Manatt post-mortem - Not guilty ... really?

Gordon Robinson, Contributor

So our 15-month national furore was, in reality, all for nought. Nobody was guilty of misconduct, just errors of judgement. Or maybe mistakes. What the devil were we all carrying on about?

Jamaica was in national paralysis regarding its prime minister's alleged decision to hand over conduct of sensitive diplomatic negotiations to the Jamaica Labour Party (JLP). Not only were we ignorant of his decision, but it appears so was the JLP. Since the JLP is a political party, his decision could only have a political purpose. What was that purpose? Was it the defence of a JLP don? Who would tell us the truth?

"Thrown like a star in my vast sleep

I open my eyes to take a peep

to find that I was by the sea

gazing with tranquillity.

'Twas then when the Hurdy

Gurdy Man

came singing songs of love."

This Madantz commission, conceived from political panic and built along subjective lines by the chief suspect, has produced a love song (oops, sorry, 'report') that would be a comic tour de force were it not so predictably irrelevant, arbitrary and cowardly.

Jamaica wanted to know whether any government official had done wrong. The Commissions of Enquiry (COE) Act limits the powers of COEs "to enquire into the conduct or management of any department of the public service, or of any public or local institution or of the conduct of any public or local officers ... ."

That's it. That's all. Those categories can't be extended beyond those already listed. Certainly, this commission wasn't asked to enquire into anything but public officers' conduct in handling the extradition request, and definitely not to usurp the Supreme Court's role by making any 'findings' regarding the constitutionality of anything.

Yet, the report begins with a linchpin 'finding' that Dudus' constitutional rights were infringed. Really? By whom? Since the commission insisted on wandering down this unauthorised garden path fraught with complex legal issues beyond the ability of the limited evidence they heard to unravel, at least it might've told us whose misconduct resulted in infringement of Dudus' constitutional rights? A breach of constitutional rights surely involves somebody's misconduct?

In reality, what this commission calls a breach of constitutional rights (the sharing of telephone intercepts with unauthorised persons) is really, if unlawful at all, a breach of the Interception of Communications Act and not of any constitutional provision. That act provides specific penalties for any alleged breach, and there's no reason to revert to the Constitution.

Why is it more important to protect imagined constitutional rights of a fugitive who consented to extradition without raising a single constitutional issue in court than it is to tell the Jamaican people why they were subjected to nine months of gamesmanship and scheming, in preference to signing an authority to proceed? Even this commission has conceded the authority should've been immediately signed.

"Histories of ages past

Unenlightened shadows cast

Down through all eternity

the crying of humanity.

'Tis then when the Hurdy Gurdy Man

comes singing songs of love."

Employing legalistic gymnastics of Olympian proportions, the commission ensured its first priority (exhausting 28 pages) was to analyse the 2004 MOUs, and to 'find' actions taken pursuant to those MOUs in breach of Dudus' constitutional rights. Eventually, on page 29, the real work of examining public officials' conduct (starting with Dorothy Lightbourne) began. They concluded:

"1. The minister's discretion under Section 8(3) Extradition Act is limited to considering: a) Whether the papers ... disclose a request to

extradition in relation to an extradition offence; and

b) Whether there was sufficient suspicion that the fugitive had committed the offence.

2. Having satisfied herself on these matters, she should have signed the authority to proceed."

In case of any doubt, the commission made it clear:

"Accordingly, we are of the view that the discretion afforded the minister of justice was circumscribed ... . In our view, the committal stage before the magistrate is the first point at which the admissibility of evidence ought to be considered, and we do not see that considerations of admissibility should have any bearing on the issue of an authority to proceed."

I advised the Government thusly, for free, in an article headlined 'A matter for the courts' (The Sunday Gleaner, March 14, 2010). There was no need to pay $80 million-plus for that particular pearl of wisdom.

But, if the minister oughtn't to usurp the Supreme Court's functions, why does the commission? Even in coming to this finding against Lightbourne, the commission engaged in a self-indulgent display of legal masturbation, that exposed its failure to grasp the nature of its functions. Commissions of enquiry are arbiters of FACT, not law.

The commission wasn't authorised to pontificate on the legalities of the minister's actions. That's for the court. What we needed to know is this: Did she aid and abet the PM's "inappropriate" conduct? Did she email Brady details of confidential government deliberations to help him implement Driva's "inappropriate" instructions? Did she permit Douglas Leys to invite Manatt to a State Department meeting? Did she lie to the commission? Or did Leys, McGaw or Cole lie? All these persons cannot be telling the truth. Whoever lied in testimony is guilty of misconduct, and their entire evidence can be discarded and adverse inferences drawn regarding their prior conduct. These essential findings of fact would've led to findings of misconduct by one or more of the aforementioned officers. But the commission wimped out, giving that crucial task what a Cockney Tout might call the Spanish Archer ('El Bow').

