Friday, November 13, 2015

The CCJ: "the will of the PNP"


  • There has been talk of  behind-the- scenes moves aimed at breaking the deadlock over the three CCJ Bills.
  • A proposed Agreement was to operate on two levels: the Government and the Opposition one one level  and the PNP and JLP on the other.

Deadlock:

The Government wishes the Opposition to support the CCJ Bills by voting in favour of the CCJ Bills, both in the House of Representatives and in the Senate.
The Opposition wishes the issue of whether the Caribbean Court of Justice should replace the Judicial Committee of the Privy Council as Jamaica's final Court of Appeal to be put to the Jamaican electorate by way of a vote.

Proposed solution:

  1.  More than 50% of Opposition Members in the House of Representatives and more than 50% of the Opposition Senators in the Senate will vote in support of the CCJ Bills in the House of Representatives and in the Senate, respectively.
  2. The question to be put to the electorate: "Are you in favour of the Caribbean Court of Justice replacing the Judicial Committee of the Privy Council as Jamaica's final Court of Appeal"
  3. The electorate may vote Yes or No to that question.
  4. All parties to the Agreement would  agree "not  to say or do anything, or allow any of its officers or appointed candidates to say or do anything, whether in media advertising, media interviews, public debates, media talk shows, published articles, platform speeches or other public activities..... that might reasonably be perceived to be inconsistent  with a support of a Yes vote.
  5. The Government would " not bring the CCJ Bills into operation by way of publication in the Gazette of a notice in accordance with clause 1 of each of the CCJ Bills unless and until-- (i) the question referred to in paragraph  1(a) has been put to a vote by the electorate in Jamaica, and (ii) votes Yes are cast in that vote by more than 50% of the voters who vote thereon."
  6. In the event of any material breach occurring after the CCJ Bills have been passed by Parliament with the support of at least two-thirds of members of each House, the Government shall be released from any further obligations and the Government may thereafter cause the CCJ Bills to be brought into operation.
Controversy:
The above was brought to the attention of the Senate by the Leader of Opposition Business, Senator Tavares-Finson. However, Government Senators have countered that it was a personal initiative of the Leader of Government Business in the House of Representative, Phillip Paulwell. 

Monday, November 9, 2015

The CCJ: Incisive Interventions

The CCJ Debate will most likely frazzle out being overshadowed by the election campaign and the "dead babies scandal". However are some very poignant interventions; not in the actual debate but in the discussion on the motion to remove the suspension from the service of the Senate imposed on Senator Malahoo Forte.

This motion was moved and passed in the Senate on Thursday, October 29, 2015 in the absence of the Opposition Members.

Senators  Mark Golding and KD Knight gave some indication of the fundamental issues constituting the crux of the debate on the three CCJ Bills.

Senator Golding:

  • "We want them to listen and to hear what we have to say on this important issue. We want to hear what they have to say on this important issue. The people of Jamaica want to hear what all Senators have to say on this important issue..... (Applause)....because it is one of the ironies, perhaps, of history, that an unelected Senate, ultimately will determine whether or not the people of Jamaica who elect their Government will be able to have access to a final court, through legislation , that has been passed by the House of Representative with the required majority of two-thirds."

  • "It is a fundamental Debate as to whether or not we want our final Court to continue, 53 years after Independence and onwards, as the country thinks about such issues of reparations for past horrors of our history, and so on, if we are still holding on to a Court that sits in London, which was set up in 1833 in the era of slavery. (Applause)"

Senator KD Knight:

  • "Now why do I intend to support this Motion? I came to support it because President, this debate is bigger than Senator Malahoo Forte, it's bigger than me, it's bigger than the 21 of us assembled here and extended to all who are in this Chamber now, it's bigger than all of us. This debate is bigger than the PNP, this debate is bigger than the JLP, this debate is bigger than the PNP and the JLP combined because the PNP and the JLP combined formed only a percentage of the society, This debate is about the entire society, anyone in being and those not even en ventre sa mere.
            Mr Nicolson: Explain it, sir.
           Mr Knifght: Those yet unborn, it's about them.
  • "This CCJ could remain for another 182 years too. it may be for a shorter period because we may move to our own local final Court in due course, but it is ---we're looking at years down the line, years down the line. So it's a big debate, which will have a big impact of one of the most important pillars of a society, the justice system, and one of the arms of government, one of the three arms of government, the Judicial Arm"

Sunday, October 25, 2015

The CCJ: The Role of the electorate


                          

The CCJ debate in the Senate is in full swing: lots of distractions, drama, and rhetoric but woefully devoid of substance.

We have expressed our discomfort with the decision of Jamaica’s final appellate resting solely on the vote of one Opposition Senator “exercising his conscience” and being anxious to be on “the right side of history”.

One of the key elements is the role of the citizens (not their elected representatives or their appointed agents) in the making of this decision. On strict Constitutional terms there is none.


The Constitutionalist:

The PNP Government has decided to replace the Privy Council with the CCJ as Jamaica’s final appellate court

The severing of ties with the Privy Council requires only a simple majority in both Houses. The government of the day has such a majority so that is a relatively simple exercise.

Both our Supreme Court and our local Court of Appeal are “entrenched”.
The UK- based Privy Council has stipulated that the replacement of the Privy Council (which was not entrenched in our Constitution) should enjoy the same level of protection (read entrenchment) as our Supreme Court and Court of Appeal.

