Another outstanding Jamaican, Professor Alton ‘Barry’ Chevannes has passed and while I am saddened by the loss, I am grateful to have worked such an extraordinary human being. His contribution to the Ministry of Justice through his chairmanship of the Jamaican Justice System Reform Task Force will change the face of the Judicial System.
“Justice as a word encapsulates even handedness and fairness, qualities that are fundamental to any self regulating social order.” These were the words penned by the late Professor Chevannes in his capacity as the Chairman of the Jamaican Justice System Reform Task Force. He wholeheartedly believed in these words and this made him an extraordinary chairman.
Already recommendations made by the Professor Chevannes-led team have come to fruition, namely the piloting of the Restorative Justice Programmes in four communities. Additionally, the establishment of an independent court services agency was recommended under the Modernisation of Court Administration. This recommendation laid the foundation for the Court Management Services (CMS) which, I am happy to report, is nearing competition. CMS will become the administrative arm of the Office of the Chief Justice, who is the head of the judiciary. The importance of this initiative is to fortify the independence of the judiciary arm of government.
Under the Modernisation plan, a Legal Reform Department was also established to enhance the Ministry’s ability to be pro-active with the introduction of new legislation and the repeal of others in accordance with the Justice Reform Policy Agenda Framework.
Over and above his Chairmanship of the Jamaican Justice System Task Force, he made invaluable contributions to a number of government-appointed committees, namely the National Commission on Ganja; chaired the Council of the Institute of Jamaica, he was a member of the Peace Management Initiative of the Minister of National Security, he also co-chaired the CARICOM Commission on Youth Development. His research on Rastafarianism greatly increased our understanding of that religion and his leadership of Fathers Inc, a support group that helped to develop and instill positive values in young men, inspired hundreds of young men.
Professor Chevannes went above and beyond the call of duty, and through his life’s work, he exemplified what it is to be “Caribbean Man” as he had an unwavering love for his country and for the region. He paid his due in a bid to effect change on the land of his birth as he knew and believed that making his country a better place, began with him, and in my view, will continue through the people he inspired.
He will be greatly missed and celebrated as a Caribbean intellectual, and an advocate for social and economic transformation, for generations to come. I extend heartfelt sympathy to the Chevannes family in their time of bereavement.
Thursday, December 9, 2010
Thursday, July 29, 2010
More than $60m spent on courthouse repairs islandwide
More than JMD$60m was spent by the Government of Jamaica through the Ministry of Justice to repair courthouses across the island between November 2008 and June 2010.
The works ranged from, but were not limited to, the installation of air-conditioning units; the construction of jury and witness boxes; the installation of new windows; tiling; concrete paving; and roof repairs.
Permanent Secretary in the Ministry of Justice (MOJ), Robert Rainford said the repairs to the courthouses are ongoing and the MOJ is doing everything financially possible to keep them all properly maintained for the citizens of our country.
In 2008 some JMD$12.4m was spent on the repairs of a number of courthouses, namely: Port Antonio Resident Magistrates Court (RMC), Lucea RMC, and the Sutton Street Court, while in 2009, major and minor repairs were carried out on 20 buildings across the island at a cost of more than JMD$44m. These include the Supreme Court; the Resident Magistrates Court in: Balaclava, Bown’s Town, Portmore, May Pen, Half Way Tree, Port Antonio, Mandeville, Savana-la-Mar, Montego Bay, St Ann’s Bay, Lionel Town, Linstead, Falmouth, Lucea, Richmond, Chapelton, Old Harbour.
Since the start of the year, 10 courthouses that required major and minor renovations were repaired at a cost of more than JMD$6m.
Presently the New Lucea Family Court is being constructed at a cost of JMD$62m; however the construction is being funded by the European Union under a $1.4billion poverty alleviation programme. Ground was broken for that project on February 18, 2010.
The Minister wishes to assure the public that the improvement and maintainance of the courthouses is one of the priorities of the Ministry of Justice.
The works ranged from, but were not limited to, the installation of air-conditioning units; the construction of jury and witness boxes; the installation of new windows; tiling; concrete paving; and roof repairs.
Permanent Secretary in the Ministry of Justice (MOJ), Robert Rainford said the repairs to the courthouses are ongoing and the MOJ is doing everything financially possible to keep them all properly maintained for the citizens of our country.
In 2008 some JMD$12.4m was spent on the repairs of a number of courthouses, namely: Port Antonio Resident Magistrates Court (RMC), Lucea RMC, and the Sutton Street Court, while in 2009, major and minor repairs were carried out on 20 buildings across the island at a cost of more than JMD$44m. These include the Supreme Court; the Resident Magistrates Court in: Balaclava, Bown’s Town, Portmore, May Pen, Half Way Tree, Port Antonio, Mandeville, Savana-la-Mar, Montego Bay, St Ann’s Bay, Lionel Town, Linstead, Falmouth, Lucea, Richmond, Chapelton, Old Harbour.
Since the start of the year, 10 courthouses that required major and minor renovations were repaired at a cost of more than JMD$6m.
Presently the New Lucea Family Court is being constructed at a cost of JMD$62m; however the construction is being funded by the European Union under a $1.4billion poverty alleviation programme. Ground was broken for that project on February 18, 2010.
The Minister wishes to assure the public that the improvement and maintainance of the courthouses is one of the priorities of the Ministry of Justice.
Wednesday, July 28, 2010
Senate Approves Duty Free Shopping Amendment
On Friday, July 23, 2010, the Senate passed The Duty Free Shopping System Act, a Bill that allows arriving and departing passengers (which includes residents and tourists) at the international airports to make duty free purchases upon arrival into the country.
“This (the Bill) is in keeping with the Government’s policy to encourage and increase tourist arrival and spending which could result in increased hard currency earning accruing to Jamaica and to improve our position in the duty free industry.” Minister of Justice, Attorney General and Leader of Government Business, Senator Dorothy Lightbourne said.
“The duty free industry worldwide is a multi-billion dollar one, in 2002, it was valued at US$20 billion.” She further cited that the industry experienced a number of challenges since September 11, 2001 (9/11) and the recent recession, however, the multiplier potential of the industry on the economy cannot be ignored.
The main purpose is to offer arriving visitors and residents the option to defer duty free purchases until their arrival at the airports in Jamaica. The Inbond shops would be located at the airport before processing for immigration and customs and would provide convenient shopping for arriving passengers. The goods purchased, she informed, would be treated in the same manner as duty free goods purchased at the port of embarkation of or on the aircraft before arrival.
For Jamaican nationals the goods would be assessed in accordance with the duty free allowance of US$500.00, eligible to passengers over the age of 18 years.
She also informed that the schedule of approved goods has been amended to expand the number of items for sale in a bid to provide a more complete shopping experience. The additional items include leather wear; perfumed soaps, sunglasses; loose gem stones (precious and semi-precious cut and polished); watch straps; watch bracelets and other watch accessories and writing instruments (including mechanical pencils).
The idea of duty of arrival Duty Free shopping is not new as the Airport Authority, she said, has been pursuing this aspect of tourism since the early 1990s. She also added that our Caribbean counterparts including Trinidad and Tobago, St. Maartin, Barbados and Panama have already established arrival duty free shopping systems.
Additionally, Senator Lightbourne said the Bill seeks to revise the penalties associated with the operation of duty free shops, to improve the administrative procedures for monitoring the In-bond system by requiring periodic returns, to ensure that the holder of a duty free operations licence has sufficient resources to carry out his operations, and to provide for the removal of certain restrictions on the number of display centres in the parish in which the licensed duty free shop is located.
Concerns were raised by an Opposition members with regard to the list of approved items as some of the items were deemed outdated, for example, cassette players, hi-fi components, and record changers or players. There was a collective agreement that these items be struck from the list and replaced with more modern gadgets such as the iPods, iPads, MP3 players, CD players etc.
Senator Kamina Johnson Smith assured members that the list of prescribed items will be updated to reflect 2010 technology. “I am very pleased to assure this House that the Honourable Minister has already charged the Tax Policy Division with an amendment to the Schedule, to remove the items to which you have referred to and update them in language that is technologically neutral and, accordingly, will move with the times…”
“We are already on the job,” she said.
