Gordon Robinson | Bunting not immune from suspicion
The alleged grant of immunity by former National Security Minister Peter Bunting to three specific soldiers has stirred up a hornets' nest.
On Tuesday, I queried the timing and intent leading to the signing of these certificates based on Bunting's recent assertions that they didn't address "good faith" when they most explicitly did. According to Bunting, that issue was still left to the courts to decide (I agree), but he conveniently ignored that his certificates (whether, as I wrote then, intentionally, negligently, or innocently) could be used to influence a court in that regard.
PNP reaction was swift. An opposition press release asserted, according to The Gleaner, that Peter Bunting was compelled to sign. Really? Seriously? COMPELLED? By whom? Or what?
The PNP release, after pointing out that the soldiers were charged after the PNP came to power, actually included:
"It's only because of this that Mr Bunting became involved and certified that the acts of the soldiers charged were done in good faith ... as required by the 2010 regulations ... ."
Bunting's certificate was "required by the 2010 regulations"? Really? Let's see. Regulation 45 of the Emergency Powers Regulations 2010 provides:
"(1) Subject to paragraph (2), no action, suit, prosecution or other proceeding shall be brought or instituted against any member of the security forces in respect of any act done in good faith during the emergency period in the exercise or purported exercise of his functions or for the public safety or restoration of order or the preservation of the peace in any place or places within the island or otherwise in the public interest."
In order to successfully prosecute any soldier for any action taken during the emergency, the DPP must prove that that soldier wasn't acting in "good faith" or trying to quell a public-safety threat. Unless the DPP's office is in possession of at least prima facie evidence to this end, it shouldn't charge any soldier.
Back to Regulation 45:
"(3) For the purposes of this regulation, a certificate by the minister that any act of a member of the security forces was done in the exercise or purported exercise of his functions or for the public safety or for the restoration of order or the preservation of the peace or otherwise in the public interest shall be sufficient evidence that such member was so acting and any such act shall be deemed to have been done in good faith unless the contrary is proved."
Paragraph (3) of Regulation 45 makes it abundantly clear that it DOES NOT COMPEL ANY MINISTER TO DO ANYTHING. What's clearer is that the minister's certificate, if he decides to give it, need only certify that the act in question was "done in the exercise or purported exercise of his functions or for the public safety or for the restoration of order or the preservation of the peace or otherwise in the public interest ... ." Nothing more!
Such certificate would be sufficient for a court to "deem" the act done in good faith "unless the contrary is proved", which specifically leaves it open to the DPP to lead the evidence at his/her disposal proving bad intent.
Instead, Peter Bunting took it upon himself to specifically certify: " ... that the actions of [named soldier] on May 27, 2010, between the hours of 12 a.m. and 12 p.m. at 18 Kirkland Close .... which may have contributed to, or caused, the death of Keith Clarke, were done in good faith"
Why? On what basis? Who told him what? Peter Bunting had NOTHING TO DO WITH THE OPERATION! This leads me to repeat some very important unanswered questions. Did Minister Bunting take this to Cabinet? Did he seek advice from the attorney general or the Attorney-General's Chambers? If not, why not? Jamaican citizens, fearful that home invasion and ugly killing of family could happen to them, demand answers from Peter Bunting and the PNP. Stop spinning like tribal tops and explain yourselves to us.
Cruel, cowardly calumny
So far, I've deliberately avoided mentioning the cruel, cowardly calumny that was instantly thrown at Keith Clarke's bullet-riddled body in an insane attempt to justify his killing. But enough media practitioners have preferred salaciousness to analysis to force me deal with it.
Even assuming the slurs to be true, none are capital offences. If it was a capital offence to be associated with gunmen, at least one former prime minister wouldn't be around today. Not even capital offences are punished this way. So please stop regurgitating absurd rumours. You're not helping the Clarke family. You're hurting them.
In response to my Tuesday column, an online reader using the moniker 'Letruth' commented:
"Soldiers are required to follow orders. So if the minister in charge or any superior says someone is dangerous and must be taken out, the soldier is required to comply despite his or her feelings or opinion. Yours not to reason why. Yours but to do or die. Who gave the order? Isn't 'good faith' saying that an order was given to obedient soldiers?"
Dear 'Le' (may I call you 'Le'?), no, it doesn't mean any such thing. The soldiers are charged with murder, which, even in wartime, would be a war crime. If, in good faith, a soldier believed he was carrying out an order, that's a different kettle of fish and why we have trials. The prosecution would lead evidence to show that what it considers a brutal murder took place, which, if believed, would negate "good faith" (at least prima facie). Then, if a no-case submission failed, the soldier would lead evidence as to what his orders were and how they were carried out in good faith, which, if accepted by a jury, would result in acquittal.
Here in the courthouse
The whole town was there.
I see the judge
High up in the chair.
"Explain to the courtroom
What went through your mind
And we'll ask the jury
What verdict they find."
In my opinion, a minister who appears to try to subvert or pre-empt this process by taking it upon himself to certify soldiers' "good faith" six years after an event of which he has zero first-hand knowledge; three days before a general election; on unspecified legal advice; and then contends that he hadn't addressed the issue of "good faith" at all and was compelled to sign is unworthy of national leadership.
Wild West mentality
This carte-blanche immunity smacks of a Wild West mentality that prefers to massacre suspected gunmen in the streets (or their homes) like hogs in a slaughterhouse rather than bring them to justice in courts.
The importance of this national issue can't be overstated. THIS is an inherent danger when a small, underdeveloped nation adopts a system of governance from a country steeped in centuries of monarchical rule infused with some democratic customs won on the battlefield with British blood. These totalitarian concepts can't be transferred to Jamaica, where they only encourage narcissistic feelings of omnipotence among government ministers and reliance on an all-powerful, unaccountable prime minister.
Westminster, a system whose checks and balances are found in tradition, can't work in a country whose political traditions are slavery and colonialism. That country requires systemic checks and balances lest it descend into de facto dictatorship by those who believe they know what's best for us and don't mind how many eggs they break in trying to make imperfect omelettes.
I felt the power
of death over life.
I orphaned his children;
I widowed his wife.
I begged their forgiveness.
I wish I was dead.
I hung my head;
I hung my head;
I hung my head!
Gordon Sumner's deeply profound I Hung My Head (about a careless cowboy who shoots and kills a lone rider on the prairie for fun) is included on legendary artiste Johnny Cash's final album. Cash is still the only inductee into the Country Music, Rock 'n' Roll, and Songwriters' Halls of Fame.
Iconic Jamaican journalist Earl Moxam, renowned for balance and restraint, mused about these 'immunity certificates' on last Sunday's That's a Rap:
"Can we continue to grant that kind of blanket immunity? To me, that's a legacy of British colonial conquest and subjugation of people. Perhaps Governor Eyre would've been quite proud of having that.
I still want to ask the question: What would be the basis going forward of my continued fidelity to the State, my respect for the rule of law, if there's no justice in respect of actions like those meted out against me or members of my family?"
With apologies to Billy Shakespeare, to allow a minister to grant or not to grant such blanket immunities, THAT is the question. Will the PNP continue to defend THIS? Will party delegates reward THIS with elevation to leadership? Will Jamaican voters forgive and forget?
Peace and love.
- Gordon Robinson is an attorney-at-law. Email feedback to firstname.lastname@example.org.