The entrenchment of its replacement—the CCJ or our local final appellate court ----- requires the 2/3 majority in the case of the plainly “entrenched” plus a referendum for the “deeply entrenched” in addition to certain specified time periods.

The PNP Government is not into “deeply entrenchment” but mere “entrenchment” as stipulated by the UK- based Privy Council.



Should citizens have a say?

There is the view that to put such a “sensitive” matter to the public would expose the Judicial system to the vagaries ( and vulgarity ) of politics. Somehow this would “politicize” the matter—a somewhat dishonourable and ignoble exercise.

“We commit to a Constitution that is truly
grounded in the will of the Jamaican .
people and pledge that, as soon as
possible after the General Election, we will
seek consensus to pass the legislation
required to achieve the main elements of
constitutional reform that have so far been
agreed.  These include:
  A Jamaican Republic headed by a
Jamaican
  Substitution of the Caribbean Court of
Justice for the UK-based Privy Council
and
  An updated Charter of Rights to
reflect current thinking on human rights

Before taking effect, we will ensure that
these constitutional changes are
submitted to the Jamaican electorate for
their approval.”
[Source: People’s National Party Manifesto 2007 Chapter 1; Constitutional Reform, p8] 

That commitment by the PNP represented a reversal of its position as highlighted by the Jamaica Observer in an article “Now PNP says it will put CCJ to referendum”, Friday, August 10, 2007

“The People's National Party (PNP) has made an about-turn in its position on the Caribbean Court of Justice (CCJ), promising to put the issue to a plebiscite within the next five years as part of other proposed changes to the Constitution.
The commitment is outlined in the ruling party's manifesto which it launched last night at The Courtleigh Auditorium in New Kingston.”
[their emphasis]


This commitment was given by a PNP government now headed by Party leader and Prime Minister, Portia Simpson-Miller and represents a departure from the stance taken by the PNP government under former Prime Minister PJ Patterson who, “had stoutly resisted calls by the Opposition Jamaica Labour Party (JLP) and rights groups for the CCJ to be put to a referendum.”[emphasis added]

It can be argued that the commitment was conditional on the PNP being elected to form the next government as the general elections were to be held on August 27, 2007. The PNP lost.

Some questions:


Did the PNP Government “politicize” the issue by reversing its position and including a commitment to involve the Jamaican electorate as soon as possible after the General Elections?

Was that a blatant vote catching exercise?

Was the substitution of the Caribbean Court of Justice for the UK-based Privy Council an agreed  element of the constitutional reform?

What must be made of the fact that the PNP in its 2011 Manifesto seemed to revert to the original stance taken by PJ Patterson?

We will also complete the long journey of de-linking from the Judicial Committee of the Privy Council as our final Court of Appeal and fully embracing the jurisdiction of the Caribbean Court of Justice.”
[Source: 2011 Manifesto of the People’s National Party p39]

No mention of:
  • the will of the Jamaican people;
  • seeking consensus of that which has been agreed;
  • submitting constitutional changes to the Jamaican electorate for their approval.
Is there any merit in the argument that the PNP, having "politicized" the issue in its 2007 Election Manifesto, sought to "de-politicize" the issue in its 2011 Election Manifesto?

Does any of this really matters as only a tiny portion of the electorate has read the Jamaican Constitution and/or any Election Manifesto?


                                              

Thursday, March 26, 2015

Holness’ Appeal Dismissed



                                      Summary of Interesting Highlights

The Court of Appeal has dismissed the appeal of the Leader of Opposition in the House Of Representatives. Andrew Holness was seeking a reversal of the order of the Full Court ( Daye, McDonald Bishop and Batts JJJ) made on 6 February 2015.

By that order, it was declared that:

“1   ….the request for and procurement of pre-signed and undated letters of
resignation and letters of authorization by the Leader of the Opposition from persons to be appointed as Senators to the Senate of Jamaica, upon his nomination, is inconsistent with the constitution, contrary to public policy, unlawful, and is, accordingly null and void .

2   ….the pre-signed and undated letters of resignation and letters of authorization, as well as the manner of their use to effect the resignation of Senators (  the claimant in particular ) from the Senate of Jamaica, are inconsistent with the Constitution, contrary to public policy and are, accordingly, null and void”.


Some 16 grounds of appeal were filed.

The Panel comprised of Panton (P), Dukharan (JA) and Brooks (JA) and is listed as Supreme Court Civil Appeal No 22/2015 delivered on 25 March 2015.

Panton (P):

[44]   It is my view, therefore, that the Full Court was correct in ruling that the letters of resignation were inconsistent with the Constitution, and so null and void. The legal and constitutional position is that the respondent and Dr Tufton did not resign. They are therefore entitled to retake their positions in the Senate.

Brooks (JA):
[125]    The Full Court was correct in finding that the demand for pre-signed letters of resignation was unconstitutional and invalid. Similarly the use of those letters without the consent of the persons who had signed them was also invalid. Consequently, the letters of resignation that were delivered to the Governor-General by Mr Holness in respect of Mr Williams were invalid and ineffective. The appeal by Mr Holness should be dismissed.

Dukharan (JA):

[47]     I have read in draft the judgements of the learned President and my brother Brooks JA and agree with their reasoning and conclusions. I have nothing to add. 