As for the lame-brained conclusion, that "the prompt signing of the authority to proceed would have prevented the criticism that the minister was deliberately delaying the extradition process of Mr Coke for political reasons," I'm flabbergasted. According to the commission, such prompt signing would've seen the minister properly exercising her national obligation. What does the avoidance of criticism have to do with the price of dumplings in Tivoli? Why is the minister's failure to promptly sign not misconduct? Is the minister's purpose to honour her oath of office or avoid critique?

misconduct

How can the commission absolve Minister Lightbourne of misconduct without first specifically resolving these evidentiary conflicts in her favour? Its unconvincing excuses for neglecting this solemn duty are insupportable. "Incomplete evidence" and "failure to cross-examine" are mere devices to escape responsibility. The commission was assigned most capable counsel who could've (and should've) been asked to fill any gaps with their own cross-examination on the commission's behalf. Instead, they were converted into overpaid spectators while political tribesmen masquerading as counsel turned the proceedings into a three-ring circus. It's the job of counsel marshalling evidence for the commission to do just that, including cross-examining every witness to bring out facts the commission may need to complete its work.

And this "incomplete evidence" nonsense is beyond a joke. Harold Brady was summoned and charged criminally when he refused to testify. Why? Because the commission felt his evidence was necessary. Why not summon whoever was necessary to complete the "incomplete evidence" about which the commission is now whining? The arbitrary assertion that evidence was "incomplete" after months of hearings is, itself, admission of dereliction of duty.

The commission was obligated to summon all necessary witnesses/documents to complete the evidence required to resolve these sharp conflicts. What other purpose does it serve? If the conflicts are thereby resolved in the minister's favour, those who told lies on her must be pronounced guilty of misconduct. Once these evidentiary conflicts arose, a proper discharge of the commission's duty was bound to result in misconduct findings against somebody.

Finally, the commission's sanitising of Driva materialised in the context of the following finding:

"We are of the view ... that the PM's involvement with Mr Coke's extradition was inappropriate. He should have distanced himself completely from the matter. His failure to do this led to the unfortunate suspicion that he was protecting an alleged narcotics dealer and drug smuggler."

If a prime minister with decades of political experience, including in Cabinet and every key JLP post, acts inappropriately in politicising sensitive intergovernmental negotiations, why is he absolved from the charge of misconduct? Didn't he know this wasn't a political matter? Is the sole consequence of his inappropriate involvement "unfortunate suspicion"? What about abuse of power? Why was the suspicion "unfortunate"? Upon what evidence does the commission rely to say so?

Why did he get involved? He wasn't the responsible minister. The commission accepted Dwight Nelson's evidence that he sent Hardley Lewin to Driva because Dudus was Driva's constituent. So, why else did Driva involve himself, but in support of a constituent? If so, and if that by itself isn't misconduct, then my mother is a man.

In any event, the Oxford English Dictionary defines 'misconduct' as 'unacceptable or improper behaviour'. One of the definitions of 'improper' is 'not suited or appropriate to the occasion'. It defines 'inappropriate' as 'not suitable or appropriate in a particular situation'. It's obvious to the simplest student of the language, much less to two QCs and a retired permanent secretary, that "inappropriate" involvement is misconduct. So why did the commission shirk its responsibility to the nation to make an express finding of misconduct against Driva?

cruel joke

How much money did each of these gentlemen earn from the public purse to inflict this cruel joke disguised as an enquiry report on Jamaica?

The lyrics quoted above come from hard rock classic The Hurdy Gurdy Man, written and recorded in 1968 by Scottish musician 'Donovan'. It was written for Donovan's mentor, guitar player Mac McLeod, who played in a Danish band called Hurdy Gurdy. Donovan was a good friend of George Harrison, who offered to write a verse after Donovan privately performed the song for him. Unfortunately, that verse was omitted from the final recording because the song would've been beyond the unwritten three-minute limit for all singles of the time. There's no better way to end this column than with that lost verse from The Hurdy Gurdy Man written by the legendary George Harrison.

"When the truth gets buried deep

beneath the thousand years of sleep

Time demands a turnaround

and once again the truth is found.

Awakening the Hurdy Gurdy Man

who comes singing songs of love."

Peace and love.

Gordon Robinson is an attorney-at-law. Email feedback to columns@gleanerjm.com.