The letter and spirit of the West Kingston Commission of Enquiry
It is unlikely that the letter (terms of reference) of the West Kingston Commission of Enquiry will change. This, however, should not be the same as saying no change can come from the commission's proceedings. The Pauline injunction in 2 Corinthians 3:6 ".... the letter killeth but the spirit giveth life" offers some perspective on where true change comes from. It is unequivocally clear in my mind that the letter of the commission is too constricting in its failure to specifically address the issues of reparation to victims, and at times too broad in relation to issues of responsibility and accountability. The way the commission's proceedings are conducted (the spirit) and the direction provided by the chair and the commissioners can achieve beyond what its founding mandate expresses (the letter).
This is where I believe the West Kingston Commission of Enquiry has the potential to be rescued from irrelevance and impotence. The best practices of commissions of enquiry must be properly situated so that the commission is clear that even if someone forgets the tragic circumstances of Tivoli, many more will not imbibe on the wine of amnesia. Jamaica does not need a commission afflicted with the disease of "history repeating itself". The best practices that are addressed below were raised by this writer at the UNDP-sponsored workshop on the media and Commission of Enquiry in October 2014. It is beyond incredible that the media were scantily represented at a media workshop. Nonetheless, we are not too far gone to walk and work in the "spirit" of the Commission. The spirit of the Commission should focus our attention on six best practices.
According to the Bahrain Independent Commission of Inquiry (BICI), commissions of enquiry must establish independent, impartial mechanisms to determine accountability of those in government, including those in the civil and military command who have committed unlawful or negligent acts resulting in the deaths, torture and mistreatment of civilians. The letter of the commission itemises aspects of this, however, it is left up to the spirit of the commission to see that this is so.
Second, the BICI argues that successful commissions investigate all deaths attributed to security forces and all allegations of torture and similar treatment under applicable principles. The public defender's report and forensic analysis are indispensable. Unfortunately, this Commission should have been established much sooner after the May 2010 operation in Tivoli. A lot of evidence is now lost.
The third best practice, in my opinion, and one of the lynchpins of success, is to compensate families of deceased victims in a manner commensurate with the gravity of their loss. This is certainly one of the key weaknesses of the letter of the present commission of enquiry. Clause Q of its TOR states "to enquire into whether monies, benefits or compensation were provided by the State to compensate residents of Western Kingston including Tivoli Gardens and, if so, how much was actually paid or distributed, the manner and recording of such payment or distribution, and the adequacy of such compensation.
That language places the burden on investigation rather than reparation of human-rights abuses. The obvious question is, if monies have not been given then what? Well, the spirit of the commission should allow for it to strongly recommend in its own estimation acts of compensation and reparation (any mechanism to repair and it no limited to monetary compensation) to victims and their communities.
The final best practice produced by the BICI is to compensate victims of torture, ill treatment or prolonged incommunicado detention. This does not even make it in the letter of the Commission. It is important to note that a state of emergency and martial law cannot contravene the protection of one's human rights. Even if circumscription is necessary, it is not sufficient to justify the denial of human rights to those detained at the National Arena and elsewhere. Reparation is not to be based on the socio-economic status of the victim or their geographic location or political affiliation. Only one fact is important, that the person's human rights were violated by the operatives of the State.
Commission Not A Trial
Canadian Justice Dennis O'Connor opines that public enquiries should refrain from the overuse of the evidentiary, adversarial type of hearing process. We are clear that he did not say the use but rather the overuse of. Lawyers must be reminded ad nausea that while a commission of enquiry is inquisitorial, it is not a trial. Worse, the persons who appear from the "community of violation" are not on trial. This adversarial approach disproportionately focuses on lawyers and often fails to focus on the commission's overall spirit. It is, however, the chairman and commissioners that must become more active and interventionist in stemming this adversarial conduct. Justice O'Connor contends that a public-inquiry commissioner may combine a number of roles: that of a fact-finder, like a judge; a proposer for policy reform; a healer for traumatised communities; and a manager with responsibility for budgets and an administrative and legal staff. The spirit of the Commission must give life to the Commission and to the affected communities and ultimately, the nation.
Finally, truth and reconciliation are concomitant goals of truth commissions but also commissions of enquiry. Many persons in all sectors of the Jamaican society have been calling for a truth commission for West Kingston. While I support calls for a truth commission at the national level, I do not believe that West Kingston should be delinked to be the subject of a truth commission. Truth commissions deal with broad patterns and systematic human-rights violations by the State. Commissions of enquiry deal with specific events. Nonetheless, they both have the same goals; that we will know the truth and the truth will lead us somewhere. The freedom that truth is to bring cannot happen in social situations without the presence of justice. For the citizens of West Kingston to trust or be reconciled with their government, police and military, justice has to be served. The citizens must also be truthful if they are to be given the fruits of justice. Truth telling is important but in societies it is rare that it is of intrinsic value, we want to hear the truth for it to lead to social change, justice or some other goal. The cautionary intrusion is this, that truth telling has consequences, it is a risky business. However, the benefits to our society far outweigh the risks. The letter is restrictive but the spirit gives freedom. Free societies are just societies.
Dr Jermaine McCalpin is a political scientist in the Department of Government at The University of the West Indies, Mona. He specialises in truth commissions and commissions of enquiry.