Thursday, March 5, 2015

Why Holness had to Appeal


               
There has been considerable public debate about the Leader of the Opposition, Andrew Holness, decision to appeal the Declaratory Order of the Constitutional Court in the Matter of Arthur Williams v Andrew Holness.

In an attempt to expedite the matter, the President of the Court of Appeal, Seymour Panton, has set March 16-17 for the hearing, pushing aside other appeal cases. Such recognises the urgent public interest that attends this constitutional matter.

Some have argued that the Leader of the Opposition should just accept the judgement, allow the offended Senators to resume their seats, and unreservedly apologise to the public of Jamaica.
Thus this political distraction would fade away as the JLP focuses on matters central to the welfare of the electorate and mobilizing for an electoral victory.

 In sum, it is not in the interest of the JLP to have this Senate imbroglio occupy public space for a protracted period of time.

Political Legacy:

Andrew Holness has a different perspective. It seems that the decision to appeal is primarily driven by sensitivity to political legacy:
·      Andrew Holness is the youngest person to date to occupy the office of Prime Minister of Jamaica.
·      He may also have the unenviable distinction of being the Prime Minister serving the shortest period of time.
·      Andrew Holness would not want history to record that as Leader of Her Majesty Loyal Opposition he was found by a Court of law to have acted inconsistent with the Constitution, contrary to public policy and unlawfully

Thus it is not particularly troubling the findings:
·      The pre-signed undated letters were null and void—ie of no legal effect; or
·      The Leader of the Opposition has no role whatsoever in the resignation or removal of a Senator whom he had nominated.

The most troubling aspect is the finding that as Leader of Opposition he acted inconsistent with the Constitution, contrary to public policy and unlawfully.

 Opposition MP Delroy Chuck has pointed out:

"In the Westminster System of Government, any constitutional office holder - be it Prime Minister, Leader of the Opposition, Speaker of the House, Chief Justice or others - who the court rules or declares to act UNLAWFULLY and UNCONSTITUTIONALLY would be obliged in all good conscience and honour to tender his or her resignation unless there are good and compelling reasons not to do so.”

Now if there is an expectation of such consequence for transgression from a constitutionally recognized office-holder, then would not such constitute a bar to the offender being elevated to the office of Prime Minister?

It should be noted that there is nothing in the Constitution of Jamaica that stipulates the circumstances in which the Leader of the Opposition should resign or vacate that office. However, there are provisions dealing with the removal/disqualification of a Member of Parliament.

Higher Stakes:

In selecting the option to appeal the decision of the Constitutional Court Andrew Holness has raised the political stakes to a higher level. His political judgement is now on the front burner.

He can no longer offer the excuse of “legal advice”. As a political leader he is expected to consider the political ramifications of all his actions. Legal advice can be bought and paid for.

It is critical that Holness has a considered plan in the event that the Court of Appeal dismisses his case and reaffirms the orders of the Constitutional Court in the same trenchant language—unconstitutional, contrary to public policy and unlawful.

In that event it will be a heavier political price to pay. The rather limited calls for his resignation as Leader of the Opposition could morph into widespread calls for his resignation as Leader of the Jamaica Labour Party.

 Some Talking Points:
·    That it was a unanimous finding by all three judges is of little moment. They can be unanimous in error.
·    The pre-signed undated letters were all declared null and void—of no legal effect. Were they such at the time of them being signed? If so they would have been void abnitio.
·    Who purported to give legal effect to such a nullity?
·    Is there an inescapable linkage between unconstitutional, contrary to public policy and unlawful?
·    Is the “public policy” that of Jamaica, the Commonwealth or Britain?
·    Where can one find a copy of that “public policy”?
·     If an action is “unconstitutional” is it also “unlawful?
·    Regarding the Senate: a) What is the purpose of the 2/3 and                                                 3/5 provisions?
·    b) Why is there no provision for a Senator to cross the floor?
·    c) What mechanisms are there to ensure that a Senator does not flout party lines perpetually during his term of office? 
·    d) If the Senator is expected to be “independent” of political partisanship, then why is he nominated by the head of a political party in reality?
·    e) Can the “nominated” Senate frustrate the will of the peoples “elected” representatives in a democracy?

Update:
Andrew Holness gives his own reasons why he had to appeal. See"Holness:My court appeal was in the public's interest"

Wednesday, March 4, 2015

Simpleminded Senatorial Stupidity


                             
 The response of the Senate—the Upper House—to the Declaratory Order by the Constitutional Court in  Arthur Williams v Andrew Holness  [ Claim No. 2012 HCV 06428] is nothing but sheer stupidity.

The gist of the findings were a) that the pre-signed undated letters were null and void—ie of no legal effect; b) the Leader of the Opposition has no role whatsoever in the resignation or removal of a Senator; c) Arthur Williams and Christopher Tufton did not resign.

The implications are crystal clear: i) Williams and Tufton are still members of the Senate; ii) Nigel Clarke and Ruel Reid were never duly appointed as there was no vacancy.

It is not a complicated matter, even though the JLP could have done with a few more Senators. That too would have been inconsistent with the constitution, contrary to public policy, unlawful and, accordingly, null and void.

Enter the Senate President:

The Senate President could have simply welcomed Williams and Tufton and continue the business at hand. But no; he seemed to have been aware of the press release by the Leader of the Opposition stating that the Declaratory Order does not change the composition of the Senate.

