The Bill was read the first and second times and a Select Committee of the House was named; a Select Committee of the Senate is to be named and the two committees will sit jointly to review the new Bill. The MPs named yesterday were:
Delroy Chuck (Chairman), Fayval Williams, Marlene Malahoo Forte, Marsha Smith, Robert Morgan, Dwight Sibblies, Julian Robinson, Hugh Graham and Lothan Cousins.
In his statement about the new Bill to the House, PM Holness didn’t outline a timetable for its passage as he had done in September, but MP Chuck did mention it in his brief comments:
“It is a very important Bill and we certainly would like to use the next two months profitably and hopefully we can debate and have the Bill passed during this fiscal year.”
It is during this short period that the public will have the opportunity to read and analyse the Bill and to give feedback.
Below is the prepared text of the Prime Minister’s statement, which can be checked against the PBCJ recording to hear his additional comments and to hear the comments made by Leader of the Opposition, Mark Golding.
In Parliament on Tuesday (July 21, 2020), Minister of Justice Delroy Chuck opened the debate on his motion to amend the Independent Commission of Investigations Act, 2010. In a presentation lasting less than ten minutes, he laid out the government’s position regarding the proposed amendments and the process to be followed to get there. No-one else spoke in the debate on Tuesday. Minister Chuck ended his statement saying that it was the intention that the debate should be concluded next week:
“Mr Speaker, I now ask for a suspension of the debate and hope that other Parliamentarians will see it appropriate to make their contributions next week when we hope to close the debate.”
I wonder who will speak next week and for how many minutes.
As Minister Chuck has indicated before, the Government is asking the Members of the House to support all the recommendations included in the 2015 report of the Joint Select Committee that reviewed the INDECOM Act, except the recommendation to give INDECOM the power to prosecute.
When Minister Chuck spoke about this recommendation on Tuesday, he added “And I dare say, Mr Speaker, I was one of the strongest proponents of that view. ” The view that INDECOM needed the power to prosecute.
Minister Chuck’s change in position seems to be based primarily on the increased number of prosecutors at the Office of the DPP. He spoke generally about the increased numbers, and referred to an existing MOU between the Office of the DPP and INDECOM:
Mr. Speaker, it is important to note that a MOU was arrived at in March 2018 between the ODPP and INDECOM whereby, among other things, two prosecutors were assigned specifically to liaise directly with and treat with INDECOM matters. Indeed, if more prosecutors are needed to deal with INDECOM matters in a timely manner, I am assured by the DPP that one or more prosecutors can be so assigned.
Minister Chuck’s Opening statement, p. 2
What he did not do was to provide any data on how that MOU has functioned. There was no data, for example, on the number of files INDECOM has sent to the ODPP each year; no data on how long it has taken for the ODPP to make decisions on the files sent; no data on the causes of any delays; no data on what decisions have been made (without identifying the individual cases themselves, but whether decisions were made to prosecute, to send to coroner’s court or for disciplinary proceeding or other options).
Beyond the Minister’s assurances, what would Members of Parliament (and members of the public) rely on to assess how the ODPP has managed the INDECOM files to date and will be able to manage them in the future?
Although the Minister didn’t specifically refer to the Joint Select Committee recommendation that INDECOM should clearly have the power to arrest and charge, this is not being supported by the Government either. (See Section 20, p. 10 of the report.) And Minister Chuck didn’t give the reasoning for this in his presentation.
Mr Chuck listed a number of additional amendments to be included and set out the intended process if the motion passes:
These recommendations plus others in the Report will be introduced in a Bill to amend the INDECOM Act and drafting instructions will accordingly be provided to OPC at the close of this debate and after further consideration by Cabinet. I hope that the proposed amended Bill will be tabled in Parliament during this fiscal year.
Minister Chuck’s Opening statement, p. 4
Next week is scheduled to be the last week before Parliament goes on its summer break. This debate is likely to be completed and the motion passed without much notice. And this will be a blow for police accountabilty measures in Jamaica. There will still be the opportunity to advocate for inclusion of these powers up until a new Bill is actually passed, although Minister Chuck has indicated the Government’s position.
