Parliament and the Royal Commission

A.J. Nicholson, Gleaner Writer

Dr Peter David Phillips has been sought by the Jamaica Labour Party (JLP) Government to be placed further in the spotlight of the continuing Manatt-Coke nightmare. Let us recall that, with the full backing of the parliamentary Opposition in the House of Representatives, he challenged Prime Minister Bruce Golding to come clean in this game-changing extradition exercise.

The reaction of the prime minister to that challenge caused the Opposition to execute a walkout from the chamber. Now, in the season in which, according to the prime minister's recommendation to the governor general, there is the desire that the truth concerning his challenge be revealed in a public commission of enquiry, Peter Phillips is himself to be challenged in the very same Gordon House.

A motion, seeking to have him censured, has been accepted by the speaker, and tabled by a government backbencher, Gregory Mair, the member for North East St Catherine. The motion is grounded on evidence that Phillips has given before the commission - a three-man tribunal - at the ongoing enquiry, concerning certain memoranda of understanding between Jamaica and two of its international partners in their drive to combat the vigour of the venomous, illegal cross-border trade in weapons and narcotics.

Traditionally, within the Commonwealth, in those independent territories, such as Jamaica, Canada and Australia, which still retain the British sovereign as head of state, such tribunals have been referred to as royal commissions, since they are established by the governor general, the representative of Her Majesty in the territory.

Step forward

Many had hoped, but few expected, that the commission which began hearing evidence last month would have unearthed the truth concerning this watershed moment in our history. Regardless, it must certainly be seen as a step forward in bringing the formal aspects of a historic fiasco to an end.

There remains, of course, the enquiry that is required to be conducted into the operations of the security forces in Tivoli Gardens, with the intention of serving an arrest warrant on the subject of the extradition request. And, all Jamaica also impatiently awaits the outcome of the investigation into the circumstances that led to the horrible death of Keith Clarke in his home in an upscale community in the Corporate Area, in the dead of night.

For, make no mistake, Jamaica will never be the same again. Some say that we had to pass through some kind of fire as we grow as a nation, but has such a fire ever burnt in our country? This is truly an unprecedented, epochal moment. And it was always going to come to this, driven, as it has been, by the enervating elements of partisan politics.

It is an epochal moment because never before in our history has there been the kind of legal and constitutional flip-flop that this ongoing JLP Government-inspired nightmare has brought upon Jamaica. A legal luminary to whom I made this observation suggested that there might have been one such watershed turnaround in our history.

He reminded of when His Majesty the King ordered that Henry Morgan, the pirate, be captured in these parts and brought to London to meet his Maker in the Tower. Upon his arrival in London, he was soon to be returned by His Majesty to Jamaica as Sir Henry Morgan, governor. His Majesty must obviously have been convinced that there was the requirement that a pirate should govern Jamaica.

The legal luminary sought immediately to distinguish the Henry Morgan moment from the present instance of an extradition request being considered worthless for some nine months, and then, without a single change having been made to the request, it suddenly acquires a worthwhile character. That flip-flop has caused unprecedented damage to Jamaica's reputation internationally, and never-to-be-forgotten cultural pain and financial cost within. Now, the real question is: to discover and travel the proper way forward.

The difference, according to him, is that at the time of Henry Morgan, the king was the embodiment of the Constitution - the law and the constitution being what the monarch considered it to be. Today's nightmare, on the other hand, has come upon us, caused by the abuse of power on the part of high-ranking officials within our independent Jamaica with a written Constitution.

The acceptance by the speaker of the House of the motion tabled by a member on the government side threatens to add another unfortunate episode to the song and dance that the administration continues to carry on in this long historic turning point. Its acceptance for debate strikes at the heart of the powers of Parliament within our system and how those powers are meant to be exercised.

Guarded exceptions

According to the Standing Orders of the House of Representatives and the Senate, any member may propose, by way of motion, any matter for debate. But there are closely guarded exceptions. The Standing Orders also prescribe rules relating to the content of speeches during debate on any matter, and one such rule is the sensible provision that: "Reference shall not be made to any matter on which a judicial decision is pending, in such a way as might, in the opinion of the chair, prejudice the interests of the parties thereto."

We are, therefore, obliged to consider what the breadth of that rule is meant to encompass and how it has been interpreted over the years. It is clear that the rule "bars references in debate (as well as motions and questions) to matters awaiting or under adjudication in all courts exercising a civil or criminal jurisdiction". Erskine May's 'Parliamentary Practice' (17th edition) confirms the rule. Such matters, as they say, are sub judice.

What, then, is the application of the rule to matters before a Royal

Commission? Of course, the question as to whether the proceedings before such a tribunal are sub judice is treated with some flexibility to allow for variations in the subject matter, the varying degree of national interest and the degree to which the proceedings might be or appear to be prejudiced.

One thing is certain, however: there can be no debate which seeks to put constructions on a matter within the contemplation of the tribunal, as a motion of censure must inevitably do. In truth, the mere tabling of such a motion points directly to the Government side, or at least some of those members, having publicly expressed a conclusion that could prejudice the findings of the commission of enquiry.

It might very well be that the Opposition, in the present circumstances, would find undoubted pleasure in such a debate. Yet, with respect, the speaker, the prime minister and the leader of Government business in the House of Representatives should never have allowed such a motion to be accepted for tabling; for that action, by itself, sends a signal of prejudice and bias. Parliament, the highest court in the land, cannot afford to lend its weight and support to that kind of signal.

In the Australian House of Representatives Practice, it has been suggested that it is necessary for the chair to consider the nature of the enquiry. Where, as here, the proceedings are concerned with issues of fact or findings relating to the propriety of actions of specific persons, the House should be restrained in its references.

Need for restraint

So that, in 1978, Speaker Snedden in the Australian House of Representatives drew a member's attention to the need for restraint in his remarks about the evidence before a Royal Commission. Debate was centred on a commission appointed to inquire into a sensitive matter relating to an electoral redistribution in Queensland involving questions of fact and the propriety of actions of Cabinet ministers and others.

The speaker said: "I interrupt the honourable gentleman to say that a Royal Commission is in course. The sub judice rules adopted by the Parliament are such that I do not believe that the national Parliament should be deprived of an opportunity of debating any major national matter. However, before the honourable gentleman proceeds further with what he proposes to say, I indicate to him that, in my view, if he wishes to say that evidence ABC has been given, he is free to do so."

He continued: "The royal commissioner would listen to the evidence make his judgment on the evidence and not on what the honourable gentleman says the evidence was. But I regard it as going beyond the bounds of the sub judice rules if the honourable gentleman puts any construction on the matter, for the simple reason that if the royal commissioner, in fact, concluded in a way which was consistent with the honourable member's construction, it may appear that the commissioner was influenced, whereas, in fact, he would not have been. So, I ask the honourable gentleman not to put constructions on the matter."

By the acceptance of this motion for the censure of Dr Phillips, the speaker of the House has allowed the Parliament to be used by the Government side of the chamber to do a monumental disservice to one of its members and to influence the conclusions that the commissioners might arrive at. This JLP administration continues to inflict grievous harm on the system of government that we are meant to practise.

Senator A.J. Nicholson is the opposition spokesman on justice. Email feedback to columns@gleanerjm.com .