Then the AG:

The President takes it on himself to request a legal opinion from the Attorney General.
·      What authority did the President of the Senate have to request such legal advice?
·      Can the President of the Senate formally seek the advice of the Government Legal advisor?
·      The Attorney General is a member of the Lower House. Can a member of the Lower House give binding advice to the Upper House?

The Learned Attorney General acceded to the request of the President, even though he should have politely declined. The opinion was that Williams and Tufton were still members of the Senate—same as the gist of the Declaratory Order.

But in an attempt to show some familiarity with the Constitution, the Queens Counsel (silk) pointed out, quite correctly, that matters dealing with membership/vacancy  in the Parliament are to be determined by the Supreme Court with the Court of Appeal being the final arbiter.

Stupidity on steroids:

This is where the confusion takes on steroid proportions. Messrs Clarke and Reid did not officially claim that they were duly appointed and seek to take their seats. Williams and Tufton turned up and were allowed to resume their seats.
·      The President then refuses both Senators permission to speak. So if they had to cast a vote only hand signals would have been permitted. Presumably, in this age of digital technology they could have sent an iMessage or email.

To compound the ludicrous misadventure the Senate passed  a motion moved by the Leader of Government Business ( himself a Queens Counsel and former Attorney General ) which seeks to petition the Supreme Court to clarify the position of not only Williams and Tufton but that of Reid and Clarke.
·      Now these legislators of the Upper House—the so-called review chamber who are supposed to bring wider considerations to bear on the raw partisanship of the Lower House—considered it appropriate to petition the Supreme Court to clarify an Order of the Constitutional Court.
·      The Constitutional Court is The Supreme Court. Did these learned gentlemen expect that since both Courts are on the same level, one could overturn the judgement of the other on the same set of facts?
·      The ruling and reasoning was in very clear language. Indeed all three judges were at pains to elaborate in unambiguous terms. All three used standard English.
·      How did the position of Clarke and Reid enter into the picture when the President had admitted into the chamber Williams and Tufton?

Another QC:

Then with the involvement of another Queens Counsel (silk), the Leader of the Opposition is joined in the suit as he has "an interest to serve".
·      What interest does the Leader of the Opposition have in a petition from the Senate seeking to clarify a ruling of the Constitutional Court?


Court of Appeal:

The Leader of the Opposition has filed an appeal. Thus the same matter is before the Supreme Court and the Court Of Appeal. This has been described by another silk as a "messy affair".
The Supreme Court has in effect refused to hear the matter before it and has suggested that the Court of Appeal is that appropriate forum to ventilate the matter. [ The President of the Court of Appeal has set March 16 and 17 for the hearing of the appeal]

It may be political correct to label the machinations of the Senate as "unfortunate" or "an abuse of process". In case such is in need of clarification it was sheer stupidity-- unadulterated rubbish. 
To borrow the terms  McDonald- Bishop (J) used in describing the pre-signed undated letters, it was "ill-conceived and nonsensical"[ para 154]. In the words of a retired Appeal Court judge, the intervention of the Senate was "nonsensical and not necessary."

Simpleminded Senatorial Stupidity swathed in silk!

Update:
It has been reported that the application filed by Queen's  Counsel Michael Hylton using the wrong procedure was adjourned without a date. 
Words used in The Jamaica Observer report included "Big Blunder", "embarrassing blow", "wrongly instituted". 















Saturday, February 21, 2015

Tivoli COE: Test Dudus' Escape Theories

The Tivoli Commission of Enquiry has been informed by both the then Minister of National Security, Dwight Nelson, and the then Commissioner of Police, Owen Ellington, that the security forces had no idea how, if and when the fugitive Christopher "Dudus" Coke escaped the dragnet imposed on Tivoli Gardens in May 2010.
Nelson too admits the there are a number of theories; but he does not believe that the security forces "know for a fact" how Dudus managed to evade capture.

Theories:
  1.  Coke never left  Tivoli Gardens during the military- police incursion;
  2. Coke escaped via tunnels constructed as waste water drains -- exiting at a gully in Hannah Town;
  3. Coke escaped on land disguised as a female.  

ET #1:
This seems very unlikely given the intensity of the searches conducted by the security forces. Indeed if Coke had remained undiscovered during the military-police operation, then there would be no need to risk being discovered by venturing outside of his 'safe haven'.

Surprisingly, neither the then Minister of National Security nor the then Commissioner of Police gave any indication  that Christopher Coke could simply have left Tivoli Gardens before the start of the operations, say on or before May 23, 2010
Indeed if Dudus could have been "alerted" as to the imminent extradition request; and if he had watched the PM Bruce Golding's National Broadcast on May 17-- which indicated that the Authority To Proceed was going to be signed, he would have simply  moved (at his convenience) to an adjoining area and used cell phones and proxies.

ET #2:
 COP Ellington gave some credence to the theory that escape could have been via the notorious "Tunnels of Tivoli" by displaying slides of a tunnel during his testimony. Ellington, in response to quest for clarification, asserted that security personnel had traversed the unblocked tunnel which in fact exited in a gully in Hannah Town.

