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…
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?
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)
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.
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.
INDEPENDENT COMMISSION OF INVESTIGATIONS
Terrence F Williams
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.