Sun | Jul 21, 2019

Gordon Robinson | When the Shiprider hits the fan

Published:Sunday | July 7, 2019 | 12:12 AM

Government, through the foreign affairs minister, finally conceded that it could’ve better approached the way it abdicated Jamaica’s responsibilities for Jamaican citizens accused of drug running on the high seas.

Ya think? She said:

I think we can do more, and that’s the commitment I gave for us to review the processes ... . We think that the matters raised in the public domain justify the types of discussions we’ve already started with US government.

Discussions? When the USA became uncomfortable with its 2015 nuclear activities deal with Iran, USA tore up the contract. When USA policy on climate change shifted, it refused to sign the Paris Accord. Why is Jamaica still casually ceding jurisdictional rights over its citizens to a foreign power?

Let’s review. On February 6, 2004, JIS published a news release on ‘Shiprider’. Extracts include:

Governments of Jamaica and USA signed a protocol amending the 1997 US Jamaica Maritime Counter-Narcotics Cooperation Agreement, also known as the Shiprider Agreement … .

The protocol further allows for cooperation in ship boarding, ship riding and over flight ... .”

N.B.: ‘ Ship boarding’ is one thing. Arresting/prosecuting Jamaican citizens is another kettle of fishermen altogether.

“The protocol speeds up the provision of technical assistance … and puts a framework in place for the exercise of jurisdiction in each nation’s continuous zone.”

N.B.: Nothing about “ exercise of jurisdiction” over someone else’s nationals!

US Ambassador Sue Cobb … said the protocol significantly enhanced US-Jamaica efforts to stop maritime smuggling of illicit narcotics.

“’The new Shiprider protocol … will significantly assist in the fight against narcotics traffickers … . Together, Jamaica and US … will have greater coverage, greater reach, greater ability to detect and seize narcotics shipments,’ she stated.”

N.B.: Still no word about one State arresting or exercising jurisdiction over another’s nationals.

Ambassador Cobb also noted that joint efforts to investigate and prosecute criminals who control the drugs would be improved [and] pointed out that each year, traffickers attempted to move more than 100 tonnes of cocaine … .

He said that over the past several years, US and Jamaican coast guard tracked hundreds of instances where traffickers attempted to use go-fast boats to transport drugs.

National Security (NatSec) Minister Peter Phillips said the protocol and original agreement were a necessary approach … . He said the ease with which the agreement was arrived at was testimony of the ‘successes’ to operations carried out under the agreement since 1997.”

He noted, “ We believe that all of this will help enhance our capabilities.”

“Speeds up the provision of technical assistance”

What exactly does this mean? Surely “technical assistance” excludes USA arrest and prosecution of Jamaican nationals? The emphasis was on cooperation so both countries could “enhance their capabilities” to prosecute their nationals.

Joint efforts to investigate and prosecute criminals improved

What part does Jamaica play in these “joint efforts”? Is “ Yassuh, Massa!” all that’s required from us? It seems that 1997-2004 “operations” raised no red flags.

Go-fast boats used to transport more than 100 tonnes of cocaine

This one is priceless! Fishing boats are now go-fast boats?

Let’s take a closer look at Jamaica’s historical legislative/governmental action to protect its citizens:

The “ original [Shiprider] a greement” provided:

“ARTICLE 24: JURISDICTION OVER DETAINED VESSELS AND PERSONS

In all cases arising … concerning a party’s flag vessels seaward of any State’s territorial sea, that party has jurisdiction over a detained vessel, cargo and persons on board including seizure, forfeiture, arrest, and prosecution. Subject to its Constitution and its laws, the party in question may consent to the exercise of jurisdiction by another State in accordance with international law and in conformity with any condition set by it.”

So the default position is that Jamaica has exclusive jurisdiction to decide legal consequences to anybody aboard any detained ship flying its flag unless Jamaica consents to USA. exercising jurisdiction. But consent must be “in conformity with any condition set by” Jamaica. So, in 1998, The Maritime Drug Trafficking (Suppression) Act was passed to include designation of the natsec minister as the “waiver” authority and provide important safeguards. For example:

1. Section 6 (1): “ A request for authorisation to board and search a vessel shall contain … (b) the grounds for suspecting the vessel is engaged in illicit traffic;”

2. Section 20 (2): Where a Jamaican vessel is detained by [USA], the minister may waive Jamaica’s right to exercise jurisdiction over the vessel and authorise [USA] to enforce its laws against that vessel, its cargo and persons found on board OTHER THAN JAMAICAN NATIONALS ”.

