The to-be newly minted Director of Public Prosecution’s (DPP) office has attracted a flurry of criticism in various quarters. Whether it is a Public Prosecutor, or an Attorney General or an Attorney General’s Department, those who are directing prosecutorial work are supposed to be independent.
But in different countries, it appears, the degree of ‘independence’ a Public Prosecutor enjoys appears to vary. In the U.K., Public Prosecutors are largely independent and are free from political or any other influence, as far as it can be determined from the reports on the work of Public Prosecutors in that country. Interestingly, the incumbent Prime Minister of the U.K. Keir Starmer is a former Director of Public Prosecutions.
That does not mean that Sir Starmer was a ‘political’ prosecutor. Far from it. His politics began after he left the Crown Prosecutorial Service of the British Government. In the U.K., the Public Prosecutor’s office has largely been known for its political neutrality and for prosecuting those who deserve to be brought under legal scrutiny and leaving others out.
But the prosecutorial services of certain States in the U.S. are allegedly heavily politicised. That’s probably due to the simple reason that Public Prosecutors are often elected in that country. It would be fine on principle to elect public officials, but the problem is when such officials carry out blatantly political campaigns.
FRAMEWORK
The Manhattan District Attorney (DA) Alvin Bragg campaigned on a platform to indict Donald Trump, the current and former President of the United States who was a private citizen and an ex-President at that time. Trump has often said that he was prosecuted for politically motivated reasons, and the entire Republican Party almost, seems to agree with him on that score.
So, it is seen that these are vastly different systems of serving justice, that are found in the United States and the United Kingdom. However, until recently, there seemed to have been no substantial allegations of politically motivated prosecutions in the United States either.
To that extent, from a review of what was described above, it can probably be said that what ensures true independence of any prosecutorial office, or any State office for that matter, is the extent to which the individuals holding office are prepared to pander to politicians and political causes.
The reasoning behind the idea of the new Public Prosecutor’s office in this country is the allegation that the AG’s Department has not been impartial in its prosecutions. It is hoped that the new office when it’s created would make the prosecution process more transparent and as neutral as possible, and bereft of political or other influences.
But how is that guaranteed? It is still unknown.
There is no institutional framework, probably, that guarantees that any office created for prosecutions would be totally free of political or other inimical influences.
There is this apocryphal story that once in a certain jurisdiction, a Committee of learned persons was appointed to delve into how reforms should be made in the prosecutorial structure of that jurisdiction. The Committee members pored over papers and went through submissions made by interested parties, and burnt the midnight oil to come up with a suitable arrangement of reform.
Their report was soon released amid much fanfare, and was made accessible to the public. It was impressive, and was particularly attractive in the way it was worded. However, several months later, one intrepid scholar went through the Report and came to the conclusion that the ‘reform’ it suggests is tantamount to keeping the current institutions intact in their existing form.
It’s just that the suggestions in the Report were suffused with jargon and impressive words. But a deep-dive beneath that decorative veneer revealed that perhaps unbeknownst to the writers of the Report themselves, they were suggesting in their Reforms the same structures that exist already, except that these structures were ‘re-introduced’ in the Report with impressive sounding explanations containing exquisite sounding verbiage.
Perhaps the new prosecutorial office envisaged will introduce more than such mere cosmetic reforms. What is sought is essentially perhaps a de-coupling from the AG’s Department which is the legal advisor to Government Departments and State institutions, and appears for the President and Ministers in a client-counsel arrangement, to defend decisions they have made in the process of exercising power.
This is seen as a conflict of interests of sorts, i.e. to appear for the Minister as Counsel with the Minister as client when certain Ministerial decisions are challenged in Court, and to on the other hand, prosecute corruption that may have taken place under that same Minister’s purview.
solution
So the solution is thought to be this de-coupling where the DPP or some other prosecutorial office with a similar sounding name, carries out prosecutorial functions while the State legal advisory function is retained by the AG’s Department.
It is not necessarily the conflict of interests, however, that was detailed above, that stops a State prosecutorial arm — in whatever style or form it may be structured and functions — from either carrying out prosecutions, or suppressing them.
Certain decisions on whether to prosecute or not may be made based upon purely legal considerations. But some decisions — this is stated generally and not in relation to our AG’s Department — can be politicised in certain contexts in certain jurisdictions. According to various commentators, it has happened in Sri Lanka in the recent past, but this article would not go into details of such aspects.
The U.S. example cited in the introductory paragraphs of this article is worth reiterating. The Manhattan District Attorney, it was alleged, was on a political witch-hunt and had promised in his campaign for office that he will indict Trump in some way, meaning never mind the means, the end is guaranteed.
Many institutions are not neutral and cannot easily be made neutral or rather apolitical, because truly independent branches of governance do not and sometimes it is argued, would not exist, under the system of checks and balances that obtains when the three arms of governance, the Executive, Judiciary and the Legislature, constitutionally function alongside each other in a democracy.
Again, to take an example from the U.S., whenever the Supreme Court Bench has more liberal judges appointed by a Democrat President, the judgments made by that apex court are decidedly more liberal in outlook than when they are made by a majority-Conservative Bench comprising a greater number of judges that were appointed by Republican Presidents.
But this outcome is taken for granted in the US, i.e: that Conservative judges appointed by Republican Presidents rule on certain matters differently from liberal judges appointed by Democrat Presidents.
Essentially, it is seen that in most jurisdictions, so-called completely independent institutions are hard to find or create. But yet, it is also a matter of political culture. In certain countries, there are no deeply thought out systems that are implemented so that they would bring about a very sanguine outcome of truly independent institutions. But yet, the systems they do have in place are mostly independent because the political culture is such that these institutions have never been politicised, or become appendages of political operatives.
In Sri Lanka, many academics and interested others had called for an independent prosecutorial office essentially de-coupled from the AG’s Department. Now, it seems we are getting that institution. It will be hoped that once established, this Department would function independently and not be over-zealous in its prosecutions in certain contexts, and very tardy in its work in certain other contexts. The reader hopefully gets the drift.
To keep these institutions neutral and apolitical — whatever they are, new or old — the political culture too has to undergo a deep-going transformation. We have never had a situation where there were serious indications that the political culture would be transformed as desired. What’s happening now is in an entirely new context. Commentators, analysts and good governance advocates are all watching eagerly to determine if the changes envisaged by the policymakers would indeed come about.
