Stephen Vasciannie
MICHAEL GAYLE was alive when he came upon a group of police and soldiers. He was dead shortly thereafter. Clearly, his death is attributable to agents of the State, and so, clearly, the State is responsible for Michael Gayle's death. The State has accepted this, and has sought to take steps address this tragedy.
The Inter-American Commission on Human Rights (IACHR)has considered the Michael Gayle case, and has issued a report, dated October 24, 2005, setting out its recommendations. The Commission's report, which runs to 119 paragraphs (and about 30 pages), sets out in various places the contentions of the petitioner, Jamaicans for Justice, and the contentions of the State.
I have worked on aspects of this matter with other lawyers in the Attorney-General's Chambers. I openly accept that my perspective on this matter is consistent with the approach taken by the Government. I also believe, however, that as far as matters subsequent to Michael Gayle's killing are concerned, the Government has acted in an appropriate manner, and that actions of the Government have been consistent with the requirements of both Jamaican law and international law.
UNJUSTIFIED KILLING
Michael Gayle's killing was totally unjustified and will remain entirely unacceptable. The Government accepted this from the start. As the IACHR notes in its report, the Government has accepted liability for Mr. Gayle's death and has accepted that his death amounted to a violation of Articles 4 and 5 of the American Convention on Human Rights.
Article 4 indicates that everyone has the right to have his life respected, and notes, among other things, that the right to life shall be protected by law, and that no one shall be arbitrarily deprived of his life. Michael Gayle was arbitrarily deprived of his life. Article 5 indicates, among other things, that no one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. Michael Gayle was most definitely not accorded the treatment considered correct by the language of Article 5.
The commission has also indicated that, in its view, Michael Gayle's right to personal liberty, protected by Article 7 of the American Convention, was violated. The claim that Michael Gayle had been deprived of his personal liberty was formally included in the original petition concerning this case, but, the Government has not challenged this.
THE DPP
The Government has, however, differed with the commission on the question whether there has been a breach of Article 8, which guarantees a right to a fair trial, and Article 25, which guarantees the right to judicial protection. There are certain technical questions here, but I believe the central issue concerns the fact that no one has been charged for the murder of Michael Gayle.
On this point, the Government has argued that Jamaica's constitutional arrangements (and, in particular, Section 94 of the Constitution) place the question of criminal prosecutions in the hands of the Director of Public Prosecutions (the DPP). The Government submitted to theIACHR that it is for the DPP to decide whether sufficient evidence exists to bring charges against any specific individual for the killing of Mr. Gayle.
The commission's response to this is that Jamaica cannot rely on its own internal law to justify a breach of international law. This is true, but the commission's approach is not without its difficulties. First, the commission would require the Government to start giving orders to the DPP in some cases, or to take the DPP to court for him to prosecute some cases. Is this not just opening the door to the possibility of politically motivated criminal proceedings? And, even if we may want the Government to force the DPP to take action in this particular case, do we actually want to have the precedent of the Executive suing the DPP to bring about prosecutions?
In Jamaica's highly divisive political environment, my own view is that the better approach is to leave the independence of the DPP in place. The IACHR has mentioned that charges of aiding and abetting could probably be brought against persons present at the barricades on the night of Mr. Gayle's murder. That is a point that the DPP may wish to consider, but the State should refrain from giving instructions to the DPP on criminal proceedings.
COMPENSATION
The commission has called for a public apology to be made to Michael Gayle's mother, Ms. Jennie Cameron. The commission was told by the Government that a public apology was issued, but it has retained this recommendation. The Attorney General has actually identified the dates on which the apology was published in The Gleaner and the Sunday Herald.
Two final points should be mentioned. The Commission wants Ms. Cameron to be given greater compensation, but does not acknowledge that Ms. Cameron's compensation was reached as the result of negotiations between her lawyers and lawyers for the Government. The money paid can do almost nothing to quell the grief occasioned by the murder of Ms. Cameron's son; but, the amount agreed upon is consistent with Jamaican law. International law has no system for the calculation of damages in such cases, and, indeed, the commission offers no suggestion as to what the actual increase should be.
The IACHR also recommends that the Government should adopt measures to improve training of members of the security forces, reform procedures for investigating and prosecuting killings by the security forces, and to strengthen the Public Police Complaints Authority to ensure the independence of that body.
I believe these recommendations are useful; it is a pity that the Commission's report did not actually discuss them in greater detail. After all, this was a case in which the Government acknow-ledged from the beginning that the killing of Michael Gayle was unacceptable.
Stephen Vasciannie is a professor at the University of the West Indies and a consultant in the Attorney- General's chambers.