The legend surrounding this escape route needs to be tested independently. Sometime ago, a Commissioner of Police attempted to enter one such and experienced great difficulty aborting further attempts.
  • The Tivoli COE should explore this "theory"-- utilising a man of physical built  similar to Dudus and other gunmen who would have also escaped via this route. It would also be useful if the types of high powered weaponry utilized by the criminals could have been hauled, carried or otherwise transported through these tunnels.
  • Some strategic swabbing at the time could have detected traces of gun powder residue indicative of the use by gunmen or the transporting of  recently used firearms.
ET #3:
Now this one is indeed laughable at first sight. It seems that the security forces had no idea of the appearance of the individual they were searching for. One wonders if they were shown photographs of Coke.
  • The public was made aware of Dudus' attempt to disguise himself subsequently. [Have a look at this attempt]. Frankly, if that was the disguise adopted in the first instance, then it would not have gotten pass any member of the security forces, even in the den of night.  No amount of chaos, gunfire, mortar attacks could have assisted this disguise.
  • It would be of interest if attempts were made to ascertain if someone fitting that description actually went through the security check points ; and if that wig worn in the 'capture' was the same one used in the 'escape'.

Thursday, February 19, 2015

Tivoli COE: Insufficiency of "other "evidence--Lightbourne

The issue of the sufficiency, or otherwise, of the supporting evidence  accompanying the formal extradition request for Christopher "Dudus" Coke resurfaced during the cross-examination of Miss Dorothy Lightbourne at the Tivoli Commission of Enquiry. The focus was on the "other evidence"--ie that excluding the contested wire tape evidence.

Dorothy Lightbourne, the former Attorney- General and Minister of Justice, has been consistent in maintaining that the evidence other than that pertaining to the wire taps was insufficient to establish a prima facie case. Nevertheless she signed the authority to proceed without a sufficient evidentiary basis.

In the Manatt Enquiry, the following exchanges took place on Friday, March 11, 2011 between Mr. K.D. Knight and Miss Lightbourne:

Q:   ..... Miss Lightbourne you had some reservations about the wire tap evidence that had been supplied by the US government, is that correct?
A:  That is correct.
Q:   If you exclude the wire tap evidence would there have been sufficient evidence to justify your issuing an authority to proceed?
A:   No, sir.
Q:   If you excluded the wire tap evidence would there have been sufficient evidence on which a  committal could have been made by the Magistrate?
A:   In my view, no.
Q:   So, do I understand the situation to have been that you signed an authority to proceed without any   evidentiary basis at all?
A:   I said there was some evidence, I did not consider it sufficient.
Q:   So do you agree that you signed the authority to proceed without a sufficient evidentiary basis?
A:   That is my view.

Lightbourne elaborated her interpretation of the duty that had to be carried out under Section 8, Extradition Act: 
  • "Mr Chairman, my duty would be to see that there is sufficient evidence that could be put, that a committed Magistrate would commit the accused to stand trial for the offense."
  • "A:   My consideration are to look at the legal issues, to look at the evidence, and to look at the whole circumstances of what is before me to say that this is sufficient that this person should be committed to stand trial."
  •  Q:   And if the evidence is insufficient what is your ministerial duty?
  •  A:   To refuse the request."
The cross-examination on this subject matter continued for some time. Knight grilled; Lightbourne remained steadfast--repeating the gist of her position. The matter was well ventilated during the Manatt COE.
The Tivoli COE wasted some very expensive time.



Tuesday, February 17, 2015

Tivoli COE: Official Reports, Concerns, Lies & Hopes

The testimony of former Prime Minister and Minister of Defence, Orette Bruce Golding and former Minister of National Security, Dwight Nelson have raised concerns about the veracity of statements concerning the Jamaica Defence Force (JCF) and Jamaica Constabulary Force (JCF)  joint operations in Tivoli Gardens (TG) in May 2010.

The former PM was concerned about the accuracy of the deaths reported to him by the security forces and particularly the reports by the JDF . He had received telephone calls from residents of TG complaining about extreme abuse being perpetrated by the security forces resulting in a number of fatalities.

Golding sent a team including the Public Defender, Earl Witter, to ascertain the true position and even enquired of the US Embassy if there was any information on the carnage that had purportedly been taking place.

In short, the Prime Minister and Minister of Defence had reason to query the information being relayed to him by the Heads of the security forces. Of note, the disparities were not  thought to be  deliberate attempts by the Heads to mislead;  instead to deficiencies of the ground operations--namely supervision and accountability.

Nelson, although a bystander as Golding had assumed total responsibility for the operation, echoed Golding's concerns. Bear in mind that the Heads never reported to Nelson during the joint military/police operation.

The Tivoli Commission of Enquiry (COE) has been made aware of specific concerns, namely the request for communication equipment and  aerial surveillance from the USA, the use of mortars by the JDF, the number of firearms recovered, the exact number of people killed during the operation, the  attendant circumstance of those deaths, the escape of the fugitive Christopher "Dudus" Coke.

The ball is now in the court of the JDF and the JCF. There have been hopes expressed that they will tell the truth. However, one must be reminded that especially the JDF  has in the past displayed a reluctance to be "more than forthcoming" and "more than economical with the truth".  They have lied.

In Jamaica there is a saying:" When fish come from river bottom and tell you sey shark down deh... you better believe it". Retired JDF Colonel Allan Douglas has been writing voraciously on the topic. He has penned a number of letters eg Unbiased Military Expertise  and  Full Disclosure and Inquisitorial Approach.

