By Balford Henry, Senior Staff Reporter 
Isaac
TIVOLI GARDENS Councillor Desmond McKenzie refused to testify at the West Kingston Commission of Enquiry yesterday and his lawyer, Patrick Bailey, issued a submission charging the Chairman of the Commission, Julius Isaac, with bias.
After the leaving the enquiry, Mr. Bailey also issued copies of a submission he has sent to the Governor-General, Sir Howard Cooke, making a formal complaint against the chairman of the Commission, Mr. Justice Isaac, "for failing as a judicial officer" to deal, in a proper manner, with the charges of bias made by another Grenadian lawyer, Michael Sylvester.
"He has failed to address in a proper forum the critical issue of a 'real likelihood of bias' on his part towards Mr. Seaga and my client (Councillor McKenzie)," Mr. Bailey wrote the Governor-General.
He said that if he was required to make representations to Sir Howard on the issue, he was willing to do so.
Mr. Bailey told the Commission yesterday morning, that he had advised Councillor McKenzie that there was a real likelihood of bias on the part of Mr. Isaac towards the Councillor. He said that this constituted "sufficient cause" not to give evidence in the proceedings.
Mr. Bailey referred to the sworn affidavit from Grenadian lawyer Michael Sylvester, as well as Mr. Isaac's ruling restricting lawyers representing both Mr. Seaga and Councillor McKenzie from cross examining all witnesses.
In terms of Mr. Sylvester's affidavit, he referred to the section which read: I can recall that sometime shortly after the US intervention in Grenada I had a conversation with Justice Isaac. He was then vehemently opposed to the US military intervention in Grenada and he then expressed the view that the intervention was triggered by Mr. Edward Seaga then Prime Minister of Jamaica.
As well as the following:" Sometime during the late 1990s, while in political conversation with Mr. Isaac in Grenada, he stated to me that he would never like to see Mr. Seaga return as Prime Minister of Jamaica."
Mr. Isaac: Just a moment please where is this coming from? Is this part of the records of this court, this proceeding?
Bailey: No sir, not part of the record but you have dealt with it.
I BEG YOUR PARDON!
Isaac: I beg your pardon!
Bailey: You have dealt with it on public radio.
Isaac: I have dealt with it on public radio, but it's a matter outside of the purview of the commission.
Bailey: I am bringing it on the record and I filed a notice and delivered it on Friday that I want it on the record, because it seems to me..
Isaac: I haven't seen it, sir.
Bailey attempted to pass round the copies. He said that he could not be blamed for the administrative deficiencies of the Commission, as the notice was taken to the Commission Friday by his bearer and addressed to the secretary.
The secretary said she had not seen it. Mr. Bailey said he would make the necessary enquiries.
Mr. Isaac: I think before you blame administrative deficiencies on the Commission, you ought to be sure..
Bailey said he was quite confident of his ground, but agreed to make further checks. He admitted, however, that he did not know that the Commission adjourns half day on Fridays and that the document had been sent after 1 p.m. After he had left the enquiry, Mr. Bailey sent a note to Velma Hylton, senior counsel for the Commission, stating that his bearer had seen no one at Commission on Friday and, therefore, was unable to deliver the notice.
Mr. Bailey said that he had advised his client that, having regard to the fact that the statements attributed to Mr. Isaac have not been controverted on the record and having regard to what appears to be a treatment that was confined to him and Mr. Seaga in terms of the cross examination, considering the totality of everything, there was "a real likelihood of bias" and therefore he was not obliged to give evidence.
Mr. Isaac: Bias against who?
Mr. Bailey: Councillor McKenzie.
Mr. Isaac: Why?
Mr. Bailey: The bias is amplified in this way: Firstly, as I have mentioned, the statements have not been controverted on the records; and there is a close, symbiotic political affiliation between my client and Mr. Seaga.
Mr. Isaac: How is that disclosed in the records? What's the evidence in the record?
Mr. Bailey: My Lord Commissioner, I said subject..
Mr. Isaac: Is there evidence of this in the record?
Mr. Bailey: My Lord Commissioner, by notice, I gave notice that I was going to rely on. The secretary has said she has not received it, I said I was going to check on that. I then asked if there was anything you could deal with?
