Monday, April 18, 2016

Tivoli COE: Impractical timelines



The Tivoli COE was mandated to have its public hearings conducted within a 3-month time period. The Commissioners exceeded this time span and did so without seeking the appropriate extension from the Governor- General.

Two concerns come readily to mind:

  •  Having ignored the protocol, what is the legal status of the public hearings conducted after the stipulated time span had expired? and 
  • What were the circumstances that accounted for the overrun and where such unforeseen and/or unavoidable ?

i) We are not in a position to state definitively if the overrun has altered the legal status of the public hearings conducted after the stipulated 3-month. Having not sought or obtained the extension, then it would seem that an argument could be made that the public hearings conducted after the expiry of the mandate would have no legal standing. Hence, the Commissioners would be barred from taking into their consideration any evidence given after the expired date. Consequently any adverse findings based on evidence deduced after the expiry date would have no legal effect. In other words the Tivoli COE acted ultra vires for the subsequent period.
The ramifications of such a position would be catastrophic to say the least.

ii) The only official reasons given for the Tivoli COE non- compliance with its mandate can be found in the Chairman’s closing remarks. However, his reasoning was more instructive:

“Because our Instrument of Appointment referred to three months for the public hearings there seems to be a view that we could have done this enquiry in three consecutive months.  I want to disabuse the public's mind of the appropriateness - just one minute please, I wish to disabuse the public's mind that these enquiries can be satisfactorily conducted in that manner.”

Note the admission that the Instrument of Appointment stipulated three months. The Chairman interpreted that to mean 90 non-consecutive working days. And has congratulated himself (along with others) on such an achievement:

“It has been, I speak for all three of us of course, in these remarks, it has been intellectually challenging and at the same time highly rewarding if at times emotionally draining, but we have completed within the 90 days. Today is the 90th day. I feel very proud of that myself because the Instrument which appointed us from His Excellency the Governor General asked us to complete this hearing within 90 days.”  

Again the Governor General stipulated 3 months; and not 90 non-consecutive working days. This is critical for using the Chairman’s interpretation, the Tivoli COE could have lasted, not 14 months but considerably longer.( see our Tivoli COE: 3-month enquiry lasts 14 months)

After itemizing a number of reasons why the Tivoli COE could not be conducted within 3 calendar months or even within 90 consecutive working days, the Chairman revealed that the stipulated time frame was impractical from the very beginning:

“I am just saying that it is really an impractical solution to expect that 
these things could be done in 90 days on the troth.”

 We have no reason to question the reasons advanced by the Chairman. We are left to wonder if the much-experienced Chairman could not have raised this issue with the appropriate authourities so that the Instrument of Appointment would have accorded with the reality.

But having proffered his unusual ( albeit expedient) interpretation, the Chairman then proceeded to remind his audience of the exact reference for the submission of the report:

"And I further direct you to report to me in writing within two months after concluding the Enquiry the result of such enquiry and to furnish to me a full and faithful report and recommendations of the proceedings." 

 However, the Chairman has made it abundantly clear that this two-month deadline is “an extremely tall order”.

“But however, it turns out we are hoping if we cannot make the 20th of April, no longer than two weeks thereafter.  So by the middle of May, I hope that we will be in a position, I hope all things being equal, no unforeseen circumstances to have the report ready.”

We wish to re-emphasize the point that it would have been tidier if the Chairman had had some input at the earliest time so that the timelines stipulated would have accorded with the reality. That not being the case, then the Chairman should have adopted the appropriate protocol and sought an extension.

We await April 20,2016--- with reduced expectation that the report could be delivered sometime in mid-May 2016.

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