Editorial | INDECOM indemnity wrong

This newspaper consistently supported granting to INDECOM (Independent Commission of Investigations), subject to the constitutional powers of the director of public prosecutions (DPP), the authority to independently indict and prosecute members of the security forces over whose conduct it has purview.

However, we do not agree with the moves by the government, through retroactive legislation, to protect INDECOM and its agents, and by extension, the Jamaican state, from the possibility of lawsuits for malicious or wrongful prosecution by police officers who were arrested and prosecuted by the agency when it believed it had that power. Parliament’s passage of a law to that effect would foreclose to a subset of citizens one of the hallmarks of a liberal democracy, their right to seek redress in the courts when they believe they have been wronged by the state.

POSITIVE BENEFIT

To be clear, The Gleaner believes that INDECOM has, in its dozen years, proved itself to be overwhelmingly positive to Jamaica, notwithstanding the assaults it has faced from significant segments of the security forces who resent its oversight, as well as from politicians on both sides of the divide, who believe it of value to join the complaints.

INDECOM was launched in 2009 as an independent commission of Parliament in response to decades of allegations of extrajudicial killings by the security forces, and after the failure of several initiatives aimed at imposing accountability on the constabulary. Those efforts collapsed mostly because the old oversight institutions lacked independent capacity to investigate complaints of misconduct, including excessive use of force, by the bodies they policed.

The year INDECOM was established there were 277 reported police killings in Jamaica. A decade later, in 2019, police homicides had fallen t0 86, a drop of 69 per cent. While the numbers have again crept upwards over the last three years, reaching 134 in 2022, that figure was still 52 per cent fewer than in 2009.

But INDECOM’s critics accused it of overbearing and overzealous pursuit of cops, especially in the context of Jamaica’s high-crime environment (1,498 murders in 2022), thus demoralising the constabulary and emboldening criminals.

The most strident pushbacks came in the years when INDECOM, under its tenacious founding commissioner, Terrence Williams, interpreted the law as giving his agency the authority to mount prosecution on its own steam, an arrangement not dissimilar to powers explicitly afforded to the Integrity Commission and exercised through its independent director of corruption prosecutions.

In 2013, after INDECOM had indicted and charged several officers for offences including murder, the Police Federation contested its authority to do so, by way of a judicial review.

The Federation initially lost. A 2014 ruling by the Full Court said INDECOM had the power. However, the Federation appealed that judgment, and in 2018 the Court of Appeal overturned the lower court’s ruling. It said that any right of arrest enjoyed by INDECOM’s staff were only those afforded to private citizens at common law.

PURELY INVESTIGATIVE

In late 2020, the Privy Council, Jamaica’s final court, definitively held that INDECOM’s job, based on the law, was purely investigative and that it had no power to arrest or prosecute members of the security forces.

The administration has in the past indicated its disinclination to afford INDECOM those powers. But recently the justice minister, Delroy Chuck, brought a bill to Parliament that would provide blanket indemnity to INDECOM for the arrests and prosecutions it initiated.

In the face of opposition pushback, debate on that bill was suspended. Mr Chuck subsequently proposed changes that, on the face of it, would limit the indemnity to the periods when, based on court rulings, INDECOM could clearly argue that it felt its actions were lawful.

This newspaper has little doubt that INDECOM and its then commissioner, Mr Williams, acted in good faith and with a belief that they were within the law.

We are, however, uncomfortable that this presumption would be affirmed by legislation. Further, even with Mr Chuck’s revised bill, the window that would be opened to some affected police officers would, it seems, place the burden on them to prove that INDECOM acted in bad faith.

In that respect, we agree with Mark Golding, the Opposition leader, that rather than using validation legislation to “take away rights” of people who may believe they have cause of action, the matter should be left to the courts “to decide to what extent that INDECOM thought they had the power ought to give them some kind of defence”.