Editorial | Keith Clarke, the law, and moral issues

If our reading of the regulations covering the 2010 state of emergency is correct, the trial of the three soldiers for the alleged murder of auditor Keith Clarke isn't automatically at an end.

However, Peter Bunting, the former national security minister, who signed certificates of immunity on behalf of the soldiers - Corporal Odel Buckley, Lance Corporal Greg Tinglin, and Private Arnold Henry - will still likely face legal and moral questions over his action. But he is not the only one who will, or ought to, face such scrutiny.

The public, for instance, would likely want to know whether Mr Bunting acted on his own advice and what, if any, was the influence of former Attorney General Patrick Atkinson on his decision, as well as the posture of the current commissioner of police, Major General Antony Anderson, who, at the time of Mr Bunting's signing of the document in February 2016, was still head of the Jamaica Defence Force.

Mr Clarke was killed during the period of public emergency that was instituted in west Kingston as part of the security operation to neutralise the private militia of the politically aligned mobster, Christopher Coke, who was to be arrested for extradition to the United States. It was during the search for him that soldiers forced their way into Mr Clarke's home miles away, seemingly on the assumption that Coke was hiding out there. Mr Clarke was shot 20 times.

Notably, the regulations under which the 2010 emergency existed stipulate, at Clause 45, that - except for persons seeking compensation for property requisitioned or damaged by the Government in a few other circumstances - "no action, suit, prosecution or other proceeding shall be brought or instituted against any member of the security forces in respect of any act done in good faith during the emergency period in the exercise or purported exercise of his functions or for the public safety or restoration of order or the preservation of the peace in any place or places within the island or otherwise in the public interest".

To exercise this immunity, it required merely a certificate from the appropriate minister attesting that the actions of a member of the security forces, for which he otherwise would have been legally liable, were done in furtherance of the objectives of the emergency. That certificate, according to the regulations, is "sufficient evidence that such member was so acting and any such act shall be deemed to have been done in good faith unless the contrary is proved".

A MOUNTAIN OF CONTROVERSY

There remains, on the face of it, an opportunity for the prosecutors to argue that the soldiers involved in Mr Clarke's killing were operating in bad faith and bring evidence to make this case. However, by the time Mr Bunting signed that certificate, it was six years after Mr Clarke's death and his killing had been subject to a mountain of controversy, including disputes over the jurisdiction of INDECOM in the matter, and claims that the army was frustrating attempts to gain ballistic information. By this time, General Anderson, who was, at the change of government, to become Prime Minister Holness' national security adviser, was head of the army and would have been aware of the request for the certificate.

Even if General Anderson was comfortable going along this route, the question for Mr Bunting is whether, given his position of leadership and the controversies surrounding the matter, he was on firm moral ground in signing the certificate, unless absolutely required in law so to do. We would have expected Mr Bunting to have asked the attorney general for a ruling on the issue, and we are interested to hear what Mr Atkinson, if he was asked, had to say.