‘What do we tell exonerated cops?’ Debate on indemnification of INDECOM suspended amid concerns
Minister of Justice, Delroy Chuck

The debate on the Independent Commission of Investigations (INDECOM) 2023 Amendment Bill was suspended in the House of Representatives on Tuesday to give lawmakers time to determine how many members of the security forces could be affected by their decision to validate and indemnify INDECOM’s actions to charge and prosecute, though the Commission did not have the powers to do so.

Members of the Opposition argued that taking away persons’ rights to bring an action against the state could go against the constitution.

Among those voicing concerns were Opposition Leader Mark Golding, the Member of Parliament for Clarendon South Western, Lothan Cousins and the MP for St Andrew Western, Anthony Hylton. Their objections forced Justice Minister Delroy Chuck, who piloted the Bill, to agree to a suspension of the debate at the committee stage to allow members to determine how many members of the security forces would be affected.

Cousins, an attorney-at-law, said he was concerned because he has personally been involved in several matters involving INDECOM since 2011, the year after the Commission was operationalised.

“In many of the instances we would have indicated in open court and to them (INDECOM officers) that they did not have the power that they claimed that they had at the time and they proceeded,” Cousins said.

He noted that following a Full Court ruling in 2014 which said INDECOM had the right to prosecute, the matter went to the Court of Appeal which overturned that decision, then to the Privy Council where INDECOM appealed.

“Finally the ruling came back (from the Privy Council) that they did not have the powers to prosecute,” Cousins remarked.

He pointed out that the INDECOM decisions would have affected police personnel who would have expended significant sums to defend themselves, while others were incarcerated. He questioned how many police personnel/cases would be impacted by the indemnification

“Because we talking about police officers, many of whom have since been exonerated, they have been acquitted, many spent many months behind bars in custody, before they could be granted bail”.

“I don’t believe it is right for us to come in here (the Parliament) to validate and indemnify INDECOM from their own callous actions. They were on a frolic of their own; we warned them about it several times over, we told them they needed a fiat from the DPP (Director of Public Prosecutions) to prosecute, they did not listen to any of us,” Cousins added.

Cousins said he found it “concerning for us to be coming here to even be considering any validation and indemnification of any of their actions”.

Cousins said further that while he welcomes and supports the defining of the roles of the security forces and INDECOM, such as those giving INDECOM the authority to secure crime scenes and evidentiary material, validation and indemnification were steps too far for him.

“Particularly because I, as an attorney, was involved from day one in many of the matters for several years and they were told repeatedly that the actions that they were embarking on were not within their remit, was ultra vires, but they did not listen to us”.

Pointing out that the police personnel who would have been arrested, charged and locked up would now be looking for some reprieve having been exonerated, Cousins asked “what do we tell those officers now?”

He noted that many of them would have been on bail, on interdiction at half pay and having to supplement their income.

Chuck shared that the INDECOM Commissioner is concerned that there are many cases that if police officers really file, they could have a good case against the government because they were charged.

But he argued that the “exuberance of INDECOM was that they could prosecute and they got a fillip when the Full Court in 2014, indicated that they could charge and they proceeded to continue to charge many persons until 2018 when the Court of Appeal said no, you do not have the power to charge”.

He noted that INDECOM appealed to the Privy Council which upheld the ruling of the Full Court. He cited that based on the Full Court ruling, INDEOM continued to prosecute members of the security forces in “good faith” but stopped when the Privy Council ruled that it did not have the power to do so.

Nonetheless, Chuck wanted INDECOM to be indemnified all the way back to its operationalisation in 2010.

For the Opposition, that was too far back.

“To have 2010 here (in the Bill) I believe is not proper so I’m suggesting that the 2010 (date) be amended to 2014,” Cousins said. He was supported by Golding and Hylton.

“When we pass validating legislation, we’re actually taking away accrued rights that people may have to seek redress for a breach of their rights,” Golding argued.

Pointing out that persons would have been denied their right to liberty while losing income, Hylton said “you have people’s constitutional rights implicated in this. The question therefore is, how do you then act in a way that might extinguish those rights. I’m a little troubled by it,” Hylton said.

Golding also said he was troubled by the matter and House Speaker Marissa Dalrymple Philibert implored members to listen and participate because of the importance of the matter.

The debate was subsequently suspended.

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