Right Steps & Poui Trees


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Armadale. 22.05.2009. I Remember

Armadale

On May 22, 2009, a fire at the Armadale Juvenile Correctional Centre in St Ann, Jamaica resulted in the death of seven teenage girls. We cannot afford to forget.

Shaunnalee Kerr – 15 years old

Kaychell Nelson – 15 years old

Ann marie Samuels – 16 years old

Rochelle King – 16 years old

Nerissa King – 16 years old

Georgina Saunders – 16 years old

Stephanie Smith – 17 years old

The Report of the Armadale Commission of Enquiry 2010

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The JCF & Accountability: A Policeman Speaks Out & 3 Opportunities For Change

NNN Hidden Agenda on SoundCloud March 2018Listen to Nationwide News Network’s special report “Hidden Culture”. It is narrated by Nationwide’s Marjorie Gordon and centres on an interview with a serving member of the Jamaica Constabulary Force (JCF). It is a chilling account of the ways in which extrajudicial killings are carried out and covered up by members of the police force, with the involvement of gazetted ranks. The policeman’s voice has been distorted to protect his identity. It was first broadcast on March 21, 2018, was rebroadcast a number of times that week and is now posted on SoundCloud.

Many of the things that he spoke about are things that have been reported on before, things that I have heard of over many years. The difference here is that a serving policeman is giving a personal account in an interview being broadcast on radio.

“You’re a constable going to work and you realise that your name is set to go on an operation to be conducted 3 o’clock in the morning. So, I go on the operation. When I go on the operation with several other officers, we are briefed by the officer in charge of that operation, who is sometimes a Deputy Superintendent, sometimes an Insepector, sometimes even a Superintendent himself. And what we are told to do, the instructions that we are given on that operation, kill!…We’re going fah a particular person and wi not going to lock him up. There were times when members would ask the question, “So Supa, when we hold So-and-So, what di position? Jail or morgue?” And we are told, “Mi nuh inna nuh jail business.”…As a young constable on an operation like that, what am I to do? What am I to do? Can I stand in the crowd of twenty, thirty police officers and say I’m not going? I can’t do that. So I go on the operation, as a part of this operation, and when I see my colleagues fire shots in an innocent man….I’ve been on operations where I myself have fired. It does something to you. It did something to me and it has…it is doing something to others out there. I have a lot of colleagues who are lost in the culture. I realise…I have realised and I have come to the conclusion, most of us, we have lost ourselves because of how we are taught in the streets when we leave training school.” (Transcribed from Nationwide News Network’s ‘Hidden Culture’)

It has long been known that the problem is not simply one of individual rogue police, but that there is a culture within Jamaica’s police force that supports the use of extrajudicial killings as a crime fighting method. And there are those outside the JCF, across the society, who believe this also and would want us as a people to turn a blind eye and allow the police to do weh dem haffi do.

If we want to change this culture, to rid the JCF of this approach, to have a police service that is unequivocally committed to lawful, professional, accountable and rights-centred policing, then we have to seize opportunities for change. At the moment, three such opportunities present themselves.

  • A New Commissioner of Police

Major General Antony Anderson - JISA new Commissioner of Police was sworn in on Monday, March 19, 2018 – Major General Antony Anderson. He is a former head of the Army and is very familiar with the national security situation in Jamaica. One person alone cannot change the culture within and reform the JCF. A Commissioner can, however, provide the type of leadership that may facilitate such change. Whether Commissioner Anderson will (or will be able to) achieve the necessary change remains to be seen, but his appointment opens up an opportunity.

(An associated issue that does need to be considered is how much reliance on the military for/in policing is a good thing. For another blog post perhaps.)

On March 22, 2018, the day after the first broadcast of Nationwide’s special report, the JCF issued a statement in response, which said that

“The purported actions, which are being recounted by an alleged lawman, are categorically condemned by the High Command as they do not align with the principles and standards of a modern Police Force.

The JCF has implemented a series of measures to reinforce acceptable standards of behaviour by its members, particularly with respect to use of force, human rights and engagement with the public.”

It pointed to the JCF’s Early Intervention System, described as “a proactive approach to identifying members who may display tendencies of abnormal behaviour and thereby allowing for timely intervention.” It also mentioned the oversight roles of the  Independent Commission of Investigation (INDECOM), the Inspectorate of Constabulary  (IOC) and the Major Organised Crime and Anti-Corruption Agency (MOCA). It promised  “to further seek to create a mechanism that will allow persons who have information in these matters to offer same in confidence and without fear.”

Perhaps I have heard too many such statements over the years to find this reassuring. What actions will follow?

