Left: Dr. Carolyn Gomes, head of Jamaicans For Justice. Right: Director of Public Prosecutions, Kent Pantry.
RECENTLY THE Director of Public Prosecutions (DPP) made a speech to the Optimist Club of Kingston banquet. As he made many references to human rights groups and Jamaicans For Justice in particular in that speech, Jamaicans For Justice welcomes the opportunity of responding to some of the points made by the DPP through this medium. There were a number of inaccuracies in the DPP's speech which we need to clarify for the benefit of the public.
The DPP was inaccurate when he said in the main body of his speech, "None of the other directors have had to contend with the human rights groups that are now operating in Jamaica. All these groups were formed since I became director in 1998."
Many of the groups that deal with the rights of women, children and workers as well as those that deal with conflict resolution and mediation predate the DPP's tenure by many years. If he is referring to the human rights groups which deal specifically with State abuse of rights then he is still incorrect as the Independent Jamaica Council for Human Rights has a proud history of operation going back to December 10, 1968.
'WITHOUT FEAR OF CONTRADICTION'
The director spent almost one third of his speech, talking about the Michael Gayle case. He broke that portion of his speech into two sections. The first section consisted of 30 'facts' which he said were "presented without fear of contradiction in any quarter."
The second portion dealt with what he said were the findings of the Inter American Commission on Human Rights and he provided some commentary and questions for the audience on the supposed findings. He prefaced his remarks by saying "All you were hearing before were a lot of inaccuracies," an assertion that we challenge him to substantiate. We would like to deal firstly with the DPP's 'facts'.
We agree with him that Michael Gayle was killed by members of Jamaica's security forces. Michael Gayle was mentally ill not 'mentally challenged' as the DPP asserted and there was a curfew in operation at the spot where he was so savagely beaten. Unfortunately the DPP's facts were wrong when he stated that "other than the members of the security forces there were no other witnesses to the incident". In fact, there were several other witnesses (whose statements the DPP should have on file) and at least two of those civilian eyewitnesses gave testimony at the Coroner's Inquest into the death of Michael Gayle.
The DPP was also factually incorrect when he said "No member of the security forces identified any of their members as the person or persons who they saw beat Michael Gayle."
In fact, more than one member of the security forces who testified at the Coroner's Inquest identified specific soldiers or policemen as having participated in the beating. One policeman admitted under oath that he himself hit Michael Gayle with his police baton.
INADEQUACY OF INVESTIGATION
The fact that some of the participants did not know the names of the other policemen and soldiers should have been no hindrance to prosecutions by the DPP given his access to information from the Jamaica Consta-bulary Force (JCF) and Jamaica Defence Force (JDF) as to who was present at the barrier that night.
One of the main criticisms of how the State has handled the Michael Gayle case has been the inadequacy of the investigation into the incident. To date, we do not know of any identification parade being called for or held, in order to assist in identifying any of the perpetrators.
The DPP states as a fact, "Members of the security forces were disciplined departmentally for their actions." To our knowledge only one member of the Jamaica Constabulary Force was ever disciplined for his actions in the Michael Gayle case and that was for making a false entry in the station diary. One member of the JDF, the officer in charge, was found guilty of "neglect to the prejudice of good order and military discipline," received a 'severe reprimand' and resigned from the JDF.
We agree entirely with the DPP that "disciplinary action is totally different from criminal action." In fact, it is a point specifically made by the Inter American Commission on Human Rights in its report on the Michael Gayle case. The commission said, "neither disciplinary actions nor civil actions for damages are adequate to fulfil the State's obligation to ensure accountability for the serious human rights violations perpetrated against Mr. Gayle".
When he speaks of the inquisition of the coroner's jury, Mr. Pantry agrees with our assertion that the jury found the "circumstances of the death indicate a case of manslaughter" and went on to cite those responsible as the "joint security forces at the barrier on the night of August 21, 1999". He, however, stresses that they didn't specifically name anyone. He neglects to mention, perhaps does not know, that the Coroner told the jurors they did not need to give all the names as it would be clear from the depositions.
Unfortunately the DPP was factually incorrect when he stated as his 23rd 'fact', "the human rights group Jamaicans For Justice was launched and came to prominence based on the Michael Gayle incident." Jamaicans For Justice held its first meeting on April 23, 1999, and met weekly thereafter. The Michael Gayle 'incident' did not occur until August 21st, 1999. We actually came to prominence with our work on the case of the 53 men of Grants Pen, who were illegally detained and fingerprinted on July 28, 1999, approximately one month before the Michael Gayle incident.
WE ARE NOT ALONE IN OUR UNHAPPINESS
The DPP is correct that we were "unhappy because no one was criminally charged". We are not alone in our unhappiness. The Inter American Commission on Human Rights also said "In cases such as the present involving violations of the right to life perpetrated by state agents, international standards require that those responsible be prosecuted and punished, and the State must take the legislative or other measures necessary to fulfil this obligation."