Below is the unedited letter dealing with the JDF:


"Evidence given by former Prime Minister Bruce Golding at the Tivoli Commission of Enquiry (COE) last week was of great interest. I was particularly interested in Mr. Golding’s evidence in relation to the use of mortars by the Jamaica Defence Force (JDF) during the Tivoli operation. Mr Golding’s evidence was that when he asked the JDF’s Chief of Defence Staff (CDS) about their use, he was told mortars were used as a diversionary tactic, fired into open spaces and only incendiary rounds. I am sure when the former CDS comes to give evidence, he will advise the commission what “open spaces” these mortars were firing at in an urban area and whether the Coronation market and possibly police stations were classified as such.
We were also provided with evidence of US involvement in this operation with an aerial surveillance aircraft. Here again, we hope the CDS will shed some light on the use of this air support and whether and when the JDF became aware of its existence as part of its Tivoli operation. If the CDS was aware of it, we hope he will advise us why the JDF initially denied there was such an air asset involved with the operation.
It is also hoped that when the CDS gives evidence, he will  advise whether in truth and fact there were weaknesses in the command and control of operations on the ground and the obvious disparity that appears to exist between the amount of weapons recovered from so-called ‘enemy combatants’ and those killed.
I know the former CDS and his successor to be both men of honour, but I am troubled that in the same manner that the JDF’s image was seriously tarnished after the Green Bay massacre of 1978 because of lies in the initial official account as opposed to what eventually emerged, I worry about the possibility of a repeat performance.
The former CDS will recall along with many other Jamaicans that the JDF was caught out lying by reporting for instance that:
                  Fourteen gunmen were surprised conducting target practice at the Green Bay firing range on January 5, 1978, that the gunmen opened fire, and that during the ensuing firefight four of the 14 gunmen were killed. All this allegedly took place at midday on January 5, 1978. Subsequently, evidence revealed that the 14 “gunmen” were in fact unemployed youths from Southside, central Kingston, who were lured to the Green Bay range by members of the military intelligence unit in Red Cross ambulances. An ambush party of the JDF was lying in hiding there to mow them down. This killing did not take place at midday as reported but in the dark at 5 am.
                  The weapons found a day after the killing turned out to be old World War II weapons that were not only inoperative, but had been in storage at the JDF for some time.
I know the JDF is quite capable of telling the whole truth, and once again, I plead with them to be forthright in giving evidence because the future of a credible military force depends on it.

Saturday, February 14, 2015

Tufton Not Too Bright To Re-think

We have stated that Christopher Tufton  was not "too bright" to have a place in the JLP Council of Spokespersons as a main spokesman with very substantial shadow portfolio responsibility.
Dr. Christopher Tufton had ran afoul of  Mr. Andrew Holness in the leadership challenge by Audley Shaw et al ostensibly for comments made on the campaign platform about disliking the company of "bright" people.

Background:

Tufton, a former close National Democratic Movement associate of Bruce Golding, was tipped by some to be Golding's successor as JLP Leader. However, Holness was anointed and appointed. Moreover scholarly Chris has lost his seat in the General Elections was seated in the Senate and  employed as Co- Director of a University "think-tank".

Tufton, along with others being nominated by the Opposition Leader to be appointed to the Senate by the Governor- General, signed the undated resignation letters which purported to effect resignation "with immediate effect" and gave the Opposition Leader the unfettered authority to fill in the date. Those were signed on the same date of the appointment to the Upper House.

The Letters did not indicate any purpose  which limited their usage. So Andrew Holness could have dated any or all a day after their appointment---if he thought prudent or politically expedient or those appointed were getting 'too bright'.

  • It seems puzzling to some that "bright " Chris --A Phd , Manchester University, should have signed such a letter. Then he was in 'good company' as many attorneys-at law did likewise. McDonald-Bishop (J) described the terms of the letters as"ill-conceived and nonsensical"[para 154]
But Tufton held his tongue and seemingly accepted his unceremonious removal from the Senate.He refrained himself from the public debate and did not join Arthur Williams,attorney-at- law, Leader of Government Business in the Senate, Chief of Staff in the Office of the Leader of the Opposition and designer of the "flawed" letter who himself had suffered a similar fate but decided to test the validity of his removal in the courts.
  •  Tufton did not join Williams in the suit against the Leader of The Opposition; giving the public impression that he was "above the fray", not wanting to publicly attract any criticism for "mashing up " the JLP.
Williams seemed to be shunned. There was the view that he was not "too bright" having designed and signed letters that  were used to remove him in face of his public protestations that he had no intention to resign.

Williams vindicated:

The Constitutional Court has held that the request, letters and the use thereof was unconstitutional, contrary to public, unlawful and therefore null and void. The effect was that Williams and Tufton did not resign and therefore could resume their seats in the Senate.
  • Tufton has now found his voice and has publicly admitted that  he should not have signed the undated resignation letter --rather belatedly and only after a court  had found fault with it. Not a bright move for he did so "on reflection". 
Tufton, apparently now riding on the Williams bandwagon,  has not been vindicated as Williams but has vowed to continue in the Senate:

“Therefore, I wish to assure my colleagues in the Opposition party, that I intend, in good conscience to represent the philosophy and principles held by it, and to do whatever I can to help forge a stronger Opposition,”
     
  • Apparently "Bright" Tufton does not think that there is any adverse inferences to be drawn from his poor judgement and willing participation in a scheme that the Constitutional court has found to be unconstitutional, contrary to public policy and unlawful . 
  • He has not offered a public apology. He has merely sought to reassure the JLP  that he will be a 'good labourite'--- toeing the party- line.
  • Probably on further reflection it will dawn on Dr Tufton that it may be exemplary if he immediately tenders his resignation and delivers same personally to Kings House as  a symbolic act of political atonement. [ See "Need for Political Atonement"
  • Tufton is indeed not that 'bright'  to seriously do otherwise; and should educate 'vindicated' Williams to do likewise.