INDECOM, under the leadership of its first Commissioner – Terrence Williams – has had a significant impact in its first ten years. I wonder what the next ten years will bring…
Related Documents
Motion Regarding Amendments to the Independent Commission of Investigations Act, 2010 brought to the House on May 27, 2020, by Minister of Justice Delroy Chuck. (If I find a better copy of the motion, I will post it.)
Text of Minister Chuck’s Opening Statement in Debate on INDECOM Act Amendment Motion
Listen 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
A 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
The 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:
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?
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
“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)
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, 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.
Last week Thursday (February 15, 2018) saw the Ceremonial Opening of Parliament for the new Parliamentary year, with all the attendant pageantry.
This included the usual walk on Duke Street by Government and Opposition Members of Parliament, as they entered Gordon House for the first time for the 2018 – 2019 Parliamentary year.
The new year is always a good time to reflect on the performance of Parliament and its members in the past year. One easily tallied and basic marker is attendance. This is a very limited marker admittedly. It indicates nothing about other basic markers such as punctuality or length of stay at each sitting; it doesn’t indicate participation in debates or voting record. It doesn’t indicate whether or not MPs attended meetings of any Committees they were members of and whether they contributed anything useful during those meetings. There are many other aspects to an MP’s performance in Parliament. But attendance is a good starting point. So as I have for the past two years, I have compiled the attendance record for MPs and posted them on my blog.
There were 47 sittings of the House of Representatives in 2017 – 2018, including the Ceremonial Opening and the special sitting to honour retiring MP and former Prime Minister Portia Simpson Miller. This is an increase over the 41 sittings in 2016 – 2017, though that was a shorter year, beginning in March 2016 after the General Election that February. Four MPs attended all 47 sittings – Dave Hume Brown, Delroy Chuck, Morais Guy and Franklin Witter. It is interesting to note that MP Ian Hayles, who had the worst attendance record last year (having attended only 19 of the 41 sittings), improved his record this year, having attended 36 of the 47 sittings. And despite the requirement in 81(1) of the Standing Orders for the House of Representatives that MPs give apologies for their absences, very few seem to do so, according to these records.
81. Absence of Members – (1) Any member who is prevented from attending a meeting of the House shall acquaint the Speaker as early as possible of his inability to attend, such notices to be in writing.
Do you care, however, if your MP attends Parliament? Or do you think it doesn’t much matter? One way or the other, you can – if you want to – check to see what their record was for last year.
In Parliament last week Tuesday (January 30, 2018), during the discussion about extending the period of Public Emergency in St James, Prime Minister Andrew Holness and Opposition Leader Peter Phillips both commented on the functioning of the Independent Commission of Investigations (INDECOM). Their comments fit into an ongoing narrative that paints INDECOM as not being “balanced” in its approach and acting in a way that demoralizes the members of the security forces it is mandated to investigate.
Dr Phillips: I’d like to end by also offering our commendations to the security forces for, not only in this area in St James but generally, the rank and file for the most part and the officers for the most part have conducted themselves with commendable efficiency in very difficult circumstances and they are to be commended. And I think even as they go, not only there but in the other areas of the country, while we urge them to obey the law, I want to urge those who investigate them, including INDECOM, to be mindful of the circumstances in which they operate. If I can be blunt, if INDECOM has a problem with the members of the security forces, I don’t think they should disarm them in public in full view of the citizens. I think that that unnecessarily demoralizes the men and women who are urged to obey the law, but who operate in what is a very dangerous situation on the street. There is literally a war that has been declared on society and in that circumstances you cannot weaken those who serve in the face of those who attack them.
In responding to Dr Phillips, PM Holness said:
You mentioned INDECOM. We take the view that there really needs to be balance in how INDECOM operates. I’ve decided not to go any further with my comments on INDECOM. I think this House, which created the institution, which still retains the power, at some point…I suspect it would have to be sooner than later…we will have to take some decisions…to ensure that that very important institution operates with balance.
