The Government of Jamaica totally rejects the so-called "conclusions and recommendations" contained in the document emanating from Amnesty International.
This document purports to be a critique of the report of the Commission of Inquiry into the events which occurred in Western Kingston particularly between July 7 to 10, 2001.
At the beginning of the Commission proceedings, eight attorneys announced themselves as representing the citizens of the area. At an early stage, they all withdrew, not on the ground that they or their clients were in any way hampered in the presentation of their evidence, but on the ground that a ruling of the Commission concerning the latitude of cross-examination that would be allowed to the attorneys representing Mr. Seaga was unfair and discriminatory against him.
The manner in which the Amnesty document deals with this core, catalytic turn of events during the inquiry is strange in the extreme.
Establishment of the Commission and Terms of Reference
1. This Commission was appointed on the 7th August 2001 in a direct response to a request by the Leader of the Opposition.
2. The terms of reference of the Commission were pointed but wide-ranging and called upon the Commission to make specific recommendations on a number of matters relating to violence and criminal activities in identified communities. The Commission was also mandated to enquire into the conduct and behaviour of the security forces at the relevant period and, in particular, into the causes and circumstances which led to the loss of lives of many civilians, at least two members of the security forces and also injuries to many others.
3. The Commissioners who came to be appointed were persons of the highest integrity. They were totally independent of the Government of Jamaica or any agency of the state. They consisted of a highly respected Canadian jurist, a highly qualified criminologist on the staff of the University of the West Indies and a prominent clergyman. Amnesty International has nevertheless made the outrageous statement that "there is a perception that the outcome of this enquiry ... was predetermined and undertaken to pacify campaigners rather than to search for the truth". This statement clearly implies that the members of the Commission as well as the Commission Counsel, who was not a Government employee, were parties to a sham organized by the Government of Jamaica. This is an offensive allegation for which there is not a shred of evidence or justification.
The Strange Approach Taken By Amnesty International
4. The biased and unprofessional approach adopted by Amnesty International has found expression in two of their main complaints. These complaints form the basis for their recommendation for the establishing of what they describe as a new "independent commission of inquiry". The first of these complaints is that the Commission only heard evidence from the security forces concerning the events of July 7 to 10 and heard no evidence from the victims of the violence, their families or other civilians. The record clearly shows that this was entirely due to the refusal of such witnesses to appear and give evidence to the Commission. The record shows that many such persons had in fact given statements, in writing, directly to the Commission Counsel or through the Public Defender's Office or through lawyers who said they were representing citizens associations in the affected areas.
5. No one was prevented or discouraged from giving evidence and, indeed, there is no allegation to that effect. There was wide-spread advertisement in the media put out by the Commission inviting persons who had any knowledge relevant to the inquiry to give evidence or information to the Commission. The reason given by the persons who refused eventually to substantiate their written statements by sworn evidence was that they were afraid of reprisals from the police. They persisted in this contention even after the Commission offered to take their evidence in private and to preserve their anonymity. None of them claimed to be either threatened or intimidated.
6. The Commission was also faced with the situation that witnesses who had submitted statements through the Office of the Public Defender, when summoned to appear before the Commission, advised the Commissioners that they were no longer represented by counsel appearing on behalf of the Public Defender but by three attorneys who had earlier appeared as representing the Leader of the Opposition and the Councillor for the Tivoli Gardens Municipal Division. The services of counsel who appeared on behalf of the Public Defender had been engaged and paid for by the Government.
7. It is of no little significance that the three attorneys, referred to at 6 above, had appeared for the Leader of the Opposition when he told the Commission that he was not prepared to give evidence because he had been discriminated against by a ruling of the Commission. This claim, it is to be noted, had been ventilated in court proceedings brought before the Chief Justice and another high court Judge and had been rejected. Not surprisingly, the Commission came to the conclusion set out in paragraph 2.62 of the Report as follows:
"It is clear to us from the conduct we have described . that members of the JLP had taken a strategic decision to deprive the Commissioners of evidence not only promised through their counsel, but also to dissuade other persons from performing their testimonial duty before the Commission".
In these circumstances, the only evidence before the Commission, by those who were actual participants or physically present, was the evidence given by members of the security forces.
