Velma's crucifixion

Gordon Robinson, Contributor

Congratulations to the JLP and chief hatchet man, Desmond McKenzie. Velma Hylton has withdrawn from the Tivoli enquiry. Rumourmongering and rabble-rousing have again won the day. Yay!

At least this sudden interest in the commission's impartiality must mean the JLP is committed to the enquiry. That's a change from pronouncements in 2013 that the JLP wouldn't participate, followed by a statement from Young Andrew that because the law now compels participation if summoned, the JLP would perforce take part (Gleaner, July 12, 2013: 'JLP to participate in Tivoli enquiry').

Now we know the shape this 'participation' is likely to take. No political party as vulnerable to a commission of enquiry's findings as the JLP wants such an enquiry. So, it's no surprise that it has already begun to take steps to disrupt, discredit, discombobulate and destroy even before it begins. What's next? Did Hazel Harris once pronounce sentence on a Tivoli resident accompanied with words of condemnation? Who knows what the JLP has left in its bag of illusions.

Albeit belatedly, we should closely examine that much-maligned 2002 submission (it was NOT a statement) made by Velma Hylton. According to The Gleaner (February 28, 2002), in her capacity as advocate marshalling the evidence and advising the commission, she submitted:

"If the police ... hadn't taken action to repel force with force that day, ... at this point in time, we may still have been shovelling up pieces of bodies in West Kingston .... In my respectful submission, if the women and children deliberately put themselves between the law and order forces ... to enable those gunmen behind them to fire at the security forces and to fire at civilians, I, for one, do not understand why, in all circumstances, they cannot return the fire ... ."

Somehow, in the recent hype, the words "deliberately put themselves" have been lost. Often the words "used as human shields" have surreptitiously replaced them. Now, don't get me wrong, I subscribe to the policy that shooting when children may be injured is NEVER an option. I subscribe to a policy that innocent civilians mustn't be endangered, except in the most exceptional circumstances. But I also recognise that persons, especially militarily trained persons, and even governments, have been known to differ from my position. It's a matter of opinion, especially where adult civilians deliberately puts themselves in danger in order to aid and abet a criminal shooting at the police.

War on Terror

Let's see how despicable Ms Hylton's submission is against what's happening in other parts of the free world. For years, US policy has included use of drone attacks in the 'War on Terror'. When challenged, President Obama has stated only terrorists are targeted, but a study by Columbia Law School's Human Rights Institute has found that the US government significantly underestimates the number of Pakistani civilians killed in these drone attacks, and that 98 per cent of those killed are civilians. That's 50 dead civilians (collateral damage?) to every terrorist killed.

President Obama has authorised about 200 drone strikes in Pakistan, four times more than George W. Bush. More than 800 civilians and 22 al-Qaida officers have been killed. Recently, three children were killed by a drone strike in Afghanistan because they were seen digging a hole in the ground which the army felt was terrorist related.

The president's counter-terrorism adviser, John Brennan, said, "As a matter of international law, the United States is in armed conflict with al-Qaida, the Taliban, and associated forces, in response to the 9/11 attacks, and we may also use force consistent with our inherent right of national self-defence."

Hilary Clinton (in Istanbul) said: "We'll always maintain our right to use force against groups such as al-Qaida that have attacked us and ... threaten us with imminent attack ... ."

From as far back as 1998, as US cruise missiles pounded targets in Afghanistan and Sudan, killing innocents, including women and children, President Bill Clinton said, "There'll be no sanctuary for terrorists ... " as he described the strikes as part of "a long, ongoing struggle between freedom and fanaticism".

Now, depending on one's view of what was happening in Tivoli Gardens up to 2001, perhaps some expert exam-passer can tell me which of these utterances are reprehensible and, if any, which more than which. Velma? Bill? Barack? Hilary? John?

What bias?

Velma Hylton's crime is alleged to be 'bias'. But the submission contains no bias. It's a submission as to what might be appropriate police action in specifically described hypothetical circumstances which DID NOT EXIST in 2001. But, OK, let's say it exposes a bias. Against whom? Nobody is named. Is Ms Hylton biased against women and children? Nonsense. Is she biased against Tivoli Gardens? Where does that arise from her submission? Miss Hylton submits against the interest of civilians who elect to aid and abet violent criminals. What 'bias' does that disclose? In my opinion, she has erred regarding children (legally incapable of consent) although she has plenty worldwide support for her hypothesis. But I agree with her 100 per cent regarding adults who decide to help gunmen kill police.

But, let's say we're both wrong. Not to mention despicable. And shameful. OK, fine, I ask again WHERE'S THE BIAS? Her opening disposes of any possibility of a bias against Tivoli. But OK, suppose she is biased against Tivoli Gardens (whatever that means). So what?

Show me an unbiased person and I'll show you a Swiss national. Show me a Jamaican unbiased about Tivoli (for or against) and I'll show you an Alzheimer's patient. The purpose of legal training is to ensure you can decide on evidence despite your biases. Judges, rumoured to be people, are all biased in one way or another. But if the proper argument is put to them, they will decide against their initial bias. I've seen it happen hundreds of times. It's what lawyers do.

Not every bias disqualifies one from judging. Financial bias is the main qualifier. Any form of direct pecuniary interest will disqualify you. That's what was used (wrongly, in my opinion) to disqualify Boyd Carey (who allegedly had an outstanding overdraft from CNB when FIS took over, which had been discharged long before the enquiry was commissioned) from the FINSAC Enquiry. Nobody has alleged that Velma Hylton has any direct pecuniary interest in this matter.

Financial bias isn't the only form of bias that disqualifies a judge. The fundamental principle at work is, no man should be a judge in his own cause. It follows, therefore, that the bias in question can't be a general or vague bias against (or for) a category of people or a place, but one that makes the judge (or commissioner) somehow personally interested in the outcome. So a chief constable who fired a policeman rendered the dismissal of the policeman's appeal to the Watch Committee invalid by his presence at the appeal (Cooper v Wilson [1937] 2 K.B. 309). The decision of a Rent Assessment Board was quashed when it was shown that the chairman had been active in assisting proceedings by other tenants against the same Landlord (Metro Properties Ltd v Lannon [1969] 1 QB 597). A rural district council's decision to allow property to be converted into a garage was quashed because one of the councillors was estate agent for the property owner (R v Hendon Rural DC [1933] 2 KB 696). But a judge who subscribed to the SPCA was not prevented from presiding over a prosecution brought by the society [R v Justices of Deal (1881) 45 LT 439] because the judge had no personal interest in the outcome.

What personal interest would Ms Hylton have in the outcome of the Tivoli enquiry? How can it be said she'd be a judge in her own cause? What would be her 'cause'? Did she participate in Dudus' extradition? The order to invade Tivoli? The raid itself? Or was she connected to anyone who died or alleges that they were wronged?

Persons wrongly attributing 'bias' to Velma Hylton, shrieking buzzwords calculated to push citizens' buttons, and threatening frivolous lawsuits until the lady is intimidated into recusing herself had better be careful. In this world, you generally get what you ask for. And, in this country, the same knife stick sheep stick goat.

Peace and love.

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