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Immunity provisions in law for good reason - Bunting

Published:Thursday | April 14, 2016 | 12:00 AMLivern Barrett

Former Attorney General Patrick Atkinson yesterday indicated that he could not disclose whether his office provided the legal advice former National Security Minister Peter Bunting relied on when he issued a certificate in January this year that shields members of the military from prosecution for the use of mortars during the May 2010 operations in west Kingston.

According to documents included in a case now before the Judicial Review Court, Bunting relied on the Emergency Powers Regulations when he issued the certificate on January 7, more than five years after the regulations expired in June 2010.

Seeking to explain the five-year wait to issue the certificate, Bunting indicated, through a statement released by his personal assistant, that he acted "as soon as the matter was brought to his attention and after taking legal advice".

Yesterday, Atkinson, the former top government lawyer, told The Gleaner that it was Bunting's prerogative to reveal where he got his legal advice "or authorise who he got it from to disclose" that information.

"There is always a privilege between a lawyer and client, which belongs to the client. No lawyer can disclose what instructions were given or sought at any time," Atkinson explained.


Issued at JDF's request

After indicating on Tuesday that he would not comment on the issue because it was before the court, Bunting broke his silence a day later, asserting that the certificate was properly issued under Section 45 of the Emergency Powers (No 2) Regulations 2010.

He said it was issued following an application from the Jamaica Defence Force (JDF) "that was related to the use of mortars in west Kingston".

"Mr Bunting has held the view that in the absence of any material to suggest that the actions of the officers and ranks of the JDF [Jamaica Defence Force] during the [limited] state of emergency in May 2010 were done other than bona fide and in good faith in the execution of their duty, he had a responsibility to issue the certificates in the best interest of the public, national security, and all concerned," read a section of the statement from his personal assistant.

The Independent Commission of Investigations (INDECOM) is probing the use of mortars during the operations and has obtained a warrant to search the army's Up Park Camp headquarters for information about the explosives.

Army chief Major General Antony Anderson has filed an application in the Judicial Review Court to have the warrant quashed.

In opposing the application, INDECOM attorneys have charged that the certificate has the potential to lead the investigation off track before it has even started.

But the former security minister defended his action, which bars members of the military from any action, suit, prosecution, "or other proceedings" arising from "any act done in good faith" while carrying out their duties during an emergency period.

Noting that members of the JDF put their lives on the line while serving the people of Jamaica in good faith, Bunting said the minister of national security is obliged to protect them from unnecessary prosecution "and not leave those brave soldiers out in the cold".

"Having acted legitimately and in good faith pursuant to the state of emergency, the officers and ranks of the JDF were entitled to the evidence provided by my certificate," he insisted.

"Were it not so, how could we expect soldiers to put themselves at risk in such dire circumstances when Jamaica needs them again? The immunity provisions relating to states of emergency are in the law for good reason and should be applied accordingly," he added.