Strange Turn of Events
8. The failure of persons, who claimed at one stage to have information as eye witnesses, to come forward and give evidence on oath, in spite of all the assurance given that their safety and anonymity would be preserved, leads irresistibly to the conclusion that they had no credible story to tell in contradiction to the sworn testimony of the members of the security forces. The Amnesty document, however, deals with this core, catalytic turn of events during the enquiry by stating that "due to the failings of the investigative procedure the Commissioners only heard one side of the story". By that means, they proceeded to lay the blame at the feet of the Commissioners who, according to Amnesty International, were responsible for the nature of the evidence that was placed before them. This is truly amazing!
9. The evidence indicated that on the morning of July 7 the security forces, in the execution of their lawful duties, went into the area to search for and confiscate illegal weapons and drugs which, information in their possession indicated, would be found in certain locations in Tivoli Gardens and its environs. The security forces were, however, prevented from carrying out their mission as a direct result of an organized attack by well armed persons in the area. They were forced to defend themselves in what turned out to be a deadly three day battle with casualties on both sides.
10. There was no "failing of investigative procedure", but quite simply an organized strategy to withhold the testimony of those who might have been able to testify and be cross-examined on these events. The Amnesty document then goes on to say: " Amnesty International is concerned that on such important issues as the manner of death of civilians and the examination of the police and military the lack of any opposing evidence should not have led to automatic acceptance of the evidence of the state". This is nonsense. If the only evidence before the Commission of Inquiry is given by individual members of the security forces under oath and is not contradicted in any way and is consistent with an admitted result, namely, the deaths of a number of persons, then what other course is open to a Commission of Inquiry but to accept it?
11. A second complaint of Amnesty International is that there was a disparity in the legal representation afforded to the security forces and the state in general as compared to representation available to the citizens of the affected areas. The facts, however, show that once again, this came about as a direct result of a deliberate decision by the legal representatives of those citizens. This was not in any way attributable to the actions either of the Commissioners or of the Government. At the beginning of the proceedings, there were eight attorneys representing the citizens of the area. At an early stage, they all withdrew, not on the ground that they or their clients were in any way hampered in the presentation of their evidence, but on the ground that a ruling of the Commission concerning the latitude of cross-examination that would be allowed to attorneys representing Mr. Seaga was unfair and discriminatory against him. As in the case of the lack of evidence from civilian witnesses, therefore, this lack of legal representation was entirely due to the unilateral decision of the attorneys in question and clearly formed part of a strategy of non-co-operation with the work of the Commission.
Only Logical Conclusion
12. The other major area of complaint by Amnesty International was that the Commission failed to determine how and by whom each of the civilian deaths occurred and failed to consider whether criminal proceedings should be brought against members of the security forces. It is of interest to note that Amnesty does not appear to be in the least bit concerned about the deaths of the members of the security forces, which also occurred during this period. At any rate, they do not appear to suggest that the Commission should also have sought to identify who were the civilians responsible.
13. The Commission in this regard acted strictly within their terms of reference and the evidence before them. They were asked, inter alia, to report on the nature and causes of the events that occurred in Western Kingston between July 7 to 10, 2001. Their finding, as previously stated, that there was a pitched battle lasting for at least three days between the security forces and well armed gangs, led them to the only conclusion to which they could reasonably arrive. This conclusion was that some of the casualties were persons who were actually engaged in the battle on both sides and others were bystanders caught in the cross-fires. There was no evidence on which the Commissioners could even attempt to identify the sources of the bullets which hit particular individuals on either side except for one case of a child inside a building who was injured by a bullet, fired at that building.
14. The refusal of all the potential civilian witnesses to give evidence obviously made the determination of individual responsibility even more unlikely than it would have been, in any event. Furthermore, under our Constitution and our laws, it was not for the Commission to determine who, if anyone, should be prosecuted. That is a matter for the Director of Public Prosecutions and would have to be based on specific evidence and not born of gossip or political propaganda.
It is highly regrettable that an international organization such as Amnesty International should produce and disseminate such a document that falsely accuses three highly qualified and reputable Commissioners of dereliction of duty and further damages the reputation of the security forces of Jamaica who have to carry out the very important, difficult and often dangerous task of protecting the law abiding citizens of Jamaica. This document, emanating from Amnesty International, is an unprofessional work that will only have the effect of giving succour and comfort to the most lawless and dangerous elements of our society.