Attitude of human rights groups won’t help stem crime, says Nicholson
Attorney-General and Justice Minister A J Nicholson accuses Amnesty International and local human rights groups of double standards in relation to crime in Jamaica and says he hopes to improve the administration’s relationship with those groups.
Nicholson spoke in an interview last week with Observer writer, Earl Moxam.
Moxam: How concerned are you about the current state of human rights protection in Jamaica, in light of several recent incidents that have called into question the commitment of the state to this aspect of national life?
Nicholson: For years we have been fighting a war within our own borders, and that war is surrounded by all of the factors that have to do with crime. There is a war without… and I think it is a good opportunity for us to internalise and see what exactly we have been doing and what we can do about the war within.
Moxam: Define that war within for me.Nicholson: Jamaica’s image has been bombarded by the horrible malady of crime. Its tentacles stretch into every facet of our lives, certainly our
national and personal lives. It affects the economy adversely; it affects investments coming into Jamaica, and even investments within because we have to pay a lot for security. It affects our health system, it affects our justice system adversely, really negatively, there are too many cases before our courts and it clogs up the system. It affects the factor of fear, with jurors and witnesses being afraid to attend court. If there was not so much crime, and particularly violent crime, no atmosphere would be created in which you would have so many abuses by policemen.
I am convinced that since the late 1980s the crime problem is far more a question of the cocaine trade than anything else, and our geographical situation — we are sited geographically not far from the north of South America and not far from the south of North America.
This places us in a position of transshipment, and while you are transshipping some will be left here and there will be a struggle over it.
Moxam: Some would argue that the reason why the cocaine trade is such an attraction for some people is precisely because the country has not provided enough legitimate economic opportunities for them to pursue.
Nicholson: I respond to that by saying that without it (the cocaine) there would still be crime, but I don’t think there would be so much violent crime. Crime is in every society and the societies that grow and prosper are those that keep it at a tolerable level. I think we would be able to keep it at a tolerable level without that cocaine element.
Moxam: Is one of the Government’s major failures its inability to create as many economic opportunities for its people, as it would have wished to?
Nicholson: You don’t create economic opportunities if there is not a conducive atmosphere in your country.
Moxam: Is it a chicken and egg situation?
Nicholson: If the economy is booming you are likely to get far fewer reasons to commit crimes. However, in our present situation, unless we fix the situation of crime, the investment levels we are seeking will not come.
Moxam: Don’t you need to respond to crime in such a manner as to ensure you do not abuse the human rights of the Jamaican citizen?
Nicholson: I noticed that between November and perhaps the middle of February this year there was a reasonable lowering of crime, and certainly a noticeable lowering of allegations of abuses. And the reason I think was that the Government and Opposition were talking together. There was an acknowledgement by the private sector whose leadership put into the fight against crime a signal effort. To my mind, even the media bought into that fight at the time… Civil society, in particular those that have to do with protection of human rights, they had also bought into the view that unless the crime situation is brought under control, many of these abuses are going to take place.
As far as human rights is concerned, if there is not the factor of fear caused by crime in our society there would not be the atmosphere for these abuses to take place.
Moxam: To the extent that these abuses do take place, are you attributing it to frustration on the part of the security forces?
Nicholson: Not necessarily frustration on their part, but if there was not this element of violent crime there would not be the atmosphere for the abuses. Take New York for example; it certainly was the factor of crime which caused policemen to pump scores of bullets into a man who was just searching for his keys, they believing, as they said, that it was a gun. If that kind of atmosphere didn’t exist in the city as a whole, then the policemen wouldn’t even think of trying to fire upon a citizen in those circumstances.
Moxam: But surely you would agree that respect for human rights cannot await the reduction of crime!
Nicholson: Of course! Regardless of the situation, human rights are to be respected! I repeat, however, that if a certain atmosphere exists in the country you are likely to see fewer abuses of human rights. And, speaking of abuses of human rights, the vast majority of persons in Jamaica, their human rights are abused daily and nightly by a few persons who decide that they are not abiding by the rules.
So we can’t just concentrate on the abuse of human rights when it comes to the police and citizens, albeit that is very important; we also have to consider the rights of the vast majority of citizens which are being abused daily.
Moxam: You, as attorney-general and justice minister, are regarded as a primary guardian of the human rights of the citizen. How are you responding to the legitimate complaints and appeals of human rights bodies to some of the abuses that are being meted out?
Nicholson: You know, it is said that you should concentrate on the message and not the messenger. That’s true only in part; he who comes to speak must come with clean hands. Take Amnesty International, for example. It is not easy for people to take Amnesty International if when you ask them about Dahlia Allen they say it is none of your business or they don’t give a satisfactory answer!
Moxam: Dahlia Allen is the lawyer, now believed to be in Britain, who is wanted in Jamaica to answer certain charges?
