Thu | Aug 13, 2020

Editorial | Gov’t expedient on INDECOM powers

Published:Wednesday | July 29, 2020 | 12:18 AM

The about-face by Justice Minister Delroy Chuck, and, by extension, the Holness administration, on giving arrest and prosecutorial powers to the Independent Commission of Investigations (INDECOM) is deeply disappointing.

Like the outgoing INDECOM commissioner, Terrence Williams, we believe, to put it crudely, that the Government has been ‘got to’ by the police lobby, in particular the union for rank-and-file cops, the Police Federation. The likelihood of the political opposition, the People’s National Party, urging the administration to change its mind, or pledging to reverse the policy should it form the next Government, is slim to non-existent. They, too, are malleable to the power, real and perceived, of the constabulary.

INDECOM’s primary job is to investigate complaints of misconduct, mostly about excessive use of force against citizens, by members of the security forces – the police, soldiers, and prison warders. The agency was established in 2010 by a previous Jamaica Labour Party administration in admission that the police could not be trusted to investigate themselves and that the efforts of previous quasi-independent institutions to contain perceived impunity by the constabulary had failed.

INDECOM’s success can be measured on two bases: the antagonism with which it has been received by the constabulary; and, crucially for ordinary Jamaicans, the statistics relating to police homicides. There were times, in the 1980s, when police homicides reached more than 300 in a year, the result of alleged confrontations with criminals. Human-rights activists, however, claimed many to be extrajudicial killings and that their investigations were, at best, perfunctory.

In the year of INDECOM’s launch, there were 277 police homicides. Although the decline wasn’t a straight line over the next 10 years, by 2019, the figure had dropped to 86, a fall of 191, or 69 per cent. A big difference with the past is the full operational independence of INDECOM. It has its own investigators and support systems and powers to question targets of complaints without having to rely on the police. This has been underpinned by the mission with which its commissioner, Mr Williams, has pursued the task.

But INDECOM’s presumption of its authority to arrest and prosecute cops, like most of its other actions to hold the police to account, has been hotly contested since 2013 by the Police Federation, which won a final victory at the Privy Council early this year. It ruled that INDECOM’s authority was limited to investigating cases and didn’t extend to arrests and prosecutions.

Six years ago, when the Police Federation first went to court over the issue, we urged the Government to place the matter beyond doubt in INDECOM’s favour by changing the law. The following year, a joint select committee of Parliament that reviewed the legislation made the same recommendation.

PRINCIPLE AT STAKE

An election and a change in administration delayed any action on that report. But in 2018, in the face of new ferment, we again advised urgent action on the matter, and we did again in May in the aftermath of the Privy Council’s ruling. At the time, Mr Chuck, as he was during the parliamentary committee hearings, was clearly on board. He has now changed his mind, ostensibly because the Office of the Director of Public Prosecutions (DPP) now has more staff, and, supposedly, can deal with INDECOM-related cases expeditiously. Mr Chuck provided no data or robust analysis to support the argument.

Neither is DPP Paula Llewellyn persuasive in her case that INDECOM does not need an autonomous prosecutor. She may soon stake out a similar position with respect to the Integrity Commission. In any event, the authority of INDECOM to independently pursue prosecutions would not diminish the DPP’s constitutional power to intervene in, take over, or end any criminal matter before the courts.

With respect to Mr Chuck and the Government, what we suspect has changed is the imminence of the general election. They have their eyes on the potential voting power of 12,000 police officers and their families and the coercive power of the State that resides in the constabulary and the army, which the administration, no doubt, wants to keep onside. What is at stake is principle, which should trump expedience.