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Bunting's granting of immunity to soldiers a breach - INDECOM

Published:Wednesday | April 13, 2016 | 12:00 AMLivern Barrett

Former National Security Minister Peter Bunting exceeded his authority when he issued a certificate in January this year that shielded members of the Jamaica Defence Force (JDF) from prosecution for the use of mortars during the May 2010 police-military operations in west Kingston, attorneys for the Independent Commission of Investigations (INDECOM) have charged.

That assertion came in the Judicial Review Court yesterday after it emerged that the certificate was issued under the Emergency Power Regulations and grants immunity from any action, suit, prosecution or other proceedings for those persons involved in the use of the explosives.

The court is considering an application by army chief Major General Antony Anderson and the Defence Board to quash a warrant obtained by INDECOM to visit the JDF's Up Park Camp headquarters in St Andrew and inspect documents, records, information and other property related to the procurement and use of mortars during the operation.

Court documents also revealed that Bunting issued another certificate on January 13 this year attaching public-interest immunity to several documents being sought by INDECOM.

Lead attorney for INDECOM, Tana'ania Small Davis, in opposing the application, noted that the emergency power regulations expired on June 29, 2010, and that Bunting, who was then opposition spokesman on national security, had opposed an extension sought by the security forces.

"The Constitution [Charter of Rights] limits the life of a proclamation made by the governor general to a maximum of three months from the date of proclamation. By Section 26 of the Interpretation Act, an expired act is deemed to be repealed, lapsed or otherwise cease to have effect," Small Davis argued.

"The regulations having expired, the minister acted ultra vires in issuing any certificate thereto on January 7, 2016," she continued.

The INDECOM attorney also argued that as minister of national security, Bunting does not have the authority to grant immunity to army personnel, pointing out that this is the sole discretion of a prosecutor or a prosecutorial authority.

"The minister has no authority to issue a certificate as to good faith on the part of the members of the security forces.

"Alternatively, any presumption of good faith is rebuttable and an investigation into the acts of the members of the security forces is the manner by which their good faith is to be tested," she contended.




Responding to questions from one of the presiding judges, attorney for the JDF, Walter Scott, said he believes the warrant obtained by INDECOM and served on the JDF on December 22 last year triggered Bunting's decision to issue the certificates, but made it clear he could not explain what was in the minister's mind.

Scott pointed out that the emergency powers regulations give the minister of national security the authority to issue the certificates without an explanation, but said, if challenged, that individual would have to explain why the certificates were granted.

Presenting one theory to the court, Small Davis charged that Bunting's actions had the potential of leading INDECOM's investigations off track before they got started.

Last night, Bunting said he would not comment as the matter was before the court.

The oversight body is probing the use of mortars during the west Kingston operations aimed at capturing then fugitive Christopher 'Dudus' Coke.

Small Davis is scheduled to continue her submissions today.