QC’s opinion on relationship between AG, DPP(Trinidad Express) Attorney General John Jeremie is relying on the respected opinion of one of England’s leading constitutional experts to support his demanding answers from the Director of Public Prosecutions over the conduct of criminal cases.
The eight-page opinion, which was commissioned by then Attorney General Ramesh Lawrence Maharaj from Sir Godfray Le Quesne QC, in 2001, was provided by the Office of the Attorney General on Tuesday, as the debate surrounding Jeremie’s conduct relating to high-profile criminal cases rages on.
The Sunday Express reported exclusively this week that Jeremie and then DPP Geoffrey Henderson, in late 2006, squared off in a battle over turf, relating to the prosecution of Opposition Leader Basdeo Panday and CL Financial executive chairman Lawrence Duprey, and other cases, as well as the appointment of lawyers from the private bar to prosecute public interest cases.
Henderson, now a High Court judge, stood his ground and accused Jeremie of attempting to interfere with the integrity and transparency of the criminal justice system.
In response to the publication of the confidential letters to and from the AG Office to the DPP’s office, Jeremie told the Express on Sunday: “Everything that I have signed, everything that I have put my signature to in my entire life, including those letters, I stand by it.”
In his analysis of the “constitutional relations of the Attorney General and the Director of Public Prosecutions”, Sir Godfray focussed on two sections of the Constitution, Section 76 (2) and Section 90.
“It may seem surprising that both these sections are included in the same enactment. The explanation appears to be that the framers of the Constitution were trying to achieve two purposes, both obviously desirable but not easily reconcilable with each other.
“The first purpose was to separate the institution and conduct of prosecutions from political conditions and political influence. This suggested that prosecutions should be entirely in the hands of somebody not active in politics. The second purpose was to ensure that there should be somebody politically responsible and answerable to Parliament for the very important executive function of instituting and conducting prosecutions.
“This suggested that somebody active in politics should have at least some measure of responsibility for prosecutions. The tension between these two purposes has been felt in other jurisdictions as well as Trinidad and Tobago. It is laudable attempt to achieve both, not any clumsiness of the draftsman, that has made the Constitution hard to interpret,” Sir Godfray noted.
Referring to Section 76(2), Sir Godfray noted that this section gives the Attorney General responsibility ‘for administration of legal affairs’.
“The words ‘the administration of legal affairs’, are in their ordinary meaning wide enough to include the conduct of prosecutions; and it is clear that those words bear the meaning in s.76(2), because s.90(1) presupposes that the terms of s.76(2) can apply to the conduct of prosecutions. Therefore, when sub ss (1) and (3) of s.90 are read together, the result is that the DPP has the power to institute and undertake (or take over and continue, or discontinue) criminal proceedings against any person in any case in which he considers it proper to do so, subject to the AG’s responsibility for the administration of legal affairs,” the opinion stated.
“The Constitution cannot have intended that the AG should have responsibility for the administration of legal affairs without any power of control over them. It would not make sense to say that a man is to be responsible for something which he is to have no power to control. On the other hand, the Constitution gives the DPP power, subject to s.76(2), to institute criminal proceedings whenever he thinks it proper to do so. S76(2) cannot be given a sense which would nullify this power of the DPP,” the opinion added.
Sir Godfray, however, highlighted that there was a “critical difference” between general direction and control over the conduct of prosecutions, since “general directions are addressed generally, not to the circumstances of individual cases”.
“The AG can give such directions and if he does so it is the duty of the DPP to respect them in exercising his discretion. On the other hand, provided he does so, the decision under s90(3) is his alone, and the AG cannot interfere with it. The AG has no power, either by direct intervention or under the guise of giving general directions, to dictate what the DPP decision in a particular case is to be.
“Directions, while expressed in general terms, might affect individual cases so seriously that it might be argued that they destroyed the DPP discretionary power under s90(3). An individual case might be so exceptional or so important or so conspicuous that it might be argued the AG’s responsibility under s76(2) entitled him to be consulted about it,” Sir Godfray said.
The lawyer stated that the application of the two sections of the Constitution “may sometimes” in practice be difficult; “and the reason for this is that the Constitution represents an attempt to achieve two purposes which are both desirable but not always easily reconcilable with each other”.