  • Strengthen Rather Than Weaken INDECOM

INDECOM logo 2The two Court of Appeal judgments which were handed down on Friday, March 16, 2018, raise once again the need for the Parliament to revisit the Independent Commission of Investigations (INDECOM) Act. A Joint Select Committee (JSC) of Parliament held meetings from 2013 – 2015 and carried out the first review of the INDECOM Act, as required by the Act itself. The Committee produced a report with its recommendations, which was tabled in Parliament in November 2015. (Click here for a copy of the Joint Select Committee Report on INDECOM Act.) No action has been taken in Parliament regarding this report or its recommendations. (See my blog post in February –  Parliamentarians, A Joint Select Committee & INDECOM.)

On March 21, 2018, human rights NGO Jamaicans for Justice issued a press release calling for Parliament to make amendments to the INDECOM Act:JFJ press release 21-3-18JFJ press release 21-3-18 bJFJ press release 21-3-18 cJFJ press release 21-3-18 dJFJ press release 21-3-18 e

Both Prime Minister Andrew Holness and Justice Minister Delroy Chuck have said that a Parliamentary Committee is to be established to review the INDECOM Act…again. At this point there is no clear indication of the timeline for the establishment of the Committee, how long it is likely to meet or when it will produce and table its report. It also isn’t clear whether it will be asked to review the Act in its entirety or only specific aspects of the Act, those affected by the Court of Appeal judgments, for example. It isn’t clear what weight, if any, will be given to the review done by the 2013 – 2015 JSC or if the public will have the opportunity to make submissions to the new Committee. And after the Committee tables its report, what action will the Parliament take in regard to its recommendations? What if there is a change of government after the report is tabled? Will that delay Parliament taking any action on the Committee’s recommendations, as seems to have been the case with the 2013 – 2015 Committee’s recommendations?

The news now is that INDECOM is seeking leave to appeal to the Privy Council for clarification on important issues in the case, including constitutional issues. It is also reported that Minister Chuck thinks that INDECOM shouldn’t seek to appeal, but should rather wait to see what Parliament decides to do.

So we continue to wait…to see what Parliament will do and when and whether it will use this opportunity to strengthen or weaken the important role INDECOM plays regarding accountability for the police force.

  • The Police Service Act to Replace the Constabulary Force Act

The Jamaican public first learned of the Government’s plans to replace the Constabulary Force Act with a Police Service Act via a March 2017 Government of Jamaica Letter of Intent to the International Monetary Fund (IMF).

JA letter of intent to IMF March 2017“Implement a full legislative review that leads to (i) completion of a draft new Police Service Act to replace the Jamaica Constabulary Force
Act, that supports the modernization and transformation of the
Jamaica Constabulary Force into a modern intelligence-led police
service that ensures Citizen Security, with stronger systems of
administration, management and internal discipline….” (p 21)

The October 2017 Letter of Intent indicated that the measure was “[o]n track for completion by target date”, the target bate being October 2017 (IMF – Jamaica Second Review Under the Stand-By Arrangement Etc October 2017 p 43).

In the Throne Speech delivered by the Governor General in Parliament on February 15, 2018, this new Police Service Act is included as one of the legislative actions to be taken during the 2018 – 2019 legislative year.

Throne speech 2018 - Police Service Act

Throne Speech 2018, p 7

This proposed new legislation is obviously an important opportunity for reform of the police force. True reform – the modernisation and transformation being referred to – cannot be achieved by tinkering around the edges of the current legislation or by focusing primarily on increasing the powers of the police. It cannot be accomplished without full and genuine consultation with the people the police service is intended to serve. The legislation cannot be rushed through Parliament without allowing adequate time and opportunity for those who wish to make submissions about the draft legislation to do so. Indeed, it would be best if there were also consultation on the actual draft legislation before it was tabled in Parliament. I know that new legislation is only one part of what needs to be done, but we cannot afford to miss this opportunity for change.

How these three opportunities are handled will have an impact on many aspects of the workings of the police force and whether we move nearer to or further from achieving a professional and accountable police service. One marker in that process – nearer to or further from – will be the impact on that hidden culture of extrajudicial killings.

Relevant documents – Court of Appeal Judgments

Court of Appeal judgment - FederationThe Police Federation, Merrick Watson (Chairman of the Police Officers Association), The Special Constabulary Force Association and Delroy Davis (President of the United District Constables Association) v The Commissioner of the Independent Commission of Investigations and the Attorney General of Jamaica [2018] JMCA Civ. 10

Court of Appeal judgment - DiahAlbert Diah v Regina [2018] JMCA Crim 14

 

 

(I am a member and a spokesperson for Jamaicans for Justice. My blog posts are all done in my personal capacity, however.)


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Asma Jahangir, Renowned Human Rights Defender, Dies: Her Visit To & Report On Jamaica In 2003

Asma JahangirI was saddened to learn on Sunday of the sudden death of Asma Jahangir, the remarkable Pakistani lawyer and human rights advocate, who died of a heart attack at the age of 66. Ms Jahangir was a courageous human rights defender, who had great impact within her own country, as well as internationally in a number of capacities and on a number of issues.

