Deciding when to prosecute – The curious case of prosecutorial discretion

In Guyana the development of neutral institutions has been an elusive goal. The politicization of public institutions has occurred under successive postcolonial administrations, evidenced in contemporary times in the selection of ambassadors, governmental involvement in employment decisions at the University of Guyana, the control of the media, and disproportionate representation of the government on state boards. This apparent privileging of ethnic and/or political affiliation, by its focus on irrelevant characteristics, compromises efficiency and honesty. Furthermore it is a style of governance that is inimical to transparency as it could lead to the creation of public officers who perceive themselves as accountable, not to the electorate, but to the ruling party which installed them.

These considerations have been prominently on display in the recent saga involving the Commissioner of Police. As TIGI has already pointed out, even on his own response to the allegation of rape against him, Commissioner Greene’s conduct demonstrates poor judgment and suggests his unsuitability for such a high and sensitive office. Additionally, Mr. Greene’s US visa had been earlier revoked by the US State Department because of other allegations, but in spite of this the Jagdeo administration insisted on appointing him as Commissioner, subsequently extending him in office beyond retirement. The apparent preference of the ruling party for one individual, despite his lack of an unblemished record, highlights a deeper systemic problem. It suggests that loyalty is more important than probity, and shows the negative consequences of the lack of transparency in the staffing and administration of public institutions.

Moreover, the further proceedings in the Commissioner’s case could raise public concerns that those in high office may be unaccountable even to the law. Following the institution of a charge of rape against him, the Chief Justice on the Commissioner’s application granted an order nisi directing the DPP to provide to the court all the statements in the case and explain why she made the decision to have the commissioner charged. When the matter resumed this week, the Chief Justice gave the DPP a further 10 days to explain her decision, saying that her initial explanation to the court was not good enough and amounted to her saying: “Look, I feel so.” Chief Justice Chang further warned that he was interested only in the DPP’s and not her attorney’s explanation.

At this point, laypersons must be thoroughly confused, and understandably so. Popular perception is that the police lay charges and the courts determine guilt or innocence. This is largely true, for these organs of government have clearly defined roles. The Director of Public Prosecutions is a member of the executive arm of government, and she is constitutionally empowered where she “considers it desirable … to institute and undertake criminal proceedings against any person before any court, other than a court-martial, in respect of any offence against the law of Guyana.” Criminal charges are determined in the Supreme Court, a separate arm of government. It is a hallmark of a democracy that these functions remain separate, for as one of the original authors of the doctrine explained, where the powers to make, interpret and enforce the law is reposed in one body alone, this could lead to tyranny.

How then could the Chief Justice make such an order against the DPP? This is not unheard of, and the CJ (himself a former DPP) was exercising a recognized jurisdiction in the Court to review decisions to prosecute. Essentially, the procedure exists to ensure that a decision is taken on sufficient and rational grounds, with one of the most common justifications for its exercise being to safeguard against politically directed prosecutions.

In 2006 in another high-profile case, the Chief Magistrate in neighbouring Trinidad & Tobago alleged that their Chief Justice had tried to influence a case involving the former Prime Minister, Basdeo Panday. Facing imminent prosecution on a charge of attempting to pervert the course of public justice, the Chief Justice obtained leave to seek judicial review of an alleged decision to prosecute him by the Deputy DPP. The case eventually reached the Privy Council (PC), Trinidad’s final appellate court, where certain fundamental principles were laid down to govern the review of prosecutorial discretion by the courts. While the PC acknowledged that this jurisdiction exists in principle, they cautioned that it is highly exceptional, pointing out that they could not think of a single English case where leave to challenge a decision to prosecute had been granted! Instead, decisions not to prosecute had been successfully challenged – as in those circumstances aggrieved persons had no other remedy.

The PC pointed to several reasons why this was a jurisdiction to be sparingly exercised. There are ample opportunities to test criminal charges in court – for evidence must be led by the prosecution and is then subject to cross-examination by the defence. Courts have many powers to stop a trial even before it is concluded, if it is clear that the proceedings are an abuse of process. Where proceedings of this nature are allowed to go ahead but fail, they prolong the actual trial, which is a factor that can seriously prejudice the attainment of justice. Ultimately, these are distinct functions – that of the prosecution and that of the court – and these lines should not be lightly blurred.

The PC also adverted to one crucial consideration – relevant to the Trinidadian case as to ours – that the criminal law of the land should apply to all equally. Conduct should not be excusable if done by someone holding high office for the “maintenance of public confidence in the administration of justice requires that it be, and be seen to be, even-handed.”

Because of Guyana’s fraught postcolonial history, adverted to in the beginning, these factors have heightened significance, especially since the parties in this case are so unequally positioned. Since very important issues concerning the abuse of authority and the misuse of power for private gain are involved, it is especially important that the respective roles of the different organs of government be allowed to function separately.

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