Tivoli enquiry II: Will they hide the truth again?

Orville Taylor, Contributor

Government acceded to the desire for knowledge and has agreed to have a commission of enquiry into the incidents that led to the incursion into Tivoli Gardens in 2010 and the confirmed deaths of 76 persons. Rumour is rife, and some know-it-alls who have a clear ideas of what happened think a commission is a waste of time.

Alric Campbell, the president of the People's National Party Youth Organisation (PNPYO), taking a radically different path from his party president, is so knowledgeable that he could assert that the result was nothing more than the consequences of criminal elements foolishly taking on the security forces.

Clearly, his information is so exclusive that it has no consensus in his own organisation, because the chairman of the Kingston Parish division of the PNPYO, Keron Woods, left him out on a limb, stating that he was in full support of an enquiry, as he believes that it will bring out the truth and hold accountable those found guilty.

Worse, the internal dissonance has led to disciplinary action taken against Woods. Indeed, this division among the youth does beg the case that the enquiry and closure are indispensable.

After initial opposition to it, opposition leader and former cameo prime minister, Andrew Holness, backs it; his predecessor Bruce Golding is in support, and the commissioner of police and former chief of defence staff say, bring it on. Clearly, Golding, despite the sham of an enquiry he allowed to be conducted into the Manatt-Dudus affair, seems to have already had a trust deficit regarding the operations, as revealed in a recently released email by the then US charge' d'affaires. His concern - and I pause to chuckle before my guffaw - is that it doesn't "turn into a charade, which I believe occurred in the last enquiry".

It is good that there is so much unity on the subject, with, of course, the exception being representative of the Tivoli Committee, Lloyd D'Aguilar. There are two elements to his dissent. First, he feels that like the myriad enquiries since 'Whappy King Killed Phillop', this will come to naught. Thus, second, his recommendation is that the proper place for the matter to be dealt with is the International Criminal Court (ICC).

For me, an immediate problem arises, and it is the sort of thing that is evidenced in the diatribe surrounding the matter. Although the mathematics leans heavily towards civilian casualties, there was a Jamaica Defence Force soldier who was killed, and it doesn't appear to have been suicide. The language used points to 'victims' and other prejudicial judgments, just as biased as those labelling the dead as criminal. Given the chasm that exists between both camps, the truth must be dug out.

PESSIMISM

With D'Aguilar, I share the pessimism because commissions of enquiry do not have a very impressive record in finding and punishing the guilty, although, to some extent, they have had an impact on policy. For example, the 1866 Royal Commission into the events of Morant Bay found that although "the disturbances ... [were] a planned resistance to lawful authority ... the punishments inflicted ... were excessive; ... the punishment of death was unnecessarily frequent; that the floggings were reckless, and at Bath positively barbarous; and that the burning of 1,000 houses was wanton and cruel." Yet, Governor Edward Eyre was only dismissed and no one was held criminally responsible.

Admittedly, the House of Assembly was abolished, and direct Crown Colony rule by Britain was established, but change does not equate to culpability.

Similarly, a Moyne Commission which investigated the uprisings and labour conflict in the late 1930s was followed by a few labour laws and a different attitude of the colonial powers to the territory. Nevertheless, an enquiry by Major Orde Browne during the period bemoaned the "absence of good labour laws and tribunals suited for the easy settlement of labour disputes". Yet, it took until 2010 before the government finally passed a law to allow the 80 per cent of workers who are non-unionised to have access to the Industrial Disputes Tribunal.

In the late 1980s, there was a commission of enquiry into the operations of the sugar industry. This resulted in a radical change in the terms and conditions of workers, but most important, farmers were treated much better in their remuneration, productive and supply arrangements. Thumbs up!

Nevertheless, enquiries are notoriously reliable in not resulting in prosecution.

Commissions of enquiry into addressing matters where there is the likelihood of criminal conduct being discovered are too dependent on the goodwill of the witnesses, the blackout or recollection of protagonists, or the erudite suddenly become mute and put on dumb expression or lose the ability to hear or speak.

The J$500 insult of a fine - if pegged to the value of the US dollar as it was in 1979 when it was last upgraded - would be only $50,000 today. Unless the commissioners have the power like American grand juries, where the Fifth Amendment rights cannot be invoked, and witnesses are forced to testify and tell the truth or face prison, nothing prevents this one from being another 'pappy show'.

Nevertheless, even if the commission finds criminal liability and cause for prosecution, it is up to the director of public prosecutions, and as we know, irrespective of the opinion of all other legal minds, if this one disagrees, it's nolle prosequi.

Interestingly, the Jamaica Committee (... hmmm, D'Aguilar), led by John Stuart Mill, unsuccessfully tried thrice between 1866 and 1868 to prosecute Eyre for murder and abuse of power However, British grand juries decided not to prosecute him.

Yet, my problem with the case going to the ICC is that it does not have jurisdiction. Jamaica is the only English-speaking CARICOM country that has not accepted its authority. Only state parties, or the UN Security Council, can make such references and the accused must be named. Therefore, it cannot simply say the Government of Jamaica. It must say, John Brown or Tom Stroke. Therefore, there must be some prima facie evidence that a crime was committed.

In some cases, the Security Council can refer a "situation to the prosecutor, irrespective of the nationality of the accused or the location of the crime". So, the Tivoli Committee might want to go to the UN and ask it to do so. However, I would bet all my money that it is more likely that the silent ones in the Manatt-Dudus fiasco will speak before this happens.

In any event, "a case will be inadmissible if it has been, or is being investigated or prosecuted by a state with jurisdiction." Therefore, since a commission is already appointed and the public defender did indicate that other legal actions and investigations are taking place, the court isn't going to even cast its eyes. And although the ICC could treat a case as admissible if "the investigating or prosecuting state is unwilling (or) national proceedings were undertaken for the purpose of shielding the person from criminal responsibility," the very commitment to a commission kicks that notion in the teeth.

So, guess what? Let us buy more popcorn, ice tea and nachos and get ready for the sequel, 'Tivoli II'.

Dr Orville Taylor is senior lecturer in sociology at the UWI and a radio talk-show host. Email feedback to columns@gleanerjm.com and tayloronblackline@hotmail.com.