(A video recording of the session in Parliament is available here. Dr Phillips’ comment begins at 1:11:59 & PM Holness’ comment begins at 1:37:00.)
The following day, INDECOM issued two press releases in response to the comments in Parliament. In the first, the Commission refuted Dr Phillips’ assertion:
In the second, INDECOM shared Commissioner Williams’ letter to Justice Minister Delroy Chuck, requesting an opportunity to be informed of the perceived problems and to respond:
Dear Minister Chuck,
Re: Remarks in Parliament on INDECOM
Reference is made to the captioned.
On the 30th instant, remarks were made in Parliament that INDECOM needed “balance” in its work and that INDECOM’s investigators were disarming police officers in public spaces.
As a Commission of Parliament, INDECOM is obligated to make reports to Parliament on matters of concern. We do not know what claims advised the assertion that our work lacks balance and would appreciate an opportunity to be so advised and to respond. As misinformation must not be permitted to direct policy.
The remark about disarming of police officers ia an example of misinformation. This was raised by the Police Federation during the Joint Select Committee’s Review of the INDECOM Act. We were able to debunk this claim. The position remains that police officers are disarmed by their colleagues and this is done at the police station. A 2014 JCF Force Order published the agreed protocol between the JCF in this regard.
Given your statutory remit to serve as the liason between INDECOM and Parliament, INDECOM seeks your kind intervention in this matter to permit us to be aware of assertions being made and to answer them.
Yours sincerely,
INDEPENDENT COMMISSION OF INVESTIGATIONS
Terrence F Williams
Commissioner
This is not the first occasion on which PM Holness has spoken about INDECOM needing to be more “balanced” in its approach or for the need to review or make changes to the INDECOM Act. It is unfortunate and unhelpful, however, that the Prime Minister hasn’t been more specific in making clear exactly what he means by “balance/balanced” or what aspects of the Act he thinks need further review or need to be changed. His repeated references without specificity encourage speculation, limit INDECOM’s ability to respond and may have the effect of eroding confidence in the workings of the Commission.
Review of the INDECOM Act
Section 37 of the INDECOM Act, which came into effect in 2010, requires periodic reviews of the Act, the first to take place no later than three years after the Act came into effect.
In 2013, a Joint Select Committee (JSC) was established to review the Act; it began its examination on June 27, 2013, held 23 meetings, concluded its report in October 2015 and the report was tabled in Parliament in November 2015.
A copy of the report is available here: Joint Select Committee Report on INDECOM Act. What has happened to the report since it was submitted to Parliament? Which of the JSC’s recommendations have been accepted or rejected? What amendments to the Act are to be tabled in Parliament? More than two years after the report was submitted, it would be reasonable for the public to have some official word via Parliament.
A September 29, 2016 Jamaica Information Service (JIS) release titled “Cabinet Looking at Report on INDECOM” included the following reference to a statement made by National Security Minister Robert Montague:
Last year there was a report in the media that Minister of Justice Delroy Chuck had indicated there had been some movement regarding Cabinet’s consideration of the JSC recommendations, but there has still not been any action in Parliament regarding the report and its recommendations.
And this is part of what makes the comments in Parliament last week by the Leader of the Opposition and the Prime Minister so remiss. Parliament passed a law establishing INDECOM, a Commission of Parliament (2010). That law passed by Parliament required a review of the law not more than three years after passage. Parliament established a Joint Select Committee of both Houses to conduct that review (2013). That Committee of Parliament held meetings over two years and produced a report containing its recommendations. That report was tabled in Parliament (2015). More than two years later, there has been no further action in Parliament regarding that report and its recommendations (2018). Yet the Prime Minister and the Leader of the Opposition found it appropriate to make the comments they did in Parliament.
The Prime Minister did say “I think this House, which created the institution, which still retains the power, at some point…I suspect it would have to be sooner than later…we will have to take some decisions….” Yes, I would suggest that Parliament – that Parliamentarians – take some action, make some decisions. The current situation really makes a mockery of Parliament’s own processes.
