Wednesday, March 5, 2014

Tivoli COE - Hylton Hiccups (2)


The Objection

The following excerpts of an article written by Balfour Henry, February 2002,
seem to form the basis of the objection led by the Member of Parliament for Western Kingston, Desmond McKenzie:

 Excerpt #1

 "Miss Hylton also submitted that the security forces had the right to fire on women and children allegedly shielding gunmen during the July 7-10 operation

 "If the police and the rest of the security forces had not taken action, to repel force with force that day, I say again, at this point in time, we may still have been shovelling up pieces of bodies in West Kingston," she said.
 Referring to the evidence that women "dressed in night wear" and "children as young as six to 12" formed a human shield for gunmen, she commented, "I do not understand the logic behind saying to both the police and soldiers, that because there are women and children in front of the gunmen they cannot fire.

"In my respectful submission, if the women and children deliberately put themselves between the law and order enable those gunmen behind them to fire at the security forces and to fire at civilians, I for one do not understand why, in all circumstances, they cannot return the fire..."

Chairman of the Commission, Canadian Justice Julius, reminded her that the police, "for obvious reasons," had testified that they had refrained from returning fire when the lives of women and children were endangered.

Miss Hylton: "That is what they say. I maintain that is what they say, but I don't understand it... For the period July 7, July 8 and July 9, I have not seen any evidence adduced before this Commission which could lead me, looking at it from every quarter, to fault any member of the security forces who was out there that day," Miss Hylton said."

Excerpt #2

Turning back to the question of the 27 deaths, Miss Hylton said that the vast majority of civilians killed, "apart from gunmen," must have been caught in the crossfire between opposing forces.

"In that kind of situation how can the security forces be blamed for the death of those persons?" she asked. She said that, the approximately 150 security forces personnel who were involved, "perhaps were not enough."

Preliminary Analysis
It is critical to ascertain if the words attributed to the Commission Counsel were the actual words uttered by her and the context in which such words were used. We have been unable to source the verbatim notes of the proceedings. However, there seems to be some corroboration , provided by Hylton herself, that the quotations are indeed accurate.

In a previous post: Tivoli COE - Hylton Hiccups (1), it was pointed out the role of Commission Counsel. Her conduct must be " governed at all times" that she is the commissioners' counsel. The commissioners must bear in mind that " the commission counsel's actions are attributable to the commission".

The Matter of Restraint

  •  The chairman, clearly cognizant of such, sought to reign in the COE counsel from embarking on a course that : did not accord with the evidence presented to the COE  and, more importantly, did not reflect the findings of his COE.

  • Despite being reminded by the Chairman, Hylton insisted at maintaining her own position-- professing not to understand the position of the Security Forces in exercising "restraint" in circumstances in which unarmed women and children  were " protective" shields for gunmen firing at members of the Security Forces.

The Report of the West Kingston Commission of Enquiry, Volume 1, Main Report, June 2002 highlighted the following finding:

  "Assessing the merits of uncontested evidence respecting the operations and conduct of the Security Forces in Western Kingston during the explosive situation of the 7-10 July ,2001, we are of the view that the Security Forces acted responsibly, exerting caution and restraint in order to contain the number of casualties and fatalities that might have occurred over the period, had they enacted otherwise, and we find accordingly." ( para 14.36 p. 102)

Indeed the Commissioners in their Report seem to commend the members of the Security Forces for the restraint exerted by highlighting  that behaviour more than once in their findings:

"Based on the uncontroverted evidence of witnesses, we find that:

 * violence against the Security Forces perpetrated by groups of armed civilians provoked their response-- i.e return of gunfire albeit with some restraint in order to protect lives;" ( para 7.23 p 65 )

 The Circumstance of Civilian Death

For Hylton the " vast majority" must have been caught in the "crossfire between opposing forces". We are not in a position to ascertain if the evidence before the COE substantiated that assertion by the Commission Counsel.

 Suffice it to note that the finding of the COE tends not to lend credence:

"As regards innocent by- standers who lost their lives in the " shoot out " between gunmen and members of the Security Forces, we make two observations: first, there is no proof that these persons died as a result of the action of any member of the Security Forces; and second, assuming such proof had been made, their deaths were probably justifiable under section 14(2)(c) of the Constitution."( para 11.14 p.81 )

The Numbers of Security Personnel

Commission Counsel, Velma Hylton Q.C.  also alluded to the adequacy of the number of security personnel deployed during the operation. Of the 150 deployed she was of the opinion that " perhaps were not enough".

  • Again the question must be asked if there was any evidence presented that dealt with the adequacy of the numbers so deployed, given the task at hand?

  • Conversely, was the Commission Counsel embarking on a frolic of her own by expressing a view unsupported by evidence and, even more importantly, at variance with the COE findings?

Without the benefit of the verbatim notes of the proceedings, we are left to resort to the official Report of the COE .

Based on the uncontradicted evidence of witnesses, the COE was of the view that:

          "* the numbers of members of the Security Forces reflected the nature the task to be done: that is, to execute cordons and searches for guns and ammunition in nineteen (19) areas on Kingston Western Police Division;"( para 7.23 p. 65 )

However, apart from the adequacy of the deployment to execute these attendant tasks, the COE was forced to comment :

" On the other hand, their achievements were low relative to the expected outcome of a strategic plan that included 19 cordons and searches for the capture of guns, ammunition, drugs believed to be concealed and stored in Denham Town and Tivoli Gardens" ( para 14.37 p. 102 )

Final Remarks

  • It is the GOJ's prerogative to establish a COE, name the Commissioners, and delineate the Terms of Reference.
  • The COE can only make its findings based on the evidence presented.
  • In the event that there is any factor which impinges on the COE ability to ascertain and consider all the pertinent information, then the findings will be compromised to that extent. Thus the findings will have the preamble:
    • Based  on uncontradicted evidence of the witnesses , we find..... "
  • For the public and the participants to have confidence in any COE there has to be the widespread perception that the motives are honourable, the Commissioners do not bring preconceived notions about the subject of the enquiry, and the procedures adopted are fair and transparent
  • In the final analysis the COE must be geared towards unearthing the truth in its findings. Having done so it must then seek justice in its recommendations.

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