“This (the Bill) is in keeping with the Government’s policy to encourage and increase tourist arrival and spending which could result in increased hard currency earning accruing to Jamaica and to improve our position in the duty free industry.” Minister of Justice, Attorney General and Leader of Government Business, Senator Dorothy Lightbourne said.
“The duty free industry worldwide is a multi-billion dollar one, in 2002, it was valued at US$20 billion.” She further cited that the industry experienced a number of challenges since September 11, 2001 (9/11) and the recent recession, however, the multiplier potential of the industry on the economy cannot be ignored.
The main purpose is to offer arriving visitors and residents the option to defer duty free purchases until their arrival at the airports in Jamaica. The Inbond shops would be located at the airport before processing for immigration and customs and would provide convenient shopping for arriving passengers. The goods purchased, she informed, would be treated in the same manner as duty free goods purchased at the port of embarkation of or on the aircraft before arrival.
For Jamaican nationals the goods would be assessed in accordance with the duty free allowance of US$500.00, eligible to passengers over the age of 18 years.
She also informed that the schedule of approved goods has been amended to expand the number of items for sale in a bid to provide a more complete shopping experience. The additional items include leather wear; perfumed soaps, sunglasses; loose gem stones (precious and semi-precious cut and polished); watch straps; watch bracelets and other watch accessories and writing instruments (including mechanical pencils).
The idea of duty of arrival Duty Free shopping is not new as the Airport Authority, she said, has been pursuing this aspect of tourism since the early 1990s. She also added that our Caribbean counterparts including Trinidad and Tobago, St. Maartin, Barbados and Panama have already established arrival duty free shopping systems.
Additionally, Senator Lightbourne said the Bill seeks to revise the penalties associated with the operation of duty free shops, to improve the administrative procedures for monitoring the In-bond system by requiring periodic returns, to ensure that the holder of a duty free operations licence has sufficient resources to carry out his operations, and to provide for the removal of certain restrictions on the number of display centres in the parish in which the licensed duty free shop is located.
Concerns were raised by an Opposition members with regard to the list of approved items as some of the items were deemed outdated, for example, cassette players, hi-fi components, and record changers or players. There was a collective agreement that these items be struck from the list and replaced with more modern gadgets such as the iPods, iPads, MP3 players, CD players etc.
Senator Kamina Johnson Smith assured members that the list of prescribed items will be updated to reflect 2010 technology. “I am very pleased to assure this House that the Honourable Minister has already charged the Tax Policy Division with an amendment to the Schedule, to remove the items to which you have referred to and update them in language that is technologically neutral and, accordingly, will move with the times…”
“We are already on the job,” she said.
Tuesday, July 20, 2010
MOJ Press Release: Balaclava Court House
(Photograph: Balaclava Court House in St Elizabeth)
The Ministry of Justice (MOJ) wishes to inform residents and members of the legal fraternity that the Balaclava Courthouse in St. Elizabeth is substantially complete.
While there has been a delay in the completion, the Ministry is working assiduously, with all concerned, to address the issues.
Mr. Robert Rainford, Permanent Secretary in the Ministry of Justice said all furnishings are in place and are ready to be moved into the building.
The contract was terminated by the contractor prior to completion and as recent as Saturday July 17, 2010, a team from the Ministry carried out a site visit.
The Ministry is making every effort to have the outstanding issues resolved so that the building will be ready for its intended use.
Monday, July 19, 2010
MOJ to increase and extend training of Lay Magistrates and Justices of the Peace
The Ministry of Justice (MOJ) is embarking on a number of initiatives that will improve the Jamaican justice system, and as a result, will require greater participation of Justices of the Peace and Lay Magistrates, Minister of Justice and Attorney General, Senator Dorothy Lightbourne said yesterday.
Senator Lightbourne was speaking at the 25th Anniversary Service of the Lay Magistrates Association of Jamaica held at the St. Luke’s Anglican Church on Sunday, July 18.
Speaking to the initiatives that are already underway, she said, the Ministry will be increasing and extending the training of lay magistrates.
“First, to enable them (Lay Magistrates and Justices of the Peace) to try more serious cases, for example, in the traffic courts. This will ease the burden of the resident magistrates and allow them to dedicate their time to more serious cases. Second, this will speed up the judicial process,” Sen. Lightbourne said.
The Restorative and Community Justice Project, she said, is now being piloted in four communities across Jamaica, namely: Tower Hill, St Andrew; Granville, St James; May Pen, Clarendon and Spanish Town, St. Catherine.
“Many justices of the peace have already been trained in the practice of restorative justice and to serve on community justice panels which they will chair. These panels will aid the community in settling disturbances and other grievances in a manner beneficial to the victim, offender and the community.”
Another initiative of the Ministry, she highlighted, was Child Diversion which seeks to divert young offenders from the penal system. “The Child Diversion Policy is now undergoing consultation and will be submitted to Cabinet shortly for approval.”
The overall aim is to establish Child Diversion Committees throughout Jamaica which will be responsible, among other things, for monitoring those children who have been diverted from the penal system as well as assisting in determining the best course of treatment to ensure their rehabilitation into society, Sen. Lightbourne explained.
Justices of the peace will be called to sit on these committees, she added.
The Attorney General lauded the Justices of the Peace and Lay Magistrates for their invaluable contribution, the unselfish service they have given, and encouraged them to continue to fulfill their duties with love, integrity, honesty and dignity.
Lay magistrates, the Minister said, are essential to the Government’s effort to provide to the Jamaican people a justice system that is accessible, efficient and fair.
Senator Lightbourne was speaking at the 25th Anniversary Service of the Lay Magistrates Association of Jamaica held at the St. Luke’s Anglican Church on Sunday, July 18.
Speaking to the initiatives that are already underway, she said, the Ministry will be increasing and extending the training of lay magistrates.
“First, to enable them (Lay Magistrates and Justices of the Peace) to try more serious cases, for example, in the traffic courts. This will ease the burden of the resident magistrates and allow them to dedicate their time to more serious cases. Second, this will speed up the judicial process,” Sen. Lightbourne said.
The Restorative and Community Justice Project, she said, is now being piloted in four communities across Jamaica, namely: Tower Hill, St Andrew; Granville, St James; May Pen, Clarendon and Spanish Town, St. Catherine.
“Many justices of the peace have already been trained in the practice of restorative justice and to serve on community justice panels which they will chair. These panels will aid the community in settling disturbances and other grievances in a manner beneficial to the victim, offender and the community.”
Another initiative of the Ministry, she highlighted, was Child Diversion which seeks to divert young offenders from the penal system. “The Child Diversion Policy is now undergoing consultation and will be submitted to Cabinet shortly for approval.”
The overall aim is to establish Child Diversion Committees throughout Jamaica which will be responsible, among other things, for monitoring those children who have been diverted from the penal system as well as assisting in determining the best course of treatment to ensure their rehabilitation into society, Sen. Lightbourne explained.
Justices of the peace will be called to sit on these committees, she added.
The Attorney General lauded the Justices of the Peace and Lay Magistrates for their invaluable contribution, the unselfish service they have given, and encouraged them to continue to fulfill their duties with love, integrity, honesty and dignity.
Lay magistrates, the Minister said, are essential to the Government’s effort to provide to the Jamaican people a justice system that is accessible, efficient and fair.
Wednesday, July 14, 2010
Ministry of Justice working toward the construction of new court facility for Morant Bay
The Ministry of Justice (MOJ) wishes to advise the residents of Morant Bay that the Ministry has been working over an extended period of time toward the construction of a temporary facility to house the courts.
Permanent Secretary in the Ministry of Justice, Mr. Robert Rainford indicated that the MOJ purchased lands from the St. Thomas Parish Council to build a Parish Judicial Complex.
Plans have already been drawn up for the construction that permanent structure and funding is to be identified.
In the interim, a temporary facility is to be established on lands that have been identified and the estimated construction period is four months.
It is to be constructed on lands donated by the Ministry of Transport and Works. If approval is received for the use of direct contracting process, a complete and useable facility would be ready in three to four months.
Permanent Secretary in the Ministry of Justice, Mr. Robert Rainford indicated that the MOJ purchased lands from the St. Thomas Parish Council to build a Parish Judicial Complex.
Plans have already been drawn up for the construction that permanent structure and funding is to be identified.
