Is INDECOM a rogue commission of Parliament?

Tuesday, March 20, 2018

Print this page Email A Friend!


Head of the Independent Commission of Investigations (INDECOM) Terrence Williams has purportedly outmanoeuvred the police federation from a legal point of view by maintaining that he has always conducted private prosecutions and not sought to use any powers ascribed to his office to arrest and prosecute police officers. This is so as the Court of Appeal, in its majority decision handed down on Friday, agreed with Commissioner Williams that he and his officers, as private citizens, have the right to arrest and maintain private prosecution as private citizens.

In outmanoeuvring his opponents, however, and choosing to speak publicly of vanquishing his opponents, the commissioner may have unwittingly breached public trust and delegitimised all the commission's past and future actions, bringing not only his office as commissioner into disrepute, but the entire commission.

In his victory speech, while setting the record straight for all those who misunderstood the ruling of the Court of Appeal, the commissioner said:

“It is a resounding victory for the points argued by INDECOM. The order of the Court of Appeal that INDECOM does not have to power to charge, etc, is largely an academic point, because INDECOM, as a body, never claimed that it had the power to charge and arrest, etc. Indeed, charges were and have been brought by investigators who work at INDECOM...investigators employed to INDECOM.

“It does not affect how we have been acting. It confirms what we have been saying for sometime... The court affirmed that the INDECOM Act does not take away the common law authority or power of the INDECOM Commissioner and the staff of INDECOM to arrest, bring a charge, and prosecute that case. We do not expect there to be any change in how we conduct ourselves.”

By this statement the commissioner admits that at all material times he, along with individuals employed to his office, knowingly and deliberately acted in their private capacity as private citizens to conduct private prosecutions knowing that he did not have the power to do so under the act. This is in the context where the commission was established by statute with the sole remit being to investigate complaints against, among others, officers in the security forces.

It is important to note that this is not a situation in which the commissioner was purporting to exercise powers under the Act which he thought he had and the court subsequently found that the Act did not grant him the said powers. This is a case in which the commissioner deliberately conducted private prosecutions knowing that the commission did not have the power to do it under the Act.

The commission's actions, coupled with the commissioner's statement, now raises substantial issues of integrity, accountability and proper management of public affairs and public property. Additionally, the question must now be asked as to whether the commissioner is guilty of misconduct in public office which is a criminal offence or malfeasance.

Issues of integrity arise when the commission presents itself to a previous court as an entity by virtue of statute that conducts primarily administrative investigations, as opposed to criminal investigations, and as such there is no danger to an officer being investigated if they are compelled to answer questions that may incriminate them. This we now know is insincere, knowing that not only do they conduct criminal investigations, but they do so a with a view to conducting private criminal prosecutions as private citizens.

The declaration of the commissioner that they always conducted private prosecutions now questions whether all his previous statutory actions were done in bad faith and indeed unlawful. The INDECOM Act specifically states to whom the findings of investigations should be given, and it does not include private citizens nor attorneys retained on behalf of private citizens to mount prosecutions. Neither does the Act provide for the conducting of an investigation for the purposes of a private prosecution.

One must bear in mind that on the appointment of the officers to the commission they are required to take an oath of secrecy where they swear that they will not on any account disclose any information received in the performance of their function to anyone save for persons and/or entities provided by the Act.

In the circumstances, we are constrained to ask whether the Commissioner knowingly, deliberately and unlawfully used public resources to mount private prosecutions contrary to the intention of the INDECOM Act?

Based on the pronouncements of the commissioner, one can only conclude that these private arrests, charges and prosecutions by his officers are executed in the course of their employment to the commission. When Parliament allocates State resources to INDECOM I am sure it is with the intention and understanding that they will be used to fulfil the commission's statutory mandate and not some private activity done by private citizens on the government's time.