A United Nations release titled “World loses a ‘human rights giant,’ says UN chief on death of rights expert Asma Jahangir” spoke about her work and included comments from the Secretary General’s statement on Sunday:

“We have lost a human rights giant,” said Mr. Guterres in a statement.

“Asma was brilliant, deeply principled, courageous and kind […] She will not be forgotten,” he added, expressing his condolences to Ms. Jahangir’s family, friends and colleagues, including in the UN and civil society.

I had the privilege of meeting Ms Jahangir when she visited Jamaica in 2003, for a country visit in her capacity of then United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions. I sat with a number of clients of Jamaicans for Justice (JFJ) – family members of people who had been killed by the police – as they individually told her about the death of their loved ones. At times I helped with translation, when Ms Jahangir wasn’t clear what was being said in patois.

I was struck by the sensitivity, compassion and respect shown towards the family members by Ms Jahangir during her interviews, as they recounted their experiences, often in traumatic detail. Hers was an attitude that was often not shown to them by local officials, as they navigated the long and frustrating search for justice for their relatives.

On the last day of her visit, February 27, 2003, Ms Jahangir held a press conference at the Ministry of Justice to give some initial remarks regarding her observations. Asma Jahangir - Gleaner 28-2-2003 pA1

The Gleaner report of the press conference included the following:

A United Nations-led independent assessment of reports of human rights violations in Jamaica has determined that extrajudicial killings are still rampant with not enough policemen being punished for their actions.

Asma Jahangir, the UN Commission on Human Rights’ special rapporteur on extrajudicial, summary or arbitrary executions, yesterday told a press conference at the Ministry of Justice, Oxford Road, New Kingston, after her 10-day mission to the island, that many of the reports she received during her research indicated excessive use of force and targeted killings of individuals which could amount to extrajudicial killings and executions.

“In a number of cases there are strong indications that these reports might be accurate,” Ms. Jahangir said.

“There is a strong belief among the disadvantaged that the police and security forces abuse them with impunity. I’ve often heard the term uptown and downtown
justice being used to describe the notion that two different standards of justice were being applied. Another disturbing element of these reports was the allegations of the apparent lack of interest on the part of the Government in recognising this problem.”

She expressed concern that influential pressure groups justified the excessive use of force as a legitimate measure to fight crime; at the deep anguish expressed by the families of those killed by the police and the frustration of witnesses; that a number of people interviewed showed their reluctance in testifying to such killings as they were afraid of reprisals and had little confidence in the criminal legal system; and that she had received reports of threats by the police against families of the deceased.

Ms. Jahangir, however, had high commendations for the Government’s efforts, and expressed high hopes for change if the conclusions and recommendations from her pending report are considered.

She welcomed the fact that in the last few years the resource allocation to the Police
Public Complaints Authority(PPCA) had been enhanced and that several steps had been taken to further develop the training of police and the security forces, to strengthen community policing and to establish the Police Service Commission.

“Almost everybody I met confirmed that there is an official recognition that despite the high levels of crime, it is crucial to ensure that the police and security forces act in accordance with the law,” she said. “ However, I regret that the public discourse centres on the issue of crime without sufficiently recognising that rough and easy justice only adds to more crime and bitter crime.”

Ms. Jahangir’s mission was prompted by reports of killings of civilians by the police and security forces and included meetings with representatives of the Jamaica Constabulary’s Bureau of Special Investigations, the PPCA,  the Jamaica Constabulary’s Office of Professional Responsibility, Jamaica Chamber of Commerce, and Jamaicans for Justice.

She is now mandated to recommend further constructive measures that the Government can take in addressing the challenges they are facing.

“ I’m not satisfied, of course, otherwise I would not be here,” she said. “There have been convictions of 136 policemen (between 1990 and 2001) on complaints of abuses
but not on extrajudicial killings. I believe the number is very, very low when it comes to this, it is possibly just a couple…”

She said that she was impressed with the openness of Government leaders and ordinary citizenry in expressing their concerns.

Gleaner, February 28, 2003, pp A1 & A6

Later that year, Ms Jahangir’s report was delivered and included references to the wide range of individuals and organizations she met with. It outlined the context of her visit and detailed the concerns that arose from her observations. A number of individual cases were described: Janice Allen and her family, Richard Williams, Michael Gayle, Basil Brown, Patrick Genius, the persons killed and injured in West Kingston in July 2001 and the Braeton 7.  The report ended with a list of conclusions and recommendations. Nearly fifteen years later, it is worth reading to note both what changes have taken place and what remains more or less the same.

