Editorial | Issues still to be resolved after court ruling

With the Holness administration making the declaration of states of public emergencies the centrepiece of its crime-fighting strategy, we would be surprised if the issue of ‘good faith’ certificates, given to the soldiers charged for Keith Clarke’s death, isn’t headed for appeal. The matter is likely to reach the Privy Council.

For, while the Supreme Court, by majority decision, ruled this week that the certificates are unconstitutional, null and void, and therefore couldn’t be relied on by the soldiers, there remains, from this newspaper’s vantage point, fundamental issues of law, and its impact on public policy, that remain unresolved.

Keith Clarke was an accountant and uncle to the current finance minister, Dr Nigel Clarke. A decade ago, he was shot dead at his home by soldiers, who, ostensibly, were searching for crime boss Christopher Coke. Coke’s private militia had gone on a violent offensive to prevent his arrest and extradition to the United States, precipitating the declaration of a state of emergency.

Mr Clarke’s family brought a civil case against the State. But separately, the director of public prosecutions (DPP) later brought charges for murder against the three soldiers directly implicated in the killing. In April 2018, on the eve of their trial, the trio produced the certificates, signed by former National Security Minister Peter Bunting in February 2016. That was six years after the incident and the lapse of the emergency, and four years since the soldiers were charged.

Mr Bunting’s party didn’t form the Government at the time of the state of emergency. His action was predicated on a clause in the regulations governing the state of emergency that allowed the responsible minister to issue declarations that presumably immunised members of the security forces from prosecution for acts done in good faith during the emergency, in pursuance of “public safety, or restoration of preservation of peace … or otherwise in the public interest”.

Given the opportunity by the judge hearing the case to go elsewhere to resolve the legality of the certificates, lawyers for Mr Clarke’s family argued that they infringed on the doctrine of separation of powers, intended, as they presumably were, to remove the matter from the court by ensuring a predetermined outcome. It was also argued that the certificates were in conflict with the constitutional power of the DPP as the only person – except for the governor general in the issuance of pardons – with the authority to intervene to end criminal prosecutions. The complainants also questioned the legality of issuing certificates after the state of emergency had lapsed, after the regulations governing it were no longer in force.

The three judges were unanimous that the certificates neither superseded nor infringed on the DPP’s power to bring criminal prosecutions. Nor were they offensive to the doctrine of separation of powers between the executive and the judiciary, given that regulations came with the proviso that the good faith was presumed, “unless the contrary is proved”.

“I find that, by issuing the good faith certificates, the minister made no determination in relation to the culpability of the defendants,” wrote Justice Anne-Marie Nembhard in the main judgment for the majority. “The functions performed by the minister could be described as being administrative in nature, and not a judicial process. It cannot, therefore, be said that … the minister usurped the role, or function, of the judiciary.”

‘Rebuttable presumption’ of good faith

With regard to limiting the prosecutorial power of the DPP, the certificates, she argued, did not act as a bar for the prosecution of criminal matter, since it was “rebuttable presumption” of good faith behaviour. It did not remove the power of the court to review a certificate, or the circumstance in which it was issued.

This, notwithstanding, the majority, Justices Nembhard and Leighton Pusey, held that while the minister may issue certificates after an emergency period has expired, the time was too long. “Nemhard J and I are of the view that, in this instance, the minister’s decision to issue the certificates at the time he did, and in the circumstance of this case, was unconstitutional because it was manifestly unreasonable and unfair,” Justice Pusey wrote.

Justice Marcia Dunbar Green disagreed, especially in the face that the defendants had no control “over whether, or when” a certificate was issued. “The date of the request for one, or the length of time for internal procedures, political considerations and any number of vagaries can bear upon that question,” she said.

The issue now is whether the court’s finding that certificates of the kind are fundamentally constitutional will satisfy the complainants, or the interested parties in the case, the DPP and the Independent Commission of Investigations. Further, the soldiers, who can’t now rely on the certificates, will likely want to take the matter further. So, perhaps, will the Government, whose rolling states of emergency make the questions, and time frame within which good faith certificates should be issued, an immediate policy matter.