In the interim, a temporary facility is to be established on lands that have been identified and the estimated construction period is four months.
It is to be constructed on lands donated by the Ministry of Transport and Works. If approval is received for the use of direct contracting process, a complete and useable facility would be ready in three to four months.
Thursday, July 8, 2010
Chronology of Events Leading to the Extradition of Christopher Coke
Chronology
August 2009
1. On the 25th August, 2009 the Government of United States of America by Diplomatic Note No. 296 requested the extradition of Christopher Coke pursuant to the Extradition Treaty between the Government of the United States of America (US) and the Government of Jamaica (GOJ).
September 2009
2. The GOJ, as it was entitled to do under the Treaty, request additional information about the evidence and charges outlined in the authenticated document, by Diplomatic Note dated September 18, 2009. The additional information sought were, inter alia, the identity of the cooperating witnesses, other evidence (if any) which was presented to the Grand Jury, independent evidence (preferably scientific) that the substance alleged was indeed cocaine and whether Coke has ever visited the US. The GOJ’s preliminary view was that the evidence presented was not sufficient to justify the issue of warrant for the arrest of Mr. Coke as required by the Act (S8 (2)).
October 2009
3. The US responded by Diplomatic Note dated October 2, 2009 stating that no further information would be provided and urged the GOJ to place the matter in the local courts.
4. The GOJ by Diplomatic Note dated October 30, 2009 sought further information as to how the US obtained possession of ‘intercepted communications’ which were the subject of an Order by the Jamaican Supreme Court: in particular, was a request made under the provisions of the Mutual Assistance (Criminal Matters) Act (MACMA).
December 2009
5. At the request of the US, representatives of the GOJ and the US met at the Ministry of Foreign Affairs and Foreign Trade on December 1, 2009. The US was represented by the Charge’d Affaires and a representative of the US Embassy. The GOJ was represented by the Hon. Minister of Foreign Affairs and Foreign Trade and the Hon. Minister of Justice, the Permanent Secretary in the Ministry of Foreign Affairs and Foreign Trade and the Solicitor General. At this meeting the GOJ outlined the legal concerns it had about the request. The US delivered a letter of even date in response to the GOJ’s letter of October 30, 2009 (paragraph 4 supra). This letter stated that MACMA was not the exclusive means of obtaining such evidence and that the evidence had been obtained in accordance with the mutual understandings arrived at between the Jamaican and United States law enforcement authorities; and it again urged the GOJ to place the matter before a committing magistrate. The meeting ended with an agreement that as there were several legal issues raised which could not be dealt with competently by the representatives of the US, it would be best if the legal representatives of Jamaica meet with legal representatives of the State Department in Washington DC with a view to discussing the legal issues. The Charge’d Affaires agreed to arrange this meeting.
6. A joint lawyers meeting was held on the 17th December, 2009 between legal representatives of the GOJ and legal representatives of the US State and Justice Departments. At the end of this meeting both parties agreed that each party would examine the legal issues with a view to seeing how they could be resolved. The agreement, as reflected in a Note prepared by the Ministry of Foreign Affairs and Foreign Trade, was as follows:-
- Solicitor General, Douglas Leys and Director, Mary Ellen Warlow would remain in direct fluid communication.
- The Department of Justice, USA would review its records in order to identify the Jamaican source by which the wire tap evidence against Coke was conveyed to the United States and inform the Solicitor General.
- For its own part the Ministry of Justice, Jamaica would resume its own internal investigation with a view to determining which office authorized the transfer of the intercept evidence to the USA.
- The Department of Justice would advise the Solicitor General as to whether there was evidence other than that acquired by wire tap which could successfully be brought against Christopher Coke in Court.
January 2010
7. In early January 2010, the Solicitor General informed the Charge d’ Affaires of the US Embassy that further investigation had not revealed that there was authorization for the transfer of the wire tap evidence to the US Government as there was no record of a modification of the Court Order. Further, that he had written to the Commissioner of Police and requested that he commence formal investigations into the matter.
8. On January 18, 2010, the Solicitor General sent an email to Ms. Mary Ellen Warlow, Director in the office of International Affairs United States Department of Criminal Justice - pursuant to an agreement arising out of the December 17, 2009 meeting - seeking her views on his suggested text for a joint press release between the US and GOJ on the December meeting. There was no response from the Ms. Warlow save for an out of office reply on the 9th of February 2010 sending a copy of the email to the Charge d’ Affaires.
February 2010
9. On February 22, 2010, Ms. Warlow replied to the effect that she was out of office and on return had not seen my email as she had inadvertently missed it among the many others she had received. It was agreed that given the passage of time the press release would no longer have been meaningful. There was no mention of the other issues that were raised in the meeting of the 17th December (supra).
March 2010
10. At the request of the US, a meeting was held on March 1, 2010 at Jamaica House. The US was represented by the Charge’ d Affairs, and Mr. Don Baker a representative of the Embassy. The GOJ was represented by the Hon. Minister of Foreign Affairs and Foreign Trade, the Hon. Attorney General, the Solicitor General and the Mr. Lackston Robinson - Deputy Solicitor General. At that meeting the progress of the extradition matter was discussed.
April 2010
11. As a follow up there was a meeting with the Minister of Foreign Affairs and Foreign Trade and the US State Department on April 12, 2010 in Washington DC. The meeting discussed the possibility of public unrest and dislocation of the Government’s economic programme having regard to the timing of the extradition request. This was discussed in the context of Section 16 of MACMA which mandates the refusal of a request if compliance would prejudice “other essential public interests of Jamaica”. The fact that over thirty (30) persons were killed by the incursion into Tivoli Gardens of the Security Forces in 1997 and 2001 underscored the level of concern at the timing of the request.
12. This meeting was followed by a letter dated April 14, 2010 in which the US reiterated its earlier position that the evidence submitted in the original request was sufficient to proceed, since prior cases of similar evidentiary strength had resulted in successful extraditions to the United States.
13. Following on this letter on the 14th April 2010, I filed proceedings in the Supreme Court requesting, inter alia, a declaration as to the matters I was entitled to take into account in exercising my discretion to issue the authority to proceed. The parties to the suit were Mr. Christopher Coke, Mr. Joseph Mayer Matalon, President of the PSOJ, the Honourable Portia Simpson Miller were joined as parties, based on their public expressions of disagreement with the way the request was being handled: this provided them with an opportunity to present their views to the Court as to how the matter could be better handled.
14. On April 14, 2010, the Ministry of Foreign Affairs and Foreign Trade notified the US of the aforementioned proceedings and invited its participation in the proceedings.
15. On May 4, 2010 the US, by letter set out its position on the various issues raised in the Suit and asked that the letter be brought to the attention of the Court by the GOJ. The letter was received on 5th May, 2010, the morning of the Court proceedings, and could not be presented to the Court in that form.
May 2010
16. On May 5, 2010, the matter was heard in the Supreme Court before the Honourable Mr. Justice Roy Jones. He delivered judgment on May 11, 2010 removing, with my agreement, Mr. Joseph Mayer Matalon from the suit, as well as the Hon. Portia Simpson Miller on the basis of submissions, that she could not, inter alia, assist the process and that to have made her party was a breach of her right to freedom of speech. The suit was subsequently withdrawn.
17. On May 17, 2010 having gauged the growing level of public mistrust and the expressed intention of key institutions/organizations not to interact with the Government if the extradition matter remained unresolved, I decided that the looming public interest concerns compelled the exercise of my executive discretion to resolve the matter. Consequently, I advised the Cabinet that I would be signing the authority to proceed and did so on the 18th May, 2010. The Resident Magistrate for the parish of St. Andrew then issued a warrant for the arrest of Mr. Christopher Coke.
August 2009
1. On the 25th August, 2009 the Government of United States of America by Diplomatic Note No. 296 requested the extradition of Christopher Coke pursuant to the Extradition Treaty between the Government of the United States of America (US) and the Government of Jamaica (GOJ).
September 2009
2. The GOJ, as it was entitled to do under the Treaty, request additional information about the evidence and charges outlined in the authenticated document, by Diplomatic Note dated September 18, 2009. The additional information sought were, inter alia, the identity of the cooperating witnesses, other evidence (if any) which was presented to the Grand Jury, independent evidence (preferably scientific) that the substance alleged was indeed cocaine and whether Coke has ever visited the US. The GOJ’s preliminary view was that the evidence presented was not sufficient to justify the issue of warrant for the arrest of Mr. Coke as required by the Act (S8 (2)).