Nicholson: Yes. Those charges relate to alleged misappropriation of funds from clients. Nobody says that she’s guilty or innocent, but it has been acknowledged by her and groups in Jamaica that she has been assisted in getting some sort of asylum by Amnesty International. Now, you cannot ask people to keep their side of the bargain when you are not keeping yours!
Moxam: Has anyone examined the legitimacy of her claim that her life was in danger?
Nicholson: Oh yes! The police have said that they have never received any such claim or any such report. The first time we heard about any such report was when she was away and after the allegations were made against her. When you’re dealing with human rights, I believe you can’t just have a straight black and white of message and messenger. You’re dealing here with a situation of morals, which are linked to legal principles, and if you’re going to live your life in such a way that there are question marks, you’re not the sort of person to upbraid others about human rights.
But be that as it may, there is a legitimate claim on the part of protectors of human rights that there are abuses in the system in Jamaica. But I have to return to what I said; if it is agreed that the root cause of all of this is the kind of crime wave that we have in Jamaica, the concentration should be on reducing the crime wave! It is quite unhappy, certainly on my part and the part of any administration to hear a human rights body say they are going to lobby for security forces in Jamaica not to be given weapons to fight the criminal activities that are going on. If it is said that we’re going to use some of our resources to help the police to handle these weapons effectively, then I could understand, but to take a stand and say that you’re going to lobby against them getting weapons to fight, that is music to the ears of the criminal!
Moxam: Are you saying the stance being taken by Amnesty has become political?
Nicholson: Whatever it has become, it is quite unfortunate. I saw an editorial recently, which really hit the nail on the head… The editorial was saying that Amnesty International is just another non-governmental organisation; it doesn’t represent countries like the United Nations, and we have to be careful how we engage them in the protection of human rights. It has never worked if you continue to bombard and be strident and bellicose. It has never helped.
Moxam: But you can’t ignore them, can you?
Nicholson: We don’t intend to ignore them. The protection of human rights is so dear to the heart of this administration that we do not ignore any organisation, governmental or non-governmental, which speaks to that situation.
Moxam: The latest of the concerns that has been raised in a very public manner by Amnesty International has to do with the Braeton Seven. What’s the current status of that case?
Nicholson: I hear talk about the reopening of the Braeton case. The Braeton case has never been closed; as a matter of fact, the file from the coroner has not yet reached the director of public prosecutions (DPP). And when a coroner’s inquest is held, that is not the end of the matter; the file has to go to the director of public prosecutions who, upon a perusal of the file, will make certain decisions, one way or the other.
Moxam: To what extent is the DPP likely to be influenced by the findings of a coroner’s jury?
Nicholson: Well, the evidence that is brought out at the coroner’s jury, he has to use that. If he has additional matters then surely he may put that into the mix as well; as a matter of fact, he’s perhaps obliged to do so, but it must be a matter on which he can legitimately come to a decision… The coroner’s jury in this case decided, six-to-four, that no one was criminally responsible. Now that has to go to the director of public prosecutions for him to read and see whether he may legitimately prosecute; because he may do so if he sees on the file itself, evidence on which to prosecute, notwithstanding the verdict of the jury.
Moxam: Is there any ongoing investigation that may perhaps add new evidence to what might be presented to the DPP?
Nicholson: For example, it is said that some of the police officers did not give evidence to the coroner’s inquest; that would be available to the DPP as something extra; that is something he could legitimately take into account.
Moxam: For the time being, are you saying his hands are tied until he receives the file from the coroner?
Nicholson: Remember that the DPP is not an investigative figure, per se; he may direct that investigations be carried out; but he himself will not go out and carry out investigations. Take this finding that Amnesty say they have discovered in Braeton, two years later. They themselves say that they are mere findings! What is most unfortunate about it is that they took those findings and went to the press, went on television outlining their findings, even suggesting what kinds of inferences could be drawn from those findings. They themselves say that the findings can only ripen into evidence if they go through certain forensic steps. But even though they have said so, there are certain persons in Jamaica who have started to call this thing fresh evidence, even though it is only at the stage of findings; and they claim that there is evidence to reopen a case that has not been closed!
Moxam: Do you question the role of the British policeman in that particular case?
Nicholson: I question it!
Moxam: Why?
Nicholson: You see, you can’t blow hot and cold. Just recently there were some Canadian policemen who it was said accompanied some Jamaican police officers in looking for evidence here in Jamaica in the office of some Jamaican lawyers. And it was said that they had no right, being foreigners, coming into an independent country. Now the authorities have said that the basis on which that was done is a Mutual Assistance Treaty between Jamaica and Canada. The courts will have to decide that in due course; but at least it is rooted in something. Here you have a British policeman, brought in here by private persons; and they take that British policeman to the scene of a shooting, two years old, and he says that he finds something, which can link the policemen to what they say took place. If that is so, turn over those findings to the authorities; they say they have turned it over to one of their lawyers. But I question the legitimacy of the British policeman coming here and visiting the scene without being accompanied by Jamaican police and coming up with findings. What that could do is this: If something happens to someone here in Jamaica, they might say that they are not calling the Jamaican police to do something about it; they will go to Australia or Finland, or some such place and find a policeman who can come here and make some findings two or three years later and ask the courts to take that into consideration. That cannot be right!
