Misconducted enquiry

"What gawn bad a mawnin' .."

Readers may remember that I wrote the following on February 4:

"Justice will not appear to be done if the accused chooses his judges, even if he has the legal power to do so. As reputable as the commissioners may be, the way they were appointed must raise red flags. Knowing that appearances are important, the PM could have found a way of distancing himself from the appointment of the enquirers into his conduct. The arrangements for this COE did not begin in a manner inspiring confidence in its findings."

If you want people to have confidence in the findings of a commission of enquiry (COE), before it even begins there must be no red flags raised about its establishment. Yes, the Manatt-Dudus COE was set up in the same way as previous commissions, but this one should have been different, for the conduct of the very person with the authority to establish it was in question, was under the microscope.

It was, therefore, inevitable that should the report not find misconduct on the part of the JLP government or party functionaries, the credibility of the commission would be called into question.

That notwithstanding, there is the question of the manner in which the enquiry was conducted. It seems to me that the commissioners were doing very little enquiring, leaving it to the political lawyers to try to incriminate the other side. I felt that they failed to ask many questions that should have been asked.

Let me give an example, in their own words, re the controversial email purported to have been sent by the justice minister to Harold Brady. The commissioners say (page 46): "The evidence was incomplete, and given the significance of the document, we would have preferred if all avenues had been explored before us." Why should the commissioners expect the political lawyers to do their work for them and to explore all the avenues? Since the commissioners believe the document to be significant, should they not have used their own initiative to check the "email servers through which it will have passed" and, therefore, complete the evidence?

Nonsensical conclusion

I am unhappy that the commissioners find no misconduct. They say that persons made "mistakes and errors of judgement" (page 53), but are not guilty of "unacceptable or deliberate, dishonest or mischievous conduct". In other words, they were incompetent, but not corrupt. Reading their report, I thought the commissioners exposed lots of "unacceptable" and "deliberate" conduct, and I don't understand why it doesn't qualify as misconduct.

The report found that the minister should have promptly signed the authority to proceed, leaving the admissibility of the evidence up to the magistrate (page 37). Why is the fact that she did not promptly sign not deemed to be misconduct?

The PM said that if she had signed the authority to proceed, she should also sign her own letter of resignation. Why was this advice (and veiled threat) not misconduct?

The prime minister's involvement with the Coke extradition was "inappropriate" (page 43). The JLP should not have hired Manatt, Phelps & Phillips, and there may have been "inappropriate commingling" (page 42).

When is "inappropriate" behaviour, "imprudence" and "inappropriate commingling" not simply misconduct?

The dictum of Lord Diplock was quoted (page 35): Before issuing the order to proceed, the competent authority must consider "whether the evidence adduced against the accused on behalf of the foreign state requiring his surrender would have been sufficient to justify his committal for trial in England if the crime in respect of which the requisition had been made had been committed there."

The commission report (page 15) states that under Jamaica's Interception of Communications Act, "A warrant was issued, permitting the interception of Mr Coke's mobile cellular communications". That evidence would have been admissible here in Jamaica. Once the US Drug Enforcement Administration got a hold of it, they wanted to extradite Mr Coke. Presumably, the evidence bred suspicion of criminal behaviour.

A big distraction was whether the evidence should have been sent to the Americans. But why not arrest him here? The commission report does not address the question of whether there was misconduct or criminal negligence in not using the evidence legally obtained by Jamaican enforcement officials to indict Coke here in Jamaica.

The commission puts the blame on Brady, because Brady was sent to Fahrenkopf and Giuliani & Partners, but Brady brought in Manatt, Phelps & Phillips (page 43). Surely it would have been just as inappropriate to have hired Fahrenkopf and Guilliani. Why put all the blame on Brady?

I think the report is a poor (and possibly disingenuous) interpretation of the evidence.

Peter Espeut is a sociologist and Roman Catholic deacon. Email feedback to columns@gleanerjm.com.