Fri | Dec 14, 2018

Letter of the Day | Immunity certificates could open floodgates

Published:Friday | April 13, 2018 | 12:00 AM


A surprising move by defence attorney Paul Beswick, representing the three soldiers charged with the murder of Keith Clarke, has led to the trial being halted by High Court judge Glen Brown. Beswick shocked the Home Circuit Court when he presented immunity certificates for one of the accused and claimed that similar documentation existed for the other two. He argued that the certificates prohibit the soldiers from facing criminal prosecution. The certificates are reported to have been issued by Peter Bunting, the then national security minister, almost six years after Clarke's killing.




The minister of national security is empowered by Sections 45(1) and (3) of The Emergency Powers (No. 2) Regulations, 2010, which is subsidiary legislation to The Emergency Powers Act.

The minister is empowered to grant immunity to any member of the security forces in respect of any act done in good faith during the emergency period.

However, it would appear that this provision has conferred a sweeping authority upon the minister, who is not even required by the act/regulations to give any reason (with respect to factual circumstances of an individual case such as this) for his decision. But the provision does hint at the need for the minister to make an assessment of the situation before granting or refusing to grant immunity.

Where is this hint? It is encapsulated in the term 'good faith', which is heavily dependent on the factual matrix of the case.

The length of time that it took the minister to grant immunity does not look prudent and does raise quite a few concerns. Furthermore, it is important that a person's constitutional right to life and liberty be rigorously upheld.

Even in a crime-riddled society like ours, it is important for us to balance the rights of each citizen with national-security measures and operations and not to slowly open the floodgates for the security forces to operate with impunity.