Thursday, March 6, 2014

Tivoli COE- The Push Back

Attorney- General, the Honourable Patrick Atkinson, Q.C. has risen to the defence of the appointment of Velma Hylton, Q.C. as one of three commissioners in the Tivoli COE .

It should be noted that  no reliance was placed on the verbatim notes of the proceedings of the Snoring Commission which would have substantiated, or otherwise, the quotations in the public domain and the context in which the assertions were made. Interestingly, reference to such was strongly recommended by Velma Hylton herself in her response at the time. See Hylton Hiccups(2)

As an attorney, more so as the PNP Government's principal legal advisor, it is of critical importance to embark on such research in order to make an "informed decision". Instead the Attorney- General, like all public commentators, sought to rely of the Gleaner publication.

Tivoli bias baseless:

The main counter to the charge of the perception of adverse bias against the people of Tivoli  was a strictly legal analysis of the offending passages. To wit, concerning the right of the Security Forces to return fire if unarmed women and children "deliberately" put themselves in front of gunmen during the confrontation.

The Attorney - General opined that such was correct in law and Commission Counsel was giving her view on a specific set of circumstances.
  1. Was the Commission Counsel giving her own personal views?
  2. In expressing such a view was Commission Counsel acting outside her remit?
  3. Given that the said views were not supported by evidence before the COE, and the fact that Hylton disagreed openly with the stated position of the Security Forces -- which was specifically brought to her attention by the Chairman, is such not indicative of a predisposition of Hylton? 
  4. Did  Hylton insist that her comments were based on the evidence and as such would put paid to any contention that the said comments were based on an hypothetical situation?

The Attorney - General argued that if indeed such statements indicated the bias of Hylton against Tivoli , then the very statements that followed would then be construed as bias  against the Security Forces.

"It is of note that in the very same submission Ms Hylton commented on evidence given by the Rev. Al Miller that he saw two young men lying on their stomachs on the asphalt on North Street in the heat of the day under the watch of the security forces. She described the conduct of the security forces as inhumane and degrading.

The Attorney- General could not accept the logic informing that position. In fact the impression was  that the Commission Counsel was being honest and sincere-- calling it as she saw it and based on the uncontradicted evidence presented to the Commission.

Well, a cursory reading of the "Executive summary of findings and recommendations" reveals:
"We are unable to say that the Security Forces had violated the rights guaranteed by sub- section 16(1) of the Constitution in respect of the two young men alleged by Reverend Al Miller to have been found lying on their stomachs in the sun on the hard pavement opposite to that on which members of the Security Forces were standing,"(para 1.15 p 4)

  • Was Hylton justified -- professionally or otherwise -- in terming the actions of the Security Forces in the said instance as "inhumane and degrading"?
  • Was Hylton's comment based on the evidence presented before the Commission to be duly considered? Did the Commissioners find that the members of the Security Forces acted in such a manner described by its Counsel? 
  • What was the response of the Security Forces to the Reverend Al Miller's intervention? 
  • What is to be made of the language used in the section quoted above, notably: "the two young men alleged by Reverend Al. Miller..."(emphasis added)?

Concluding comments

The Attorney- General has attempted to provided some counter to the charges leveled at Velma Hylton' predisposition cum bias against the people of Tivoli in armed confrontation with the Security Forces.

From the documentation available, it is clear that Velma Hylton Q.C. exceeded her remit as Commission Counsel; made assertions which were unsupported by the evidence presented; and came to conclusions which were not in harmony with her clients'. In fact some of Hylton's views were diametrically opposed to the published findings of the Snoring Commission .

  • In some instances, Hylton demonstrated a predisposition regarding the main actors in the confrontation.
  • It would be very challenging to disabuse her mind from such were she to embark on " an independent investigation " into circumstances and actors not fundamentally different from that giving rise to offending predisposition.
  • Indeed even in the event that she is able to overcome that challenge, the perception of that predisposition by the main political players remains.

It is not a defence open to the GOJ to say that the Opposition JLP did not object to the proposed Commisioners or the Terms of Reference (TOR) of the proposed Tivoli  Commission of Enquiry.

Despite the non- involvement of the JLP, it is a legitimate area of public concern if there is evidence of a predisposition on the part of any Commissioner and  defects in the TOR.

In order to inspire public confidence in the COE the GOJ has to treat seriously with the concerns raised. The Tivoli Commission of Enquiry is not the sole prerogative of the GOJ, or the PNP and the JLP . The truth has no particular colouration; it is unvarnished.

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