President Bharrat Jagdeo on Friday, May 14, 2004, issued a commission establishing a 3-person Presidential Commission of Inquiry on the death squad issue. This Commission is headed by Justice of Appeal Ian Chang, and the two other members are former GDF Chief of Staff Norman McLean, and Chairman of the Police Service Commission Ivan Crandon.
The Commission’s terms of reference are to investigate to what extent there is credible evidence to support allegations that Minister of Home Affairs Ronald Gajraj was involved with a death squad. Ronald Gajraj has agreed to recluse himself as Minister of Home Affairs throughout the Presidential Commission of Inquiry’s proceedings.
The terms of reference for now are quite rightly limited to Gajraj. We must remember the vicious personal attacks against Minister Gajraj, the vigil in front of his home, and his indictment, trial, and judgment by some private media and politicians. However, it’s possible that the inquiry could become broad-based to include the February 23, 2002 jailbreak, victims of criminal violence, and political linkages to the 2002/2003 crime wave.
The Commissions of Inquiry Act 1933, Cap. 19:03, gives the President the power to issue a commission, appointing and authorizing one or more commissioners to investigate any matter which would, in the President’s opinion, be in the interest of public welfare. Each appointed commissioner will have to take the oath of office or affirmation, “…that he will faithfully, fully, impartially, and to the best of his ability discharge the trust, and perform the duties devolving upon him by virtue of such commission…” This law also allows commissioners to make rules for regulating the proceedings.
The Opposition Parliamentary Parties rejected the Commission on the grounds that they were not consulted and that the terms of reference are limited.
There is nothing in this 1933 law that mandates the necessity for consultations and so the President’s institution of the Commission is in accordance with law.
Commissions of Inquiry through law
A random sample of some commissions of inquiry internationally shows little or no consultations in their establishment, but that the issuing of these commissions was effected in accordance with law.
On May 11, 1962, a warrant was issued appointing Sir Henry Wynn Parry and others to investigate particular matters in British Guiana. The warrant stipulated: “I, the Right Honourable Reginald Maudling, Member of Parliament, one of Her Majesty’s Principal Secretaries of State, by virtue and in exercise of all powers enabling me in that behalf, do hereby direct and declare as follows: 1. I Hereby Appoint The Honourable Sir Henry Wynn Parry,…,Sir Edward Asafu-Adjaye,…,and The Honourable Justice Gopal Das Khosla to be a Commission of Inquiry for the purpose of inquiring into the recent disturbances in British Guiana and the events leading up to them and to report thereon…” The Commission’s appointment did not incorporate any consultations with appropriate and relevant stakeholders.
On December 6, 1973, Her Excellency Dame Hilda Bynoe, Governor of Grenada, acting with the consent of Cabinet, established a Commission of Inquiry and named Sir Herbert Duffus, Aubrey Fraser, and Archbishop Samuel Carter as Commissioners, in accordance with the Commissions of Enquiry Ordinance, Cap. 64 of the Revised Laws of Grenada, to investigate all circumstances preceding the arrest and charging of six (6) persons on November 18, 1973; the alleged police brutality and the alleged denial of prompt medical and legal assistance to the arrestees, among others. The Commission was appointed under legal provisions and consultations.
The Israel Government’s Cabinet meeting of September 28, 1982, agreed to establish a Commission of Inquiry into the events at the refugee camps in Beirut. The President of the Supreme Court appointed the Kahan Commission of Inquiry under the Commissions of Inquiry Law of 1968, with no inputs from Beirut stakeholders. One of the Commission’s findings was that Israel must accept responsibility for the massacre. This is the case of an Israeli Government-appointed Commission indicting itself for a massacre in Beirut; here, one could hardly call this self-preservation on the part of Israel, making the point that establishment of a commission in compliance with the law may be more significant than consultations as part of a charade and not required by law.
On the night of May 21, 1991, Rajiv Gandhi on an election campaign of the Congress Party to address a public meeting at Tamil Nadu, was in a human bomb explosion at Sriperumbudur, about 40 kms from Madras. The Cabinet on immediately learning of the tragedy, under the chairmanship of the then Prime Minister Shri Chandra Shekhar, met in the early hours of May 22, 1991 and determined that a Commission of Inquiry be headed by a Judge of the Supreme Court to investigate the circumstances of the assassination of Rajiv Gandhi. R K Bhargava, the then Secretary Ministry of Home Affairs, prepared a draft Notification regarding setting up of a Commission of Inquiry under Section 3 of the Commissions of Inquiry Act, 1952 (60 of 1952 ) and presented it for approval to the Prime Minister. This commission was solely established by the Cabinet. The Commission’s work was deemed impartial throughout India. Again, it was a Commission established in accordance with law and not through consultations with the Opposition.
Prime Minister Helen Clark of New Zealand announced in February 2004 that her Government would establish a Commission of Inquiry in response to recent allegations about Police investigations. The Cabinet has since established a Commission of Inquiry. Again, the issuing of this Commission was effected through the inquiry law.
The Hutton Inquiry in Great Britain was established through the Secretary of State for Constitutional Affairs’ directive on July 18, 2003. Right now, the Pentagon in the United States has its own military personnel conducting a series of inquiries on prisoner abuses in Iraq; Iraq has no input in their establishment.
Intrinsically, consultations are fine, but they can become a political luxury when they present a dilemma for complying with the law. Even to definitively conclude on a simple arbitration panel in Guyana can consume enormous delays. And although several international commissions lacked substantive consultations in the setting-up process, their findings, on the whole, were guided by the principle of impartiality. Make no mistake about the fact that consultations are not a precondition for achieving impartiality. The law may be a better bet.
Minnesota Protocol
The UN Manual on Extra-legal, Arbitrary and Summary Executions referred to as the Minnesota Protocol presents guidelines that could be applied for establishing a Commission of Inquiry. The guidelines are a product of several countries’ experiences which have had Commissions of Inquiry to investigate alleged arbitrary executions. We draw from only a few of these guiding principles, demonstrating that the Presidential Commission substantially meets the Protocol’s requirements.
The Minnesota Protocol suggests that the scope of the inquiry should be neutrally framed; issues and events to be investigated clearly specified; and they should be flexible, in that the terms of reference should not be too broad or too restrictive, so as to allow for any amendments. This neutrality and flexibility are inherent in the President’s statement. There is the possibility of considering other aspects of the investigation to include the February 23, 2002 jailbreak, victims of criminal violence, and political linkages to the 2002/2003 crime wave.
The Protocol indicates that a commission must have the following powers: authority to obtain all information necessary to the inquiry; authority to issue a public report; authority to effect on-site visits on matters pertaining to the inquiry; and authority to admit evidence from overseas witnesses and organizations. The 1933 law entrusts this Presidential Commission of Inquiry with considerable authority. The Commissioners will have the authority of a High Court Judge, including the power to summon witnesses, arrange for all types of documentation, and examine all witnesses and parties under oath.
The commission’s members should be recognized for their Impartiality, Competence where they have the capacity to evaluate and consider evidence, and ultimately exercise sound judgement, and Independence where they have a reputation for honesty and fairness. The Guyanese people already may have favourably pronounced on the quality of the Commissioners. Let the Commission proceed with this unenviable task.