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Illegal!

'Dudus' and the secret MOUs

FRANK PHIPPS, QC

Sunday, November 03, 2019

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We were right, but Dudus was expelled just as if we were wrong.

A recent news report read 'Gov't pulled plug on Phillips's US, UK MOUs'. Clearly this referred to secret memoranda of understanding (MOUs) signed by Dr Peter Phillips in 2004 for an understanding with the United States and the United Kingdom for eavesdropping on telephone calls in Jamaica. This was illegal by the laws of Jamaica at that time.

They were considered secret because the new Jamaica Labour Party Government knew nothing about them and could find no trace of them anywhere in its offices — only the US and Dr Phillips knew about them. These secret documents “gave local and foreign law enforcement agencies the right to intercept landline and mobile phone conversation...” Dr Phillips's reaction to this embarrassment was that “intelligence operations [are in] need of reform”, closing the gate after the horse has bolted.

The documents obtained by this eavesdropping procedure were presented by the US Government for the extradition of Christopher “Dudus” Coke to the US. The Jamaica Labour Party contended that the illegally obtained evidence should not be used for the extradition. This was the major point of controversy at the Commission of Enquiry (the Manatt Affair) in 2011 that was twisted to allege Prime Minister Bruce Golding was protecting a wanted criminal, when it was the law that protected him.

Significantly, a US Drug Enforcement Administration source indicated to The Sunday Gleaner that, “Since 2016, there has been no cooperation between Jamaica and the US... Jamaica has pretty much left the agreement and we are not pleased at all... It was under that agreement that we were able to dismantle much of the lottery scamming operations which originated in Montego Bay, Jamaica, and which stole an estimated US$1 billion from our citizens. Many of your countrymen and women are imprisoned here.” Cui bono. A pound of flesh in this harsh demand for whose benefit — the bloodletting in Montego Bay?

A compromise of freedom for outside benefit

Reports provide an eye-opener on the level of interaction between the UK, the US, and the then Government of Jamaica allowing foreign agencies to listen in on telephone calls in Jamaica that breach Jamaican law to get evidence implicating Jamaican citizens of offences in the USA. This was a comprise by the then minister for the benefit of foreign authority to the detriment of an individual's right to freedom of expression, guaranteed by section 22 of the Jamaican Constitution as it then was (now section 13 (2) & (3) (c) (d) of the Charter of Rights) – somewhat like the overseer on the plantations with the absentee proprietor.

There are circumstances in law that allow admissibility of evidence illegally obtained, but much will depend on the nature of the evidence and how it was obtained. This should not be where the illegality is a breach of the Constitution of Jamaica.

Dudus should never have been a fugitive for extradition on illegally obtained evidence that breached the constitution. He was robbed of the protection of the law in his own country when the country surrendered its authority to secure its legal jurisdiction boundaries. This ugly situation invites a review of the protection and the enforcement of human rights in Jamaica since Independence.

There are many countries that do not extradite their citizens when there are laws in place that give the country jurisdiction, including France, Germany, Brazil, Japan, Russia, and Switzerland, even if the crime was committed elsewhere.

And the more things change...

Jamaica grew up as a nation from the plantations, where the people were divided between black and white — the white overseers ruled on plantations and, by extension, formed the Government that functioned for the benefit of absentee owners. The blacks, not always a contented workforce, laboured on the plantations to create profit for the far away owners.

The Royal Commission for settling Jamaica empowered Lord Windsor to govern the island in accordance with “all such reasonable laws, customs and institutions as are exercised and settled in our other colonies and plantations, or such others as shall upon mature advice and consideration be held necessary and proper for the good government and security of our said island of Jamaica and the said islands adjacent to Jamaica, provided that they be not repugnant to our laws of England, but agreeing thereto as near as the conditions of affairs will permit (emphasis added)”.

We already know the human rights abuses that were repugnant to the laws of England but practised in Jamaica during the period of enslavement. We also know the continued social and economic repression for the remaining period of colonial rule; Windsor's mandate did not apply to the black workforce that constituted the majority of Jamaicans at those times.

After seeing what took place with the secret MOUs of 2004, we must now take a comprehensive view of human rights abuse in Jamaica after Independence where there is now a rainbow workforce — being neither white nor black at all levels of the society, including the overseers. One need look back no further than 1976 with the infamous and shameful islandwide state of public emergency which was declared on June 19 and lasted until June 1977. It suspended civil liberties, including freedom of speech and freedom of assembly for the purpose of dealing with a threat to overthrow the Government of Jamaica by violence — so it was said — but the violence continues unabated and with greater intensity today. The notice declaring a state of emergency was given to the Opposition Jamaica Labour Party at Montego Bay, where the party executive was meeting. Many prominent members of the JLP's leadership were rounded up, some flown by helicopter from MoBay, to be detained at Up Park Camp, Kingston. Pearnel Charles, who was detained as a threat to national security, is now Speaker of the House of Representatives. Olivia “Babsy” Grange, who was also detained as a threat to national security, is now a senior member of the Cabinet. Yet Ray Miles, who was also detained under the state of emergency, was promptly released when he showed that he is an Englishman and a British citizen — no longer a threat to Jamaica's national security. Most scandalous of all was the blank detention order signed by the appropriate minister of government that would allow the police to fill in a name for a person to be detained as they see fit. General and local government elections were held during the state of emergency for a foregone conclusion of victory for the People's National Party in both contests.

In a democratic country where elections are held freely and fairly, this national abuse of human rights for political purposes — subverting the people's right to choose their Government — would make the perpetrator a proscribed organisation that would not be allowed to partake in any aspect of governance or elections before rebranding as new and different. I wait for the lifting of privacy for Cabinet proceedings to read the discussions and see who voted for this wickedness practised on the people.

It would also be interesting to know how the discussion in Cabinet went for the 1978 Green Bay massacre when several black youth from Southside, east Kingston, were lured to the army shooting range at Green Bay, and on arrival lined up to be mowed down by the army. Five fell to their death, the others escaped. An incident considered one of the worst acts of brutality in Jamaican history, the blood-curdling details are upsetting.

PS: The jury is out on the new MOU with the US announced in Parliament on October 29, 2019.

Frank Phipps, OJ, is a Queen’s Counsel in Jamaica who continues his service to the field of law. Send comments to the Observer or to frank.phipps@yahoo.com.


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