Orville Taylor i | Privy Counselled but we are ‘INDECOM-petent’
Our labour Government with a labour opposition has a lot of work ahead of it. It is bad enough that the 63 people whom we pay to pass laws to govern and protect us often drop the ball by treating their sittings as acts of one-upmanship and skylark with many of the statutes now exposed by the COVID-19 pandemic. However, The Independent Commission of Investigations [INDECOM] Act needs urgent attention.
Just last week, the Privy Council ruled that INDECOM does not have the prosecutorial and other powers, which its commissioner Terrence Williams believed that it had.
Contrary to the general narrative, which pits INDECOM against the Jamaica Constabulary Force (JCF) and the Jamaica Police Federation in particular, there is in principle, no real difference in the purposes of both organisations. On the one hand, the JCF has a mandate to protect and serve the people of Jamaica and all who live here. In doing so, it enforces all the laws on the books and considers itself bound by every single statute in the country, including the Constitution and the INDECOM Act itself. Parliament makes these laws – not lawyers or judges – and it must make its intentions unequivocal.
Our Constabulary Force Act is an ancient piece of legislation, passed when the current oldest member of the House of Representatives was wearing nappies. For the better part of our existence as a territory and nation, our police had little external oversight. However, internally, it has had a decent recent history of Professional Standards, Anti-Corruption, and many other branches, which have carried out purges.
Indeed, long before the Police Civilian Oversight Authority was established in 2006, around the same period when we had the second British invasion, significant numbers of police officers were being charged and removed, some, admittedly, in malicious ways by ‘bad-minded’ supervisors. I had many a conversation and ‘consultations’ with my former student and friend now retired Deputy Commissioner Novelette Grant, about accountability and transparency within the organisation, a relationship that started for me with Corporal Jevene Bent.
So when another colleague, Ezra Stewart, now also retired, dropped into my classes, I could speak with pride that these hard-working ultra-pigmented public servants were working assiduously to reduce the level of corruption and misconduct within the force. None of this had anything to do with Justin Felice, Les Green, Mark Shields, or anyone else. Point is, the little country and inner-city children of sufferers, who, like Steve Brown and Michael Smith, came from ‘nothing’, worked to keep the level of misbehaviour down. Add to the list Millicent Sproul and Gloria Davis, who provided me with scores of data over the years, and I would be a hypocrite if I said that the JCF was not constantly taking senna pod, tyrax, mojo herb, and ‘salt physic’ especially in the last 20 years.
Unusual creature
Still, external scrutiny, which does not have the commissioner as the final arbiter, is desirable. Often, when the ultimate discretion of ‘Internal Affairs’ lies within the hands of the commissioner, as in most metropolitan countries, truth and justice take a back seat because try as he may, the top cop always has loyalty to the organisation first and can’t ultimately police himself.
Thus, INDECOM, an unusual ‘creature’, which, like the auditor general, public defender, and director of public prosecutions reports only to Parliament, not any minister or even the prime minister. Excellent innovation and uncommon in most countries.
Its mandate includes “(a) conduct investigations, … including records, weapons, and buildings … periodic reviews of the disciplinary procedures applicable to the Security Forces and the specified officials …”.
Learned counsel Terrence Williams who has been an attorney, legal educator, and prosecutor for almost 30 years, formed the opinion that INDECOM had certain powers. This included the authority to arrest and charge police officers. Law is not science, and until a judge rules or Parliament makes an unambiguous statement, which it sometimes fails to do, anyone in our legal system, of which the constabulary is a part, has the right to take it up to the highest level to have a final determination.
Call it ego or stubbornness if you wish, but when the Jamaican Court of Appeal struck down the earlier judgment of our Supreme Court regarding the perceived powers that Williams felt existed in his institution, he not only had the right to appeal to the British-based Privy Council, he had, in my opinion, an obligation. Had he not done it, he would’ve been gutless.
Similarly, given the significance of the impasse, had the Federation lost the appeal in Jamaica’s highest court, it would have a duty to take it all the way to where the buck stopped. Anyone who feels that Williams should have bowed after the appeal court should also ask, “why didn’t the Federation stop after the Supreme court ruled?”
As far back as 2015, there was angst as the Federation and INDECOM knocked fists, with neither backing off. Given their professed mandate and the determination of both sides, we needed clarity. Yet, as both sides fought, Parliament sat on its haunches and passed gas instead of the amendment. In fact, if you ask me, Williams should never have had to go to the Privy Council for an appeal because our judges are very competent.
Perhaps the Privy Council is part of the reparation debt owed to the lesser-competent former slaves. However, our own final appellate court would have been less expensive, and ultimately, it would have been us handling our business, as we can. But until we have leaders who self-emancipate from mental slavery, respect the wisdom of the prophets in our own countries, and cease massaging their egos with the colonial masters’ titles of Queen’s Counsel, Sir, and Dame, while appealing to them to pay us for past travesties, we will continue to be a paradoxical pappyshow.
Wake up Parliament and write and right our own destinies!
- Dr Orville Taylor is head of the Department of Sociology at the UWI, a radio talk-show host, and author of ‘Broken Promises, Hearts and Pockets’. Email feedback to columns@gleanerjm.com and tayloronblackline@hotmail.com.