EDITORIAL - Put INDECOM's power beyond doubt

Tuesday's confirmation by the Constitutional Court of the power of the Independent Commission of Investigations (INDECOM) to arrest and initiate prosecution against police personnel it deems to have abused the rights of citizens is a welcome ruling.

But the decision of the judges notwithstanding, Parliament must now place the matter beyond doubt with amendments to Section 20 of the INDECOM Act that gives the commissioner, and his investigators, powers similar to constables.

In that regard, the court's timing is fortuitous, coming in the middle of a parliamentary committee's review of the law, as is mandated after its first three years of operation. Indeed, the case highlighted the need for a handful of other amendments to strengthen the law.

The background to the establishment of INDECOM is important.

On average, Jamaica's police annually kill more than 200 citizens, often, the public believes, in dubious circumstances. People had no faith in the competence, or willingness, of the police to properly investigate such killings and believed, too, that previous quasi-autonomous agencies that were given the job were not up to it. A major problem was that these agencies relied, substantially, on the constabulary for the bodies to conduct their investigations.

It was against that background that INDECOM was conceived and launched, with a primary mandate to investigate infractions by the security forces while enjoying an arm's-length relationship with them. The watchdog could initiate its own investigations, with its own personnel, with authority similar to constables in doing their jobs.

The relationship between INDECOM and the security forces has been rocky. At the parliamentary review hearings, for instance, the Jamaica Defence Force initially lobbied to be removed from INDECOM's oversight. It, in embarrassment, changed its mind. The challenge by the Police Federation, and related institutions, to INDECOM's power to arrest and start prosecution of their members is a piece in the same set.

Judge clear

But the logic of Justice Horace Marsh, who wrote the lead opinion in this week's ruling, is, in our view, unimpeachable. He said: "It would be, to my mind, an aberration for Parliament to have established an independent body removed from the police force, to investigate allegations against members of the police force, among others, by citizens, but still have ... (INDECOM) having to rely on the police or the DPP (director of public prosecutions) to initiate arrest and charge police officers against whom allegations are made by citizens."

This authority afforded to INDECOM, as Justice Marsh held, does not impinge on, or obviate, the constitutional power of the DPP, at her sole discretion, to intervene in, take over and discontinue a prosecution she believes is being inappropriately pursued or is an aberration to natural justice. What the court's ruling does is to allow for greater transparency in any such action by the DPP once INDECOM has commenced a prosecution. The Office of the DPP is likely to feel obliged to publicly explain its decision.

Concerns that INDECOM investigators are not covered by as rigorous a regime of accountability and discipline as members of the constabulary force can be easily remedied with minor adjustments to the act.

What parliamentarians, however, must resist, in face of the temptation of an organised bloc of votes, are efforts to water down the authority and power of INDECOM.

The opinions on this page, except for the above, do not necessarily reflect the views of The Gleaner. To respond to a Gleaner editorial, email us: editor@gleanerjm.com or fax: 922-6223. Responses should be no longer than 400 words. Not all responses will be published.