Here I stand on Manatt report

Passions are running high over the 'Report of the Commission of Enquiry into the Extradition Request for Christopher Coke'.

Even before the report was released, Comrades were placed on alert for protest if it was deemed flawed. The 'Star Boy' of the enquiry told a gathering of party faithful in Bamboo, St Ann, in the language of the campaign platform which has done so much damage to this country: "Man just can't get some money and write any rubbish. It not going so! The report can either reflect what we saw, what we heard and what we read. If the report does not reflect what we saw and what we read, it can't go so. It can't go so! So Comrades, I want you to be prepared to march!"

On the other side of the island, a former attorney general and justice minister, in similar fiery, partisan language, supported the call, telling party faithful in Malvern, St Elizabeth: "Everybody know what happen ... . If the report is not a true reflection of what happened, the demonstration gwine come!"

The JLP quickly endorsed the report, having suffered no casualties. As The Gleaner (through political affairs journalist Gary Spaulding) puts it in its thinly veiled framing of guilty in the media court until proven innocent lead, headlined 'No casualties - Commissioners absolve all of misconduct in Manatt-Dudus affair', 'the commission of enquiry has exonerated politicians and other public servants of any form of misconduct in the execution of their roles in the Christopher 'Dudus' Coke extradition affair."

'RIGHT ON TARGET'?

And while the leader of the Opposition was crying "travesty of justice" in Parliament and clergymen were doing the same on the front page of the newspaper, a letter writer, C. Anthony, simultaneously carried by both morning dailies last Thursday [June 16], was insisting that Prime Minister Golding was "the most credible witness" and that the report was "right on target".

Dismissing those who have dismissed the commission of enquiry (COE) as a "grand waste of time and money", there were a number of clashing political expectations. The Government and its political party, and the prime minister who heads both, clearly anticipated some measure of 'exoneration'.

Another faction wanted the enquiry to assist in the removal of the current Government, which was marginally elected in 2007, ahead of constitutionally due election in 2012.

A third faction, the largest, wanted the enquiry to put politicians, in general, under heavy manners as corrupt and betraying the national interest in favour of party and personal interest. The mantra of this large group of politically disillusioned Jamaicans is "a pox on both their houses!"

When the anti-politics and anti-JLP Government forces are combined (accounting for the vast majority of citizens), any report of the COE which didn't lick dem down (whoever the targeted 'dem' might be) would be hugely unpopular.

What were the commissioners of the enquiry asked to do? They were asked by their terms of reference (TORs) to:

1. Enquire into:

(a) The issue relating to the extradition of Christopher Coke by the government of the United States of America;

(b) The manner and procedure in which the said extradition request was handled by the Government of Jamaica and the role and conduct of the various public officials who handled the extradition request;

(c) The circumstances in which the services of the law firm Manatt, Phelps & Phillips were engaged in relation to any or all of the matters involved, by whom were they engaged, and on whose behalf they were authorised to act;

(d) Whether there was any misconduct on the part of any person in any of these matters and, if so, to make recommendations as the commission sees fit for the referral of such persons to the relevant authority or disciplinary body for appropriate action.

The commissioners were constrained not only by these terms of reference but by existing Jamaican law and by the evidence placed before it. The boundary of law, frighteningly, seems to be of little concern to most critics of the report, among them eminent lawyers some of whom appeared before the commission of enquiry and participate in making laws in the Parliament.

DEFINING MISCONDUCT

When the commission found no one guilty of 'misconduct', it took the trouble to clearly define what it meant by 'misconduct': "We have considered the question as to whether any person may be guilty of misconduct in the matters we have enquired into," the report notes. "By 'misconduct' we accept it to be unacceptable or deliberate, dishonest and mischievous conduct on the part of these persons engaged in the matters concerning the request for the extradition of Mr Christopher Coke," ie, actionable under subsection 1 (d) of the TORs.

