Manatt post-mortem - Transparent enquiry

The report of the commission of enquiry into the extradition of Christopher 'Dudus' Coke and the engagement of Manatt, Phelps & Phillips is finally out. The people of Jamaica, and more so, the media, civil society and political circles, have been consumed by the extradition saga for 22 of the 45 months that the Bruce Golding administration has been in power. That means that half the time of the Golding administration to date has been taken up by this upsetting issue in play with the inordinate number of inherited, sudden and unprecedented economic and social crises.

Any ordinary leader would have long yielded to the intense pressure. Having to juggle a litany of inherited economic and social crises, international food and oil crises, a sudden global recession, dual-citizenship challenges, a hostile opposition and powerful but equally hostile elements in the media and biased civil-society paper groups, all within the context of governing with a slim parliamentary majority, is no ordinary feat.

The 58-page report assessed the varying issues well and came with commendable recommendations. It pointed out that the prime minister's handling of the matter was 'inappropriate'. It is no secret that the prime minister slipped up on his handling of the extradition issue. After all, he did apologise to the people of Jamaica, expressed profound regret, and asked for forgiveness via a national live broadcast at the very height of the crisis on Monday, May 17, 2010. No other leader in Jamaica's sordid history, no matter the magnitude of the crisis at hand, have ever done the same. For that Mr Golding deserves the highest of respect.

RECOMMENDATIONS

The report's recommendations require critical debate and should be addressed as quickly as possible. The recommendations were:

1.We have considered the quality and amount of work that is done by the Attorney General's Department, and the quality and volume of work done by the Ministry of Justice, and we recommend that these departments be headed by two different people. The attorney general does not have to be a minister, or a member of the Senate or of the House of Representatives (see Section 79 of the Constitution), but may attend Cabinet meetings at the invitation of the prime minister.

2. We recommend that when any amendment or memorandum concerning a law or treaty, whether operational or not, which affects the constitutional rights of individuals, is being introduced or amended, such amendment or memorandum should be referred to the Cabinet and to the prime minister. This would prevent the situation such as that which arose in the matter of the MOUs 1 and 2.

3. We think that the behaviour of counsel would be very different if the commissioners were to be given the right to cite them for contempt. We, therefore, recommend an amendment to the Enquiries Act to give commissioners the power to commit for contempt.

4. We also recommend that the Enquiries Act be amended to give the commissioners the right to state a case for the opinion of the Supreme Court. It would be a useful procedure in matters such as this, where the interpretation of statutory provisions is in issue.

The Government has already moved on the second recommendation. On Tuesday, it tabled in Parliament an amendment to the Interception of Communications Act. This will enable the security forces to lawfully share with our international partners information gathered through intercepted communications that can be used in the investigation and prosecution of criminal wrongdoers.

UNCONSTITUTIONAL MOUs

The secret and controversial memoranda of understanding (MOUs) signed by Dr Peter Phillips, then national security minister, we all recall, caused quite a stir. They were so secret that even the Government appeared to have been out of the loop! While Dr Phillips' actions may have been good-natured, he should be reprimanded for taking a unilateralist approach to such a very sensitive matter. Absolutely NO individual member of any government should sign sensitive agreements with any entity, foreign and local, without going through a clear and defined system of checks and balances. While Cabinet and Parliament provide checks and balances for our democracy, unambiguous guidelines must be set down for very sensitive national-security issues. Dr Phillips, based on his own, testimony, whatever his intentions, went on a frolic of his own without sufficient reference to constitutional checks and balances.

In the United States of America and many other progressive societies, there exist special committees to act as a check and balance. Anything outside that is autocratic and, therefore, undemocratic. It is a pity that after weeks of searching, the MOUs were found stashed away at the Military Intelligence Unit. Even more alarming is the fact that the US weighed heavily on these unconstitutional MOUs.

MUST UNDERSTAND

It is important that every Jamaican understand that the Government of Jamaica maintained from the outset that the methods used in pursuing the case against Coke constituted a breach of Jamaican laws and the Constitution and made strenuous efforts to get the US authorities to do the right thing, which ultimately resulted in the delay in the signing of the extradition request. The Government's options were limited to either authorising or refusing the extradition request for Christopher Coke. If the request was refused, the matter would have been undoubtedly exaggerated and spelt doom. Instead, the Government opted to work with the US to perfect the process.

Incidentally, the report has not contradicted what the prime minister has said, except that the minister should have signed the request. However, Senator Dorothy Lightbourne was advised by the solicitor general and the deputy solicitor general of the Attorney General's Department. Much thought needs to be given about splitting the Attorney General's Department and the Ministry of Justice as recommended by the commissioners.

Another noteworthy point to highlight is that the prestigious law firm Manatt, Phelps & Phillips was engaged by the JLP, not the Government of Jamaica.

SHOCKING

It is shocking that the People's National Party (PNP) threatened action if the report was not to its liking. This is nothing short of selfish. It is well within the right of the PNP to protest, but there exists no compelling reason to do so. After all, the PNP was more than adequately represented at the enquiry, and for much of the proceedings was rudely directing it with full knowledge of the overwhelming and live media attention. Notably, commissioners Emile George and Donald Scharschmidt are widely respected attorneys-at-law. Further, Commissioner Anthony Irons is a highly respected retired senior civil servant and former special adviser to former Prime Minister Portia Simpson Miller.

It was truly a democratic and highly transparent commission of enquiry. Prime Minister Golding must ensure that the recommendations in the report are fully debated and implemented, where necessary. It would be a pity if the report ends up on dusty shelves with past commission of enquiry reports after such an important, expensive and laborious exercise.

Delano Seiveright is president of Generation 2000 (G2K), the young-professional affiliate of the Jamaica Labour Party. Email feedback to columns@gleanerjm.com and delanoseiveright@yahoo.com.