Special Rapporteur Jamaica report 2003

UN Special Rapporteur on Extrajudicial, summary or arbitrary executions report – Mission to Jamaica 2003

This quote from Asma Jahangir, included in a Democracy Now segment remembering her, is an inspiring and good place to end:

“When you start off, there’s something inside you telling you to do it. And it comes because you have a heart and an eye and the courage to stand up against those forces—and there are plenty of them, believe me—that do not wish to see people free. Human rights, it’s not a job, it’s a conviction. I have used the law as an instrument, and I’ve used the courts, but I have been on the streets, as well. I’ve been in protest marches. I have been to prison. I’ve been under house arrest. So, for each issue and for each incident, there has to be a thought-out strategy. Justice is a rare commodity in our part of the world. Very rare. But sometimes even shouting for justice gives you some satisfaction that you’re being heard. And you must be heard. You knock, and you knock, and you knock, and you knock, and you knock, and one day they are going to hear.”

(I was Chairperson of human rights organization Jamaicans for Justice in 2003, when Ms Jahangir visited. I remain a member of the organization. My blog posts are all done in my personal capacity, however.)


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Regulations for State of Public Emergency in St James: The Emergency Powers Regulations, 2018

When I checked online again this morning, I wasn’t able to find a copy of the regulations governing the current State of Public Emergency in St James, which were tabled in Parliament yesterday (January 23, 2018). Maybe I just wasn’t looking in the right place, but it shouldn’t be so hard to locate, if it is online. I was able to get a hard copy from Parliament this morning and below is a scanned copy. I haven’t yet read it, so can’t offer any opinion on its provisions.

Regulations 2018

The Emergency Powers Regulations 2018

 


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Increased Police Killings, Privacy & Other Concerns: INDECOM’S 1st Quarterly Report 2017

Jamaica’s Independent Commission of Investigations (INDECOM) is a Commission of Parliament mandated “to undertake investigations concerning actions by members of the Security Forces and other agents of the State that result in death or injury to persons or the abuse of the rights of persons”. (INDECOM Act) The Commission began work in late 2010 and submits annual and quarterly reports to Parliament; these reports are available to the public and many are posted on INDECOM’s website. The reports give both data and analysis regarding the complaints and incidents investigated; they also include reviews of issues of concern to the Commission. In the past, these issues have included

  • deaths in custody
  • deaths of the mentally ill in confrontation with the police
  • command responsibility for the use of force
  • the School Resource Officers Programme
  • firing at vehicles.

1st Quarterly Report 2017

INDECOM 1st Quarterly Report 2017

The 1st Quarterly Report – 2017 was tabled in Parliament earlier this month and INDECOM held a press conference last Friday (May 26, 2017) to discuss the contents of the report.

Part One of the report gives information about new complaints received by INDECOM during the first three months of 2017 and lists the names of the security force-related fatalities, giving the location of each incident and which state agency was involved in the fatality.

Other information, such as Fatal Shootings by Parish, is given.

INDECOM 1st Q report 2017 p 11 chart

Part Two  of the report deals with the work of the Legal Department. It gives information on the Commission’s completed reports for the period and gives details of the recommendations of the Legal Department in 51 fatal shooting incidents. Most of these incidents took place between 2011 – 2015, but there is one case from 2008 and another from 2010. In the majority of these cases, there was the recommendation that no criminal charge be laid or disciplinary action be taken, and that the file be forwarded to the Special Coroner. In one case there was the recommendation that a policeman be charged with murder and in another case there was a confirmation of the DPP’s decision to charge a policeman with murder. INDECOM 1st Q 2017 - cases 1-2INDECOM 1st Q 2017 - case 15INDECOM 1st Q 2017 - case 22INDECOM 1st Q 2017 - case 33

The report also indicates the arrests and charges during the first quarter:INDECOM 1st Q 2017 - arrests and chanrges

Part Three of the report is on Lessons Learnt. It contains alarming data about the sharp increase in the number of people killed by the security forces in the first three months of 2017, when compared to the same period last year – a 75% increase.  This sets out in report form information that INDECOM has already communicated during the year.

The decline in security force fatalities, from above 200 killed per annum, for many years, fell to 115 in 2014. This was a 55% reduction. Fatalities dropped to 101 in 2015 and 111 in 2016.

However, the first quarter of 2017 (Jan – March) has seen a 75% increase in fatal shootings over the same period of 2016; 42 fatalities as against 24 in 2016. NB. 42 fatalities was not reached until mid-May, in 2016.

Fatal shootings in January, 2017, amounted to 19, a figure last observed in January 2014. Explanations provided by the JCF for this increase and subsequent months was reported as a rise in police confrontations with criminal gangs. (p. 31)

INDECOM press conference 26-5-17

Left to right: Denyelle Anderson (Public Relations Officer), Terrence Williams (Commissioner) , Hamish Campbell (Assistant Commissioner)

At the press conference, INDECOM Assistant Commissioner Hamish Campbell gave an update in the number of fatalities, stating that as of May 25, 2017, 64 people had been killed, compared to 44 by the same date in 2016. This is a 45% increase, which is still an alarming figure. He also reported that as of that date, the combined number of people shot and killed or shot and injured by the security forces was 87.

Mr Campbell also spoke about the fact that  46% of the people shot and killed or injured by the security forces in the first quarter of 2017 were not in possession of a firearm and 32% of them were completely unarmed.

