CHAPTER 6

THE DIRECTOR OF PUBLIC PROSECUTIONS AND THE OMBUDMAN

PART 1

DIRECTOR OF PUBLIC PROSECUTIONS

APPOINTMENT, TENURE AND FUNCTIONS

90.- 1. The provisions of this section shall, subject to section 76(2) have effect with respect to the conduct of prosecutions.

2. There shall be a Director of Public Prosecutions for Trinidad and Tobago whose office shall be a public office.

3. The director of Public Prosecutions shall have power in any case in which he considers it proper to do so-

a. to institute and undertake criminal proceedings against any person before any court in respect of any offence against the law of Trinidad and Tobago;

b. to take over and continue any such criminal proceedings that may have been instituted by any other person or authority;

c. to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by himself or any other person or authority.

4. The powers conferred upon the Director of Public Prosecutions by subsection (4)(b) and (c) shall be vested in him to the exclusion of the person or authority who instituted or undertook the criminal proceedings, except that a person or authority that has instituted criminal proceedings may withdraw them at any stage before the person against whom the proceedings have been instituted has been charged before the Court.

5. For the purposes of this section a reference to criminal proceedings includes an appeal from the determination of any court in criminal proceedings or a case stated or a question of law reserved in respect of those proceedings.

6. The functions of the Director of Public Prosecutions under subsection (3) may be exercised by him in person or through other persons acting under and in accordance with his general or special instructions.

PART 2

OMBUDSMAN

APPOINTMENT AND CONDITIONS OF OFFICE

91.- 1. There shall be an Ombudsman for Trinidad and Tobago who shall be an officer of Parliament and who shall not hold any other office of emolument whether in the public service or otherwise nor engage in any occupation for reward other than the duties of his office.

2. The Ombudsman shall be appointed by the President after consultation with the Prime Minister and the Leader of the Opposition.

3. The Ombudsman shall hold office for a term not exceeding five years and is eligible for re-appointment.

4. Subject to subsection (3) the Ombudsman shall hold office in accordance with section 136.

5. Before entering upon the duties of his office, the Ombudsman shall take and subscribe the oath of office before the Speaker of the House of Representatives.

APPOINTMENT OF STAFF OF OMBUDSMAN

92.- 1. The Ombudsman shall be provided with a staff adequate for the efficient discharge of his functions.

2. The staff of the Ombudsman shall be public officers appointed in accordance with section 121(8).

FUNCTIONS OF OMBUDSMAN

93.- 1. Subject to this section and to sections 94 and 95 the principal function of the Ombudsman shall be to investigate any decision or recommendation made, including any advice given or recommendation made to a Minister, or any act done or omitted by any department of Government or any other authority to which this section applies, or by officers or members of such a department or authority, being action taken in exercise of the administrative functions of that department or authority.

2. The Ombudsman may investigate any such matter in any of the following circumstances-

a. where a complaint is duly made to the Ombudsman by any person alleging that the complainant has sustained an injustice as a result of a fault in administration;

b. where a member of the House of Representatives requests the Ombudsman to investigate the matter on the ground that a person or body of persons specified in the request has or may have sustained such injustice;

c. in any other circumstances in which the Ombudsman considers that he ought to investigate the matter on the ground that some person or body of persons has or may have sustained such injustice.

3. The authorities other than departments of Government to which this section applies are-

a. local authorities or other bodies established for purposes of the public service or of local Government;

b. authorities or bodies the majority of whose members are appointed by the President or by a Minister or whose revenues consist wholly or mainly of moneys provided out of public funds;

c. any authority empowered to determine the person with whom any contract shall be entered into by or on behalf of Government;

d. such other authorities as may be prescribed.

RESTRICTIONS ON MATTERS FOR INVESTIGATION

94.- 1. In investigating any matter leading to, resulting from connected with the decision of a Minister, the Ombudsman shall not inquire into or question the policy of the Minister in accordance with which the decision was made.

2. The Ombusman shall have power to investigate compleints of administrative injustice under section 93 notwithstanding that such complaints raise questions as to the integrity or corruption of the public service or any department or office of the public service, and may investigate any conditions resulting from, or calculated to facilitate or encourage corruption in the public service, but he shall not undertake any investigation into specific charges of corruption against individuals.

3. Where in the course of an investigation it appears to the Ombudsman that ther is evidence of any corrupt act by any public officer or by any person inconnection with the public service, he shall report the matte to the appropriate authority with his recommendation as to any further investigation he may consider proper.

4. The Ombudsman shall not investigate-

a. any action in respect of which the complainant has or had

i. a remedy by way of proceedings in a court; or

ii. a right of appeal, reference or review to or before an independent and impartial tribunal other than a court; or

b. any such action, or action taken with respect to any matter, as is decribed in the Third Schedule.

