Mon | Dec 5, 2016

Enquiry botched from beginning

Published:Sunday | January 25, 2015 | 12:00 AM

Gordon
Robinson, Columnist

Cawn't sey me neva dida warn yu! For years I've been urging readers not to permit political abuse of the Commissions of Enquiry Act, but, as usual, I'm dismissed as the Grinch who stole daytime entertainment.

When the absurd, ultra vires Manatt commission was formed, I wrote ('Be careful what you ask for ...', Sunday, October 17, 2010):

"Section 2 of the COMMISSIONS OF ENQUIRY ACT gives the power to issue a commission of enquiry to the governor general 'whenever he shall deem it advisable' for the purposes of enquiring into 'the conduct or management of any department of the public service, or of any public or local institution, or the conduct of any public or local officers of this island, or of any parish, or district thereof, or into any matter in which an enquiry would, in the opinion of the governor general, be for the public welfare.'

"Despite
the apparent generality of the last words 'or into any matter in which
an enquiry would in the opinion of the governor general be for the
public welfare', which will be construed ejusdem generis
to limit their application to persons and institutions similar
to those specifically listed before, no commission of enquiry can delve
into the private life of a private citizen; the business of any
private-sector company; or the conduct or management of any private
professional practice. These are governed by other laws and include, for
example, ... the application of the criminal-law statutes and the
common law to every citizen."

I was specifically
discussing the announced purpose for the Manatt enquiry involving the
engagement of a private US law firm by a private Jamaican lawyer
allegedly on the JLP's behalf. The general principle applicable is:
commissions of enquiry can only look into the "conduct or actions" of
government departments, public officers or the like with a view to
recommending corrective action or improved standard operating
procedures. This doesn't permit political game to be presented as
enquiries.

POLITICAL FOLLY

Here we
go again. When this latest foray into political folly was announced, I
broke a long-standing lifestyle rule and accepted an invitation to be
interviewed. On a show called George Davis Live, I told George's
listeners that very few of the proposed terms of reference were
relevant, necessary, or permissible. When the final terms were
published, only two were remotely acceptable:

"(k) the
chain of command in relation to the decisions concerning the operations
by the security forces ... and the respective responsibilities of each
person in that chain of command;

(l) whether any
dereliction of duty or unlawful conduct is attributable to any person or
persons in that chain of command in connection
..."

Even these terms were too widely drafted because
declaring conduct "unlawful" isn't a task for commissions of enquiry.
That's for the courts. Jamaican statutory authorities' jurisdictions
aren't elastic. No enquiry's remit will stretch so far as to permit it
to hold any soldier/policeman accountable for injury to any citizen or
to assess the "adequacy" or otherwise of compensation. That's also for
the courts.

Because enquiries are limited to
investigating actions of government departments to see if processes were
breached or are flawed, the Tivoli enquiry should be focusing on the
security forces' conduct. Why'd they 'invade' Tivoli? Why not adopt a
siege strategy? Who gave the order to invade? Was it in accordance with
proper military/police methods?

Commissions of enquiry
can't decide who shot who; where; in the back, hand or side; or in what
circumstances. All they can investigate, in a broad departmental way,
is how a warrant for the arrest of one man on a non-capital charge end
up in 70-plus deaths and no arrest? As I said to George in that radio
interview, only one term of reference was necessary: "In all the
circumstances, why did security forces enter Tivoli Gardens to execute
the extradition warrant?"

BURNING
QUESTIONS

In that context, there are many relevant,
burning questions. Having entered and allegedly come under fire, why
didn't the security forces immediately retreat? Why was it so vital to
implement such a scorched-earth strategy in that particular place at
that particular time? Why was Tivoli treated like Iraq harbouring
al-Qaida terrorists? Why did so many have to
die?

Jamaicans are suddenly recoiling from their binge
TV viewing and screaming bloody murder now the enquiry's cost is
public. Typical. Yes, the cost is high and discussions regarding
priority spending are relevant, but why now?

When this
commission was mooted to conduct ultra vires
investigations essentially usurping the Supreme Court's jurisdiction,
everybody was consumed with personalities. Who'd be appointed? Which
political party did he/she favour? Velma Hylton was vilified for doing
her job before a previous commission, but nobody, including the
always-vociferous Desmond McKenzie, asked one question about
fees.

This enquiry, from inception, has had NOTHING to
do with principle and everything to do with politics. Some terms of
reference are obscene. For example:

"the situation in
Western Kingston and related areas in May 2010 prior to the attempt to
execute a provisional warrant ... ."

What's that to do
with "the conduct or management of any department of the public
service"? This is raw politics but, in Jamaica, we love political
cass-cass. So, nobody objected.

"whether, and, if so,
under what circumstances, state officials and law-enforcement officers
came under gunfire attacks during May 2010..."

Is this
an enquiry into "the conduct or management of any department of the
public service"? Maybe, while questioning the security forces as to
strategy, they might say they came under gunfire. Why do the terms of
reference pre-empt that possible excuse almost assuming it as fact? Why
not wait until it's alleged, leaving commissioners to enquire if
professional standards mandated alternative reactions? It's NOT an issue
into which commissioners can enquire with a view to assigning legal
culpability.

"the circumstances under which, and by
whom, several police stations and other state property (including police
or military vehicles) were attacked and damaged
..."

What on earth is this? Aren't these alleged
crimes? Why's a commission of enquiry pretending to be the Supreme
Court?

I could go on and on, but The
Gleaner
's word count warden won't allow
me.

Understand this: The hourly rates paid to lawyers
and commissioners are eminently reasonable and in line with local and
international realities. If a Barbadian chairman is to enquire into
Jamaican government departments' conduct, Jamaica MUST pay his travel
and accommodation, so please stop the whining about fee
rates.

The thing about this enquiry isn't so much the
hourly rates as the infernal waste of hours bullying Tivoli residents.
Why're we asking residents any questions? Why are they priority
witnesses? The commission can't find anybody liable to any of them nor
assess adequacy of compensation. Whoever has promised Tivolites this
enquiry is operated on the 'gimme-a-money' principle needs to correct
that impression immediately.

These politically
motivated terms of reference are obviously intended to cast the
Opposition in as bad a light as possible leading up to the next general
election, especially in light of the latest opinion polls. The PNP
needn't worry. The JLP is eminently equipped to render itself
unattractive to voters and is already hard at work to that end. But, as
usual, this is our fault.

Without demur, we allowed
politicians to use taxpayers' money to fund election campaigns. Now
we're allowing a Government to force us to pay for its
ammunition-gathering exercise for 2016's election advertising crusade.
Apparently, the impropriety of the mission doesn't faze us. We only bawl
out when we hear the price. We really are a set of wimps, lackeys and
yes-men.

Peace and love.

Gordon
Robinson is an attorney-at-law. Email feedback to
columns@gleanerjm.com.