October 2009
3. The US responded by Diplomatic Note dated October 2, 2009 stating that no further information would be provided and urged the GOJ to place the matter in the local courts.
4. The GOJ by Diplomatic Note dated October 30, 2009 sought further information as to how the US obtained possession of ‘intercepted communications’ which were the subject of an Order by the Jamaican Supreme Court: in particular, was a request made under the provisions of the Mutual Assistance (Criminal Matters) Act (MACMA).
December 2009
5. At the request of the US, representatives of the GOJ and the US met at the Ministry of Foreign Affairs and Foreign Trade on December 1, 2009. The US was represented by the Charge’d Affaires and a representative of the US Embassy. The GOJ was represented by the Hon. Minister of Foreign Affairs and Foreign Trade and the Hon. Minister of Justice, the Permanent Secretary in the Ministry of Foreign Affairs and Foreign Trade and the Solicitor General. At this meeting the GOJ outlined the legal concerns it had about the request. The US delivered a letter of even date in response to the GOJ’s letter of October 30, 2009 (paragraph 4 supra). This letter stated that MACMA was not the exclusive means of obtaining such evidence and that the evidence had been obtained in accordance with the mutual understandings arrived at between the Jamaican and United States law enforcement authorities; and it again urged the GOJ to place the matter before a committing magistrate. The meeting ended with an agreement that as there were several legal issues raised which could not be dealt with competently by the representatives of the US, it would be best if the legal representatives of Jamaica meet with legal representatives of the State Department in Washington DC with a view to discussing the legal issues. The Charge’d Affaires agreed to arrange this meeting.
6. A joint lawyers meeting was held on the 17th December, 2009 between legal representatives of the GOJ and legal representatives of the US State and Justice Departments. At the end of this meeting both parties agreed that each party would examine the legal issues with a view to seeing how they could be resolved. The agreement, as reflected in a Note prepared by the Ministry of Foreign Affairs and Foreign Trade, was as follows:-
- Solicitor General, Douglas Leys and Director, Mary Ellen Warlow would remain in direct fluid communication.
- The Department of Justice, USA would review its records in order to identify the Jamaican source by which the wire tap evidence against Coke was conveyed to the United States and inform the Solicitor General.
- For its own part the Ministry of Justice, Jamaica would resume its own internal investigation with a view to determining which office authorized the transfer of the intercept evidence to the USA.
- The Department of Justice would advise the Solicitor General as to whether there was evidence other than that acquired by wire tap which could successfully be brought against Christopher Coke in Court.
January 2010
7. In early January 2010, the Solicitor General informed the Charge d’ Affaires of the US Embassy that further investigation had not revealed that there was authorization for the transfer of the wire tap evidence to the US Government as there was no record of a modification of the Court Order. Further, that he had written to the Commissioner of Police and requested that he commence formal investigations into the matter.
8. On January 18, 2010, the Solicitor General sent an email to Ms. Mary Ellen Warlow, Director in the office of International Affairs United States Department of Criminal Justice - pursuant to an agreement arising out of the December 17, 2009 meeting - seeking her views on his suggested text for a joint press release between the US and GOJ on the December meeting. There was no response from the Ms. Warlow save for an out of office reply on the 9th of February 2010 sending a copy of the email to the Charge d’ Affaires.
February 2010
9. On February 22, 2010, Ms. Warlow replied to the effect that she was out of office and on return had not seen my email as she had inadvertently missed it among the many others she had received. It was agreed that given the passage of time the press release would no longer have been meaningful. There was no mention of the other issues that were raised in the meeting of the 17th December (supra).
March 2010
10. At the request of the US, a meeting was held on March 1, 2010 at Jamaica House. The US was represented by the Charge’ d Affairs, and Mr. Don Baker a representative of the Embassy. The GOJ was represented by the Hon. Minister of Foreign Affairs and Foreign Trade, the Hon. Attorney General, the Solicitor General and the Mr. Lackston Robinson - Deputy Solicitor General. At that meeting the progress of the extradition matter was discussed.
April 2010
11. As a follow up there was a meeting with the Minister of Foreign Affairs and Foreign Trade and the US State Department on April 12, 2010 in Washington DC. The meeting discussed the possibility of public unrest and dislocation of the Government’s economic programme having regard to the timing of the extradition request. This was discussed in the context of Section 16 of MACMA which mandates the refusal of a request if compliance would prejudice “other essential public interests of Jamaica”. The fact that over thirty (30) persons were killed by the incursion into Tivoli Gardens of the Security Forces in 1997 and 2001 underscored the level of concern at the timing of the request.
12. This meeting was followed by a letter dated April 14, 2010 in which the US reiterated its earlier position that the evidence submitted in the original request was sufficient to proceed, since prior cases of similar evidentiary strength had resulted in successful extraditions to the United States.
13. Following on this letter on the 14th April 2010, I filed proceedings in the Supreme Court requesting, inter alia, a declaration as to the matters I was entitled to take into account in exercising my discretion to issue the authority to proceed. The parties to the suit were Mr. Christopher Coke, Mr. Joseph Mayer Matalon, President of the PSOJ, the Honourable Portia Simpson Miller were joined as parties, based on their public expressions of disagreement with the way the request was being handled: this provided them with an opportunity to present their views to the Court as to how the matter could be better handled.
14. On April 14, 2010, the Ministry of Foreign Affairs and Foreign Trade notified the US of the aforementioned proceedings and invited its participation in the proceedings.
15. On May 4, 2010 the US, by letter set out its position on the various issues raised in the Suit and asked that the letter be brought to the attention of the Court by the GOJ. The letter was received on 5th May, 2010, the morning of the Court proceedings, and could not be presented to the Court in that form.
May 2010
16. On May 5, 2010, the matter was heard in the Supreme Court before the Honourable Mr. Justice Roy Jones. He delivered judgment on May 11, 2010 removing, with my agreement, Mr. Joseph Mayer Matalon from the suit, as well as the Hon. Portia Simpson Miller on the basis of submissions, that she could not, inter alia, assist the process and that to have made her party was a breach of her right to freedom of speech. The suit was subsequently withdrawn.
17. On May 17, 2010 having gauged the growing level of public mistrust and the expressed intention of key institutions/organizations not to interact with the Government if the extradition matter remained unresolved, I decided that the looming public interest concerns compelled the exercise of my executive discretion to resolve the matter. Consequently, I advised the Cabinet that I would be signing the authority to proceed and did so on the 18th May, 2010. The Resident Magistrate for the parish of St. Andrew then issued a warrant for the arrest of Mr. Christopher Coke.
The Extradition of Christopher "Dudus" Coke
1. Mr President, despite the level and intensity of the criticism made of my handling of this matter, I have endured in good faith and good conscience.
2. My duty, Mr President, was to ensure that the extradition request complied with the Treaty provisions, and that Mr Coke’s rights as a Jamaican citizen were protected; and what has sustained me, Mr President, is the knowledge that I discharged my duty with the utmost propriety and professionalism.
3. The members on that side, Mr President, sad to say, have never considered the extradition of a Jamaican citizen a matter of any seriousness or consequence: a review of the cases handled by them, Mr President confirms that on receipt of a request, they regarded a quick reference to the Court as a fulfilment of their obligation(s) under the Treaty. There was no recognition, Mr President, of the impact on the citizen of an ill-considered reference to the Court. The fact, Mr President, that it meant the deprivation of the personal liberty of the citizen because a warrant would immediately issue for his arrest, and that not long thereafter he would be delivered to a jurisdiction over which the GOJ had no control, was of no concern.
4. That is why, Mr President, those who have a proper concern for the rights of a Jamaican citizen – whatever his alleged misdeeds – understand that such requests require rigourous examination and reflection, before a decision is made; but that has not been the approach of the members on that side. Their modus in dealing with such requests was in the words of the Prime Minister, to act as if they were “lubricated conduits”. No wonder, Mr President, persons have expressed the view – given their attitude and advocacy in this case - that members of the Opposition appear to value their American visas more highly that their Jamaican citizenship.