Third Schedule

5. Notwithstanding subsection (4) the Ombudsman-

a. may investigate a matter notwithstanding that the complainant has or had a remedy by way of proceedings in a court if satisfied that in the particular circumstances it is not reasonable to expect him to take or to have taken such proceedings;

b. is not in any case procluded from investigating any matter by reason only that it is open to the complainant to apply th the High Court for redress under section 14 (which relates to redress for contravention of the provisions for the protection of fundamental rights).

DISCRETION OF OMBUDSMAN

95.- In determining whether t initiate, continue or discontinue an investigation, the Ombudsman shall, subject to sections 93 and 94 act in his dicretion and, in particular and without prejudice to the generality of this dicretion, the Ombudsman may refuse to initiate or may discontinue an investigation where it appears to him that-

a. a complaint relates to action of which the complainant has knowledge for more than twelve months before the complaint was received by the Ombudsman;

b. the subject matter of the complaint is trivial;

c. the complaint is frivolous or vexatious os is not made in good faith; or

d. the complainant has not a sufficient interest in the subject matter of the complaint.

REPORT ON INVESTIGATION

96.- 1. Where a complaint or request for an investigation is duly made and the Ombudsman decides not to investigate the matter or where he decides to discontinue an investigation of the matter, he shall inform the person who made the complaint or request of the reasons for his decision.

2. Upon the completion of an investigation the Ombudsman shall inform the department of government or the authority concerned of the results of the investigation and if he is of the opinion that any person has sustained an injustice in consequence of a fault in administration, he shall inform the department of government or the auhtority of the reason s for his opinions and made such recommendations as he thinks fit. the Ombudsman may in his original recommendations, or at any later stage if the thinks fit, specify the time within which the injustice should be remedied.

3. Where the investigation is undertaken as a result of a complaint or request, the Ombudsman shall inform the person who made the complaint or request of his findings.

4. Where the matter is in the opinion of the Ombudsman of sufficient public importance or where the Ombudsman has made a recommendation under subsection (2) and within the time specified by him no sufficient action has been taken to remedy the injustice, then, subject to such provision as may be made by Parliament, the Ombudsman shall lay a special report on the case before Parliament.

5. The Ombudman shall make annual reports on the performance of his functions to Parliament which shall include statisties in such form and in such detail as may be prescribed of the complaints received by him and the results of his investigations.

POWER TO OBTAIN EVIDENCE

97.- 1. The Ombudsman shall have the powers of the High court to summon withnesses to appear before him and to compel them to give evidence on oath and to produce documents relevant to the proceedings before him and all persons giving evidence at those proceedings shal have the same duties and liabilities and enjoy the same privileges as in the High Court.

2. The Ombudsman shall have power to enter and inspect the premises of any department of government or any authority to which section 93 applies, to call for, examine and where necessary retain any document kept on such premises and there to carry out any investigation in pursuance of his functions.

PRESCRIBED MATTERS CONCERNING OMBUDSMAN

98.- 1. Subject to subsection (2), Parliament may make provision-

a. for regulating the procedure for the making of complaints and request to the Ombudsman and for the exercise of the functions of the Ombudsman;

b. for conferring such powers on the Ombudsman and imposing such duties on persons concerned as are necessary to facilitate the Ombudsman in the performance of his functions; and

c. generally for giving effect to the provisions of this Part.

2. The Ombudsman may not be empowered to summon a Minister or a Parliamentary Secretary to appear before him or to compel a Minister or a Parliamentary Secretary to answer any questions relating to any matter under investigation by the Ombudsman.

3. The Ombudsman may not be empowered to summon any withness to produce any Cabinet papers or to give any confidential income tax information.

4. No complainant may be required to pay any fee in respect of his complaint or request or for any investigation to be made by the Ombudsman.

5. No proceedings, civil or criminal, may lie against the Ombudsman, or against any person holding an office or appointment under him for anything he may do or report or say in the course of the exercise or intended exercise of the functions of the Ombudsman under this Constitution, unless it is shown that he acted in bad faith.

6. The Ombudsman, and any person holding office or appointment under him may not be called to give evidence in any Court, or in any proceedings of a judicial nature, in respect of anything coming to his knowledge in the exercise of his functions.

7. Anything said or any information supplied or any document, paper, or thing produced by any person in the course of any enquiry by or proceedings before and Ombudsman under this Constitution is privileged inthe same manner as if the enquiry or proceedings were proceedings in a Court.

8. No proceeding of the Ombudsman may be held bad for want of form, and, except on the ground of lack of jurisdiction, no proceeding or decision of an Ombudsman is liable to be challenged, reviewed, quashed or called in question in any Court.