Thursday, February 12, 2015

Crafting a Political Play

The reports that unconstitutionally ousted Senators Williams and Tufton (The Two) intend to resume their seats in the Upper House has raised questions of the strategies will the JLP adopt to (i) curtail further embarrassment, (ii) restore public confidence that it should be perceived as a credible alternate government, and (ii) reaffirm its commitment to the Rule of Law and the paramountcy of the Constitution of Jamaica.
It is of little or no political moment if the Senators merely resume their seats , likely with the enthusiastic applause of the Government Members and the grimace of  the other Opposition members--minus Reid and Clarke.
The media will be there to record "live and direct" the historic occasion. Political script writers would not allow such a presentation devoid of political staging. The event presents a glorious opportunity for the JLP to launch a recasting of its brand.

Hence the crafting of a Political Ploy Play:

                                                Act 1 Scene 1
The "never left" Members return to a prolonged applause frrom their colleagues who greet them individually with handshakes (male) and hugs and cheek kisses (female). They all remain standing untill the Two have taken their seats.
                                                 Act 1 Scene 2
The Leader of Government Business will be moved to extend a welcome; so too the President of the Senate. The Leader of Opposition Business joins in the official welcome. The Two remain quiet, occasionally bowing to acknowledge the greetings.
                                                Act 1 Scene 3
Before the commencement of business, The Leader of Opposition Business rises to address the Upper House about the Constitutional importance of the Senate and the public perception of the role played by the esteemed members of the Upper Chamber. He acknowledges the declaratory judgement of the Constitutional Court.
                                                 Act 1 Scene 4
The after a dramatic pause informs the House that the Opposition Senators each have reflected on the significance of the rulings and their individual and collective participation in this regrettable affair.
Accordingly, they all apologize unreservedly to the public of Jamaica. As an act of atonement: individually tender their resignation to the Governor-General and personally deliver that letter to Kings House momentarily.
                                                   Act 1 Scene 5
All Opposition Senators then rise and make their exit, each bowing to the Chair. They make their way to Kings House with the media in tow. Each  presents the resignation letter ( in green envelope ) to the GG Secretary who would have been alerted to expect such. The Two  head of the line to ensure central coverage.

Intended Messages:

  • The JLP is bigger than any one or two individuals;
  • The Senators are committed to upholding the esteem and integrity of the Upper House;
  • They do not have to await further court directions to act constitutionally, consistent with public policy and lawfully;
  • They all seek public forgiveness and are willing to pay a political price;
  • Each wish to continue to serve;
  • End the constitutional distraction and refocus national attention on the economy.

Ploy Writer's note:
The Plot  Play continues when next the Lower House meets. There will be the  announcement of a new Leader of Her Majesty's Loyal Opposition. However, the JLP Leader retains all other positions and portfolio oversight.
Andrew Holness will be devoting  most of his time to "hitting the road"-- (a) campaigning for the next  elections, (b) restoring some of the party's political slippage, (c) consolidating his showing the the recent polls, (d) organizing the JLP ground machinery and (e) mobilizing financial support for the endeavours.


Tuesday, February 10, 2015

Need for Political Atonement

Embroiled in a political quagmire largely of its own making, the Jamaica Labour Party (JLP)  has once again shot itself; this time not in the foot , but in the upper reaches of its political groin. Although injured it requires substantial amounts of testicular fortitude for it to surmount the challenges on the rocky road to an election victory.

There is need for a concerted attempt at establishing  a degree of party unity needed to convince the electorate that is it is credible alternate government . In sum, given the chance a JLP administration would be faithful to our Constitution, adhere to  the Rule of Law, and act with transparency, integrity and accountability in endeavours to improve the lot of the Jamaican people.

We would suggest that any strategy adopted by the JLP must be designed to  re-establishing  (a) the paramountcy of the Constitution,  (b) the adherence to the Rule Of Law and (c)  public confidence and trust in Andrew Holness as JLP Leader.

 Clearly a public wrong has been committed by the Leader of the Opposition and Leader of the JLP. There is a political price to be paid. There is need for political atonement.

(a) The Constitution:

The Supreme Court has found that Andrew Holness, as Leader of the Opposition, had acted contrary to the Constitution, contrary to public policy and unlawfully. Having been made so aware by a declaratory order, the Leader of the Opposition and Leader, JLP need not wait for  court  injunctions to institute "corrective " measures and do the right thing ---- namely, act consistently with the Constitution,  in harmony with public policy and lawfully.

