Defending the public: new frontiers

MatondoMukulu, GUEST COLUMNIST

As readers are aware, the Office of the Public Defender (OPD) derives its mandate from the provisions of the Public Defender (Interim) Act 2000 and the creation of this commission of Parliament emerged from the previous creature of statute that was known as the ombudsman, an institution which exists in most Commonwealth countries.

The unique function of our commission is to be found in the fact that Jamaica's OPD does not only investigate allegations of maladministration made by citizens, but importantly, it is the only body within our constitutional arrangement that has the responsibility to investigate and seek redress of any proven constitutional breach. So in effect, Jamaica does have a hybrid institutional arrangement.

There does exist a great deal of confusion as to what it is that the public defender can or cannot do, and I admit the very name itself does lead to a great deal of confusion and perhaps misplaced expectations. The current name was a compromise arrived at by the political parties, but I am sure that citizens are not so much concerned with the name - though they should - but with our performance.

In this regard, as the acting public defender, I say with confidence that at this stage in our history, we are committed to delivering the service we are mandated to provide in an improved manner. What does this mean? It means the citizens with new claims can expect a much-improved service, which entails communicating with them in a timely manner.

As the former Public Defender Earl Witter was heard on occasions saying, the OPD must stand above the very entities that it seeks to oversee. That is a point that is worth re-emphasising. However, beyond that, the staff are committed to making efficient service one of the litmus tests by which they will be judged.

good customer service

As a first step, we have instituted, since April 7, 2014, a system by which every new citizen who lodges a grievance with us will be given a letter informing them of the next date when they will receive a communication from the commission, updating them of the state of our investigations on their behalf. This is not only good customer service, but what it will mean is that investigators will spend less time updating citizens in an unplanned or sporadic manner, and will equally have more time to concentrate on doing the actual jobs for which they are being paid - investigating.

The new thrust that we are implementing will equally see us putting in place a system of categorisation of cases. Currently, we are in the process of formulating the categorisation system that we wish to implement with a view to have this in place within three weeks. The hallmark of that system is that by having categories into which all cases will be placed, we will now have an objective system that will determine how we prioritise our cases.

The resources that we have are very limited (only three investigators as opposed to the recommended five) when placed against the number of cases that we are asked to investigate (up to April 8, 2014) we had 122 new cases. However, with an objective system, which is being created by the staff members, citizens will have a clearer guide as to how or why their case is not being addressed as quickly as another citizen's case. For example, in our discussions, we have formed the view that cases which have issues to do with a child or the death of a citizen will fall squarely in Category 1, as opposed to one where the only loss is financial, which might go in category two.

The public not only expects the Office of the Public Defender to have effective systems, but it also, and rightly so, expects that this commission will take on new frontiers that will have a positive impact on the evolution of constitutional law. In this regard, and to give us the man - and womanpower to fulfil its mandate, we will be taking steps to have working or service-level agreements with other institutions such as INDECOM.

alleged extrajudicial killings

It is for this reason I have sent a letter to the commissioner of INDECOM, Terrence Williams, making it clear to him that we should have a written agreement in place, as in the instance of alleged extrajudicial killings, both bodies seem to be replicating each other's work. So it is not uncommon for our investigators to visit a scene to be told that INDECOM was here earlier. That is certainly not a good use of scarce resources. The result of the proposed agreement will see INDECOM, which has the mandate to prosecute, conducting the investigation and the Office of the Public Defender requesting the statements collected.

If, on receiving the statements, we take the view that we need more information, we will not hesitate to conduct our own investigations. This is not, and should not be, regarded as an abdication of our responsibility. Those who regard it as such are forgetting that our role in cases where there has been an allegation of extra-judicial killing is to investigate the allegation and, where possible, seek redress (at times financial) using the civil courts. If we appreciate that the creation of INDECOM must cause us to reinterpret our constitutional role, this is a matter that should not cause discomfort.

What are these new frontiers? In the first instance, the OPD must bring an enlightened and progressive interpretation to the Constitution not only in the traditional spheres of right to life, but we are anxious to ensure that those who are discriminated against on the basis of either their sex or disability are not bound to a life of necessary invisibility. Additionally, we must explore and address the issue of environmental and information rights, as no nation can expect that it will make much progress, economically, if it seeks to keep information about decision-making by the State in a veil of secrecy.

These are the areas on which we must bring our talents as a commission and encourage the court to unleash a more purposive interpretation of our Constitution. We will not pursue our role as zealots but as committed professionals, anxious to fulfil our mandate on behalf of all of Jamaicans, not only those in Kingston.

This commission does have a long way to go, but what we can agree on this point: Amid the economic realities, the OPD has an enormous historical responsibility, and it must fulfil its duty.

Matondo K. Mukulu is Jamaica's acting public defender. Email feedback to columns@gleanerjm.com and mmukulu@opd.gov.jm.