5. And so Mr President, it came as no surprise that propelled by their own propaganda they felt compelled to continue the process by bringing this motion. The motion, Mr President, confirms my earlier observation of their cavalier approach to extradition requests, and I see it as an expression of their disappointment that I have not endorsed their misguided interpretation of the Act.
6. The motion is lacking in both truth and substance, but I none-the-less welcome the opportunity, Mr President, to clear up the misconceptions both as to the law and facts which have been bandied about, and fuelled the criticism of my handling of the matter.
7. It is important to say at the start, Mr President, that the difficulties encountered in dealing with this request have their genesis in the easy passage accorded previous requests and the bad precedents established by members on that side in prior cases. The US not, unreasonably, had expectations that this uncaring/obsequious response would continue.
That this is so, Mr President, is shown in the excerpts which I now cite from a letter by the Charge′ d′ affaires dated May 4, 2010 in response to the issues set out in my Affidavit when I sought a declaration from the Court.
“when US authorities received the intercepted communications pursuant to a joint law enforcement memorandum between the United States and Jamaica that governs the obtaining and sharing of such communications, US authorities had no reason to believe that such information was not shared in accordance with Jamaican law. Indeed, given that such sharing had occurred since the 2004 conclusion of the memorandum without any question being raised about its propriety under domestic law, what was anomalous from the perspective of the United States was that questions were raised in this particular case that had not been raised in any prior case. The United States Government therefore fails to find any basis for the assertions by the Government of Jamaica that the United States government actions were in violation of the terms or spirit of this joint memorandum and rejects such assertions in their entirety.”
“There is no basis under the Treaty to treat comparable extradition requests differently. Given that Jamaica has previously extradited individuals to the United States on similar charges involving similar evidence, the United States questions why this request has been treated differently.”
There was nothing ‘similar’ about this case as the excerpts suggest, Mr President, as my analysis will show later, but the US position, put briefly, was that it was not prepared to accept any deviation from precedent(s) established by prior cases in considering this case.
8. That was the background, Mr President, against which I sought to persuade the US to honour its obligation(s) agreed upon under the Treaty and related agreements. I considered this important, Mr President, because the issue turned upon the improper/illegal use of ‘intercept’ evidence to support the request, and any precedent established would not only affect Mr Coke, but any other Jamaican citizen who found himself in similar circumstances.
9. Mr President, I do not question the motives of my critics; but I do question the naivety with which they accepted the skewed interpretations – pronouncements upon the laws and facts offered by self proclaimed ‘pundits’, and the haste with which they adopted and repeated epithets such as “delay and dithering” in describing my dealing with the matter: this, Mr President without having any knowledge of the interaction taking place between the parties during the period; but, this appears, Mr President, to be a characteristic of those who assume the role of ‘critic’: it was Sir Harold MacMillan a former Prime Minister of England who remarked that –
“I have never found in a long experience of politics, that criticism is ever inhibited by ignorance.”
And there was much of that in this case.
10. The criticisms covered a wide gamut -
(a) failure to refer the matter to the Court for determination was in breach of the ‘separation of powers’ and a mismanagement of the extradition process.
(b) the reasons given for not signing the authority to proceed were spurious, and influenced by the fact that Mr Coke resided in the Prime Minister’s Constituency.
(c) my discretion under the Extradition Act (EA) did not permit me to make a determination on the merits of the request.
(d) the delay of nine months before signing the authority to proceed was a gross dereliction of ministerial responsibility.
(e) finally, my signing of ‘the authority to proceed’ was on the direction of the Prime Minister and inconsistent with the position taken in my Affidavit filed in support of the Declaration.
I respond to the criticisms, Mr President, seriatim.
11. Criticism 10(a) – Failure to refer the matter to the Court for determination was in breach of the separation of powers and a mismanagement of the extradition process
The Law
The Extradition Act (EA)
(a) The decision to extradite a Jamaican citizen is a matter for the Executive and not the Courts. This is so, because no person can be extradited without the Minister first issuing an authority to proceed (S8(3): and, even after the interposition of judicial proceedings, the Act gives the Minister the final authority to determine whether the person should be extradited or not (S12)(1). It is the Minister of Justice, a member of the Executive, who is empowered to make critical decisions under the Act
The concept of the separation of powers has no relevance in such a scheme and, it is a profound misunderstanding of the duties placed upon the Minister under the Act, to contend that issues affecting compliance with the Treaty should be referred to the Court for decision. There is no legal basis for this assertion and it is entirely without merit.
12. Criticism 10(b): The reasons given for not signing the authority to proceed were spurious
Criticism 10(c): my discretion under the Extradition Act does not permit me to make a determination on the merits of the request.
The Law
(1) Section 8(2) of the EA mandates that in the case of a person accused of an offence the requesting state must furnish -
(a) A warrant for his arrest issued in that state
(b) together with, in each case, the particulars of the person ……………. and evidence sufficient to justify the issue of a warrant for his arrest under Section 9.
(2) Section 8(3) of the EA gives the Minister a discretion as follows:-
“On receipt of such a request the Minister may issue an authority to proceed, unless it appears to her that an order for the extradition of the person concerned could not lawfully be made, or would not in fact be made, in accordance with the provisions of this Act”
13. Mr President, in exercising my discretion, I had to consider the prohibitions/cautions not only stated in the EA but included in other relevant Statutes/Agreements since Section 7(i)(e) of the EA prohibits the extradition of “a person, if it appears to the Minister -
“that his extradition is prohibited by any law in force in Jamaica”
14. The other relevant laws, and agreements considered were -
(1) the Mutual Assistance (Criminal Matters) Act (the Macma) under which the Minister of Justice is the central authority.
(2) The Interception of Communications Act (the ICA), and,
(3) the Memoranda of Understanding signed by the US, UK and Jamaica in July 2004 (the MOU).
I now cite, Mr President, excerpts from the laws/agreements (supra) which provided the basis for my view that the request was in clear breach of the Treaty and other arrangements agreed upon by the parties.
15. MACMA
(1) Section 15(3) Assistance may be provided to a foreign state in relation to –
(j) such other matters as may be included in an agreement or arrangement in force between Jamaica and a foreign state.
The Section provides the nexus with the EA.
(2) Section 16(1) – A request for assistance under this Act made by a foreign state-
(a) shall be refused if in the opinion of the Central Authority (ie the Minister of Justice)
(1) compliance with the request would contravene the provisions of the Constitution, or prejudice the security, international relations or other essential public interests of Jamaica.
The Section provides the basis for considering legal as well as public interest concerns in exercising my discretion.
(3) Section 19(1): provides that request to Jamaica shall be executed in accordance with the relevant laws in force in Jamaica and the procedures applicable under those laws.
16. THE MEMORANDA OF UNDERSTANDING (MOU)
The MOU established the mechanism for the interception of telephonic and electronic communications and the following excerpts from the agreement are extremely important.
“Intelligence obtained will be used for intelligence purposes only and not in Court proceedings. Accordingly when disseminated to designated agencies it will have the following caveat: this information is provided only for intelligence purposes in an effort to develop potential investigative levels.
It cannot be used in affidavits, Court proceedings, subpoenas, or for legal or judicial purposes.
Any interception of communications by the Jamaican Authorities will be carried out strictly in accordance with the requirements of Jamaican law.
Similarly, such intercept product will be held and, if appropriate passed on by them strictly in accordance with the requirements of Jamaican law.”
17. THE INTERCEPTION OF COMMUNICATIONS ACT (ICA)
(A) Section 15(2) - a person who intentionally discloses the contents of any communication-
(a) obtained by means of a warrant, to a person to whom he is not authorized to disclose the communication; or
(b) obtained in contravention of this Act, commits an offence and is liable upon summary conviction in a Resident Magistrates Court to a fine not exceeding five million dollars or to imprisonment for a term not exceeding five years, or to both such fine and imprisonment.
(B) Evidence obtained by interception is admissible as evidence in criminal/extradition proceedings {S14(2)} only if intercepted in obedience to a warrant issued by a Judge under Section 4;
Section 4(1) provides that –
an authorized officer may apply to ….. a Judge in Chambers for a warrant authorizing the person named in the warrant -
(a) to intercept …… such communications as are described in the warrant; and
(b) to disclose the intercepted communication to such persons and in such manner as may be specified in the warrant
18. Mr President, a review of the excerpts establish beyond controversy that –
(i) the use of intercept evidence in an Affidavit, or in Court proceedings or for legal or judicial purposes as done by John Doe, in this case, is a clear and egregious breach of the terms of the MOU.