INDECOM pictograph p. 31

Pictograph 1: Persons killed or injured without a firearm or in possession of non-firearm weapon (p. 31)

 

The section contains further information about these incidents and concludes as follows:

INDECOM 1st Q report 2017 p 33

Part Four of the report gives information about INDECOM’s meetings with the JCF, its outreach activities and press releases issued.

Additionally, the First Quarterly Report has an article on the issue of privacy and policing, dealing with surveillance, CCTV cameras and the need for regulations in Jamaica governing their use. There is also a review of the Major Organised Crime & Anti-Corruption (MOCA) Bill before Parliament and the concerns INDECOM has about aspects of the Bill. INDECOM Commissioner Terrence Williams spoke about these two issues at the press conference and I will comment on them in a separate blog post.

INDECOM’s Reports are a useful mechanism for the public to track the work of the Commission and some issues of great importance to the society. It is a shame that they are not the subject of more discussion and debate in the Parliament itself.

 


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Nearly A Year Later: Time for Western Kingston Commission of Enquiry Recommendations Update

Next week will be seven years since the Jamaica Defence Force (JDF) and the Jamaica Constabulary Force (JCF) joint operation in Western Kingston which resulted in the death of more than 70 people. Next month will be a year since the report of the Western Kingston Commission of Enquiry was tabled in Parliament and made public. It is certainly time for the country to get a full update on the status of the recommendations made in the report.

COE report cover blog pic

This is one of the problems with the Commission of Enquiry process. An Enquiry takes place and at the end of the process, strong and pertinent recommendations are sometimes made. At that point, another process starts or should start, but there is no formal requirement ensuring that next phase. There should be a system whereby the government is required to outline publicly which of the recommendations it has accepted, what steps it intends to take towards implementation and the timelines associated with that implementation. There should also be a formal process whereby the government is required to give periodic official public updates on the progress of that implementation, perhaps through scheduled reports to Parliament. This is not a new problem and contributes in part to the widely held belief that Commissions of Enquiry are a waste of time and money, as nothing ever comes of them.

Delroy Chuck MOJThe Minister of Justice, Delroy Chuck has attempted to move in that direction, having given some updates from time to time in Parliament and otherwise, updates about the setting up of a Cabinet Committee, the selection of the Chair of the Compensation Committee and the start of the Committee’s work, and the intention of the Government to apologise, for example. There have been statements by the JDF and the JCF indicating that they were working on some of the recommendations that applied to them. But this is an ad hoc process, and though things may well have progressed beyond what the public is aware of, there has been no formal, predictable structure for any updates.

In his Budget Debate presentation in Parliament on March 21, 2017, Prime Minister Andrew Holness committed to apologising to victims of the Tivoli operation when he said:

The wrongs of the past must be acknowledged and an apology offered to the victims of state-inflicted violence as recommended by constituted review bodies. On behalf of the Jamaican State and in my capacity as Prime Minister I will make the apology in Parliament to victims of the Tivoli Incursion and the Coral Gardens Incident.

PM Holness 2017 Budget DebateThe Prime Minister has made the apology for Coral Gardens, but hasn’t yet apologised for the abuses during the operation in Western Kingston and no date has been given for when he will. He made no other specific reference to the Commission’s recommendations during his presentation. Additionally, neither Minister Chuck nor Minister of National Security Robert Montague made specific reference to the Commission’s recommendations during their recent Sectoral Debate presentations or used the occasion to give a specific update on progress with implementation of the recommendations.  Also, I am not aware of any comprehensive public updates from the JDF and JCF after their initial responses to the Commission’s report.

I may well have missed some updates that have been given in Parliament or elsewhere, and I am sure that I could find additional information if I made Access to Information requests to various government ministries and bodies. I could also probably find additional information by searching the Hansard record for relevant dates. But the information ought to be more easily accessible and we should have some prescribed timelines for updates. I would like to suggest that sometime in June, twelve months after the Commission’s report was tabled in Parliament, would be a good time for a comprehensive update on what progress has been made on each of the Commission’s recommendations. The update should clearly state whether any progress has been made, the nature of that progress and what remains to be done, including relevant timelines. Instances in which no further action is planned should also be clearly stated. And as these updates are being contemplated and given, it is important to acknowledge again that this isn’t simply a paper exercise. It is about real people who were directly or indirectly impacted by the events, about a government giving account to its people, about preventing such occurrences happening again and about a process of justice and healing.

Recommendations of the Western Kingston Commission of Enquiry

Below I will set out briefly the recommendations made in Chapter 15 of the Report, for which progress updates need to be given.

