NOT THE PRESIDENT’S CALL

The following article was inadvertently published in an abbreviated form last Monday. It is being reproduced today since it discusses important constitutional issues, and specifically the relationship between the Director of Public Prosecutions and the Executive.
The President of Guyana can dismiss the Director of Public Prosecutions but the decision or recommendation for such action is not one for the President to make.
In short, the President cannot act in his own deliberate judgment when it comes to the dismissal of certain public officers, including the Commissioner of Police and the Director of Public Prosecutions (DPP).
The President merely appoints and dismisses but the decision to appoint or dismiss follows a constitutionally laid-down procedure. This procedure protects these public officers from politically inspired decisions.
The functions of the DPP are spelt out in the constitution. Article 116 of the Constitution of Guyana prescribes that there shall be a DPP whose functions are spelt out in Article 187.
Article 187 vests in the DPP the power to institute criminal proceedings against any person. The DPP, however, cannot institute court martial proceedings.
The DPP can also takeover and continue criminal proceedings that may have been instituted by another person or authority. The DPP can also discontinue criminal proceedings whether brought by the DPP or by any other person. There is the well known case of the Office of the DPP intervening years ago to discontinue a private criminal case. However, the DPP can only discontinue a case before judgment is given.
In the exercise of these powers granted under the constitution, the DPP has tremendous latitude when it comes to criminal proceedings. Obviously, it is not for the DPP to conduct the investigations into criminal matters. Such investigations are usually done by law enforcement authorities, during and after which the advice of the DPP may be sought.
After a matter would have been sent to the DPP for advice, the DPP can send it back to the police for further investigations since if the matter is to be successfully prosecuted certain things have to be in order.
This is one of the reasons why the DPP is forced to interact with the police.
The functions of the DPP therefore has to be seen in its wider contexts of firstly, ensuring that a sound case is established; secondly that persons are not wrongfully charged; and thirdly, that the rights of suspects are respected since if evidence is obtained by force, fraud or duress, the entire case may fall on its face.
The DPP therefore has the implicit power to advise the police on certain matters and such advice does not have to be solicited. If the DPP feels that the police need to be told certain things so as to safeguard the integrity and successful prosecution of a matter, it is within the right of the DPP to do so.
The DPP is an independent constitutional office and not subject to political direction or any other authority This fact is spelt out by Article 187 of the Constitution. While the President appoints and has the power to dismiss the DPP, the DPP is not subject to the direction of control of the President or any of his operatives.
In fact, the President merely carries out instructions when he dismisses or appoints the DPP. It is not for him to decide on the eligibility of someone to be appointed or the necessity of removal of the DPP. This point will now be made clearer.
Article 203 of the constitution provides that the position of the DPP or an acting DPP has to be made by the Judicial Service Commission which is a constitutional commission independent of the Executive.
The said Article 203 also provides for security of tenure of the DPP who holds office until the retirement age of 60 years, unless the Judicial Service Commission extends this for an additional period of no more than five more years. Thus, a DPP who has reached the age of retirement, can be kept on for an additional period but not beyond age sixty five.
This provision ensures security of tenure since the DPP cannot be removed other than for circumstances specified in the constitution.
Those circumstances are set out under Article 225. The said article provides for the removal of the DPP on the grounds of physical or mental incapacity or on the grounds of misconduct.
However, there are prescribed procedures to follow so as to ensure that political and other extraneous considerations do not influence any such decisions.
The President can only remove the DPP if such advice is tendered by a tribunal established for the purposes of determining whether the DPP is incapable of performing duties or is guilty of misconduct.
Before such a tribunal is established, it is for the Chairman of the Judicial Service Commission to advise the President that the DPP ought to be investigated. The President is compelled to act in accordance with this advice by appointing a tribunal. In short, the President cannot demur on an advice rendered from the Chairman of the Judicial Service Commission. The Constitution is very precise on this point. It says that the President “shall” act in accordance with the advice rendered to establish an investigative tribunal.
The President is also constrained in who can be appointed to the tribunal. The constitution specifies that the investigative tribunal must be comprised of a chairman and no less than two other persons who would have held the office of a judge in a court of unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth.
The tribunal would be required to enquire into the charges brought against the DPP and report on the facts as well as make recommendations as to whether the office holder (in this instance the DPP) ought to be removed.
It is only on the basis of a finding of either incapacity or misconduct and a recommendation for removal can the President so remove the DPP.