(ii) the ICA decrees that disclosure of intercept evidence to unauthorized persons in breach of an Order of the Supreme Court renders such evidence inadmissible in criminal/extradition proceedings.
(iii) a critical requirement under ‘MACMA’ and the ‘MOU’ is that requests to Jamaica must be executed strictly in accordance with the relevant laws in force in Jamaica and the procedures applicable under those laws.
19. Mr President, it does not require legal skills to determine that if a person acts in breach of an Order made by our Court, that act cannot be in accordance with Jamaican law and procedure.
Further if, where as in this case, the Statute decrees that intercept evidence obtained in breach of its provisions is inadmissible in criminal/extradition proceedings, I do not before exercising my discretion need the intervention or endorsement of the Court, and where, as in this case, intercepted evidence is included in an Affidavit to be used in legal/judicial proceedings in clear contravention of the MOU which is governed strictly by Jamaican law, then again I do not require the imprimatur of the Court before exercising my discretion.
20. Those breaches, Mr President, provided irrefutable evidence that the request was flawed and this was brought to the attention of the US: and yet, inexplicably, rather than seeking an accommodation to resolve the matter, they persisted in maintaining that the request satisfied the ‘Treaty’ provisions. The only plausible explanation, Mr President, was that they were confident that they would ultimately prevail, given the strident support of members of the Opposition and the intense media campaign in support of the request: finally there was the not too subtle threat to the holders of American visas.
21. Mr President, those who wish to be fair will acknowledge that there was nothing spurious about the challenge to the improper/illegal use of the intercept evidence and my insistence upon the US honouring the Treaty obligations. The fact is that Dr Barnett advised that “the Courts assume that a foreign government will honour its obligation under any law or arrangement. The Minister should not sanction a departure from this convention. (Royal Government of Greece v Governor of Brixton Prison (1971) AC 250 (267), Hale Laws (4th Ed) Volume 18 paragraph 218.”
22. You will forgive me, Mr President, if in exercising my discretion I ignored the many pundits who were critical of my approach but showed no real understanding of the law, and preferred the views of the President of the Bar Association who in an article in the Gleaner dated March 21, 2010 essentially endorsed my approach and Dr Barnett who, in an opinion, advised that -
(a) “there is therefore statutory, conventional and contractual basis for the Minister’s conclusion that it is unlawful for the telephonic transcript to be used as a basis for the extradition process.”
(b) Further “there are powerful grounds for concluding that in the absence of the impugned evidence which resulted from the interception, there would be no justifiable basis for making the Order.”
(c) “The Act has expressly and specifically granted to the Minister the authority to make a determination on the merits of the request and to refuse the request if she is not satisfied that extradition would
be lawful.”
23. It was also on Dr Barnett’s advice that I sought a Declaration from the Court to determine the scope of my authority under the Act, and provided an opportunity to some of my more strident critics to persuade the Court why they thought the process was being mismanaged. They declined - the Leader of the Opposition, on the rather curious ground, that I was challenging her Constitutional right to freedom of speech.
24. Criticism 10(d) – the delay of nine months before signing the authority to proceed was a gross dereliction of ministerial responsibility.
Facts
Mr President, I attach a chronology of events for the period which confirm that the parties were continuously engaged in an effort to resolve the matter. There is absolutely no substance to the criticism of “delay and dithering”.
I make the further observation, Mr President that this was a dispute between two sovereign countries, and had to be conducted with patience and civility.
25. Criticism 10(e) my signing of ‘the authority to proceed’ was on the direction of the Prime Minister and inconsistent with the position taken in my Affidavit filed in support of the Declaration
There has been criticism of my Affidavit filed in support of the suit seeking a ‘Declaration’ from the Court as to the scope of my Authority. The contention being that it is inconsistent with my Affidavit filed in opposition to the application seeking leave for a Judicial Review to quash the Order authorizing the issue of the authority to proceed since nothing had changed.
26. Mr President, the criticism is misconceived. I have already pointed out that the decision to extradite is based on the exercise of my executive discretion. That discretion must take into account the legal as well as essential public interests concerns prevailing at the time (S16 – MACMA). On receipt of the request the primary focus was whether the request complied with the Treaty provisions and so the Affidavit supporting the Declaration focused on that issue
but
It is notorious that sometime after the filing of the ‘Declaration’ the factual situation changed dramatically. There was not only a high level of public mistrust, but key organizations/institutions signalled their intention not to co-operate with the Government unless the extradition issue was resolved.
It was clear that the public interest concerns had become paramount and compelling and that this required exercising my discretion so as to at least diminish and/or allay those concerns. I, therefore, advised the Cabinet that, in the circumstances, I would be signing the authority to proceed and did so on May 18, 2010. I state for the record that at no time did the Prime Minister give me any directions as to how my discretion should be exercised.
CONCLUSION
27. A review of the record will confirm that at no time did I give any indication of an intention to refuse the request. I was of the view that these were serious allegations which if true, should not be allowed to escape adjudication. That is why in the negotiations with the US I indicated that I would sign if they could provide additional evidence and withdraw the wire tap evidence. The fact is that the request as prescribed deviated from agreed/established procedures. This jeopardized not only Mr Coke’s interest but the future interest of Jamaican citizens. The GOJ had no intention of blocking the extradition request, but on the contrary to secure a resolution of the matter on a basis which was transparent and ensured fairness to all.
Two further observations:
Manatt Phelps and Phillips (the Firm) is a firm of Lawyers as well as Lobbyists. Any contact which the Solicitor General had with the firm was in their role as lawyers, and any engagement of the firm in that capacity would have required the imprimatur of the Solicitor General and myself. There was no such engagement.
2. The firm, it is said, has business with many Sovereign countries. It should, in the circumstances, have had no difficulty in providing the requisite proof of its assertion that it had a contract with the Government of Jamaica. It is entirely unacceptable that what they continue to offer as proof is a document signed by Mr Brady, money paid by Mr Brady and alleged meetings with Ministers/officials. The fact is, it is they who assert that a contract exists and so they must provide the proof: to date they have not done so.
3. The point needs to be made also that it would have been perfectly legitimate for the Government to have engaged the firm as Lobbyists while proceeding to raise questions at the bureaucratic level about the legal deficiencies of the request.
This is a Treaty and the request gave rise to some issues which would have been more appropriately dealt with at the Executive level of the US Government. For example, the timing of the request having regard to the fact that the Government which was new in office, had to confront the dire economic circumstances caused by a world wide recession, there was a real possibility of social disruption, given what occurred on two previous occasions and there certainly would have been a catastrophic dislocation of the Government’s economic programme. There were legitimate concerns which could have been properly raised at the Executive level of the US Government.
The fact that matters went awry by the derelictions of Mr Brady does not transform the approach into a scandal as the spin doctors have now convinced most Jamaicans.
Labeling it a scandal served the purpose of deflecting attention from the genuine concerns raised in the extradition issue.
Finally, Government senators have been criticized for issuing a statement supporting the Prime Minister and for saying that he did nothing wrong. The Prime Minister has already explained that he knew nothing about the details of the arrangement made with Manatt by Mr Brady: none-the-less, as leader of the Party he took responsibility for it.
Taking responsibility as a Leader for the derelictions of a member of your organization is not, without more, a basis for impugning the integrity of the Leader, but rather a matter for commendation having regard to the consequences he knew he would likely face.
2. My duty, Mr President, was to ensure that the extradition request complied with the Treaty provisions, and that Mr Coke’s rights as a Jamaican citizen were protected; and what has sustained me, Mr President, is the knowledge that I discharged my duty with the utmost propriety and professionalism.
3. The members on that side, Mr President, sad to say, have never considered the extradition of a Jamaican citizen a matter of any seriousness or consequence: a review of the cases handled by them, Mr President confirms that on receipt of a request, they regarded a quick reference to the Court as a fulfilment of their obligation(s) under the Treaty. There was no recognition, Mr President, of the impact on the citizen of an ill-considered reference to the Court. The fact, Mr President, that it meant the deprivation of the personal liberty of the citizen because a warrant would immediately issue for his arrest, and that not long thereafter he would be delivered to a jurisdiction over which the GOJ had no control, was of no concern.
