I.P.O Law in Practice - 2
The Commission has authority to do no more than recommend to the D.P.P that "further" action be taken against those whom in its deliberate judgement it suspects of gross unethical behavior in the exercise of their public duties. It cannot tell the D.P.P what kind of further action might be taken. Nor can it enforce decisive action against suspects. The Commission drew Government's attention to this defect in the I.P.O Act. And, in its report to Parliament for the year 2009 – 2010, it stated that except in respect of its functions under Section 9(b), "the Commission's power to act is severely circumscribed". Section 9(b) of the Act empowers the Commission to make enquiries it considered necessary to ascertain the accuracy of filed declarations. The Report went on to recommend to the Attorney-General that it be given the powers of the Integrity Commission of Trinidad and Tobago under that country's Integrity legislation passed in 2000. Section 33 of that legislation authorized the Commission to "consider and inquire into alleged breaches of the Act or any allegations of corrupt or dishonest conduct". Where information of such misconduct reached the Commission's ears "on its own initiative" it could choose to "consider and inquire" or to not do so. But where a complaint was made by a member of the public, the Commission had no discretion in the matter. It was bound to "consider and inquire". Further Section 34 of the Act entitles the Commission to "authorize an investigating officer to conduct an inquiry into any alleged or suspected offence".
Our I.P.O act left such power to act in the exclusive domain of the Director of Public Prosecutions (D.P.P). The critical question, then, is: To what extent is the D.P.P free from political control, interference of influence in the exercise of the functions of the office.
Director of Public Prosecutions (D.P.P)
The Office of the D.P.P is a public office created by the Constitution. The holder of the position is appointed by the President on the "advice", not of the Prime Minister, but of the Public Service Commission. The D.P.P, like most public officers can properly be removed from office "only for inability to exercise the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehavior". This is done through an elaborate procedure commencing with the Prime Minister or the Chairman of the Public Service Commission making a representation to the President that the question of removing the D.P.P ought to the investigated. Then follows the appointment by the President of a tribunal to investigate the matter, selection by the Chief Justice of members of the tribunal, investigation by the tribunal and, then, a report to the President recommending whether or not the holder of the Office should be removed. The President adopts the tribunal's recommendation. There must be reasonable cause to remove the D.P.P. In Thomas v. The Attorney General of Trinidad and Tobago, the Privy Council ruled that the power to remove public officers "must be understood as meaning 'remove for reasonable cause'..... and not as embracing any power to remove at the Commission's whim".
The Constitution invests the D.P.P with enormous powers in respect of court action against persons suspected of having committed an offence. He or she can commence and conduct criminal proceedings against anyone in any case before any court of law, other than a court-martial. He or she can take over and continue any criminal proceedings already before a court. Further, the D.P.P can, at any stage before judgment is delivered, discontinue, that is to say, withdraw, any case, whether that case was commenced by him or her and was under his or her charge, or whether it was commenced and was being conducted by any other person or authority. Moreover, it is provided in the Constitution that in the exercise of the functions of the Office, the D.P.P, except in the matter of discontinuing criminal proceedings, "shall not be subject to the direction or control of any other person or authority."
You might be asking: "Do these constitutionally prescribed powers and protections guarantee the D.P.P's freedom from political influence or interference or manipulation in the conduct of criminal proceedings? Will whoever is appointed D.P.P be strong-willed enough to do what he or she is invested with power to do, rather than compromise his or her integrity so as to satisfy the wishes of the powers-that-be?
In finding an answer to these questions, consider three facts. One is that while the D.P.P is appointed on the advice of the Public Service Commission, rather than on that of the Prime Minister, the Constitution states that before advising the President as to the appointment of the D.P.P the Public Service Commission must consult with the Prime Minister. Another is that the Prime Minister is invested with sweeping powers which enable him to indirectly select, remove and, therefore, control the members of the Public Service Commission and, consequently, its workings, including its role in the removal of the D.P.P from office, as was discussed earlier.
The third fact to be considered is in respect of the authority the D.P.P has to discontinue criminal proceedings. The D.P.P does not have absolute power to do so. That is to say, he or she cannot do so independently. This must be done "in accordance with such general or special directions (if any) as the Attorney General may give him." What this means in our view is that if the Attorney General gives special instructions to the D.P.P to discontinue a case, the D.P.P has no alternative but to do so. It would seem, then, that whenever the office of Attorney General is filled by a political appointee, rather than a public officer, whether or not offence under the Act are heard by magistrate of judge and jury is not determined by the Integrity Commission, or our President, or the D.P.P, or even the Attorney General. It is determined by the Prime Minister by virtue of his power under the Constitution to have, as Attorney General, a political appointee rather than a Public Officer.
The most important factor determining how the law works in practice are citizens who may wish to exercise their right to make complaints to the Commission against suspected offenders. These citizens constitute a major factor. That is so because in the absence of complaints the Act would be virtually a dead letter. It stands to reason that would-be complainants would not be moved to make complaints to the Commission, except in a setting where their complaints have a fairly good opportunity to be not just commenced by the D.P.P but, more so, adjudicated in the Courts. Political influence or manipulation or control, whether of the Integrity Commission or of the Director of Public Prosecutions or of both, does not provide for such a setting.
A fact which might further discourage would-be complaints from coming forward is what many consider to be the absolutely and comparatively severe penalties imposed by the Act on persons found guilty of maliciously making false allegations or maliciously providing false information against others in respect of bribery, corruption or the possession of property which cannot be accounted for. In a Magistrate's Court, you might remember, the penalty is $15,000.00 or three years imprisonment, or both such fine and imprisonment. Now, compare this with the penalty imposed upon a "person in public life", or a "prescribed officer", or a public officer, or any other person, where these offenders are convicted of any of the various offences relating to bribery and corruption. Before a Magistrate, the penalty is a fine of $5,000.00 or two years imprisonment, or to both such fine and imprisonment. Looked at in this way, it is difficult to escape the conclusion that the comparatively harsh penalties imposed by the Act on convicted complainants might have the effect of discouraging persons from making complaints to the Commission.
The Integrity Commission is of that view. More than this, it has pointed out that the imposition of penalties on complainants is probably in contravention of a sacred principle of the law. The principle is that a fine or a term of imprisonment may be imposed for a criminal offence, but not in respect of a civil wrong. In respect of a civil wrong, damages are awarded. Maliciously making false allegations or maliciously providing false information are civil wrongs governed by the law of defamation, rather than offences governed by the criminal law. The Commission has repeatedly called upon the Powers-that-Be to amend the provision. But this has not been done. You might well be asking whether the Act was intended to discourage complainants from coming forward and, by this, to enable offending "persons in public life" to escape punishment.
(Dr. William E. Riviere is an Attorney-at-Law)
Copyright © William Para Riviere, August 2014.