Wednesday, March 5, 2014

COE - Hylton Hiccups (1)


There is growing public controversy about the appointment on Velma Hylton Q.C as one of the members of the 3- panel commission  to enquire into the events of the May 10 , 2011 involved the armed confrontation between civilians and the Security Forces in and around Tivoli Gardens. The stated aim of the exercise was the capture of Christopher Michael Coke aka Dudus, Prezi, Shortman for whom an arrest warrant was issued as part of an Extradition request by the US Government.

Dudus reportedly escaped the dragnet; 76 persons were reportedly killed during the exercise; many were detained and a plethora of reports of Human Rights violations and property damage surfaced.

 The "Tivoli incursion" occurred under a  Jamaica Labour Party (JLP) administration headed by Orette Bruce Golding who, apart from being Prime Minister, was also Minister of Defence. Tivoli Gardens was considered as the human resource base of the JLP and the fact that it's leader could authourise such a military operation against  a Tivoli Don was, to put it mildly, politically unimaginable.

The Peoples National Party ( PNP ) administration has announced the setting up of a Commission Of Enquiry ( COE ) without a budget and with no commencement date.

Nevertheless the appointment of the Commissioners and the Terms of Reference have stirred public debate.

The crux of the criticism of the appointment of Hylton surrounds her role in a previous COE into the confrontation between residents of Western Kingston ( including Tivoli Gardens) and members of the Security Forces between July 7-10, 2001. That COE was chaired by The Honourable Justice Julius Alexander Isaac and included Rverend Dr. Garnet Brown and Dr. Hyacinth M. Ellis.


Interestingly, television footage of the proceedings captured the chairman taking an un scheduled nap which would have gone unnoticed saved and except the crescendo of his snoring . Thereafter the COE has been referred to as" The Snoring Commission".


Hylton's role:

 Miss Velma Hylton, Q.C. was appointed Commission Counsel on August 22, 2001. The appointment sparked some concern among attorneys appearing before the COE as it was a novel departure from the customary practice in Jamaica .

Previously the Government of Jamaica had been represented by counsel from the Attorney-General Department , following the practice of the Attorney- General of England.

It is likely that the Chairman's judicial experience in Canada had a decisive influence on the departure. Indeed it was considered of such import to warrant a place in the Report of the West Kinston Commission of Enquiry Volume 1 Main Report June 2002


 However, the  Commission in its wisdom decided to depart from that practice:


         ".... we considered it prudent to appoint a Commission Counsel, someone


                who was not in the employ of the Government. That person would


                 be independent of the Government and take instructions from the


                 Commission only." ( para. 2.5, p. 10 )


Reliance was placed on the writings of the late Mr. Justice John Sopinka of the Supreme Court of Canada whom it is said was Commission Counsel to three commissions of enquiry



               " Although the jurisprudence is sparse with respect to the legal status of


                 commission counsel, there is general agreement that he is the


                 commissioner's counsel. His conduct must be governed at all times


                 with this in mind. Conversely, the commissioner or commissioners must


                 bear in mind that the commission counsel's actions are attributed to the


                 commission." ( para.2.6, p.10 )


Sopinka was of the view that commission counsel is subject to the direction of the commissioner who could, in certain circumstances, authorize his counsel " to carry out any duties that are within the terms of reference of the commission" ( op cit )


Concluding comments:


It is beyond dispute that Velma Hylton, Q.C. as " Commission Counsel " was viewed as an agent of that COE . Even if she had acted in the most professional manner, the centrality of that role meant that she would have formed impressions ( albeit from the evidence presented)  about the nature and extent of the confrontation between the Security Forces and gunmen in Tivoli Gardens.


The announced Tivoli COE is too " genetically linked" to the circumstances of 2001. It would be extremely difficult to avoid being influenced by previous involvement and to dispel the perceptions formed by key  JLP operatives. Those perceptions led to the  the withdrawal of all JLP / Tivoli related personnel from the proceedings of the Snoring Commission.


Indeed the GOJ ought have been made aware of all of the above. The current Attorney- General was then counsel representing the JLP councillor for Tivoli Gardens,who is now the Member of Parliament for Western Kingston.


From the supporting documentation, it could be argued that Velma Hylton, as Commission Counsel, exceeded her role and offered personal comments which-- irrespective of their legally validity-- were not in accord with that of the Chairman or the COE . 
In Hylton Hiccups (2) we will examine that position.

        

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