Tue | Oct 17, 2017

Enquiry botched from beginning

Published:Sunday | January 25, 2015 | 12:00 AM
Jermaine Barnaby Photographer Kishonna Gordon giving impassioned testimony at the west Kingston commission of enquiry on December 2. at the Jamaica Conference Centre yesterday.
Rudolph Brown/Photographer Seventy-two year-old Adina Derby telling the West Kingston Commission of Enquiry yesterday, how she took a bullet to the back and her son shot and killed, during the police/military operation in Tivoli gardens in 2010. See details on A3.
Ian Allen/Photographer Joan McCarthy during her testimony at the West Kingston Commission of Enquiry, yesterday.
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Cawn't sey me neva dida warn yu!

For years I've been urging readers not to permit political abuse of the Commissions of Enquiry Act, but, as usual, I'm dismissed as the Grinch who stole daytime entertainment.

When the absurd, ultra vires Manatt commission was formed, I wrote ('Be careful what you ask for ...', Sunday, October 17, 2010):

"Section 2 of the COMMISSIONS OF ENQUIRY ACT gives the power to issue a commission of enquiry to the governor general 'whenever he shall deem it advisable' for the purposes of enquiring into 'the conduct or management of any department of the public service, or of any public or local institution, or the conduct of any public or local officers of this island, or of any parish, or district thereof, or into any matter in which an enquiry would, in the opinion of the governor general, be for the public welfare.'

"Despite the apparent generality of the last words 'or into any matter in which an enquiry would in the opinion of the governor general be for the public welfare', which will be construed ejusdem generis to limit their application to persons and institutions similar to those specifically listed before, no commission of enquiry can delve into the private life of a private citizen; the business of any private-sector company; or the conduct or management of any private professional practice. These are governed by other laws and include, for example, ... the application of the criminal-law statutes and the common law to every citizen."

I was specifically discussing the announced purpose for the Manatt enquiry involving the engagement of a private US law firm by a private Jamaican lawyer allegedly on the JLP's behalf. The general principle applicable is: commissions of enquiry can only look into the "conduct or actions" of government departments, public officers or the like with a view to recommending corrective action or improved standard operating procedures. This doesn't permit political game to be presented as enquiries.

POLITICAL FOLLY

Here we go again. When this latest foray into political folly was announced, I broke a long-standing lifestyle rule and accepted an invitation to be interviewed. On a show called George Davis Live, I told George's listeners that very few of the proposed terms of reference were relevant, necessary, or permissible. When the final terms were published, only two were remotely acceptable:

"(k) the chain of command in relation to the decisions concerning the operations by the security forces ... and the respective responsibilities of each person in that chain of command;

(l) whether any dereliction of duty or unlawful conduct is attributable to any person or persons in that chain of command in connection ..."

Even these terms were too widely drafted because declaring conduct "unlawful" isn't a task for commissions of enquiry. That's for the courts. Jamaican statutory authorities' jurisdictions aren't elastic. No enquiry's remit will stretch so far as to permit it to hold any soldier/policeman accountable for injury to any citizen or to assess the "adequacy" or otherwise of compensation. That's also for the courts.

Because enquiries are limited to investigating actions of government departments to see if processes were breached or are flawed, the Tivoli enquiry should be focusing on the security forces' conduct. Why'd they 'invade' Tivoli? Why not adopt a siege strategy? Who gave the order to invade? Was it in accordance with proper military/police methods?

Commissions of enquiry can't decide who shot who; where; in the back, hand or side; or in what circumstances. All they can investigate, in a broad departmental way, is how a warrant for the arrest of one man on a non-capital charge end up in 70-plus deaths and no arrest? As I said to George in that radio interview, only one term of reference was necessary: "In all the circumstances, why did security forces enter Tivoli Gardens to execute the extradition warrant?"

BURNING QUESTIONS

In that context, there are many relevant, burning questions. Having entered and allegedly come under fire, why didn't the security forces immediately retreat? Why was it so vital to implement such a scorched-earth strategy in that particular place at that particular time? Why was Tivoli treated like Iraq harbouring al-Qaida terrorists? Why did so many have to die?

Jamaicans are suddenly recoiling from their binge TV viewing and screaming bloody murder now the enquiry's cost is public. Typical. Yes, the cost is high and discussions regarding priority spending are relevant, but why now?

When this commission was mooted to conduct ultra vires investigations essentially usurping the Supreme Court's jurisdiction, everybody was consumed with personalities. Who'd be appointed? Which political party did he/she favour? Velma Hylton was vilified for doing her job before a previous commission, but nobody, including the always-vociferous Desmond McKenzie, asked one question about fees.

This enquiry, from inception, has had NOTHING to do with principle and everything to do with politics. Some terms of reference are obscene. For example:

"the situation in Western Kingston and related areas in May 2010 prior to the attempt to execute a provisional warrant ... ."

What's that to do with "the conduct or management of any department of the public service"? This is raw politics but, in Jamaica, we love political cass-cass. So, nobody objected.

"whether, and, if so, under what circumstances, state officials and law-enforcement officers came under gunfire attacks during May 2010..."

Is this an enquiry into "the conduct or management of any department of the public service"? Maybe, while questioning the security forces as to strategy, they might say they came under gunfire. Why do the terms of reference pre-empt that possible excuse almost assuming it as fact? Why not wait until it's alleged, leaving commissioners to enquire if professional standards mandated alternative reactions? It's NOT an issue into which commissioners can enquire with a view to assigning legal culpability.

"the circumstances under which, and by whom, several police stations and other state property (including police or military vehicles) were attacked and damaged ..."

What on earth is this? Aren't these alleged crimes? Why's a commission of enquiry pretending to be the Supreme Court?

I could go on and on, but The Gleaner's word count warden won't allow me.

Understand this: The hourly rates paid to lawyers and commissioners are eminently reasonable and in line with local and international realities. If a Barbadian chairman is to enquire into Jamaican government departments' conduct, Jamaica MUST pay his travel and accommodation, so please stop the whining about fee rates.

The thing about this enquiry isn't so much the hourly rates as the infernal waste of hours bullying Tivoli residents. Why're we asking residents any questions? Why are they priority witnesses? The commission can't find anybody liable to any of them nor assess adequacy of compensation. Whoever has promised Tivolites this enquiry is operated on the 'gimme-a-money' principle needs to correct that impression immediately.

These politically motivated terms of reference are obviously intended to cast the Opposition in as bad a light as possible leading up to the next general election, especially in light of the latest opinion polls. The PNP needn't worry. The JLP is eminently equipped to render itself unattractive to voters and is already hard at work to that end. But, as usual, this is our fault.

Without demur, we allowed politicians to use taxpayers' money to fund election campaigns. Now we're allowing a Government to force us to pay for its ammunition-gathering exercise for 2016's election advertising crusade. Apparently, the impropriety of the mission doesn't faze us. We only bawl out when we hear the price. We really are a set of wimps, lackeys and yes-men.

Peace and love.

n Gordon Robinson is an attorney-at-law. Email feedback to columns@gleanerjm.com.