Editorial | Remove minister’s gun appeal power; allow judicial review

THIS NEWSPAPER concurs with Dr Horace Chang, the national security minister, on what he says is the current policy with respect to the treatment of the findings of the review board on firearm licences – their decisions are not subject to review by the minister.

We support Dr Chang’s intention to have this policy codified in the proposed new Firearms Act, into which a parliamentary committee is now holding hearings, but with a proviso. The decisions of the review board should, in clearly defined circumstances, be open to judicial review. While this right is now inherent in Jamaica’s legal and constitutional construct, it should be explicitly declared.

Further, we believe that the power of ministers to second-guess duly appointed review authorities should be very seldomly given, and where it exists, sparingly exercised. In this regard, Marlene Malahoo Forte, the recently appointed minister of legal affairs, should, as an early assignment, comb the island’s laws for these provisions for a determination on which of them should be excised.

The matter of how ministers use these review powers has been highlighted in the Integrity Commission’s (IC) report on its investigations into the irregular issuance of gun licences, between 2012 and 2017, by the Firearm Licensing Authority (FLA). Many people with “criminal traces”, or who had criminal convictions, received gun licences. It appears, too, that fit-and-proper criteria were not always, or uniformly, applied.

SCRUTINY

Some of the licences that received the IC’s scrutiny were issued, after appeals, by the two men who served as national security minister during the review period – Peter Bunting (two) and Robert Montague (six). Whatever may be perceived to be the reason for their actions, the mischief starts with the provisions of the Firearms Act.

The law establishes a Firearm Licensing Authority, with a board (made up of former top prosecutors, senior civil servants, ex-police officers and two persons appointed by the minister at his own discretion) that is empowered to issue gun licences.

The law also establishes a review board, to which people aggrieved by the decisions of the FLA can appeal. That board is composed of persons who have been a director of public prosecutions or a former senior prosecutor, retired judges of the Supreme Court or the Court of Appeal, and retired police officers, who reached at least the rank of superintendent.

But there is an anomaly in the law. It requires that the decisions of the review board receive certification, of sorts, from the minister. Or, he can ignore, if he so [pleases, its findings and impose his own]. Or, as the law states it, the review board, “shall submit to the minister, for his determination, a written report of its findings and recommendations”. Thereafter, the minister “ shall give to the authority such directions as the minister may think fit”. In circumstances where the review board fails to comply with the law or fails to conduct an appeal within the prescribed time, the minister can convene his own hearings.

Dr Chang rightly said of his right to review: “We found it inappropriate that a policy unit within the ministry (of national security) should be asked to review the work of a panel, headed by no lesser person than a former president of the Court of Appeal, supported by a former senior deputy director of public prosecutions and a retired senior police officer.”

ACTED IN ACCORDANCE

It is this power that Messrs Bunting and Montague exercised. In Mr Bunting’s case, however, he insists that he acted in accordance with the findings of the review board, which, in a tangential way, places him, with regard to specific cases mentioned in the IC report, in the same ballpark as Minister Chang – and this newspaper. It is not clear if, or how much, Mr Montague may have deviated from the findings and recommendations of the review board.

But while being in concert with the review board provides some cover, there is a larger principle: such reviews should be free from potential political interference. Indeed, ministers should welcome the insulation from charges of moral, or other corruption and/or conflicts of interest, to which Messrs Bunting and Montague have been subjected.

In the case of gun licences, appellants against the FLA, and the FLA itself, if they are aggrieved by a decision by the review board, they should have recourse not to the minister, but to the courts by way of judicial review to determine whether the appellate process was conducted in accordance with the rules and regulations, and with fairness. This would demand that there be clear definitions of who is fit to receive gun licences as a part of detailed procedures for making the determinations and for the appeal process. A model for the FLA, appropriately repurposed, is the Jamaica Anti-Doping Commission and the related appellate processes with respect to doping in athletics.

However, the general principle should be considered for other areas of government.