Moxam: Has there been any suggestion that the “fresh evidence” might have been manufactured?
Nicholson: I don’t know. What I would say on that is this: The court frowns upon any evidence, which has even a hint of contrivance to it. This report, A Justice System on Trial (Amnesty’s report on the Braeton case) was written even before these people left England. They came here and they came with a foreign policeman and went to the scene of this shooting and came up with findings, according to them, which buttress their paper on a justice system on trial. It requires in-depth scrutiny.
Moxam: Are you comfortable with reports that the scene of the shooting — the house in Braeton — has not been maintained in a state that would facilitate further unimpeded investigations?
Nicholson: That might well be so, and if that is so, what that is telling us here in Jamaica is that we have a far way to go in the protection of crime scenes and the investigation of crimes. And that is one area that we must concentrate on.
Moxam: I take you back to the searching of the attorneys’ offices, because you drew the parallel between the two incidents…
Nicholson: I did not draw a parallel; I just said that the same voices who made heavy weather of that incident embrace this approach that was taken in the Braeton incident.
Moxam: Some would argue that the reason why that particular incident was so outrageous was because those foreign agents were aided and abetted by Jamaican law enforcement officers, which makes it such an outrage against the Jamaican state.
Nicholson: No! You see, it is rooted in a treaty, and I don’t know that there is any allegation that they themselves did any searching. If it is rooted in some legal underpinning, until the court decides that that legal underpinning is wrong, at least you have some basis for having both Jamaican police and Canadian police in those investigations. I don’t see any basis in this one (the British police at the Braeton house).
Moxam: Yes, you wear the hats of attorney-general and justice minister, but you are also, in your private capacity, an attorney-at-law and a Jamaican. Are you comfortable, on the face of it, with what happened in the searching of the attorney’s offices?
Nicholson: I shouldn’t make any comment on that, you know, because the matter is before the courts. Remember the background to that matter is that we had some laws being passed in the mid-90s to deal with offences like money laundering or fraud upon the revenue and things like that. It was stated then that some of the privileges that bankers and attorneys had would have to go. If not, you would not be able to detect and investigate some of the crimes that are taking place. Of course, I don’t know how the court will rule, but let us say that the courts rule that an attorney’s office is inviolate. What it would mean is that any criminal who wishes to hide his wrongdoings and those wrongdoings can be proved by documents, all you would have to do is place those documents in the hands of your lawyer and that would be the end of that.
Moxam: But for this recent treaty and the passage of the relevant legislation, what was the situation existing prior to that, as far as attorney-client privilege was concerned?
Nicholson: Let me take it from the banker-customer point of view, since that is not before the courts at this time. There was a time, up to the early 1980s, when it was thought impossible to even contemplate getting any information concerning a customer’s account… It was thought that this relationship between a banker and customer was closed, save for a few closely guarded exceptions, which never usually came into play very often. So we have to understand that, in attempting to investigate certain matters and to bring crime to a tolerable level in Jamaica, at the very least, we have to be willing to give up some of our so-called rights.
Moxam: Thin edge of the wedge, some would suggest!
Nicholson: Agreed! And that is why if any at all is being given up it must be under closely guarded conditions. You see, our rights that are enshrined in our Constitution — and remember also that we are moving forward to establish a charter of rights — it must never be thought that any of those rights are to be given up at any time, or to be ceded. We know, for example, though, that in curfews some rights are given up, and people willingly do that because, under normal circumstances they themselves have their rights being abused.
Moxam: There’s Amnesty International outside of Jamaica, but there are also the local human rights bodies. To what extent would you say that you’ve been able to establish a working relationship with them, and how is that going?
Nicholson: I think that I’m one of the ministers who have really tried to have a proper working relationship going with organisations that have to do with protection of human rights. I thought that we had come to an agreement, tacitly or openly, that the basis of our problem is crime. Clearly it seems that we have not come to that agreement because I don’t see the same kind of effort being put out by them for curtailing the incidence of crime as I see being put out with regard to abuses by the police against citizens.
Moxam: For example?
Nicholson: I’ve heard at least one human rights body telling people that they must not go forward as witnesses in a case. I don’t know that that can be right! If it is being said that “I will accompany you to give statements or come forward”, that’s a different thing, but you don’t curtail crime by telling people that they must not go forward as witnesses.
Moxam: So what happens going forward now with that working relationship that you had previously established with these local bodies?
Nicholson: It is my intention to seek to enhance that working relationship, but I hope that we can come to an understanding quickly that the place that we must begin is the lowering of the crime rate in Jamaica. And this is not to say that we mustn’t go forward with all we’re trying to do to educate the police force and make sure that they’re drawn from good citizens in the society and make sure that we encourage them to act within the law; all of that must go on. But unless there’s a drastic reduction in crime, you’re going to have these abuses.