Clarke family continues quest for justice - Businessman’s family wants immunity certificates declared null and void

The family of slain businessman Keith Clarke is pressing ahead in their legal quest to have the good-faith certificates issued to the soldiers charged for his death deemed null and void.

Peter Bunting, in his capacity as national security minister, had issued the certificates to Corporal Odel Buckley, Lance Corporal Greg Tinglin, and Private Arnold Henry in 2016, four years after the businessman was shot and killed at his upper St Andrew home during a police-military operation aimed at capturing then fugitive drug kingpin Christopher ‘Dudus’ Coke.

The certificates, which were presented to the soldiers two years after they were charged with Clarke’s murder in May 2010, were expected to grant them immunity from prosecution.

However, the Constitutional Court in February of last year ruled that the immunity certificates were invalid, null, and void and that the soldiers should stand trial following a challenge mounted by Clarke’s wife over the validity of the certificates.

The soldiers, who were not satisfied with the lower court’s ruling, has taken their grouse to the high court, asking for the Constitutional Court ruling to be set aside and the certificates declared valid and constitutional.

EXPIRED PROVISIONS

However, yesterday when lead attorney for the family, Dr Lloyd Barnett, appeared in the Court of Appeal via Zoom, he contended that the certificates were issued after the Emergency Powers Regulation expired and that is “clearly ultra vires and unlawful”.

“Provisions which have expired cannot normally be invoked or implemented,” he argued.

Further, Barnett argued that there was nothing in the regulation empowering the governor general to make regulations that will operate after their date of expiration and in particular, expiration of the emergency period.

He also argued that the certificates impinged on the constitutional rights of the director of public prosecutions (DPP) to institute and continue criminal proceedings and on the constitutional power of the court to try persons charged on an indictment.

According to Barnett, Bunting, in his decision to issue the certificates, had “arrogated by himself to certify that the invasion of the Clarkes’ home and the shooting of Mr Clarke in his back multiple times were justifiable or done in good faith, and that action was in the interest of public safety for the restoration of peace and good order”.

However, he proclaimed that those are matters to be determined by the court and not the minister or the governor general to certify beforehand.

However, while Clarke’s family wants the court to rule that the certificates were null and void and that the certificates are in conflict with the separation of power principle, are ultra vires by Section 2 of the Constitution and null and void, Government lawyers want the court to find that the certificates are valid.

Deputy Solicitor General Althea Jarrett, who is representing the attorney general, the second respondent in the appeal case, argued that issuance of the certificates outside of the expiration period did not render them null and void and contended that the issuance by the minister was merely an administrative function as it is the acts of faith that determine the validity of the certificates and not the expiration of the regulation.

She further asserted that it is the regulations that conferred immunity and not the minister.

However, she said it must be noted that the certificates are issued on the assumption of good faith but that the acts of good faith can be challenged. Consequently, she said that rebuttal ensures that there is no infringement on the DPP’s power or the court’s ability to perform.

The virtual hearing continues tomorrow before Justices Jennifer Straw, Frank Williams and Vivene Harris.

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