  •  There is the view that a constitutionally reconized office- holder, sworn to uphold the Constitution, ought not to continue in the office  when a Court of law has found that the office- holder had acted unconstitutionally and unlawfully.
  • The argument is limited to his position as Opposition Leader and no way pertains to his position as Leader, Jamaica Labour Party.
  • The person to occupy the office of the Leader of Opposition is the prerogative of the MPs supporting the the JLP. Usually, they would caucus and communicate their decision to the Governor- General. Although not constitutionally bound to accept their decision, it is the convention that the GG acts accordingly..
  • Thus Andrew Holness could resign as Opposition Leader and still maintain his seat in Parliament, the shadow portfolio responsibilities and position as Leader, JLP.
(b) The Rule of Law:

Andrew Holness has to demonstrate his unwavering adherence to the Rule of Law. As such he has to respect the rulings, findings , declarations  emanating out of the judicial process. That process allows him to disagree formally by lodging and pursuing an appeal. The judgement, ruling, declarations stand; until and unless a court orders otherwise.
  • In the circumstances Holness should formally appeal the matter to the Court of Appeal which is the final arbiter in matters concerning the membership/vacancy in the Senate.
  • It would be in keeping with guidelines of good governance if he removes himself from the affected position pending the outcome of the appeal.
(c) Public confidence and trust:

The building of public confidence and trust is the result of a plethora of factors in the public behaviour of the Leader JLP. Such is affected by the public perception of unity within the JLP. In short, credible attempts have to be made to coalesce all "labourities" in a coordinated strategy to gain electoral
victory. The 'revised' Senate arrangements  will last only until the next General Elections--expected within 22 months.
  
Here are some suggestions which flow directly from the "regrettable embarrassment":
  • Attempts should be made to to appease the "vindicated" without Williams resuming his seat in the Senate. Should Williams insists on taking his seat, then it may be tactical to reappoint him as Leader of Opposition Business (a disgruntled opposition Senator  may be tempted to  cast that historic vote required for passage of the CCJ Bill) ;
  • The JLP should seriously consider the appointment of a fresh slate of Senators, excluding the ones who had signed the flawed letters; [See next post "Crafting a Political Play"]
  • Efforts should be made to reintegrate Chris Tufton ( the other Senator who was unconstitutionally removed) into the party hierarchy--possibly as a main spokesman in the  Council of Spokespersons and being made an electoral candidate.

Unconstitutionality: Holness not alone

The public debate has focussed primarily on the declaratory order of the Constitutional Court that the Leader of the Opposition has acted contrary to the Constitution, contrary to public policy, and unlawfully.The Leader of Her Majesty's Loyal Opposition is an office that is recognised by the Constitution of Jamaica. Indeed some would argue that it is a creature of the Constitution.

 Not JLP Leader:
Note that the Leader of the Opposition is not synonymous with the head of the political party that  forms the minority in the House. In Jamaica's political history, the Leader  of the Opposition has been someone other than the head of the respective political party. This is due to the fact that  (i) the Constitution does not recognize political parties and (ii)  the head of political party that the majority of the members not supporting the Government did not have a seat in the Lower House at that point in time.

There should maybe some confusion between the Leader of the Opposition and the head of the Jamaica Labour Party which has the party title : "Leader". For some the distinction may be a little challenging as the constitutional office of  the Leader of the Opposition has been occupied by the Leader of the Jamaica Labour Party for significantly greater periods of time than the President of the Peoples National Party.

 Conspiracy:
The fraudulent scheme  had a number of actors along with the principals Williams and Holness.
For example:

  • Other attorneys-at-law were consulted and participated in the scheme. One noted Attorney acted in the capacity of Justice of the Peace, witnessing the signature on the pre-signed undated letters as well as the signed dated letters. 
  • Some of the the persons that were nominated by the Leader of the Opposition to be appointed Senators and who acceded to the unconstitutional and unlawful request were attorneys-at-law.
  • The Governor General  gave effect to the actions that have been declared by the Supreme Court as "unconstitutional, unlawful and contrary to public policy".
The Role of the GG:
Having received the documentation that purported be be the resignation of the two Senators involved, the Governor General would have at the very least (a) acquainted himself the the relevant sections of the Constitution of Jamaica dealing with such matters [Section 41 (1)]; and more importantly, (b) sought the opinion of legally trained members of the local Privy Council.

The public will never be made aware of the advice received by the GG: however, the receipt of the set of letters from the Leader of the Opposition could possibly have led to the presumption that they were authentic, lawful and in conformity with the Constitution. After all, the Leader of the Opposition had advised the GG on their appointment.

Without more, one cannot reasonably infer that Her Majesty's Representative in Jamaica  did not seek and receive legal advice on the matter; or  ignored the advice that was tendered. There is no evidence available that the Office of the Governor General ascertained from the two Senators affected if indeed they had the intention to resign at the time the letters were received at Kings House. [ Sec 41.(1) (b) --"if he  resigns his seat"]

But ignorance of the Law is no defence ; moreso ignorance of the Constitution by the GG. It may be argued that, similar to the Leader of the Opposition, the  Governor General acted on "bad legal advice". However, the GG had a greater responsibility than the Leader of the Opposition. Wittingly or unwittingly the GG was involved in the perpetuation of the fraud on the Constitution.

The GG was not a party to the suit filed in the Supreme Court. Nevertheless, the action of Her Majesty's Representative did not escape analysis.  McDonald-Bishop (J):

 "It would follow, then, that the defendant, as Leader of the Opposition, had no power under the Constitution to remove or to recommend the removal of an Opposition Senator from the Senate. Therefore, the Governor-General would not have had the power, express or implied, to remove the claimant on the advice of the defendant or at his behest, which in effect, was what transpired in the circumstance of this case."