UPDATE NEEDED REGARDING STATUS OF IMPLENTATION OF RECOMMENDATIONS INCLUDED IN REPORT OF WESTERN KINGSTON COMMISSION OF ENQUIRY CONCLUDED IN 2016
SECTION OF CHAPTER 15 RECOMMENDATIONS COMMENTS
INTRODUCTION 15.1 The Commission indicates that in other Chapters in the report they “have recommended that further investigations be carried out as a matter of justice and with a view to preventing a recurrence of similar events.” The bodies responsible for the further investigations, such as the JCF and INDECOM, should give an update on the status of such investigations.
PART 1-REDRESS

1. APOLOGY

 

15.7 “…we recommend that the GoJ apologize in Parliament to the people of West Kingston and Jamaica as a whole for the excesses of the security forces during the operation. The Government is, in the last resort, responsible for the conduct of its security forces.” The Prime Minister has indicated in Parliament that he will make this apology. He should indicate the date on which he will apologise and carry this out.
2. COUNSELLING FOR TRAUMATISED PERSONS

 

 

15.8 “…we are satisfied that there needs to be a programme of continuing counselling for some of the residents including children.”

 

15.9 “We therefore recommend that this matter be pursued by the appropriate Ministry.”

The Government should indicate which Ministry is responsible for implementing this recommendation, what programme is in place and what counselling has been and will be provided.
3. COMPENSATION FOR VICTIMS 15.12 “…we recommend the establishment of a Compensation Committee with two broad mandates…”

15.13 “We respectfully further recommend that the Compensation Committee be chaired by a retired judge or senior attorney-atlaw…and the Committee should be directed to complete its work within 9 months.”

The Chair of the Compensation Committee could give an indication of the progress of the Committee in its work and should indicate whether it will complete its work within the recommended 9-month period.
4. WAIVER OF LIMITATION PERIOD 15.14 The Commission refers to the legal restrictions regarding the timeframe in which claims against the State can be brought, 3 years in some instances and 6 years in others.

 

15.15 “We therefore recommend that the State waive its strict legal rights to all claims and agree to settle compensation on an ex gratia basis in respect of claims brought by aggrieved persons, personal representatives and/or near relations and/or dependents of deceased persons.”

The Government needs to confirm its position regarding the recommended waiver.

 

The Office of the Public Defender should give an update regarding its participation as referenced in 15.15

PART 2 -PREVENTION

 

15.16 The Commission gives a non-exhaustive list of measures that would prevent similar events in the future.
1. ADMINISTRATIVE REVIEWS 15.17 “Consistent with our findings with regard to the conduct of certain officers and other ranks of the JCF and JDF, we recommend that both forces undertake administrative reviews of the conduct of the named officers….We note that since May 2010, some of these officers have been promoted – in some cases to very senior ranks.”

 

15.18 “We recommend that the serving police officers against whom adverse findings have been made be relieved of any operational commands that they may hold and that they be prohibited from serving in any special operations units.”

 

15.19 The Commission indicated the allegations of involvement of members of the Mobile Reserve in extra-judicial killings.

 

15.20 “Where the accusations of extra-judicial killings on the part of the security forces were found by this Commission to be credible, and where persons were identified as being in dereliction of duty or were administratively or operationally incompetent, we recommend that these persons should never again be allowed to lead or otherwise participate in internal security operations.”

 

15.21 “We further recommend that the Mobile Reserve be subjected to special external oversight arrangements.”

The JCF and JDF should give an update on the status of the recommended administrative reviews of the named officers.

 

The JCF should give an update regarding the recommendation to relieve certain officers of operational command.

 

The Government should give an update regarding the recommended special external oversight arrangements for Mobile Reserve.

2. USE OF WEAPONS SYSTEMS 15.22 The Commission pointed to the need for “policies that guide the selection of weapons systems that may be used in internal security operations….We strongly recommend that a group of competent persons be tasked to draft such a policy.”

 

Future use of Mortars and other Indirect Fire Weapons

15.24 “We therefore recommend that, in future, the leadership of the JDF pay careful regard to contemporary best practice and learning in relation to the use of weapons of indirect fire. Consistent with international humanitarian law, the use of these weapons in built-up areas should be prohibited.”

 

 

The Government should indicate the status of drafting policies regarding selection of weapons systems for internal security operations.

 

The JDF should indicate the status of its review of future use of mortars and other indirect fire weapons.

3. IMPROVING LEGAL AND ADMINISTRATIVE ACCOUNTABILITY FOR USE OF FORCE 15.27 “…we recommend the following firearm related systems and procedures for favourable consideration by the GoJ:” These are set out in (a) – (e).

 

 

 

 

 

Use of Masks or Other Concealment Gear

15.28 “…we recommend that the use of masks and/or other concealment gear be limited to special cases when the identities of particular officers and units are best protected by these means. We also recommend that where masks and other concealment gear are used by entire units or groups, this be done only with the approval of the CDS and CoP for the JDF and JCF respectively….Moreover, we recommend that in all cases, there be reliable and verifiable means of internally identifying all individuals for whom approval is given to wear masks and or other concealment gear….

 

Body Worn Cameras

15.32 “This recommendation should also apply to soldiers who participate in special policing operations.”