4. That is why, Mr President, those who have a proper concern for the rights of a Jamaican citizen – whatever his alleged misdeeds – understand that such requests require rigourous examination and reflection, before a decision is made; but that has not been the approach of the members on that side. Their modus in dealing with such requests was in the words of the Prime Minister, to act as if they were “lubricated conduits”. No wonder, Mr President, persons have expressed the view – given their attitude and advocacy in this case - that members of the Opposition appear to value their American visas more highly that their Jamaican citizenship.
5. And so Mr President, it came as no surprise that propelled by their own propaganda they felt compelled to continue the process by bringing this motion. The motion, Mr President, confirms my earlier observation of their cavalier approach to extradition requests, and I see it as an expression of their disappointment that I have not endorsed their misguided interpretation of the Act.
6. The motion is lacking in both truth and substance, but I none-the-less welcome the opportunity, Mr President, to clear up the misconceptions both as to the law and facts which have been bandied about, and fuelled the criticism of my handling of the matter.
7. It is important to say at the start, Mr President, that the difficulties encountered in dealing with this request have their genesis in the easy passage accorded previous requests and the bad precedents established by members on that side in prior cases. The US not, unreasonably, had expectations that this uncaring/obsequious response would continue.
That this is so, Mr President, is shown in the excerpts which I now cite from a letter by the Charge′ d′ affaires dated May 4, 2010 in response to the issues set out in my Affidavit when I sought a declaration from the Court.
“when US authorities received the intercepted communications pursuant to a joint law enforcement memorandum between the United States and Jamaica that governs the obtaining and sharing of such communications, US authorities had no reason to believe that such information was not shared in accordance with Jamaican law. Indeed, given that such sharing had occurred since the 2004 conclusion of the memorandum without any question being raised about its propriety under domestic law, what was anomalous from the perspective of the United States was that questions were raised in this particular case that had not been raised in any prior case. The United States Government therefore fails to find any basis for the assertions by the Government of Jamaica that the United States government actions were in violation of the terms or spirit of this joint memorandum and rejects such assertions in their entirety.”
“There is no basis under the Treaty to treat comparable extradition requests differently. Given that Jamaica has previously extradited individuals to the United States on similar charges involving similar evidence, the United States questions why this request has been treated differently.”
There was nothing ‘similar’ about this case as the excerpts suggest, Mr President, as my analysis will show later, but the US position, put briefly, was that it was not prepared to accept any deviation from precedent(s) established by prior cases in considering this case.
8. That was the background, Mr President, against which I sought to persuade the US to honour its obligation(s) agreed upon under the Treaty and related agreements. I considered this important, Mr President, because the issue turned upon the improper/illegal use of ‘intercept’ evidence to support the request, and any precedent established would not only affect Mr Coke, but any other Jamaican citizen who found himself in similar circumstances.
9. Mr President, I do not question the motives of my critics; but I do question the naivety with which they accepted the skewed interpretations – pronouncements upon the laws and facts offered by self proclaimed ‘pundits’, and the haste with which they adopted and repeated epithets such as “delay and dithering” in describing my dealing with the matter: this, Mr President without having any knowledge of the interaction taking place between the parties during the period; but, this appears, Mr President, to be a characteristic of those who assume the role of ‘critic’: it was Sir Harold MacMillan a former Prime Minister of England who remarked that –
“I have never found in a long experience of politics, that criticism is ever inhibited by ignorance.”
And there was much of that in this case.
10. The criticisms covered a wide gamut -
(a) failure to refer the matter to the Court for determination was in breach of the ‘separation of powers’ and a mismanagement of the extradition process.
(b) the reasons given for not signing the authority to proceed were spurious, and influenced by the fact that Mr Coke resided in the Prime Minister’s Constituency.
(c) my discretion under the Extradition Act (EA) did not permit me to make a determination on the merits of the request.
(d) the delay of nine months before signing the authority to proceed was a gross dereliction of ministerial responsibility.
(e) finally, my signing of ‘the authority to proceed’ was on the direction of the Prime Minister and inconsistent with the position taken in my Affidavit filed in support of the Declaration.
I respond to the criticisms, Mr President, seriatim.
11. Criticism 10(a) – Failure to refer the matter to the Court for determination was in breach of the separation of powers and a mismanagement of the extradition process
The Law
The Extradition Act (EA)
(a) The decision to extradite a Jamaican citizen is a matter for the Executive and not the Courts. This is so, because no person can be extradited without the Minister first issuing an authority to proceed (S8(3): and, even after the interposition of judicial proceedings, the Act gives the Minister the final authority to determine whether the person should be extradited or not (S12)(1). It is the Minister of Justice, a member of the Executive, who is empowered to make critical decisions under the Act
The concept of the separation of powers has no relevance in such a scheme and, it is a profound misunderstanding of the duties placed upon the Minister under the Act, to contend that issues affecting compliance with the Treaty should be referred to the Court for decision. There is no legal basis for this assertion and it is entirely without merit.
12. Criticism 10(b): The reasons given for not signing the authority to proceed were spurious
Criticism 10(c): my discretion under the Extradition Act does not permit me to make a determination on the merits of the request.
The Law
(1) Section 8(2) of the EA mandates that in the case of a person accused of an offence the requesting state must furnish -
(a) A warrant for his arrest issued in that state
(b) together with, in each case, the particulars of the person ……………. and evidence sufficient to justify the issue of a warrant for his arrest under Section 9.
(2) Section 8(3) of the EA gives the Minister a discretion as follows:-
“On receipt of such a request the Minister may issue an authority to proceed, unless it appears to her that an order for the extradition of the person concerned could not lawfully be made, or would not in fact be made, in accordance with the provisions of this Act”
13. Mr President, in exercising my discretion, I had to consider the prohibitions/cautions not only stated in the EA but included in other relevant Statutes/Agreements since Section 7(i)(e) of the EA prohibits the extradition of “a person, if it appears to the Minister -
“that his extradition is prohibited by any law in force in Jamaica”
14. The other relevant laws, and agreements considered were -
(1) the Mutual Assistance (Criminal Matters) Act (the Macma) under which the Minister of Justice is the central authority.
(2) The Interception of Communications Act (the ICA), and,
(3) the Memoranda of Understanding signed by the US, UK and Jamaica in July 2004 (the MOU).
I now cite, Mr President, excerpts from the laws/agreements (supra) which provided the basis for my view that the request was in clear breach of the Treaty and other arrangements agreed upon by the parties.
15. MACMA
(1) Section 15(3) Assistance may be provided to a foreign state in relation to –
(j) such other matters as may be included in an agreement or arrangement in force between Jamaica and a foreign state.
The Section provides the nexus with the EA.
(2) Section 16(1) – A request for assistance under this Act made by a foreign state-
(a) shall be refused if in the opinion of the Central Authority (ie the Minister of Justice)
(1) compliance with the request would contravene the provisions of the Constitution, or prejudice the security, international relations or other essential public interests of Jamaica.
The Section provides the basis for considering legal as well as public interest concerns in exercising my discretion.
(3) Section 19(1): provides that request to Jamaica shall be executed in accordance with the relevant laws in force in Jamaica and the procedures applicable under those laws.
16. THE MEMORANDA OF UNDERSTANDING (MOU)
The MOU established the mechanism for the interception of telephonic and electronic communications and the following excerpts from the agreement are extremely important.
“Intelligence obtained will be used for intelligence purposes only and not in Court proceedings. Accordingly when disseminated to designated agencies it will have the following caveat: this information is provided only for intelligence purposes in an effort to develop potential investigative levels.
It cannot be used in affidavits, Court proceedings, subpoenas, or for legal or judicial purposes.
Any interception of communications by the Jamaican Authorities will be carried out strictly in accordance with the requirements of Jamaican law.
Similarly, such intercept product will be held and, if appropriate passed on by them strictly in accordance with the requirements of Jamaican law.”
17. THE INTERCEPTION OF COMMUNICATIONS ACT (ICA)
(A) Section 15(2) - a person who intentionally discloses the contents of any communication-
(a) obtained by means of a warrant, to a person to whom he is not authorized to disclose the communication; or
(b) obtained in contravention of this Act, commits an offence and is liable upon summary conviction in a Resident Magistrates Court to a fine not exceeding five million dollars or to imprisonment for a term not exceeding five years, or to both such fine and imprisonment.