3. Waiver requests could be made orally, but must be confirmed in writing. Any foreign power boarding a ship must “ observe norms of courtesy, respect and consideration for the persons on board that vessel” [Section 6(2)(c)].

So, Jamaica skilfully appeased Big Bully from the North (BBN) while ensuring that BBN couldn’t touch Jamaican nationals. Jamaica’s legal condition (permitted under the Treaty) stipulated NO WAIVER OF JURISDICTION OVER JAMAICANS WAS POSSIBLE!

But, 18 years later, on February 12, 2016, as the general election loomed, the governor general assented to a bill amending the act to delete the words “ other than Jamaican nationals”.

Bumball wid lights! A wah dis? Out? Or not out? By sudden sleight-of-legislative hand, a carefully crafted scheme to protect Jamaican citizens was upended. Why was natsec ministry acting like Pontius Pilate? Three days before election, ministerial hands were also washed of Keith Clarke’s family as immunity certificates for soldiers accused of murdering him were signed.

Despite a change of government, no concern was raised about these apparent abdications of responsibility for Jamaicans. It was as if only names and T-shirt colour changed on February 25, 2016.

THIS is how the shiprider hit the fan! THIS gave USA the opportunity to arrest Jamaicans outside USA territorial waters. But the amendment also mandated that the minister consider the waiver to be “ in the interests of the security, defence or international relations or other ESSENTIAL PUBLIC INTEREST of Jamaica …” BEFORE granting it. Written opinion from the attorney general was also directed “ prior to making a decision” and natsec minister SHALL NOT waive jurisdiction if AG advises:

- A fair trial is unlikely in the foreign State; or

- There’s no impediment to a trial in Jamaica; or

- The waiver would contravene constitutional rights.

Did the AG advise of any impediment to a Jamaican trial? If so, what? If not, why were Florida prosecutors allowed to bully Jamaicans into pleading guilty to a charge unconnected to drug trafficking then sentenced to TEN MONTHS for “misleading statement”? Media reports allege that the AG claimed “attorney-client privilege” to avoid revealing her advice? Really? What privilege? Whose privilege? What the clara gungus natty? Didn’t we settle this nonsense during the Petrojam-Ramharrack brouhaha? Government is constituted by and for the people. How can Government’s privilege exclude the people?

WHAT evidence did the USA present to support its waiver request? What did Jamaica demand? Was a phone call enough? Was the request confirmed in writing? Why couldn’t USA Coast Guard witnesses testify in Jamaican courts? Why didn’t they testify in Florida?

It seems we have a discrimination problem in Jamaica. Remember Government’s persistent efforts in 2009-10, on the pretext of protecting citizens’ constitutional rights, to shelter Christopher Coke from arrest and prosecution in the USA after receipt of a lawful extradition request with significant evidence attached? That request was made pursuant to another treaty with the USA ratified by Parliament in 1991. Coke wasn’t charged with tossing ganja overboard or lying to the USA Coast Guard. His charges included cocaine trafficking and gunrunning.

Jamaicans should NEVER forget the extent to which Government over-reached to prevent Coke’s extradition. It accused the USA of relying on illegally obtained information. It demanded that the USA disclose its confidential informants’ names, pretending that it wanted to prosecute them for breaching a phone tap order. That could’ve been done any time and hasn’t yet been done 10 years later. Why insist the USA inform on its informants?

In mid-December 2009, Government sent a delegation to Washington to lobby the Department of Justice to withdraw the extradition request. Members of the delegation also met privately with law firm Manatt Phelps and Phillips (MPP) seemingly in furtherance of a mission, sanctioned by the prime minister/JLP leader, to explore MPP’s interest in assisting.

Finally, Jamaica’s attorney general, on April 15, 2010, sought seven declarations from the Supreme Court, including that:

- The AG is entitled to consider whether evidence furnished with an extradition request was sufficient to justify the issue of a warrant;

- Where the minister is of opinion the requesting state acted in breach of the treaty, the minister is under a duty to deny the request.

THAT unfortunate application went nowhere. BUT the question must now be asked, why didn’t Government approach THIS request for a waiver of jurisdiction under the Shiprider treaty as diligently as it treated the request for Christopher Coke’s arrest under the extradition treaty?

Were these fishermen born with less important surnames?

Peace and love.

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