Monday, January 26, 2015

Tivoli COE: Is the Commission acting ultra vires?

On the publication of the Public Defenders Interim Report that the recommended a public commission of enquiry, we have argued that its focus should be  state-centric. As such it should not seek to replicate the work undertaken by the Office of the Public Defender ( mainly compensation) ; neither should it be concerned with the criminal aspect ( primarily because the unavailability of the forensics and that matters dealing with criminal culpability is the remit of the Director of Public Prosecutions ).

 In a Gleaner interview published Tuesday, May 14, 2013  : "Attorney say yes to Tivoli enquiry" (carried on the front page) I was "strongly recommending" that the proposed commission "should consider the granting of immunity to persons summoned to testify in order to get to the truth"
Not to do so would run the distinct possibility that the principal decision-makers and state operatives  being instructed by their attorneys to guard against self-incrimination.

The GOJ invited submissions on the Terms of Reference (TOR) ; after the appropriate considerations  the operative ones were promulgated.They were omnibus in scope and cumbersome in nature. A worrisome feature was the capacity of the named commissioners to undertake the tasks involved. Indeed we had suggested that there was need for a commissioner with some expertise in military operations. Others argued the case for unbiased military expertise.

 The  commissioners were duly appointed.  Curiously, they were sworn- in not by the Governor General himself but a former Chief Justice and now Chairman, Public Services Commission in a hotel room in Kingston, (not at Kings House) for some unpublished reason. Neither the detailed budget or the legality of the TOR were questioned; although there were outcries that it was going to be a glorious waste of time and a soap opera like the Manatt Enquiry.

Gordon Robinson, an attorney-at -law, in a column entitled " Enquiry Botched From Beginning" published in The Gleaner, Sunday, January 25, 2015 has questioned the legality of the TOR.
Below are excerpts:

 Statutory basis of a commission of enquiry:

"Section 2 of the COMMISSIONS OF ENQUIRY ACT gives the power to issue a commission of enquiry to the governor general 'whenever he shall deem it advisable' for the purposes of enquiring into 'the conduct or management of any department of the public service, or of any public or local institution, or the conduct of any public or local officers of this island, or of any parish, or district thereof, or into any matter in which an enquiry would, in the opinion of the governor general, be for the public welfare.'

Matters of compensation and criminal culpability:


"Jamaican statutory authorities' jurisdictions aren't elastic. No enquiry's remit will stretch so far as to permit it to hold any soldier/policeman accountable for injury to any citizen or to assess the "adequacy" or otherwise of compensation. That's also for the courts.
Because enquiries are limited to investigating actions of government departments to see if processes were breached or are flawed, the Tivoli enquiry should be focusing on the security forces' conduct. Why'd they 'invade' Tivoli? Why not adopt a siege strategy? Who gave the order to invade? Was it in accordance with proper military/police methods?"

Treatment of Tivoli residents:

"The thing about this enquiry isn't so much the hourly rates as the infernal waste of hours bullying Tivoli residents. Why're we asking residents any questions? Why are they priority witnesses? The commission can't find anybody liable to any of them nor assess adequacy of compensation. Whoever has promised Tivolites this enquiry is operated on the 'gimme-a-money' principle needs to correct that impression immediately."

Robinson has agued that some of the TOR are "obscene" and the Commissioners are conducting "ultra vires investigations essentially usurping the Supreme Courts jurisdiction".
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