BOTH Government and Opposition in the Senate seem to share the view that there needs to be discussion on amending the Commission of Enquiry Act, to include provisions for the determination how individuals are appointed to these commissions, and how the terms of reference are confirmed.
It is really unfortunate that for a nation, which so often refers to commissions of enquiry to settle controversial national issues, the Act under which the enquiries are undertaken does not even include provisions instructing how the commissioners are appointed and how their terms of reference are determined.
The issue was raised by Opposition Senator Marlene Malahoo Forte during the debate on the Bill seeking to amend the Act, primarily to increase the penalties for failing to participate as well as for acts of violence against participants.
The Bill offered a glorious chance to deal with the omission, however, it appeared that the Government had no intention of using the opportunity to amend the Act to resolve that issue, prior to the expected enquiry into the Tivoli Gardens 2010 incursion. And, despite its claim to be striving to be the best Senate, Government Senators did not seem interested in having the issue settled prior to what is supposed to be a commission of enquiry into one of the most glaring acts of brutality by the state against its citizens.
What was even more interesting about the episode in the Senate on Friday was the basis on which the issue was ignored.
Senator Malahoo Forte, in her contribution, said that while she believed that the review and amendments to the principal Act were timely, there was the question of what explains the absence of any provision to deal with the means by which the terms of reference for commissions of enquiry are settled and the method of appointment of the commissioners.
Referring to the proposed enquiry into the May 2010 Tivoli Gardens incursion, she noted that the public had been asked to make submissions on the terms of reference to guide the commission, while there was no provision in the Bill being debated to guide those who will eventually formulate those terms of reference.
"I believe a grave injustice would be done, if the principal Act was to be amended at this time, without these substantial matters being addressed," she said.
At this point, Leader of Government Business Senator AJ Nicholson, in an obvious reference to the period leading up to the Manatt Enquiry in 2011, pointed out that the then Government (current Opposition) had also ignored a request from his side to make the necessary amendments to the Act.
"When I was Leader of Opposition Business, you decided that would not take the motion. That was your mantra at that time," Senator Nicholson recalled.
"Mr President, the point made is a point that is well taken," Senator Malahoo Forte admitted. "But, you know, Mr President, I think we need to get to the place where, if a point is well made, regardless of the motive, it ought to be considered. And, if the approach taken in the past was wrong, then the wrong should not be repeated," she said.
"It is indeed a serious issue when it was raised then. And, I don't think that the seriousness of the issue has been eroded; I believe that it has been reinforced and I think that so important is this aspect of the holding of any commission of enquiry, that an effort to amend the principal Act must speak to this issue, otherwise it will really render the process ineffective," Senator Malahoo Forte continued.
"If we are to complete the debate and pass the Bill to amend the principal Act, and not deal with the manner in which the terms of reference are settled, we would have fallen short of our duty in addressing the matter. The same goes for the appointment of the commissioners," she added.
Justice Minister Senator Mark Golding, who was piloting the Bill, pointed
out that it is the
Cabinet which has responsibility for appointing the commissioners, with reference to the governor general. However, he said that the fact that the Act does not address the issue did not arise during the process of preparing the amendments.
He also pointed to the fact that when it was suggested by the current government, while in opposition, the previous government did not debate it in Parliament.
"The relevant proposals have not been formulated with any specificity, and I don't think that, at this point it would be prudent to attempt to embark upon any further amendments to this Bill," he insisted, suggesting that it be dealt with at a later date.
With that the Senate dismissed this fundamental issue, which means that the commissioners to serve on the pending Commission of Enquiry into the 2010 Tivoli incident will be appointed by the governor general on the advice of the Government, as will also be the case with the terms of reference to guide the enquiry.
Another issue in the Senate on Friday concerned Opposition member Senator Kamina Johnson Smith's exception to the need for her to accept amendments to a motion she had brought to the Senate seeking a joint select committee review of the level of violence against women, children, the elderly and the disabled in the society.
This was certainly an issue a "best Senate" should have been able to address without dissent. But Senator Johnson- Smith felt that the Government went too far in amending her resolution, in return for the support she needed from them to have the motion passed.
The exchanges between the Government and the Opposition tested the extent to which the Opposition should be willing to go, to get the Government support it needs to get its motions passed.
Senator Golding informed the Senate that there was agreement on the re-wording of Senator Johnson Smith's motion and asked her to put it to the Senate to be recorded and voted on.
"Mr President, it is with mixed feelings that having closed the debate last week, I now present the proposed amendments to the motion which have been discussed between both sides," she said.
"The last amendment came to me unfortunately, without, I would think, enough scope for further discussion and it is one with which I have some concerns," she added.
Senator Johnson-Smith pointed out that, in terms of the resolution's preamble, it was decided to delete facts she had presented, such as the unprecedented number of pregnant women who have been killed over the past 12 years.
She said that what she had sought to do was to focus on the facts that would have, at least, driven her to take the motion. The fact that she laid out was that between September 2012 and February 2013, six pregnant women had been murdered in Jamaica.
She pointed out that the Government proposed changing that to "18 women known to be pregnant have been killed by violence in Jamaica, since 2002".
She said that she wasn't even sure that the proposed change was factual, but would accept it in good faith. However, she felt that the change did not prioritise the barbarity of the killings over that six-month period and the outrage with which the society greeted the news.
"If it is, however, that in the interest of compromise, and in the interest of ensuring that the committee is in fact established, given that we are the minority, then we may have to accept," she commented.
Responding to the position she had taken, Nicholson, remarked that preambulary paragraphs (which introduce the formal resolution) in motions "have no moment".
"Really, what you want in this motion, for example, is for the Joint Select Committee to be established and that would come in the prayer. In fact, you will notice in United Nations' motions and resolutions, you will see a long list of preambulary paragraphs, that is because some countries are left, some are near right, some are this; so they have to come to some accommodation. It is not so in the Senate," he explained.
He told Senator Johnson Smith that it would be easier to remove the preamble and that she should understand that, once she had tabled the motion and it is being debated, it was no longer her motion.