Tivoli inquiry needs new law to be effective

Matondo Mukulu, Guest Columnist

Our Government has finally announced that the nation will hold a public inquiry into the actions of the State for its entry into the Tivoli Gardens to apprehend Christopher 'Dudus' Coke, for whom an extradition request was issued. Certainly this has been, at least for some, a welcome announcement, but in some quarters there is the view that this will be another meaningless exercise.

Frankly, I do think that mature democracies reflect collectively and in a structured manner on their actions, especially when those actions were done in the context of a crisis.

However, before we hurriedly dismiss the likes of Edward Seaga, it is perhaps more sensible for us to ask ourselves the straightforward question, how can we ensure that this becomes a watershed moment for public inquiries in Jamaica?

Public inquiries in our country are conducted pursuant to the Commission of Enquiries Act 1873 (As amended in 1978 - COEA), which, as the date tells us, is a colonial-era legislation.

As a matter of strict interpretation of the act, Section 2 tells us that it is the governor general who has the power to appoint a commission to inquire into any matter relating "... to the conduct or management of any department of the public service ... or the conduct of any public or local officers of the island", providing such an inquiry would be for the public welfare.

The term 'public welfare' is not defined, but in a rather loose sense, one can assume that in the modern context that term must be seen to capture concepts of that which is in the public interest.

In the context of the proposed Tivoli inquiry, its purpose will be to ensure that the State fulfils its investigative duty, which is inherent in the obligation to protect the lives of its citizens, as outlined at Section 13(3) (a) of The Charter of Fundamental Rights and Freedoms (Constitutional) Act 2011. It follows, therefore, and this has been held to be the case in most common-law jurisdictions, if lives are lost as they were in May 2010, the State must offer an effective system of investigating the circumstances that led to that tragedy. This includes, and we seem to be forgetting this, the life of the soldier who was killed.

What Happened?

However, we first need to establish the hard facts and the circumstances of how our security forces operated on the day. Both the army and police force have embraced the holding of such a commission, which tells me that they will have a great deal to say, and so they should. The central question of this enquiry must be, what happened?

The inquiry will go a long way towards restoring the image of our forces and the confidence we have in the State, as we will know that abuses will not go unchecked. Equally, we will, where such evidence is revealed, know that the men and women of the forces protected the State from those who threatened its existence.

In light of the foregoing identified important functions, I am very concerned that the COEA, in its present state, will not do the job. As is the case in some Commonwealth jurisdictions, we should persuade our lawmakers to make provisions for regulations to be enacted to accompany the rules.

The amendment must make express provisions for a duty imposed on the commission to serve potential witnesses with notices that their statement and/or presence is required at the inquiry. Further, such persons must be told in writing the subject matter or issues that they are being invited to be witnesses to.

This way, we will do away with the time-wasting and lack of control that we experienced during the Manatt and the FINSAC commissions, as witnesses will be given adequate notices and their lawyers will be precluded from wasting public resources.

Linked to this proposal is the need for the commission to notify persons against whom adverse comments will be made in a report. Such persons, in keeping with their common-law right to a fair hearing, should be given an opportunity to make any representations to the commission before the report is published.

This will, in effect, help in the process of distilling the truth, as it is rather unhelpful and perhaps in bad taste to comment on a person's role in a given incident without first giving that person the opportunity to comment. This will only serve to undermine the findings and possibly, legitimacy of the commission's report, and so one can see a practical benefit in the rules making such provisions.

New Rules

The procedural rules that I am proposing must address the issue of how the commission should deal with the disclosure of evidence, which might rightfully be deemed as being restricted. Currently, it is clear that the current act is silent on such an issue. If we take the position in the UK, under Section 19(2) (a) of the Inquiries Act 2005, access to documents can be restricted either through a ministerial restriction notice or commission-issued restriction order.

The proposed regulations, I would suggest, drawing on thelimits to access available at sections 14-16 of our Access to Information Act 2002, must outline the circumstances in which restriction notices can be lifted by the commission.

It is incumbent on the minister of security and the minister of justice to start thinking seriously of how, within the permissible confines of the Access to Information Act and the Charter of Rights, the functioning of the commission can be assisted with provisions dealing with restricted or classified documents.

Perhaps the most fundamental amendment that can be made to the COEA is that dealing with the business of the attendance of witnesses. Currently, our outdated COEA, at Section 11, imposes a measly fine of $500. Additionally, if one disobeys a request to attend, he or she can be arrested by a constable and consequently made to attend. However, the problem is that a witness can attend and fail to be helpful, even if we have a battery of the best lawyers in the Caribbean.

Sanction Stonewallers

In this regard, I am proposing that we amend our COEA to make failure to attend and refusal to answer questions and offences, that come within the ambit of contempt of court, for which imprisonment and, or a fine is the sanction.

It is a radical step, I admit, but it should not be possible for persons, especially those who serve in the civil service, to attend inquiries, and stonewall the process of discovery. Our legislators must appreciate that public confidence in the ability of these commissions to ferret out the truth will not be raised until citizens believe they are hearing not only from the right persons, but that these persons will speak openly, for fear of being imprisoned.

Finally, the general view, and one that I certainly had in respect of the Manatt inquiry, is that a great deal of time was wasted by parties who were more prone to grandstanding and showboating. An amended act should grant to the commission the power to make costs orders.

This is a rather controversial proposal, as I accept that the commission is not a court of record. But persons who, through their conduct or that of their representatives, have contributed unnecessarily to the time and expense of the hearing should be sanctioned.

Legal precedent

This is not a radical idea that has never been tried and which does not exist in other Commonwealth jurisdictions, as the Law Commission of New Zealand in its report, A New Inquiry Act 2008, noted that under the Tribunals and Inquiries (Evidence) (Amendment) Act 1979, Ireland had a provision which authorised the making of a costs order by the commission if there was a finding that a person failed "to cooperate with, or provide assistance to, or knowingly giving false or misleading information ...".

I endorse the State's decision to hold a commission of inquiry, as it could unearth the issue of who is responsible for what. However, the outdated COEA is woefully inadequate to achieve the functions or objectives of any modern commission.

Reform is imperative and we do have time, as we know from the recent amendments to the National Housing Trust Act and the passage of the Lottery Scam Legislation, that we have persons in Parliament who understand the need for urgency. We cannot afford another meaningless commission, so start by empowering the commissioners.

M.K. Mukulu is a practising public-law barrister and attorney-at-law. Email feedback to columns@gleanerjm.com and m.kmukulu@yahoo.co.uk.