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Because the country needs to know...

CLAUDE ROBINSON

Sunday, March 23, 2014    

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THE decision by Ms Velma Hylton, QC to remove herself from the Tivoli Enquiry is the correct and necessary step to give the probe a reasonable chance of avoiding the political blame-game and deep mistrust that attends every examination of deadly confrontations between state security forces and residents of the community. But it is not sufficient.

The Administration of Prime Minister Simpson Miller must take great care to ensure that her replacement does not come with a past, real or imagined, that the Opposition could seize on in support of its fundamental belief that the enquiry deck is stacked against it.

And for its part, the Opposition Jamaica Labour Party (JLP) now has a basis to abandon the schizophrenic approach taken so far -- by word and deed -- and send the clearest signals that it will actively engage in the probe, because the country deserves to know what happened during those fateful days in 2010 and what needs to be done to prevent a recurrence.

Ms Hylton's withdrawal apart, some positive signals emerged from the Opposition last week, despite continuing scepticism about process and motive.

"Notwithstanding our scepticism of the commission of enquiry (COE) process and the ulterior political motive behind it, once the Government announces a commission the people's loyal Opposition is duty-bound to participate. We will not allow this commission to be used as a PNP public relations tool to demonise the people of West Kingston and blame the JLP for violence."

That, from Opposition Leader Andrew Holness in an email response to questions I sent him Thursday when he was in the Cayman Islands participating in an education conference.

He went further: "We will not only be empowering the people of West Kingston to tell their story, but we will -- within the TOR (terms of reference) -- ensure that Jamaicans have a full understanding of the genesis and possible solutions to the recurring problem."

Mr Holness said that because of "the voluntary withdrawal of Ms Hylton, there is no longer a need for legal action."

However, the JLP leader remains sceptical: "We maintain that the tool of a Commission of Enquiry will not get at the root of the recurring problem between West Kingston and the State. This would now be the third such mass fatal incident between West Kingston and State security forces."

Also, he argued, commissions "are slowly evolving into court proceedings, with lawyers taking over the show in an adversarial way to establish guilt, blame, and score points rather than to establish the truth, facilitate healing and resolution, promote learning from procedural and policy errors, and secure compensation for affected parties."

Freeing ourselves from shackles of the past

Meanwhile, people familiar with the process of identifying a replacement for Ms Hylton on the three-member panel to be headed by former Barbados attorney general and chief justice David Simmonds believe that Prime Minister Simpson Miller will ensure that the new nominee cannot be accused of bias, real or imagined.

Further, the leader of the Opposition will be given more time to reflect and comment. "Once we agree on a name we will run it by the Opposition," said a source familiar with the process. Any further objections raised by the JLP would confirm the suspicion that the party really does not want the enquiry for fear that it will have negative political consequences.

The Government named the three-member Commission of Enquiry into issues surrounding the events of May 2010 when more than 70 persons were killed in confrontations between the security forces and armed elements in Tivoli Gardens -- the long-standing JLP political garrison.

Public Defender Earl Witter, who submitted his own "interim report", said his investigations suggested that "excessive or undue resort to lethal force" was used by the security forces during the operation. And he was not able to determine how many people actually died in the operation, although he listed 77 deaths, including one soldier. The figure could be higher.

Mr Witter did not have access to ballistics reports and other forensic evidence that would enable him to make more definitive statements about the deaths and shootings that caused injury.

Hopefully, the Simmonds Commission can take us further and find out who should be held accountable and how Jamaica can be better for the exercise.

Immediately after the commission was named, MP for West Kingston Desmond McKenzie led an Opposition broadside against the choice of Ms Hylton, a highly respected jurist and legal practitioner. He argued that comments she made as counsel in a previous enquiry into similar incidents in Tivoli implied bias against the people of the community.

At the 2001 enquiry Ms Hylton said she could not understand the logic behind saying that police and soldiers could not return fire if "women and children deliberately put themselves in-between the law and order forces and deliberately go to and fro to enable gunmen behind them to fire at the security forces or to fire at civilians".

It was an unfortunate comment. As I remarked in this space on March 2, her selection was problematic, "given the history and the politics of the situation. By naming her, the Government has given the Opposition cover and distraction from its more fundamental problem with the enquiry". That's now behind us.

The West Kingston Commission, in which Ms Hylton served as counsel, was set up by then Prime Minister P J Patterson following a police operation in West Kingston July 7-10, 2001, in which 27 people died. The police said they were in search of guns and wanted men when they came under fire from gunmen in Tivoli Gardens and Denham Town.

The JLP did not participate in that enquiry -- first questioning the 'political' antecedents of commissioner Rev Dr Garnett Brown, a retired senior public official. Later, the party alleged that the chairman, former Canadian jurist Justice Julius Isaac, harboured anti-Seaga sentiments.

Because the JLP did not participate and allow residents of Tivoli Gardens and Denham Town to say what they saw and experienced, the commissioners were unable to draw on a wide enough range of evidence apart from the testimony of the security forces.

In its report, the commissioners said that, "based on evidence before us, the essential cause of the violence in Denham Town, Tivoli and its environs was the presence of drugs, the proliferation of guns and ammunition in the hands of civilians residing in the area and the desire of the owners to protect them".

The commissioners concluded that the security forces came under "heavy gunfire from armed civilians", that they spent inordinately long periods taking cover from the gunfire, that they were generally impeded in the execution of their planned operation and that, "because of continuous gunfire aimed in their direction", they were prevented from removing the seriously wounded and dead who had fallen on the streets.

Given political disagreements in which that commission was established and operated, it is not surprising that the findings changed nothing.

This time around, the enquiry is into an operation authorised by a JLP Administration -- an operation that effectively exposed the impregnable JLP stronghold of Tivoli as the underbelly of a criminal organisation exercising virtual state authority.

The findings may prove embarrassing, but that's not a reason not to engage with it, nor for the PNP to take political pleasure in it, tempting as that might be. It must be, as Mr Holness said, about getting "a full understanding of the genesis and possible solutions to the recurring problem" that distorts our politics and stifles our development.

-- kcr@cwjamaica.com

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