(B) Evidence obtained by interception is admissible as evidence in criminal/extradition proceedings {S14(2)} only if intercepted in obedience to a warrant issued by a Judge under Section 4;
Section 4(1) provides that –
an authorized officer may apply to ….. a Judge in Chambers for a warrant authorizing the person named in the warrant -
(a) to intercept …… such communications as are described in the warrant; and
(b) to disclose the intercepted communication to such persons and in such manner as may be specified in the warrant
18. Mr President, a review of the excerpts establish beyond controversy that –
(i) the use of intercept evidence in an Affidavit, or in Court proceedings or for legal or judicial purposes as done by John Doe, in this case, is a clear and egregious breach of the terms of the MOU.
(ii) the ICA decrees that disclosure of intercept evidence to unauthorized persons in breach of an Order of the Supreme Court renders such evidence inadmissible in criminal/extradition proceedings.
(iii) a critical requirement under ‘MACMA’ and the ‘MOU’ is that requests to Jamaica must be executed strictly in accordance with the relevant laws in force in Jamaica and the procedures applicable under those laws.
19. Mr President, it does not require legal skills to determine that if a person acts in breach of an Order made by our Court, that act cannot be in accordance with Jamaican law and procedure.
Further if, where as in this case, the Statute decrees that intercept evidence obtained in breach of its provisions is inadmissible in criminal/extradition proceedings, I do not before exercising my discretion need the intervention or endorsement of the Court, and where, as in this case, intercepted evidence is included in an Affidavit to be used in legal/judicial proceedings in clear contravention of the MOU which is governed strictly by Jamaican law, then again I do not require the imprimatur of the Court before exercising my discretion.
20. Those breaches, Mr President, provided irrefutable evidence that the request was flawed and this was brought to the attention of the US: and yet, inexplicably, rather than seeking an accommodation to resolve the matter, they persisted in maintaining that the request satisfied the ‘Treaty’ provisions. The only plausible explanation, Mr President, was that they were confident that they would ultimately prevail, given the strident support of members of the Opposition and the intense media campaign in support of the request: finally there was the not too subtle threat to the holders of American visas.
21. Mr President, those who wish to be fair will acknowledge that there was nothing spurious about the challenge to the improper/illegal use of the intercept evidence and my insistence upon the US honouring the Treaty obligations. The fact is that Dr Barnett advised that “the Courts assume that a foreign government will honour its obligation under any law or arrangement. The Minister should not sanction a departure from this convention. (Royal Government of Greece v Governor of Brixton Prison (1971) AC 250 (267), Hale Laws (4th Ed) Volume 18 paragraph 218.”
22. You will forgive me, Mr President, if in exercising my discretion I ignored the many pundits who were critical of my approach but showed no real understanding of the law, and preferred the views of the President of the Bar Association who in an article in the Gleaner dated March 21, 2010 essentially endorsed my approach and Dr Barnett who, in an opinion, advised that -
(a) “there is therefore statutory, conventional and contractual basis for the Minister’s conclusion that it is unlawful for the telephonic transcript to be used as a basis for the extradition process.”
(b) Further “there are powerful grounds for concluding that in the absence of the impugned evidence which resulted from the interception, there would be no justifiable basis for making the Order.”
(c) “The Act has expressly and specifically granted to the Minister the authority to make a determination on the merits of the request and to refuse the request if she is not satisfied that extradition would
be lawful.”
23. It was also on Dr Barnett’s advice that I sought a Declaration from the Court to determine the scope of my authority under the Act, and provided an opportunity to some of my more strident critics to persuade the Court why they thought the process was being mismanaged. They declined - the Leader of the Opposition, on the rather curious ground, that I was challenging her Constitutional right to freedom of speech.
24. Criticism 10(d) – the delay of nine months before signing the authority to proceed was a gross dereliction of ministerial responsibility.
Facts
Mr President, I attach a chronology of events for the period which confirm that the parties were continuously engaged in an effort to resolve the matter. There is absolutely no substance to the criticism of “delay and dithering”.
I make the further observation, Mr President that this was a dispute between two sovereign countries, and had to be conducted with patience and civility.
25. Criticism 10(e) my signing of ‘the authority to proceed’ was on the direction of the Prime Minister and inconsistent with the position taken in my Affidavit filed in support of the Declaration
There has been criticism of my Affidavit filed in support of the suit seeking a ‘Declaration’ from the Court as to the scope of my Authority. The contention being that it is inconsistent with my Affidavit filed in opposition to the application seeking leave for a Judicial Review to quash the Order authorizing the issue of the authority to proceed since nothing had changed.
26. Mr President, the criticism is misconceived. I have already pointed out that the decision to extradite is based on the exercise of my executive discretion. That discretion must take into account the legal as well as essential public interests concerns prevailing at the time (S16 – MACMA). On receipt of the request the primary focus was whether the request complied with the Treaty provisions and so the Affidavit supporting the Declaration focused on that issue
but
It is notorious that sometime after the filing of the ‘Declaration’ the factual situation changed dramatically. There was not only a high level of public mistrust, but key organizations/institutions signalled their intention not to co-operate with the Government unless the extradition issue was resolved.
It was clear that the public interest concerns had become paramount and compelling and that this required exercising my discretion so as to at least diminish and/or allay those concerns. I, therefore, advised the Cabinet that, in the circumstances, I would be signing the authority to proceed and did so on May 18, 2010. I state for the record that at no time did the Prime Minister give me any directions as to how my discretion should be exercised.
CONCLUSION
27. A review of the record will confirm that at no time did I give any indication of an intention to refuse the request. I was of the view that these were serious allegations which if true, should not be allowed to escape adjudication. That is why in the negotiations with the US I indicated that I would sign if they could provide additional evidence and withdraw the wire tap evidence. The fact is that the request as prescribed deviated from agreed/established procedures. This jeopardized not only Mr Coke’s interest but the future interest of Jamaican citizens. The GOJ had no intention of blocking the extradition request, but on the contrary to secure a resolution of the matter on a basis which was transparent and ensured fairness to all.
Two further observations:
Manatt Phelps and Phillips (the Firm) is a firm of Lawyers as well as Lobbyists. Any contact which the Solicitor General had with the firm was in their role as lawyers, and any engagement of the firm in that capacity would have required the imprimatur of the Solicitor General and myself. There was no such engagement.
2. The firm, it is said, has business with many Sovereign countries. It should, in the circumstances, have had no difficulty in providing the requisite proof of its assertion that it had a contract with the Government of Jamaica. It is entirely unacceptable that what they continue to offer as proof is a document signed by Mr Brady, money paid by Mr Brady and alleged meetings with Ministers/officials. The fact is, it is they who assert that a contract exists and so they must provide the proof: to date they have not done so.
3. The point needs to be made also that it would have been perfectly legitimate for the Government to have engaged the firm as Lobbyists while proceeding to raise questions at the bureaucratic level about the legal deficiencies of the request.
This is a Treaty and the request gave rise to some issues which would have been more appropriately dealt with at the Executive level of the US Government. For example, the timing of the request having regard to the fact that the Government which was new in office, had to confront the dire economic circumstances caused by a world wide recession, there was a real possibility of social disruption, given what occurred on two previous occasions and there certainly would have been a catastrophic dislocation of the Government’s economic programme. There were legitimate concerns which could have been properly raised at the Executive level of the US Government.
The fact that matters went awry by the derelictions of Mr Brady does not transform the approach into a scandal as the spin doctors have now convinced most Jamaicans.
Labeling it a scandal served the purpose of deflecting attention from the genuine concerns raised in the extradition issue.
Finally, Government senators have been criticized for issuing a statement supporting the Prime Minister and for saying that he did nothing wrong. The Prime Minister has already explained that he knew nothing about the details of the arrangement made with Manatt by Mr Brady: none-the-less, as leader of the Party he took responsibility for it.
Taking responsibility as a Leader for the derelictions of a member of your organization is not, without more, a basis for impugning the integrity of the Leader, but rather a matter for commendation having regard to the consequences he knew he would likely face.
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