15.33 The Commission recommends the use of body worn cameras by the police. “We therefore recommend the introduction of this type of technology.”

 

 

The Government should give an update regarding the status of the recommendations to do with firearm related systems and procedures; for several of these, the JCF’s update would be relevant.

 

 

The government should give an update regarding the policy regarding wearing of masks or other concealment gear; the JDF and JCF updates would be relevant here.

 

 

 

 

 

 

 

 

 

The Government should give an update regarding the implementation of the recommendation for the use of body worn cameras by the JCF and JDF. The JCF update would be relevant here.

 

Of particular note is the status of the protocols to govern use of body worn cameras. Body worn cameras are now being used by some members of the JCF. Earlier this year, INDECOM indicated that at that time it did not know what the protocols were; the public also does not know what the protocols are.

4. ACCOUNTABILITY IN JOINT OPERATIONS – A TRANSITION COMMAND PROTOCOL 15.34 “We recommend that the JDF and JCF fashion a transition command protocol that would be applied in instances of large-scale joint internal security operations.” The JDF and JCF should give an update regarding the status of this recommended protocol.
5. STRENGTHEN OVERSIGHT OF THE JCF 15.35 “We recommend that they [INDECOM, PCOA & PSC] be strengthened in terms of their capacities to fulfill their functions effectively.” The Government should give an update regarding measures taken to strengthen the capacities of INDECOM, the PCOA & the PSC.
6. OVERSIGHT OF THE JDF’S INVOLVEMENT IN POLICING OPERATIONS 15.36 “…to the extent that the JDF has become routinely involved in policing and is required to play a major role in internal security operations, it is our view that this aspect of their work, that is, their policing work, should be subjected to a greater measure of external civilian oversight.” The Government should give an update regarding this recommendation to increase external civilian oversight of the JDF’s policing work . The JDF’s update would be relevant in this regard.
7. TACKLING THE GARRISON PHENOMENON 15.41 The Commission noted the establishment of a police post in Tivoli Gardens after May 24, 2010 and recommended “that this approach be replicated in those garrison constituencies where none presently exists.”

 

 

15.42 “In addition, since “de-garrisonisation” ultimately requires consensus among political parties, we recommend

a. A bi-partisan approach leading to agreement towards the dismantling of garrison communities facilitated by an independent third party.

b. A road map for “de-garrisonisation” should be handed over to an independent body similarly structured in composition to the Electoral Commission, to develop the details of the process.

 

15.43 In relation to “de-garrisonisation”, the Commission made several recommendations to do with allocation of resources, set out in (i) – (iii).

 

The Government should give an update regarding the recommendation to establish police posts in garrison constituencies which did not have one. The JCF update would be relevant in this regard.

 

The Government should give updates about the implementation of the recommendations regarding the process and the allocation of resources relating to “de-garrisonisation”.

8. ACTION RECOMMENDATIONS OF ECLAC 15.45 The Commission endorsed the recommendations made by ECLAC in its report on the impact of the May 2010 events in Jamaica.

 

15.46 The Commission also “endorsed the main conclusion of the report that a medium to long-term programme of rehabilitation and revitalisation of the affected communities should be developed in order to integrate those communities into Jamaican society.”

 

15.47 “As part of a programme for inner city renewal and development we recommend that the Government should vigorously pursue the private sector’s assistance by inviting them to embrace the Urban Renewal (Tax Relief) Act.”

The Government should give an update regarding the recommendations to do with “[s]ustainable development… in addressing the problems in the low-income urban areas.”
9. REVIEW AND REFORM OF THE CRIMINAL JUSTICE SYSTEM 15.48 “We recommend that there should be a thorough-going holistic review of the existing criminal justice system followed thereafter by appropriate administrative and legislative action.” The Government should give an update regarding this recommended review.
10. AMENDMENT OF EXTRADITION ACT 15.50 “We recommend that section 8 of the Extradition Act be amended to make it mandatory that the Minister make a decision on authority to proceed within a finite time.”

 

15.51 The Commission made recommendations regarding not publicizing extradition requests and the Attorney General’s intention to sign the Authority to Proceed. Also recommended AG immediately informing the Commissioner of Police upon its execution.

The government should give an update regarding the recommended amendment to the Extradition Act.

 

 


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DNA? No Way! – More on The National Identification & Registration Act, 2017

A March 27, 2017 Jamaica Information Service (JIS) report titled National Identification System Will Be Game Changer – Chuck quotes Minister of Justice Delroy Chuck saying:JIS Min Chuck re natl id 27-3-17

The National Legislation and Registration Act, 2017 has been tabled in Parliament but hasn’t yet been passed. Minister Chuck’s reported statements to a police gathering in St Ann raise a number of concerns, one of which is his inclusion of DNA as one of the biometric identifiers to be included in the National Identification System.