At a press briefing today, Prime Minister Andrew Holness announced that a State of Public Emergency had been declared for the parish of St James in western Jamaica. Also making statements at the briefing were Minister of Justice Delroy Chuck, Minister of National Security Robert Montague, Commissioner of Police George Quallo and Chief of Defence Staff of the Jamaica Defence Force, Major General Rocky Meade.
(L to R) Major General Meade, Minister Montague, Prime Minister Holness, Minister Chuck, Commissioner Quallo
A recording of the full briefing is available via the Public Broadcasting Corporation of Jamaica (PBCJ) at the following link: Press Briefing – January 18, 2018.
Below is a transcript of PM Holness’ opening statement:
Good afternoon, everyone.
As we are all aware and agree, the crime and violence – in particular murders – have been escalating in the parish of St. James. I have been advised by the security forces in writing that the level of criminal activity experienced, continued and threatened, is of such a nature and so extensive in scale as to endanger public safety.
In consideration of this, I wrote to the Governor General recommending the declaration of a State of Public Emergency for the parish of St James. The Governor General has signed a Proclamation dated and effective 18th of January, 2018. The Proclamation has been gazetted. A State of Public Emergency is now in effect for St James.
Under State of Public Emergency the security forces will have extraordinary powers and some rights are suspended. This does not mean that the use of these extraordinary powers can be arbitrary or are beyond review. The declaration of a State of Public Emergency does not mean the suspension of the rule of law. The security forces are expected and have been directed to treat citizens with respect and protect the dignity and safety of all.
Clearly the operations which will be conducted, though directed at criminals and their facilitators – I want to repeat that, the facilitators of criminals – will create some level of general discomfort. We ask the public to cooperate with the security forces.
Now is the time, if you know where the guns are, please tell us. If you know where the criminals are, please tell us. The reward for guns programme is still in effect. The number to call is Crime Stop – 311 – or call the security forces hotline – 830-8888. {This was later corrected to give the accurate number – 837-8888.}
As has always been the stance of the Government, we will continue with a credible process of communicating with the public. We ask the press and the public to be understanding of the sensitivities of this matter.
Again, a State of Public Emergency is in effect for the parish of St James.
The Office of the Prime Minister subsequently sent out this release:
Prime Minister Andrew Holness has declared a State of Public Emergency in the parish of St. James effective Thursday, January 18.
The Prime Minister made the announcement this afternoon (January 18) at a press conference held at Jamaica House.
“Crime and violence in particular murders have been escalating in the parish of St. James. I have been advised by the security forces in writing that the level of criminal activity experience continued and threatened, is of such a nature and so extensive in scale as to endanger public safety”, said the Prime Minister.
The Governor General signed the Proclamation to bring into the effect the state of public emergency. The Proclamation has also been gazetted.
The constitution provides that a period of public emergency can be declared by a proclamation if the Governor-General is satisfied that action has been taken or is immediately threatened by any person or body of person in such a nature and on so extensive a scale as likely to endanger public safety.
Last year, 335 murders were recorded in St. James, which is twice the number of any other parish.
Prime Minister Holness outlined that under the state of emergency the security forces will have extraordinary powers and some rights will be suspended. He noted, however, “This does not mean that use of these extraordinary powers can be arbitrary or are beyond review. The security forces are expected and have been directed to treat citizens with respect and protect the dignity and safety of all”.
The security forces will have the power to search, curtail operating hours of business, access to places and to detain persons without a warrant.
In addition, all persons using all roads leading in and out of St James will be subject to vehicle and personal search. In various areas of city and township, there will be joint static and mobile patrol. Persons may also be stopped at various checkpoints.
Meanwhile, Security Minister, Hon. Robert Montaque made an appeal to the citizens of St. James for their full cooperation during the period. He acknowledged usual activities may be curtailed. However, he assured that the operations to be carried out by the security forces will be targeted at the criminal elements and their facilitators.
“Any information you have, we need it. We need your full cooperation in moving forward in restoring peace and order so that the good people can continue to contribute to the well-being of Jamaica”, said Minister Montaque.