The DPP's 'fact' number 25 was incorrect in a number of regards. He said that through our representatives Jamaicans For Justice "verbally abused the Director of Public Prosecutions for not exercising the powers conferred on him by the constitution of Jamaica in a way that they wanted." Jamaicans For Justice can recall no instance in which we 'verbally abused' the DPP and if he has such instances of 'verbal abuse' we suggest that he detail them. We were not angry at his failure to exercise the awesome "powers conferred on him by the constitution of Jamaica in a way that [we] wanted" rather we were angry at his failure to exercise the powers of the office in the way that he ought to legally and morally. The DPP has failed to account for the failure to prosecute any of the police officers who were present and observed the merciless beating of Michael Gayle, yet failed to arrest or charge any one of the perpetrators.
The DPP stated as fact that he "in speeches challenged Jamai-cans For Justice and some lawyers to test his decision in the Supreme Court" by instituting a case of judicial review and that this was not done. What he omitted to state as a fact was that he failed to respond to correspondence between the lawyer for Michael Gayle's mother and himself seeking clarification of the status of the case. What he also omitted to state as a fact is that there is a time limit for seeking judicial review in the Supreme Court and this time limit expired without any response to the letters from the lawyers asking him to clarify the status of the case.
Finally, the director closed on a factually correct note when he asserted that the Inter American Commission on Human Rights is not a court. Jamaicans For Justice is unaware of any claims to the contrary either by us or the Government of Jamaica or the Inter American Commission on Human Rights itself.
VIOLATIONS OMITTED BY THE DPP
The DPP read for his audience a few extracts from the thirty-one pages of the detailed and comprehensive report of the Inter American Commission on Human Rights (IACHR). To be fair, he did say that he was telling them what the Commission found 'inter alia'. The DPP omitted to report all the violations that the Commission found the State guilty of in the Michael Gayle case including:
Violating Mr. Gayle's right to life because of his unlawful killing at the hands of members of the Jamaican security forces;
Violating Mr. Gayle's right not to be subjected to torture and other inhumane treatment because of the assault perpetrated upon him by State agents and. its effects, which led to his death;
Violating Mr. Gayle's right to personal liberty because of his unlawful detention and arrest on false charges; and
Violating Mr. Gayle's rights to a fair trial and to judicial protection by failing to undertake a prompt, effective, impartial and independent investigation into human rights violations committed against Mr. Gayle and failing to prosecute and punish those responsible.
He then went on to say the Commission's findings were unsound because they said "notwithstanding the jury's recommendation in the case that all of the officers at the scene be charged with manslaughter, no criminal charges have been laid against any of the officers potentially implicated in Michael Gayle's death." The DPP contended that the Inquisition of the Coroner's Jury which said that the "Circumstances of the death [of Michael Gayle] indicate a case of manslaughter and do further say joint security forces at ... the barrier on the night of the August 21, 1999 are responsible for his death" was different to the finding of the Commission, in that the "jury did not recommend charges of manslaughter" and "no officers were potentially implicated."
We leave the two findings and statements to the good sense and reason of the reader.
The DPP went on to say that the findings of the commission "have nothing to do with the Director of Public Prosecutions." We recommend that the DPP read the entirety of the report of the IACHR on the Michael Gayle case. We recommend for his attention particularly paragraphs 97, 98, 99, 100, 101 and 104 all of which speak to the role played by the DPP in this case.
The Commission found, as it relates to the DPP, inter alia, "most major legal systems recognise bases for individual criminal responsibility for acts or omissions beyond the direct perpetration of a crime that contribute to the commission of the crime. It is generally established, for example, that an individual can be held criminally responsible for aiding and abetting a crime where his or her conduct affected the actual commission of the offence before, during or after the incident. Accordingly, the State cannot justify its failure to pursue criminal charges on the basis that its investigation was unsuccessful in identifying the individuals directly responsible for assaulting Mr. Gayle."
There were other sarcasms and inaccuracies in the DPP's speech but we will conclude by pointing out one of the most egregious misstatements which was made when the Director said that his "file [on the Michael Gayle case] was sent to the Commission."
At no time was the IACHR given access to the files of the DPP on this case. This grave misrepresentation of the truth by the Director of Public Prosecutions is most troubling.
We hope that our response will clear up some of the erroneous 'facts' and misstatements that the Director of Public Prosecutions gave in his speech and restore some balance and veracity to the public discussion of this most horrific mistreatment of a Jamaican citizen which continues until today in speeches such as the one given by the DPP to the Optimist Club of Kingston.
Dr. Carolyn Gomes is
executive director at Jamaicans For Justice.