When I wrote a blog post about the legislation last week, I had not seen the report of Minister Chuck’s speech, and I referred to the inclusion of DNA as an alarming future possibility:

So at some point in the future, a Prime Minister could decide to amend the Third Schedule to include DNA as one of the biometric identifiers the Government would have the power to collect from every Jamaican citizen for storage in the database.

It is disturbing that the Minister of Justice sees the inclusion as a welcome current reality, rather than a problematic future possibility! Particularly since the Bill tabled in Parliament in March makes no mention of DNA, except the following in the Sixth Schedule, which deals with Amendments and Repeal of other Acts to be done in association with the new legislation:NIDS Bill - DNA Evidence Act amendment

DNA is not included in the Third Schedule, which lists the wide-ranging information the State will be empowered to collect from every Jamaican citizen for storage in a central database, nor is it included in the definitions of biometric information or core biometric information in the Interpretation section of the Act:NIDS Bill - biometric infoNIDS Bill - core biometric info

However, it would be quite easy to add DNA to the list in the legislation as currently drafted. The regulations have not yet been drafted or made public, and when they are, DNA could be included. Regulations are subject to affirmative resolution – 57(2). Additionally, Section 58 empowers the Prime Minister to amend the Schedules of the Act, including Schedule Three, which would be an even easier method for including DNA.NIDS Bill Section 58

So, I ask the question: Does the Government intend to include DNA as one of the biometric identifiers to be collected for use in the National Identification System? If it does intend to collect DNA, then this should be made clear prior to passage of the Act. If it does not intend to collect DNA, then a specific prohibition needs to be included in the legislation, as has been done for some demographic information:NIDS Bill - demographic info

I have focussed on DNA in this post, given that it is the most extreme suggestion for collection and it has been mentioned by the Minister of Justice. I think, however, that ALL biographical, biometric and demographic information listed in the proposed legislation need to be reviewed and carefully considered before the Act is passed.

Other Questions About the Act Highlighted in JIS Report

The JIS report includes the following:JIS Chuck re Natl ID 27-3-17 banks

This points to the issues of

  • who will be entitled to request or demand the National Identity Number and/or National Identity Card from an individual,
  • under what circumstances such a request or demand can be made,
  • what right an individual will have to refuse such a request or demand and
  • what the consequences of such a refusal will be.

These need to be clearly understood before the Bill is passed into law.

For example, it is stated in the Bill that:NIDS Bill Section 41

This indicates that both public sector and private sector entities will have the power in law to request or demand that an individual provides their National Identification Number or National Identification Card and the individual will be required in law to produce it. (So you could go to the hardware store to buy a tin of paint and be required in law to produce your identity card if asked for it?)

How does this apply to requests or demands by the police? The JIS report states:JIS Chuck re Natl ID 27-3-17 police stop 2

The Bill is silent on any requirement that an individual must carry their National Identification Card at all times. Is it intended that this be included in regulations? Will the police be empowered in law to require someone to produce their National Identification Card? And if so, under what circumstances? As part of a “routine stop”? Only where there is reasonable suspicion of involvement in some criminal offence, committed or imminent? And what is contemplated as the consequence if someone doesn’t have their National Identification Card on them? Would that become grounds for detention? And if people are going to be required to carry their National Identufication Cards with them at all times, at what age would that requirement begin? And would it be all the BIOMETRIC data that would become available on swiping the card in the scenario above?

In another scenario presented by Minister Chuck, the police would have easy access to the fingerprints stored in the centralised database:JIS Chuck re Natl ID 27-3-17 access to fingerprints

This is a misleading portrayal of the process for the police to gain access to fingerprints or whatever core biometric information is eventually stored in the central database. It goes beyond “a quick check with the National Identification System headquarters”. In the Bill tabled the process is far more complex, as it should be given the sensitive nature of individuals’ biometric information. The process is set out in Section 45 of the Act and involves an application to the court and the criteria that a Judge must consider in granting the order for release of the information to the police.

The report ends with reassurances from the Minister:JIS Chuck re Natl ID 27-3-17 focus on crime applications

The security of any information stored in the centralised database is of critical importance. Is there a need for some minimum standards to be included in the legislation?

If you read through the National Legislation and Registration Act, 2017 in its current draft, you would not see the strong emphasis on its use as a crime fighting tool. It is presented primarily as a means for identification in accessing goods and services. This is one of the reasons for scrutiny at the level of a Joint Select Committee and clarification for the public. What are the implications (intended or unintended) of the provisions of the proposed legislation? What are the risks? What is the potential for erosion of rights and abuse by the State?

I am fully aware of the potential for inaccuracies and incompleteness in reports of events and speeches, but if the JIS report is an accurate one, then I am disappointed in Minister Chuck, because he is one of the people I would look to for strong scrutiny of the Act for potential breaches of rights and to lead discussion in that regard.

With or without this JIS report of the Minister’s speech, these are issues for consideration prior to passage of the Act. There are others that I will also raise in future posts.