D'Aguilar could have faced a contempt charge under The Commissions of Enquiry Act
PULL QUOTE: 'D'Aguilar's tirade against Sir David ... and his subsequent comments smacked of contempt of the highest order and indeed he was lucky to have not found himself before a resident magistrate'
It is instructive at this point, given the daytime drama that has unfolded at the Jamaica Conference Centre over the past two weeks, to look at the Commissions of Enquiry Act and the duties and powers of enquiry Commissioners under the said Act.
In considering an application by Lloyd D'Aguilar, head of the Tivoli Committee to be readmitted to the West Kingston Commission of Enquiry, last week, Sir David Simmons, chairman of the Commission, opined that D'Aguilar's comments and behaviour had struck at the heart of the latter's 'statutory duty."
Today we look at the duties and powers of the commissioners at the enquiry, as well as of those appearing before the commission. A good place to start then, given the application before Sir David when he mentioned his statutory duty, would seem to be the duties of the commissioners.
Duties of Commissioners
Section 7 of the Commissions of Enquiry Act provides that it shall be the duty of the commissioners, after taking such oath or affirmation, to make a full, faithful and impartial enquiry into the matter specified in such Commission, and to conduct such enquiry in accordance with the directions (if any) in the Commission.
I imagine time will tell how well the commissioners discharge their duties this time around. However the Chairman, has so far been given a nod by no lesser a source than the Gleaner (see Gleaner Editorial of Friday December 5, 2014), for his conduct of the enquiry to date.
D'Aguilar, on the other hand, has not been similarly impressed, having used phrases such as, "political hack," "kangaroo court," "farce," amongst others, to refer to the commissioners and the enquiry, and which contributed to his expulsion from, and non-re-admittance to, the hearing. A few persons have since questioned whether the commissioners acted properly and fairly in ejecting D'Aguilar. I think they did and that, in fact, they were kind to D'Aguilar.
Power to exclude
Section 2 of the Act provides that the Governor General in setting out the terms of reference of the commission may prescribe whether such enquiry shall not be held in public. In the absence of such prescription from the Governor General, the enquiry will be held in public. However, the commissioners shall, nevertheless, be entitled to exclude any particular person or persons for the preservation of order, or for the due conduct of the enquiry or for any other reason.
D'Aguilar in making the untimely outbursts that he did threatened to disturb the order and due conduct of the enquiry and for so doing was deservingly ousted in my opinion.
His untimely outbursts on the first day of the hearing caused the chairman to warn him that he should desist or suffer the consequences. Notwithstanding the warning, D'Aguillar outbursts continued on day two with no regard for the warning of Sir David the prior day, let alone his attorney, the experienced Miguel Lorne. D'Aguilar's tirade against Sir David upon being ordered from the hearing, and his subsequent comments smacked of contempt of the highest order and indeed he was lucky to have not found himself before a Resident Magistrates' (RM) court to answer to the charge of contempt.
Under the Commissions of Enquiry Act, the commissioners could have cited D'Aguillar for contempt. Section 11 of the Act provides that a person who does any act in the face of, or within the hearing of, the Commission that would constitute contempt if the Commission were a court of record (that is to say, a court such as the Supreme Court or Court of Appeal), commits an offence and is liable on summary conviction before a RM court to a fine not exceeding $500,000 or, in default of payment of the fine, to imprisonment for a term not exceeding one month.
Given this further and more draconian option at the disposal of Sir David, D'Aguilar was a lucky fellow in deed to have not found himself in greater distress than his current circumstances.
Duties of persons summoned
Finally, what is the duty of someone summoned? To begin with, a person summoned by the Commission must appear and give evidence, and as such it is an offence for an employer or any other person to prevent a person summoned, from appearing before the commission.
A person who wilfully refuses to attend the hearing without reasonable excuse commits an offence and is liable on summary conviction before a resident magistrate to a fine not exceeding $1,000,000 or, in default of payment, to imprisonment for a term not exceeding six months. This penalty for non-compliance was only recently increased, as one will recall that the penalty had been remarkably lower when attorney-at-law Harold Brady was charged in, or about, 2011, under the same section for refusing to answer questions put to him by a Commission appointed to enquire into issues relating to the handling of the extradition request of Christopher Coke. Then the penalty for Brady's "erstwhile" judgement had only been $500, or in default of payment, 10 days of imprisonment. Amidst an outcry from the public as to the inefficacy of the penalty for non-compliance, parliament amended the Act and presumably the end result of the amendment is that there is now a greater deterrent, and therefore, a lesser likelihood that any witness summoned to this enquiry will seek to walk the walk Brady did.
Shena Stubbs-Gibson is an attorney-at-law and legal commentatorSend feedback to:Email: firstname.lastname@example.org