By AVA TURNQUEST
Tribune Chief Reporter
ATTORNEY General Carl Bethel yesterday defended the independence of the Department of Public Prosecutions as he sought to clarify his referral of a matter to the director of public prosecutions.
Mr Bethel told The Tribune on Sunday he had asked the DPP to look into viral allegations concerning a political "war room" and its purported campaign of dirty tricks against Free National Movement candidates in the run up to the 2017 general election, which surfaced on social media last week.
His comments drew the ire of the Progressive Liberal Party, whose Chairman Fred Mitchell condemned the move as "shameful and nakedly political".
Mr Bethel later clarified that he simply forwarded a video he had received on WhatsApp, insisting there had been no verbal or written request.
However, former Attorney General Alfred Sears yesterday contended last year's constitutional amendment was passed to avoid any informal contact with the public prosecutor.
"I received a WhatsApp and I passed it on without any comment," Mr Bethel told media outside Cabinet yesterday.
"I get complaints of illegality to my office every day. Yesterday," he continued, "I got a complaint from a foreign person in a high position in another country who said their neighbour is trying to steal their land, and they're complaining of acts of fraud committed by their neighbour. What do I, as the AG, do with that? Simple, I write on it 'DPP kindly review, AG, date,' and it's sent to the DPP.
"That is no more than I move it off my desk and put it in the hands of someone whose basic responsibility is to deal with issues of criminal law. Mine is to deal generally with the overall situation.
"For a civil matter, I do the same thing with the director of legal affairs because I do not advise myself. I note 'DLA kindly review,' that is all that happened."
Mr Bethel added: "I don't tell people how to do their jobs, but I do ask them to do it if it comes to me. I just pass on information as I get it."
The social media claims, which have been strongly denied by PLP officials, allege people were paid by PLP supporters to gather and disseminate false information on FNM party candidates, including new ministers Marvin Dames, Dionisio D'Aguilar and Jeff Lloyd.
Among those claims, were also scurrilous allegations of "hits" being sanctioned and sex trafficking.
On Sunday, Mr Bethel told The Tribune he referred the matter to the Director of Public Prosecutions Garvin Gaskins because it raised serious issues.
However, those comments have raised concerns over the legislative independence of the DPP as the Constitution (Amendment) Act 2017 mandates all instructions be gazetted.
The amendment came in response to criticism that the government's bill gives the attorney general power to direct the DPP based on three broad and vaguely defined categories: public policy, national security and international obligations of The Bahamas.
The requirement for directions to be gazetted was described as a feature that would discourage an administration from intervening in the DPP's work for the wrong reasons.
Yesterday, Mr Sears said he could not speculate over the difference between a formal directive and an informal referral because the current landscape did not exist during his tenure.
However, he noted the scenario described by Mr Bethel concerning his referral of claims made to his office by a foreign national would fall into the category of "international obligations of The Bahamas" due to various international treaties.
Mr Sears added that if a matter did not fall into one of the three categories set out by the law, then the appropriate action would be to refer it to the police.
"I'm not getting involved in the semantics of it," he said.
"A direction from the AG to the DPP is only valid and proper in three areas and whenever it is done it must be in writing, signed and gazetted. Now the question is: is what he directed on was it within this category, and we don't have to debate."
"These rules are intended to protect and ensure independence," Mr Sears said, "because independence is essential for public confidence that prosecutorial powers of the state is never used for partisan political purposes or any improper purpose. That's why these mechanisms of transparency have been instituted and placed in the legislation."
"For example," Mr Sears said, "it would be most improper for me, if I know there is an adversarial interest for me, to communicate with the judge in the absence of someone else. And that is why the Parliament closed the DPP with the safeguards that when a direction is given, whatever form it takes from the AG, that that direction should be framed within one of three categories, and it must be in writing, and must be signed and gazetted.
"That is part of the safeguard, to ensure the independence of the DPP so the prosecutorial power of the state is not in the hands of someone who sits in the Cabinet.
"We live in a democratic country in which we are all under the law," Mr Sears added.
Outside Cabinet yesterday, Mr Bethel said the DPP post has long maintained its independence even before it was fortified by the constitutional amendment.
"I have always treated it as such prior to the passage of the Constitutional Amendment Bill and also when I was first attorney general way back then," Mr Bethel said. "I have always treated the office as an independent office and nobody gave directions without legal merit on any matter. The fact is I only ask them to do their jobs."