Mr. Isaac: You said that your notice is related to Mr. Sylvester's..
Mr. Bailey: To the two particular parties.. If true.
Mr. Isaac: Does he mention Councillor McKenzie?
Mr. Bailey: No he doesn't, but I am going by parity of reasoning and by virtue of the fact that the ruling in regard to cross examinations treated both persons, Mr. Seaga and Councillor McKenzie. I thought that there was sufficient ground on which he should be advised not to give evidence.
Mr. Isaac: I see.
Mr. Isaac referred to the fact that his ruling on the cross examinations had been taken to both the Chief Justice and the Supreme Court by JLP lawyers, both of whom refused leave to go forward with judicial review proceedings against the Commission and no appeal had been made against any of those rulings.
Mr. Bailey: Except that there is a significant difference. At that time, the ruling that they sought to appeal, as I understand it, was on the basis that they were being unfairly treated. My situation is this sir, that we now know of this declaration by Mr. Sylvester and if true, it would therefore raise the matter of either actual bias or a real likelihood of bias.
Mr. Isaac asked what was the test for bias in an investigating body.
Mr. Bailey said that the test for bias would be that a party to the investigative proceedings, where there are also competing interests, that is to say, that the interest of persons in the enquiry need not be the same. The real test is whether there is likely to be prejudice in evaluating one interest against the others.
Mr. Isaac: The test of bias for an investigating body?
Mr. Bailey: For an investigative body.
Mr. Isaac: I would think that is the case in case of an adjudicative body. But in the case of an administrative body, sir, the test, as I understand it, is that the tribunal has a closed mind.
Mr. Bailey said, however, that the leading case which he had referred to in his submission, "The King vs. Sussex," went further to deal with tribunals of whatever nature. He also referred to more recent case, "King and Michael Harrington"(Irish report). But, Mr. Isaac asked for the date of that case. Mr. Bailey said it was in 1917.
Mr. Isaac: That's an old time case.
Mr. Bailey: Legal principles hold good for many, many years.
Mr. Isaac, however, insisted that the modern view makes a distinction between adjudicative bodies and investigative bodies.
Mr. Isaac: What are we doing? Not passing judgement on anyone.
Mr. Bailey said that he understood that, but that the law, in its wisdom, in the Commission of Enquiry Act preserved the possibility that if there is grounds to allege actual or real bias, to use that as constituting sufficient cause.
Mr. Isaac asked him what particular section of the statute he was referring to? Mr. Bailey said that he was referring to Section 11 (2) (a).
Mr. Isaac asked Mr. Bailey what was his contention?
M. Bailey said that his contention was that there was sufficient cause to justify a witness not answering questions. He said that there was no specific definition of what that cause is and sufficient cause can be an allegation of bias.
DIFFERENT TREATMENT
Mr. Bailey: If the witness feels that his treatment is different from others and he feels aggrieved that, with respect, would be sufficient cause.
Mr. Isaac: Alright.
Miss Hylton said that she did not know if Mr. Bailey was aware that Mr. McKenzie never sought participant status in the proceedings, "and it is participants who have unlimited right of cross examination of other participants and of witnesses called."
She said that with respect to the reference to the declaration from Mr. Sylvester, that it was not a party of the proceedings in the Commission hearings, as Mr. Bailey was referring to something he heard on the Breakfast Club.
She said that, thirdly, the affidavit which Mr. Bailey said he had filed if it was sent at all would not have given the Commission sufficient time to deal with it if was sent after 1 p.m. Mr. Bailey admitted that it was sent after 1 p.m.
Mr. Ian Ramsay, senior counsel for the Jamaica Constabulary Force, said that any reference to Mr. Sylvester's affidavit was irrelevant and that Councillor McKenzie should be made to address the matters himself.
Walter Scott, lawyer for the People's National Party (PNP), said he agreed with both Miss Hylton and Mr. Ramsay but that, substantially, he did not think that anyone should be allowed to avoid giving evidence on a claim of bias. Major Patrick Cole of the Jamaica Defence Force also supported Mr. Ramsay and Hylton.
Mr. Isaac asked Councillor McKenzie, if he had agreed with the point made by Mr. Bailey. The Councillor said that he would stick by the advice of his lawyer.
