CALL this a reflection on the now concluded Budget Debate, Mr. Editor, and how the Progressive Labour Party Government goes about building a mini empire - whether we need it or not. A Ministry of Justice may sound very impressive, I’m sure, but strip away the veneer and a close examination leaves you wondering just why it was created at all. The Big Book of Estimates of Revenue and Expenditure for the Year 2007/2008 shows that the Ministry of Justice will consist of the following four heads of expenditure or departments if you will: Legislature; Judiciary; Attorney General’s Chambers; and Department of Public Prosecutions.

But three of them don’t belong there. Those three should not be subject to control and oversight, whether directly or indirectly, by a Government Minister and, by extension, by the Cabinet at which the Minister sits.

Let me share with you and your readers some of the reasons why:

Legislature <$z$>The Progressive Labour Party is moving in the wrong direction here. The trend today in the Commonwealth is to move Parliaments out from under, and away from the control of the executive branch of Government.The objective is to establish and secure the independence of the Legislature, Mr. Editor, not just in form but in its operation. The principle was affirmed as recently as last year by the very august study group of the Commonwealth Parliamentary Association which met in Bermuda (of all places!) to finalise recommended benchmarks for democratic legislatures (which would include Bermuda’s House on the Hill and the Senate at the bottom).

This in a nutshell is what they recommended:

“Legislatures should, either by legislation or resolution, establish corporate bodies responsible for providing services and funding entitlements for parliamentary purposes and providing for governance of the parliamentary service”.

It is a benchmark that was first adopted by a previous CPA study group, on the financing and administration of Parliament, who met in Zanzibar, Tanzania in May, 2005.

A report in the most recent newsletter of the CPA, entitled appropriately enough “First Reading”, and is always worth a second reading, summarised the position this way:

“The Group called for Houses to provide appropriate remuneration and staff support to enable Members to perform their duties. It also backed the recommendation of a previous CPA study group when it endorsed the concept of Parliament controlling its own budget and particularly retaining parliamentary control over its own staff”.

The goal is to strengthen Parliament so that it actually becomes an independent body by which the Government is held accountable, whether through a more active committee system, open to the public; or a more lively and contemporaneous Question Period; or by the promotion and the application of resources and enforcement of Rules without fear or favour to Government of the day.

The recommendation here is to have a bi-partisan joint select committee of representative members of each of our two bodies, headed by the Speaker and Senate President, who together with the Clerk to the Legislature, devise and set the annual budget for the Legislature and who make the case funds each year to the Ministry of Finance - or not - as the case may be. Thereafter the administration and application of funds will be a matter for the Clerk and the joint select committee.

This, Mr. Editor, is the direction in which Bermuda should be moving. Judiciary<$z$>THE need is not as great to make out the argument for an independent judiciary. Most people understand intuitively why our judges should not be subject, in any way, to any outside control or influence, including, if not especially, by the Government of the day. A free and democratic society, governed by the rule of law, requires a clear separation of powers, and in no instance is this more critical than the need for a clear divide between the judiciary and the executive branch of Government.

Here again, Mr. Editor, the Progressive Labour Party is moving in the wrong direction, by including the judiciary as just another department within a Ministry of Justice, headed by a member of Cabinet.

Some very clear principles, again emerging from the Commonwealth of Parliaments, of which Bermuda is one, suggest that the judiciary should be exempt from such control, including the control of funding.

These are commonly referred to as the Latimer House guidelines, first adopted in June 1998, and which were re-affirmed and endorsed by Commonwealth Heads in 2003.

One of the key recommendations was as follows:

“Sufficient and sustainable funding should be provided to enable the judiciary to perform its functions to the highest standards. Such, funds once voted for the judiciary, by the legislature, should be protected from alienation or misuse. The allocation or withholding of funding should not be used as a means of exercising improper control over the judiciary.”

This suggests to me, Mr. Editor, that the one sure way to ensure such protection for the judiciary is to remove any opportunity for control - and it must not only be done but seen to be done.

>Department of Public

Prosecuts <$>AS we all know, Mr. Editor, the Attorney General has been a political appointee, under the PLP, who sits at the Cabinet table. He is in fact their principal legal adviser.While the Bermuda Constitution Order allows for such appointment, Mr. Editor, it does so on the condition that we then have a Director of Public Prosecutions - DPP for short - who assumes direct and independent responsibility for criminal prosecutions.

What’s key here is the independence of the post holder, as provided for in the Bermuda Constitution Order, which states quite clearly that:

“In the exercise of powers conferred on him —. the Director of Public Prosecutions shall not be subject to the direction or control of any other person or authority.”

The position is no different than that provided for in our Constitution Order for the posts of Auditor General and Ombudsman; in fact the wording is identical. Neither the Auditor General nor the Ombudsman is represented by a Cabinet Minister at the Cabinet table. Nor should they be. They each report to the Legislature - which is as it should be, Mr. Editor - and the DPP should be treated no differently.

The inclusion of the Department of Public Prosecutions within a Ministry of Justice is a retrograde step and not the direction in which we should be moving. There should not even be the appearance of possible political interference, much less the opportunity for it.Take away three<$z$>BUT hey, Mr. Editor, strip away the DPP, along with the Judiciary, and the Legislature, and pretty soon you are left with no Ministry, just the Attorney General’s Chambers of which the Attorney General is the head - and that’s the way it should be. This would be a good move financially as well. The PLP has set aside $1.282 million for a Ministry of Justice in this year’s Budget, $668,000.00 more than last year (which just goes to show how quickly these empires can grow). The $1.282 million includes just about $500,000.00 on salaries and professional services and a further $540,000.00 on equipment otherwise known as minor capital. It will boast a staff of five.

How much better, Mr. Editor, if that money were given directly to the Legislature or the Judiciary or the Department of Public Prosecutions and for the resources which each of them need to fulfill their very real and independent constitutional duties?

As a practical matter as well, Mr. Editor, it makes more sense to put the money in the hands of the people who are charged with the management of each of those departments, and who know where and how those funds would do the most good. What we certainly don’t need is more money being spent on more managers managing the managers we already have.

It also makes for a better system of governance, that provides and promotes the checks and balances that should be staple features of modern, progressive government - dare I say it? - of the people, by the people and for theople.John Barritt is the Opposition Shadow Minister for Legislative Reform and Shadow Attorney General.