"We have found no misconduct on the part of persons we enquired into. Mistakes and errors of judgement were made, but no one, in our view, was guilty of misconduct in the part he or she played in the matter of the extradition of Mr Coke. It is regrettable that the memories of some of these witnesses failed them at the enquiry."

It is precisely on the point of "failed memories" that the commissioners had their own greatest failure. They chose to be moderators of legal theatrics rather than bold enquirers, as they were empowered to do. The Commissions of Enquiry Act at Section 7 specifically says: "It shall be the duty of the commissioners ... to make a full, faithful and impartial enquiry into the matter specified in such commission."

The commissioners raised serious concerns about the credibility of some witnesses but did absolutely nothing to verify the evidence.

EXCITING PUBLIC PASSION

I understand enquiry to mean actively investigating, examining, probing and asking. The act gives commissioners several of the powers of a judge of the Supreme Court.

And what did the commission of enquiry into the extradition request for Christopher Coke find which is exciting such public passion and the threats of protests?

1. The COE accepted testimony that Christopher Coke is head of the Shower Posse, an international criminal organisation based in Tivoli Gardens, where Coke was a don exercising power and influence across political lines and as construction contractor receiving many government contracts over many years. But the COE did not summon any national security personnel to respond to these claims of politicians and their lawyers.

2. The Interception of Communications Act was not intended by Parliament to authorise disclosure of telecommunications records to foreign governments or their agencies. Nothing done under the secret Phillips MOUs is under the authority of the act and, as such, the supply of Coke's telephone records to the US government was a breach of Coke's constitutional rights at Section 22.

3. The minister of justice should have limited her involvement to determining whether the extradition papers were in order and whether there was sufficient suspicion that the offences had been committed and then sign the authority to proceed.

4. It was the JLP, not the Government, which sought the services of Manatt, Phelps & Phillips, but diplomatic matters of this sort should be handled by the Ministry of Foreign Affairs, accountable to Parliament, and not by a political party.

5. The conduct of some counsel was below the standard of decorum and a poor example but was not allowed to influence the conclusions of the commissioners.

6. The prime minister's involvement with Coke's extradition was "inappropriate", the JLP should not have been involved, and there may have been inappropriate commingling.

7. Although late in signing the authority to proceed, the minister of justice acted reasonably in signing it when she did.

The commissioners have recommended that:

1. The posts of minister of justice and attorney general should be split; the attorney general need not be a member of either House.

2. The Cabinet should be informed of any amendments or memoranda affecting constitutional rights.

3. Commissioners of enquiry should be given the powers of a Supreme Court judge for the purpose of being able to cite for contempt.

4. The Enquiries Act should provide that commissioners can state a case for the opinion of the Supreme Court in matters of law.

The Gleaner has reported 'No casualties'. There is, however, a looming danger of a major casualty. That casualty is the notion of the rule of law on which an ordered and peaceful democratic society rests. When eminent lawyers, some of them involved in the very process of the commission of enquiry and also sitting in the country's Parliament, can say to political activists if we don't get the results that we want we are going to take to the streets, no matter how peaceful - and 'lawful' - those protests may be, they send the signal that if we don't like it and we have the muscle power, we're going to fight it, making might right and force the basis of settling differences.

The leader of the Opposition should call her street generals to heel, push for a debate of this 'travesty' in the Parliament where parliamentary privilege will allow all necessary revelations not captured by the COE.

The PNP, and any other entity with evidence, should make available to the DPP and the police such evidence of prosecutable unlawful conduct on the part of anyone involved in the Coke-Manatt saga for criminal prosecution to proceed. These institutions and mechanisms have been developed over hundreds of years in defence of the rule of law for a peaceful and ordered society.

And some human rights groups, rather than launching their own protest (what a thing if the country slid into multiple protests and counter-protests over this matter!), should bring a class action in the Supreme Court, under the new Charter of Rights, in defence of Coke's breached constitutional rights which the Phillips secret MOUs permitted.

Martin Henry is a communication consultant. Email feedback to columns@gleanerjm.com and medhen@gmail.com.