Coke-Manatt enquiry: Who will bell the cat?

Delano Franklyn, Contributor

Despite the importance of the Christopher Coke-Manatt, Phelps & Phillips (MPP) commission of enquiry, there are persons who believe that nothing will come of it. There are also those who believe that the enquiry is a sideshow, a soap opera, designed to titillate rather than an attempt to unearth the truth. Yet, others are of the view that the enquiry is, as outlined by one writer, "a colossal waste of public funds".

There are others, however, who feel otherwise. Those persons argue that the enquiry is about a matter of national importance, that it should be allowed to run its course, and that those who conducted themselves inappropriately in treating with the request for the extradition of Christopher Coke should be punished.

The outcome of the enquiry, like all others before it, will be dependent on the findings and recommendations of the commissioners and those persons who are charged with the responsibility of implementing their recommendations. In order to fully appreciate what the commissioners have been asked to do, we must remind ourselves of the terms of reference of the enquiry.

The commissioners are requested to enquire into:

a) The issues relating to the extradition request for Christopher Coke by the government of the United States of America;

b) The manner and procedure in which the said extradition request was handled by the Government of Jamaica and the role and conduct of the various public officials who handled the extradition request;

c) The circumstances in which the services of the law firm MPP were engaged in relation to any or all of the matters involved, by whom were they engaged, and on whose behalf they were autho-rised to act;

d) Whether there was any mis-conduct on the part of any person in any of these matters, and if so, make recommendations as the commission sees fit for the referral of such persons to the relevant authority or disciplinary body for appropriate action.

With this in mind, it is quite understandable why the persons who have been, and will be called as witnesses to be examined and cross-examined, include the prime minister, government ministers, top civil servants, and members of the security forces. Having been summoned to appear at the commission, persons have the right to be represented by a lawyer or lawyers of their choice. In doing so, the law-yers, some of Jamaica's finest, are required to demonstrate their mastery of the facts and apply their knowledge of the requisite law in the interest of their respective clients. It is, therefore, quite inappropriate to conclude, as one editorial sought to do, that the enquiry is slowly descending into a "legal circus as lawyers become intoxicated with the exuberance of their own verbosity and frequent cheekiness".

CONDUCT OF ENQUIRY

The conduct of the enquiry is determined by the commissioners, Emil George, QC (chairman), Anthony Irons, and Donald Scharschmidt, QC. The provisions of the Commissions of Enquiry Act are applicable to the enquiry, and in this regard, the commissioners are expected to abide by and be guided by the relevant sections of the act.

It is, therefore, important to remind ourselves of some of the provisions of this act.

Section 7 of the act states, in part, "It shall be the duties of the commissioners ... to make a full, faithful and impartial enquiry into the matter specified in such commission and to conduct such enquiry in accordance with the directions (if any) of the commission ... ."

Section 10 states, among other things, that "the commissioners, acting under the act, shall have the power of a judge of the Supreme Court of this island to summon witnesses and to call for the pro-duction of books, plans, docu-ments, and to examine witnesses and parties concerned on oath ... ."

The comments, therefore, as outlined in an editorial in one newspaper, that "the chairman of the commission, the eminent Mr Emil George, must be feeling like a judge, except that he had not signed on for the job of judge", is not in keeping with the stipulations of the act. Although the rules governing the operation and conduct of a commission of enquiry are far more flexible and relaxed than would be in the courts, as for example, those provided for in the rules of evidence, Mr George, as outlined in Section 10 of the act, has the power of a judge in certain material particulars.

APPROACH TO BRADY

Further, Section 11 (1) of the act states, in part, that "all persons summoned to attend and give evidence or to produce any book, plan, or document before the commission:

a) shall be bound to obey the summons served upon them;

b) shall be entitled in respect of such evidence or the disclosure of any communication or the pro-duction of any such book, plan, or document to the same right or privilege as before a court of law.

(2) Any person who -

a) without sufficient cause, fails or refuses to attend before a commission in obedience to a summons under this act, or fails or refuses to produce any book, plan, or document which he was required by such summons to produce; or

b) being a witness, leaves the commission without the permission of the commission; or

c) being a witness, refuses, without sufficient cause, to answer any question put to him by or with the permission of the commission; or

d) wilfully obstructs or interrupts the proceedings of the commission;

- shall be liable on summary conviction before a resident magistrate to a fine not exceeding $500, or, in default of payment thereof, to imprisonment with or without hard labour for a term not exceeding three months."

Based on Section 11 (2) of the act, it will be of interest to see how the commissioners deal with Mr Harold Brady, who obeyed the summons to appear at the commission, but who refused to answer any questions.

IF MISCONDUCT IS FOUND

What will also be of interest is how, as is outlined in (d) of the terms of reference of the enquiry, the "relevant authority or disciplinary body" will carry out or implement the necessary action against person or persons found by the commissioners to have been involved in any form of misconduct.

If misconduct is found on the part of any public officer who appeared before the commission, the appro-priate body to administer disciplinary measures will be the Public Service Commission, guided by the Staff Orders and the Public Service Regulations. Persons from the police and the military would have their own corresponding disciplinary procedures. If any of the ministers of government are found to be guilty of misconduct, the relevant authority is the prime minister; and if the prime minister is found to be guilty of misconduct by the commissioners, the relevant authority to administer discipline is the said prime minister. It will be very interesting to see, if either a minister or the prime minister is found guilty of mis-conduct, how discipline will be administered.

The commission of enquiry into the Coke-Manatt saga did not come about as a result of a voluntary act; it came about because members of the public applied consistent pressure on the Government. The public is now being given the opportunity to see, by way of live television coverage, how their appointed and elected public servants respond under examination and cross-examination to what they did or did not do in responding to the request of the US government for the extradition of Coke.

The commissioners, under the glare of public scrutiny, and being the honourable gentlemen that they are, should have no hesitation, as is provided for in Section 7 of the Commissions of Enquiry Act, to conduct a full, faithful, and impartial enquiry into the matters outlined in the terms of reference of the enquiry.

Whether or not their recommend-ations will be implemented, particularly if misconduct is found on the part of a minister or the prime minister, will be dependent on the attitude and reaction of members of the public who are following the deliberations with great interest.

Delano Franklyn is an attorney-at-law. Email feedback to columns@gleanerjm.com and delanofranklyn@gmail.com.