Tuesday, December 9, 2014

Tivoli COE: Full Disclosure and Inquisitorial Approach needed

The following in the unedited version of a letter written by (Ret.) Col. Allan Douglas which was published in the Jamaica Observer, Tuesday, December 09, 2014 titled "Not too late to salvage integrity from Tivoli commission"

Dear Editor,
With the commencement of the Tivoli Commission of Enquiry into the shooting deaths of 76 Jamaicans by the security forces in May 2010, the Jamaican Government faces one of its biggest tests in terms of integrity, transparency, and ensuring the just and equitable administration of the law. However, early indications are that the commission could easily turn out to be a farce, and that the hopes of Jamaicans that the government will ensure a just and meaningful outcome through an impartial investigation by the Tivoli COE could end up in tatters.
For the past several months, in letters to this newspaper, I have called for a fair and just investigation into the events that happened in May 2010. Along with several other Jamaicans, our call has been primarily for transparency, honesty, impartiality and integrity.
But at this early stage of the Commission I fear that these calls may not be heeded. And if they are not, the government and the security forces will undoubtedly lose credibility and the public’s confidence in the rule of law.
It is now obvious that the COE has been set up to conduct its business in an adversarial manner instead of an inquisitorial one, which is the global standard for commissions of enquiry of this nature. The adversarial format is of course associated with normal court trials. It therefore appears that we are in for a legal contest between opposing parties, and the commissioners at the end of the day will have to rely on only that evidence provided by the opposing lawyers or parties, and then decide on who has won the legal contest, possibly without establishing the truth! At present,  it seems the legal contest is seriously lopsided or has been muffled.
I believe it is not too late to change the format of the proceedings into an inquisitorial tribunal, and would respectfully urge the distinguished and experienced chairman to seriously consider this proposal. After all, the point of the commission is to unearth the truth behind the events that caused the deaths of 76 Jamaicans and how to prevent a recurrence.
I would also encourage the present leadership of the JDF to preserve its legacy of transparency and truthfulness, even under the most difficult conditions, by turning over every single bit of evidence and ensuring that any evidence that has been unearthed in investigations to date be presented to the commission as soon as possible.
I will continue to maintain that an impartial and independent outcome of the Tivoli inquiry would ensure the public’s future confidence in the  JDF as a responsible, ethical force that puts its people’s interests before its own. In this regard, the JDF’s attitude to the proceedings is of paramount importance. Any attempt at deception or cover-up could end up in the loss of credibility and trust many Jamaicans still have for their military men. Forget about the loss of ‘friends’ because you stood up for transparency and truth, because in old age the best friend you can have is a conscience you are able to live with!
I appeal to the Chief of Defence Staff (CDS) of the JDF, who I know to be an honorable man, to disclose to the COE whether he or any of his officers made the alleged remarks prior to the Tivoli incursion of May 2010 that “…the problem with these people and Jamaica, for that matter, is that they have never really seen the JDF on a war footing, fully mobilized and in action..” and “…tonight we go to war in Tivoli and some of you might not return…” Given the training of the JDF and the situation existing in Tivoli, it is important to establish the veracity of these alleged remarks, and if they were made, whether they had a bearing on the tragic outcome of the operation.
If the hair on the head of one innocent civilian, whether he refused to be evacuated or not, was harmed due to so called “collateral damage,” then the JDF has a responsibility to declare that the operation was a failure or was ill-conceived. I am not aware of the police training doctrine, but I beseech the JDF not to allow its lawyers to advance the argument that Tivoli had been well barricaded and the people were armed to the teeth with all manner of high-powered weapons, and that embedded ‘terrorists’  were going to fight to the last man, woman and  child. I also aver that it was acceptable for the troops to conduct themselves in a manner that was contrary to military doctrine and training. To suggest that the JDF had no other choice but to storm into Tivoli, remove the barricades and ‘recapture lost territory’, in the process killing 76 civilians, is as frivolous as it is tragic. To me as a military man, seeking justification for killing women and children because they were being used as human shields by gunmen is sick.
I know that most military forces, including the JDF, are trained to deal with scenarios similar to the one in Tivoli. The nature of that type of operation calls for great restraint and discipline and there is no “storming Norman” “shock and awe” solution for that type of operation. In addition, it calls for good intelligence, sound planning, and meticulous and disciplined execution with well-trained and well-led troops. Likewise, whereas lawyers and the civilian public might accept that firing mortars as a deception or diversionary plan might sound quite acceptable, to a trained military person such actions in a built-up urban area are irresponsible and unthinkable. 
It is very important that in this relatively young country the integrity of our institutions be preserved and strengthened. Integrity, however, can never be preserved in Jamaica if our fledgling institutions are not held up to close scrutiny/investigation and publicly made accountable for their actions. I know, for instance, that many regard public institutions as some sort of sacred cow, and that criticism of these institutions, especially by serving or former members, is perceived as an act of disloyalty. I hold no such apprehension, and maintain that those who condone or wish to cover up some misgivings are in fact being disloyal to such institutions because, ultimately, the very fibre of the institutions they mistakenly seek to protect will be weakened due to the loss of integrity.
If we truly love and value the future of our country, we must demand full disclosure. We should dismiss any scenario in which the truth is camouflaged by the persistent assertion that “for security reasons information cannot be provided.” We know that’s a lot of rubbish, and once again, such an assertion should be treated as nothing less than an expression of disloyalty that is not in Jamaica’s security interests. This inquiry, therefore, should not put individuals on trial or subject witnesses to humiliation and intimidation, but unequivocally and transparently seek the truth. Here is a wonderful opportunity to instil the public’s confidence in inquiries of this nature by conducting it with integrity and objectivity, and not merely follow the usual pattern of two opposing legal teams waging war against each other, while the majority of disenchanted Jamaicans look on in disgust.
Yours faithfully,
Colonel Allan Douglas

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