Documents and the West Kingston enquiry
Last week's hearings of the West Kingston commission of enquiry raised a number of issues to do with documentary evidence for the enquiry, some of which have been raised before. These issues have potentially significant impacts on the process of the enquiry and are related to broader general issues of access to information and the safekeeping of important documents held by the State and its agencies.
On Monday, February 9, the Office of the Public Defender (OPD), represented by Anthony Gifford, QC, made an important intervention when it informed the hearing of its application for a number of documents held by a variety of state agents and departments of Government. Many of these documents are mentioned in witness statements that have been submitted, but the commission has not been furnished with copies of the original documents themselves.
The OPD's list was thorough and wide-ranging and included such documents as Cabinet papers, notes of meetings of the National Security Council, and documents provided to it, JCF Force Orders and releases, and the security forces' radio communications during that period.
In responding to the OPD's submission, the commission's chairman, Sir David Simmons, commented that Rule 17 of the commission's Procedural Rules has been honoured in the breach so far, and that the OPD's requests would help in correcting this.
Rule 17 deals with preparation of documentary evidence:
All parties granted standing under Part 3 of these Rules shall, as soon as practicable after being granted standing, produce to the commission true copies of all documents in their possession or control having any bearing on the subject matter of the enquiry. Documents in the possession or control of a party that are already in the possession of the commission shall be listed but need not be produced, unless specifically requested by the commission. Upon the request of the commission, parties shall also provide originals of relevant documents in their possession or control for inspection.
abundance of relevant documentation
Rule 18 is similarly worded but refers to parties who have not been granted standing. Gifford commented that although the Government of Jamaica did not have standing, it held an abundance of relevant documentation that could assist the commission in its work.
It was eventually ruled that all parties should prepare a list of what documents they hold (some of which may already have been submitted) and make any claims for public interest immunity for any of those documents. These lists must be produced by February 27, which will be after the commission ends its current two weeks of sittings.
It has been repeatedly pointed out that the absence of documents can affect the ability to question witnesses effectively, and that when documents are received later, it may be necessary to recall a witness to ask additional questions. Commissioner of INDECOM, Terrence Williams, raised this again last Wednesday in specific reference to JCF and JDF operational plans.
Deborah Martin, representing the JCF, said the operational plan was contained in a document already submitted, but that if this was causing difficulty, they would distill out the operational plan from that document. Sir David advised Ms Martin that that would not be necessary, as in reading the specific document, he thought the operational plan was clearly laid out.
At this juncture, Mr Williams made an important distinction between a statement made years after the incident, which might contain a potentially "sanitised" (his word) version of the operational plan, and a copy of the original operational plan itself. The chairman then stated that the operational plan would be among those documents covered by the lists due on February 27. It is disturbing, however, that this clear distinction does not seem to have governed the provision of documents to the commission from the outset.
Without knowing all the requests for documents that the commission has already made, or the reasons that some documents have not previously been submitted, it isn't possible to assess fully whether the current situation was avoidable. It must be asked, however, if everything reasonably possible was done to avoid the situation in which the commission and its participants now find themselves.