Mon | May 21, 2018

Colin Campbell | Immunity debate misses the point

Published:Sunday | April 22, 2018 | 12:00 AM
Colin Campbell

There has been much commentary surrounding the issuance of a so-called certificate of immunity as it affects the criminal case arising from the killing of Keith Clarke. Much of the discourse is based on untruths, inaccuracies, and downright ignorance.

It is important to note that our legislators failed to explain the significance of the provisions in the Emergency Powers (No. 2) Regulation of 2010, established in June 2010, by the Bruce Golding administration with the state of emergency declared in the aftermath of the Tivoli operation to capture the fugitive, Christopher 'Dudus' Coke.

Those regulations included express provisions for the protection of the security forces and provided for the minister to issue a certificate in that regard. In the absence of any explanation of the possible impact of those provisions, we are now reduced to discussing Peter Bunting, who is irrelevant to the issue, except for the fact that by the end of the following year, Dwight Nelson, the state of emergency minister of national security, was functus and the job to sign the certificate fell into the lap of anyone occupying the seat.

PNP governments obey the law and then Minister Bunting acted in accordance with the law.

The real issue, however, is that the rearguard battle fought by Golding and his Cabinet to resist the extradition request by the United States was the seed that was planted and germinated over a nine-month period to become the Tivoli assault on the State.

For completeness, I should also remind Jamaica that in Cabinet with Golding were Andrew Holness, Audley Shaw, Daryl Vaz, Robert Montague, Christopher Tufton, Karl Samuda, Horace Chang, Lester Michael Henry, and Rudyard Spencer, all of whom are ministers today.

Golding and his colleagues employed delaying tactics by spurious requests for better information from the US government and went as far as to contract lobbyists, with the now-disgraced Harold Brady acting as consort to hire the firm, Manatt, Phelps & Phillips, paid for by funds raised and wired to the United States by Daryl Vaz - apparently with the intent of preventing the extradition of a wanted man. We can all refresh our minds by reading the Simmons report.

That stubborn resistance by a government, built up further by bravado speeches in Parliament, had serious and unfortunate consequences. The gunmen protecting the wanted 'Dudus' Coke were emboldened, and after extensive public pressure, the Government had to declare a state of emergency. Members of the Jamaica Defence Force and the Jamaica Constabulary Force were duty-bound to defend the State against the criminal gunmen. This they did under orders and, purportedly, in good faith.

 

Misguided Gov't actions

 

Those misguided actions of the government of the day are the real issues to be discussed and how poor Keith Clarke became the victim of faulty intelligence and three low-ranking soldiers in a huge security operation now have to face the courts.

Let me be clear on this latter point. If those soldiers did not act in good faith and are guilty of murder, they must be punished according to law. But the question must be asked: Would Keith Clarke and the 69 persons in Tivoli have been killed in the way they were if there were no attempts to resist the extradition of a wanted man?

The facts are:

1. When Mr Clarke was killed, the JLP was the Government and Dwight Nelson was national security minister.

2. The Bruce Golding Government (which included as Cabinet ministers some of the current Cabinet) obtained through that Parliament permission to advise the governor general to declare a state of emergency.

3. The Golding Government brought into effect the Emergency Powers (No. 2) Regulations of 2010 in which Section 45 is expressly titled 'Protection of the Security Forces'.

4. Section 45(1) of those regulations gave immunity from prosecution to any member of the security forces for "any acts done in good faith in the exercise or purported exercise of (their) functions for public safety ..." during the state of emergency.

5. The incident involving Mr Clarke's death was a security forces' operation, including JDF and JCF assets, during the state of emergency.

6. Former Minister Bunting, in keeping with Section 45(3) of said regulations, certified that the acts of the soldiers charged were done "in good faith in the exercise of (their) functions as members of the security forces for public safety, the restoration of order, preservation of peace and in the public interest". It is important to note that the minister's certificate is not iron-clad or the end of the matter because that section further provides that the certified acts "shall be deemed to have been done in good faith unless the contrary is proved". [Words in bold for emphasis]

7. The DPP's ruling was sought as to whether the soldiers should be charged, and it was not until the Government changed that this took place.

8. Neither the minister of national security, nor, indeed, any minister can grant immunity from criminal charges. Only the law of the country (legislation) can do that.

It is well established that the intelligence sources and equipment, strategies and planning (particularly those involving the military and military intelligence) often include secret and sensitive matters that ought not to be compromised by public disclosure. These are some of the reasons why that Regulation 45(3) of 2010 allows for the minister to certify that any act of a member of the security forces was done within the scope of the objectives of the state of emergency, rather than causing the public ventilation of sensitive security matters.

 

Complex legal issue

 

Public discourse on this matter, therefore, has to be informed, reasoned, and complete. Making it seem as if it were an immoral act concocted in secret by Bunting is neither true nor helpful to a full understanding of this rather complex legal issue, which came out of deliberate acts by a government that appeared to many to be protection of a criminal don in its most loyal stronghold. And not a word currently from the eloquent Golding or the forgetful Dwight Nelson.

The next time the Government takes state of emergency regulations to the Parliament, and I believe the Senate is due to debate the regulations for St Catherine North soon, the people of Jamaica should be favoured with clear explanations of the provisions as the regulations relating to the current states of emergency, among other things, also provide for the minister to issue such certificates. If not, we will be back here in the years ahead. Still uninformed.

And next time we, as citizens, declare that we are willing to give up rights to fight crime, please remember that it could very well become a declaration to fight to the last drop of your own blood, not someone else's.

- Colin Campbell is a former minister of information. Email feedback to columns@gleanerjm.com.