Jamaica Defence Force immunity issue becomes political

The Loop reports here on the latest developments in the case of three Jamaica Defence Force members who are on trial for murder and have claimed immunity under ministerial certificates. Excerpt:

Opposition spokesperson on justice, Senator Donna Scott Mottley in the news release, stated that it was during the Bruce Golding government, which included at least nine current Cabinet Ministers, that Parliament brought into effect the Emergency Powers (No 10 [sic, should be No. 2]) Regulations of 2010, which, according to Section 45 (1), gave immunity from prosecution to any member of the security forces for “acts done in good faith in the exercise of (their) functions for public safety”.

Scott Mottley argued that it was incontrovertible that [Keith] Clarke's death occurred during a security forces operation — involving military intelligence and equipment, including helicopters, lorries and personnel carriers — and that the three JDF officers charged are of low rank.

At the time of the operation, the Minister of National Security was Dwight Nelson. However, the DPP 's ruling that the soldiers should be charged came after the change of government.

“It is only because of this that Mr Bunting became involved and certified that the acts of the soldiers charged were done “in good faith in the exercise of (their) functions as members of the security forces for public safety, the restoration of order, the preservation of peace and in the public interest”, as required by the 2010 regulations,” explained Scott Mottley.

She said neither former minister Bunting, nor any minister, can grant immunity from criminal charges, only the law of the country can, explaining that it is only the DPP who can end criminal prosecutions.

 Section 45 of the regulations provides:

45.~(I) Subject to paragraph (2), no action, suit, prosecution or other proceeding shall be brought or instituted against any member of the security forces in respect of any act done in good faith during the emergency period in the exercise or purported exercise of his functions or for the public safety or restoration of order or the preservation of the peace in any place or places within the Island or otherwise in the public interest. 

(2) Paragraph (l) shall not prevent institution or prosecution of proceedings-- 

     (a) for compensation pursuant to regulation 44; 

   (b) in respect of any rights for alleged breaches of contract if the proceedings are instituted within one year from the date when the cause of action arose. 

(3) For the purposes of this regulation, a certificate by the Minister that any act of a member of the security forces was done in the exercise or purported exercise of his functions or for the public safety or for the restoration of order or the preservation of the peace or otherwise in the public interest shall be sufficient evidence that such member was so acting and any such act shall be deemed to have been done in good faith unless the contrary is proved. 

(4) In this regulation-- 

"the emergency period" means the period of public emergency (which commenced with the Proclamation of the Governor-General published in the Jamaica Gazette Supplement Proclamation, Rules and Regulations on the 23rd day of May, 2010) as extended with effect from the 23rd day of June, 2010 by Resolution of the House of Representatives made on the 22nd day of June 2010;

"member of the security forces" means any authorized person or senior authorized person and any other person acting under the authority of such a person as aforesaid.