen­dence of the Of­fice of the Di­rec­tor of Pub­lic Pros­e­cu­tions and pro­vide a ma­chin­ery for the gov­ern­ment to in­ter­fere in his de­ci­sions made to com­mence pros­e­cu­tions.

Clause 110 (3) al­so takes away the in­de­pen­dence of the Di­rec­tor of Pub­lic Pros­e­cu­tions in com­menc­ing spe­cif­ic pros­e­cu­tions, name­ly those re­lat­ing to of­fi­cial se­crets, ter­ror­ism and State re­la­tions.

The Di­rec­tor of Pub­lic Pros­e­cu­tions would have to get the pri­or ap­proval of the At­tor­ney Gen­er­al to lay these pros­e­cu­tions.

If a gov­ern­ment min­is­ter or par­ty of­fi­cial com­mits any such of­fence and the gov­ern­ment does not want him pros­e­cut­ed, the Di­rec­tor of Pub­lic Pros­e­cu­tions can be pre­vent­ed from pros­e­cut­ing that of­fi­cial.

This would pro­mote dis­crim­i­na­tion, nepo­tism, and un­equal treat­ment in the pros­e­cu­tion process. It would con­t­a­m­i­nate and pol­lute the in­tegri­ty and in­de­pen­dence of the Of­fice of DPP. Clause 110 (12) re­quires the DPP to sub­mit an an­nu­al re­port to the At­tor­ney Gen­er­al in re­spect of the ex­er­cise of his func­tions and du­ties. This would make the DPP an­swer­able to the At­tor­ney Gen­er­al for the de­ci­sions he makes to pros­e­cute or not to pros­e­cute in­di­vid­u­als.

At present, the Di­rec­tor of Pub­lic Pros­e­cu­tions is an­swer­able to an in­de­pen­dent Ser­vice Com­mis­sion and to the court for any mis­con­duct on his or her part. This clause would ad­verse­ly af­fect his or her in­de­pen­dence of the po­lit­i­cal arm of the gov­ern­ment.

In the pre­vi­ous ar­ti­cles, I have shown that the draft con­sti­tu­tion would make the Ex­ec­u­tive Pres­i­dent both head of the gov­ern­ment and head of state.

The Ex­ec­u­tive Pres­i­dent would have con­trol over the gov­ern­ment and the en­tire Ex­ec­u­tive arm of the State. He would have con­trol over the Leg­isla­tive and Par­lia­men­tary arm of the State be­cause he would con­trol the ma­jor­i­ty of seats in the Par­lia­ment and he would al­so have sub­stan­tial con­trol over the Ju­di­cial arm of the State.

In con­sti­tu­tion­al law the State func­tions un­der three arms, they are the Ex­ec­u­tive, Leg­isla­tive and Ju­di­cial. Our Ex­ec­u­tive Pres­i­dent as head of the po­lit­i­cal par­ty in gov­ern­ment would have ef­fec­tive con­trol of the three arms of the State. In clos­ing, I wish to draw the pub­lic's at­ten­tion to re­cent his­to­ry in the Sub-Sa­ha­ran African coun­tries. Af­ter in­de­pen­dence they had a "West­min­ster" or "Gaullist" mod­el con­sti­tu­tion.

The lead­ers of some of these coun­tries be­lieved that those con­sti­tu­tions were im­posed up­on them by their colo­nial rulers and told their na­tion­al com­mu­ni­ties that those con­sti­tu­tions were not suit­able for cre­at­ing max­i­mum eco­nom­ic de­vel­op­ment and that they pro­mot­ed frag­men­ta­tion of the var­i­ous in­ter­est groups and tribes in the coun­tries. They told their pop­u­la­tions that their con­sti­tu­tions had to be changed and they pro­duced new con­sti­tu­tions which were mod­eled along sim­i­lar lines of our draft con­sti­tu­tion. More State pow­er and con­trol were giv­en to the lead­ers of the coun­tries. New con­sti­tu­tions were in­tro­duced, and in some in­stances civil­ian gov­ern­ments were even over­thrown to ef­fect changes to their then ex­ist­ing con­sti­tu­tions. These new con­sti­tu­tions did not pro­duce the re­sults which, the pop­u­la­tions were told, would have been achieved.

In­stead, the re­sult they pro­duced was that those coun­tries vir­tu­al­ly be­came sin­gle-par­ty dic­ta­to­r­i­al regimes. Mul­ti-par­ty democ­ra­cies dis­ap­peared and in­stead one-par­ty states were cre­at­ed.

That ac­count­ed for some of those lead­ers re­main­ing in of­fice for over 30 years. Over the last 15 years most of these to­tal­i­tar­i­an regimes were forced to take steps to re­turn to mul­ti-par­ty democ­ra­cies and they have, in most cas­es, rein­tro­duced their orig­i­nal con­sti­tu­tions with some mod­i­fi­ca­tions.

Dr Bertran Ram­cha­ran, the di­rec­tor of Africa in the UN De­part­ment of Po­lit­i­cal Af­fairs (New York) writ­ing in 1998 about the re­turn of democ­ra­cy in those States had this to say in an ar­ti­cle en­ti­tled The Evolv­ing African Con­sti­tu­tion­al­ism; A Con­sti­tu­tion­al­ism of Lib­er­ty and Hu­man Rights:

"...there is a new doc­trine of de­mo­c­ra­t­ic le­git­i­ma­cy tak­ing hold on the Con­ti­nent." This draft con­sti­tu­tion, if im­ple­ment­ed, may al­so de­stroy our mul­ti-par­ty democ­ra­cy and may re­sult in the cre­ation of a one-par­ty state. It cer­tain­ly would de­stroy the de­mo­c­ra­t­ic le­git­i­ma­cy of our na­tion­al con­sti­tu­tion and the prin­ci­ples that un­der­pin it.