If persons have any information to assist in the crime fighting effort, they may call crime stop, 311.
A special hotline has also been set up to be manned by the Jamaica Defence Force for persons to give information. The number is 830-8888.
—30—
Below is a copy of the Proclamation by the Governor General declaring the State of Public Emergency. (I’m sorry it is such a poor copy, but it’s the only one I could find at the moment. If I locate a better copy, I will substitute it.)
The Regulations governing the period of Public Emergency are to be tabled in Parliament next week Tuesday.
Minister of Justice Delroy Chuck is chairing the Committee and reminded that the Bill had been tabled in the House by Prime Minister Holness during his Budget Debate presentation on March 21, 2017. He noted that this Bill is one of the measures intended to deal with the high level of violent crime in the country and made reference to the quadruple murder that had taken place in the parish of Hanover this morning. He indicated that the Prime Minister had asked that the Committee complete its deliberations by the end of June. This means that the Committee has about two weeks in which to conduct its process and report back to Parliament; by the first week in July, at the latest, Minister Chuck said.
The Committee has asked that advertisements be placed in the media this week, inviting individuals and organizations to make written submissions on the Bill to Parliament, with a possible deadline for submission by next week Tuesday. They will also write to a number of specific organizations inviting them to make submissions; among those mentioned were the Jamaica Bar Association, the Advocates Association, the Public Defender, Jamaicans for Justice, the Norman Manley Law School and the Faculty of Law at the University of Technology. Individuals and organizations which make written submissions may be asked to make presentations in the Chamber, which will need to take place next week or the week after that.
Dates for three meetings of the Committee were set today, though these may change, as sometimes happens:
Wednesday, June 21 – 9 a.m.
Tuesday, June 27 – 10 a.m.
Wednesday, June 28 – 2 p.m.
It is hoped that all contributions can be concluded by the end of these three meetings, after which the Committee will do a clause-by-clause review of the Bill before finalising their report to Parliament.
Minster Chuck said that Attorney General Marlene Malahoo Forte will be attending the meetings of the Committee and the next meeting will begin with the Attorney General giving an outline of the Bill. He also said that the National Security Advisor and representatives of the Jamaica Constabulary Force and Jamaica Defence Force will be invited to attend the meetings.
I am not sure of the full membership of the Joint Select Committee, but present today were MPs Marisa Dalrymple-Philibert, Evon Redman and Floyd Green and Senator Pearnel Charles, Jr. Apologies were tendered for MP Peter Bunting and Senators Mark Golding and Ransford Braham. (Marlene Malahoo Forte was present in her capacity as Attorney General, from Minister Chuck’s comments.)
The Committee is attempting to complete its work in a very short period, with very limited notice to the public for submissions, which may jeopardize the “closer scrutiny of the Parliament in a joint select committee” contemplated by the Prime Minister when he tabled the Bill.
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.
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.
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.
The 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.
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:
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:
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.
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:
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:
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:
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:
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:
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:
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.
In 2000, the Jamaican government agreed to pay compensation to the so-called MoBay street people – homeless Jamaicans, many of whom were living with mental illnesses – who had been rounded up in Montego Bay on the night of July 14, 1999. They were taken by truck to St Elizabeth, where they were callously dumped near a mud lake in the dead of night. After the Commission of Enquiry, the government accepted responsibility and indicated that the sum of J$20,000 per month was to be paid to the victims of its abuse. One of the women who was subjected to this horrendous treatment, Miss Sarah, was subsequently interviewed by a reporter about the news of this compensation. She was asked how she felt about the money that the government would be paying her. Her response was that the money was all well and good, but up to that time no-one had yet come and told her sorry for the way she was treated.
When the state through its agents commits human rights abuses, there are many things that the state has an obligation to do as part of the process towards justice. This includes prompt and effective investigations, actions towards holding those responsible accountable, and steps towards reparation for those harmed by the abuse. An often overlooked step in the reparation process is that of apologising for the harm done.