It further raises the question, what sort of procurement policies have been implemented at INDECOM, if any at all? How is it INDECOM is able to use public funds to procure the services of private counsel to conduct private prosecutions that does not fall within its statutory remit. The minister of justice should be spending his energies looking at this issue, instead of trying to prevent police officers from selecting attorneys of their own choice by refusing to pay the fees quoted by private counsel. On what basis, lawful or otherwise, does the Ministry of Justice or the government pay private counsel retained by private citizens to conduct private prosecutions.

Transparency International defines corruption as “the misuse of entrusted power for private gain”. This definition embraces offences such as misconduct in public office. Misconduct in public office is committed when the holder of the that public office acts in a way which is contrary to their duty.

In this instance, the commissioner , outside of using public resources for private matters, might have exposed his office to a claim of misconduct in the form of oppression, in that the commissioner has admitted to using powers ascribed to his public office, that of compelling individuals to answer questions in the pursuance of an investigation, to mount private prosecutions by private citizens. This runs contrary to the legislative scheme that contemplates the mounting of prosecutions by the police and the director of public prosecutions

While some may argue that the conduct of the commissioner may not meet the criminal standard, the question of the commissioner using public resources to conduct private prosecutions warrants him being held to account.

Now that the courts have made their ruling and offered as much clarity as possible Parliament must now step up to the plate and exercise their supervisory and monitoring role over the commission they created. They are left in the invidious position in which they must:

• indirectly ratify the past actions of the commission, ie using public resources to finance private activities;

• grant the commission the power to arrest, charge and prosecute; or

• state categorically that neither the commissioner nor his officers can exercise their right to arrest and prosecute as private citizens while working for the commission.

I am very curious to know what National Integrity Action's position is on this issue, especially when it is there mandate to combat corruption and build integrity in Jamaica through the persistent promotion of transparency, accountability in the conduct of government, businesses and the wider society.

In closing there are a few questions that I would like the commissioner of INDECOM to answer:

• During its period of operation how much of the public purse has been spent on private counsel's fees to conduct prosecutions on behalf of private citizens?

• What sort of procurement process is undergone when retaining these legal services for private prosecutions?

Given the critical role that INDECOM plays, and all the successes it has achieved, immediate steps must be taken by Parliament to bring INDECOM back on track. If Parliament is not prepared to play that supervisory role, then an oversight committee must be set up to ensure that the very existence of the commission is not threatened by the poor judgement.

If the commissioner is intent on arresting and prosecuting police officers in his private capacity, which he unfortunately stated in his interview in response the Court of Appeal decision, he can consider setting up his own private prosecutorial agency that is not financed out of the government's purse and where he does not use statutory powers to obtain information required to mount a private prosecution.

Chukwuemeka Cameron is an attorney-at-law. Send comments to the Observer or chukwuemeka.cameron@gmail.com.

PULL QUOTE

It is important to note that this is not a situation in which the commissioner was purporting to exercise powers under the Act which he thought he had and the court subsequently found that the Act did not grant him the said powers. This is a case in which the commissioner deliberately conducted private prosecutions knowing that the commission did not have the power to do it under the Act

ADVERTISEMENT




POST A COMMENT

HOUSE RULES

1. We welcome reader comments on the top stories of the day. Some comments may be republished on the website or in the newspaper � email addresses will not be published.

2. Please understand that comments are moderated and it is not always possible to publish all that have been submitted. We will, however, try to publish comments that are representative of all received.

3. We ask that comments are civil and free of libellous or hateful material. Also please stick to the topic under discussion.

4. Please do not write in block capitals since this makes your comment hard to read.

5. Please don't use the comments to advertise. However, our advertising department can be more than accommodating if emailed: advertising@jamaicaobserver.com.

6. If readers wish to report offensive comments, suggest a correction or share a story then please email: community@jamaicaobserver.com.

7. Lastly, read our Terms and Conditions and Privacy Policy



comments powered by Disqus
ADVERTISEMENT

Poll

ADVERTISEMENT
ADVERTISEMENT

Today's Cartoon

Click image to view full size editorial cartoon
ADVERTISEMENT