IACHR & Michael Gayle
In 2005, the Inter-American Commission on Human Rights (IACHR) published its findings in the petition filed by Jamaicans for Justice (JFJ) regarding the death of Michael Gayle, the 26-year-old man who died after being brutally beaten by police and soldiers on the night of August 21, 1999. The Commission made a number of recommendations for action by the Jamaican state. Among those recommendations was that the state should make a public apology to Michael Gayle’s mother, Miss Jenny Cameron:
At the time, the Jamaican government said that it had issued an apology, but Miss Cameron and JFJ, which had made the petition on her behalf, disagreed. This raises issues about the nature of an apology given by the state, where and how it should be given and what it should say. Certainly, the person or people to whom the apology is given should be in no doubt that an apology has been made, nor should the community and country at large.
West Kingston, May 2010
Last week, Minister of Justice Delroy Chuck indicated that the government would within a matter of weeks be issuing an apology to the residents of West Kingston. This was one of the recommendations made in the report of the West Kingston Commission of Enquiry, released to the public in June this year.
Some people have again been asking, as they did at the time the report was released, “Apologise for what?” For some, the actions of the police and soldiers during the May 2010 joint security operation were completely justified and they feel that the state has nothing to apologise for. After hearing and examining the evidence put before them during the Enquiry, the Commissioners are of a different opinion.
It is the Jamaica Labour Party (JLP) that now forms the government that will deliver the apology in Parliament; it was the JLP that formed the government at the time that human rights violations were carried out in May 2010. Yet, if it had been a PNP administration in government now, they would have had the responsibility to deliver the apology nonetheless, as the state responsibilities continue, whichever party forms the government at a particular time.
A public apology is an important part of justice and reparation, but there must be no misunderstanding that it is all that is needed. There is much additional concrete action that needs to take place to fulfill the recommendations of the Commission of Enquiry and the state’s obligations for accountability (including accountability for crimes committed), for compensation and for measures that will prevent such an occurrence again.
In the section dealing with Reparations for harm suffered (IX), there is a list of principles which are necessary for full and effective reparation: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition. Among recommended actions contributing to the principle of satisfaction is:
“Public apology, including acknowledgement of the facts and acceptance of responsibility.” 22.(e)
Public apology is there among the many facets to the provision of justice for those who have suffered serious violations of their human rights.
Apologise for what? The Jamaican state must apologise for the human rights abuses carried out by its agents.
In Parliament on Tuesday (July 21, 2020), Minister of Justice Delroy Chuck opened the debate on his motion to amend the 
Listen to 
A new Commissioner of Police was sworn in on Monday, March 19, 2018 – 
The 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 
“Implement a full legislative review that leads to (i) completion of a draft new Police Service Act to replace the Jamaica Constabulary Force
Minister of Justice Delroy Chuck is chairing the Committee and reminded that the Bill had been tabled in the House by Prime Minister Holness during his Budget Debate presentation on March 21, 2017. He noted that this Bill is one of the measures intended to deal with the high level of violent crime in the country and made reference to the quadruple murder that had taken place in the parish of Hanover this morning. He indicated that the Prime Minister had asked that the Committee complete its deliberations by the end of June. This means that the Committee has about two weeks in which to conduct its process and report back to Parliament; by the first week in July, at the latest, Minister Chuck said.
The 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 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 
In 2000, the Jamaican government agreed to pay compensation to the so-called MoBay street people – homeless Jamaicans, many of whom were living with mental illnesses – who had been rounded up in Montego Bay on the night of July 14, 1999. They were taken by truck to St Elizabeth, where they were callously dumped near a mud lake in the dead of night. After the Commission of Enquiry, the government accepted responsibility and indicated that the sum of J$20,000 per month was to be paid to the victims of its abuse. One of the women who was subjected to this horrendous treatment, Miss Sarah, was subsequently interviewed by a reporter about the news of this compensation. She was asked how she felt about the money that the government would be paying her. Her response was that the money was all well and good, but up to that time no-one had yet come and told her sorry for the way she was treated.
In 2005, the United Nations (UN) adopted the 
Right Steps & Poui Trees 