THE COMMISSION of Enquiry into the West Kingston violence has issued a response to the decision of the lawyers attached to the Jamaica Labour Party (JLP) not to take any further part in the proceedings.
In a statement issued on Saturday the Commission said the Chairman's ruling limiting cross-examination by the attorneys affected only Abe Dabdoub M.P., the attorney for Opposition Leader Edward Seaga, "who had separated from the rest of the team and was representing Mr. Seaga only."
Following are excerpts from the statement:
During the week before the preliminary hearing was held, counsel for the Commission, Ms. Velma Hylton Q.C, developed, jointly with members of the Commission, a proposed procedure to govern the proceedings at the Enquiry...
The Chairman invited each attorney present to stand and say for the record, his or her name and the party he or she represented.
The attorneys for the Attorney-General, for the Jamaica Constabulary Force and the Jamaica Defence Force stood, identified themselves juniors.
Mr. Henriques then addressed the Commission in the following terms.
"May it please you, my name is Raoul Henriques. I lead team on behalf of the Citizens Associations of Denham Town, Tivoli Gardens and other persons. I have a team with me -- Mr. Abe Dabdoub, Mr. Delroy Chuck, Mr. Arthur Williams, Mr. Donald Foote, Mr. Patrick Atkinson, Miss Dorothy Lightbourne, Mr. Oswald James. Others are not present, a lot of people we represent and so as to ensure that there is no delay by absence of Counsel, we have a team that we allocate to each person."
Mr. Walter Scott then addressed the Commission in the following terms.
"Mr. Chairman, my name is Walter Scott. I represent the People's National Party (PNP). Appearing with me are Mr. Huntley Watson and Mr. Anthony Pearson and Mr. Canute Brown who are not here this morning. We also will be operating as a team."
It should be noticed that the Jamaica Labour Party, Mr. Seaga or Mr. McKenzie did not apply for participant status, either initially or at all.
Counsel for the Public Defender then introduced himself and his juniors.
The Chairman then called for responses, if any, to the proposed procedure which Ms. Hylton had read. Mr. Henriques made his observations but none touched or concerned the issue of who would marshal the evidence. Indeed, his concluding words were.
"I don't think that at this stage I will make any further observation. I will liaise with Commission Counsel to see how best we can work with the procedure."
The proposed procedure was revised in light of the discussion at the preliminary hearing and were made available to the attorneys at the formal hearing on Monday 10th September, 2001.
In the revised procedure, "Participant" is defined as follows:
"Any person or group of persons shall be deemed a participant if the person or group of persons should appear at any formal hearings of the Enquiry and give their names and addresses to the Enquiry, or if they advise the Enquiry in writing of their intention to appear."
Is the Jamaica Labour Party represented at the Commission of Enquiry?
Contrary to what has been said by the group of lawyers who have left the Commission, it is not. This is clear from the following statements made by Mr. Henriques at the beginning of the formal hearing on Monday, September 10, 2001.
"First of all sir, I wish that the Press could be more accurate in its reporting. On Tuesday, I indicated to the Commission here that I appear for the Citizens Associations of Tivoli Gardens, Denham Town and other persons. To my chagrin, amazement I see that the largest newspaper has it that I appear for a political party which is not so."
The Status of Counsel for the Rt. Hon. Edward Seaga PC, MP and Councillor Desmond McKenzie:
At the commencement of the formal hearing of the Enquiry, the Commissioner of Police, Francis Forbes, was called early to give evidence. Prior to coming to the witness stand, Mr. Forbes had given to the Secretary to the Commission, a statement of his evidence. In that statement, he mentioned 5th July, 2001, when a gun battle allegedly broke out between Rema and Denham Town. He visited the area and met Mr. Seaga and Mr. McKenzie. He made a proposal to Mr. Seaga in the following terms:
Francis Forbes: Having assessed the situation, I immediately made a proposal to Mr. Seaga, which he promptly rejected. I proposed that Dr. Omar Davies, neighbouring PNP MP, Mr. Seaga, Major General Simmonds, head of the J.D.F. and myself, walk the affected areas and have face to face talks with residents in an effort to cool the tempers and to show a commitment to law and order.
At the hearing, Mr. Henriques said the Commissioner made certain allegations respecting third parties and that he wished to take instructions with respect to them.
The Chairman then said:
"I have read the statement and I was about to ask you, Mr. Henriques whether or not any of the parties to whom he has made reference you would wish to have counsel at all just for his protection, okay. That is something you might want to consider that, I just mention that to you."
Later, in response to submissions made by Mr. Dabdoub that the Enquiry should be put on hold until these third parties could be present to hear the testimonies being given, the Chairman said the following:
"I think the Commission has a discretion. This morning, the Commissioner is here we would hear this evidence and the opportunity would be provided to any person affected by his evidence to cross-examine."
The Chairman adjourned the proceedings at 12:30 p.m. instead of 1:00 p.m. to allow Mr. Henriques to consult with those third parties. On resumption, Mr. Henriques informed the Commission that Mr. Dabdoub would represent Mr. Seaga and would no longer be a part of his team. Mr. Atkinson later informed the Commission that he would be representing Mr. McKenzie in addition to continuing as a member of Mr. Henriques' team.
In context, it is clear that Messrs Dabdoub and Atkinson were representing Messrs Seaga and McKenzie in order to protect their interests. This is a limited representation and not the general one enjoyed by every participant.
Notwithstanding this, the Commission allowed both attorneys to cross-examine witnesses in the same way as counsel for participants so that the evidence given by the witnesses could be subjected to thorough cross-examination.
This situation existed until it became abundantly clear to the Commission that these two counsel were, under the guise of cross-examining witnesses as to credibility, following an agenda of their own, namely prolonging the proceedings unnecessarily. In other words, they were abusing the privilege of cross-examination given to them.
As a consequence, the Commission, after hearing submissions from those attorneys and taking time for deliberation, ruled that neither Mr. Atkinson nor Mr. Dabdoub would be allowed to cross-examine witnesses unless that witness mentioned the names of their clients.
The following excerpts from the transcript of Monday, October 1, 2001, are instructive on this issue.
Chairman: Well you know I have been rethinking the extent to which you and Mr. Dabdoub (should) cross-examine. Mr. Dabdoub of course represents Mr. Seaga and you Mr. McKenzie. It seems to me that although we have allowed you to cross-examine at length because we want to find out the truth, you are not entitled really to cross-examine as a participant, unless, the witness says something adverse about your client.
He continued:
Chairman: Even though at the time no misconduct has been alleged against them because of what I would like to call the underlying political nature of this (enquiry) and it seems to me, and I told my colleague it is best to adjourn, let Mr. Seaga get his representation and so on in the case of that witness and then I allowed you to cross-examine but I must tell you, Mr. Atkinson, that in reading the transcript, I find that your cross-examination has moved beyond what's required to protect the interest of your client. And it's a pity Mr. Dabdoub is not here because I wanted to address this in his presence too because it seems to me unless a witness says something adverse to your client or mentions your clients name perhaps you shouldn't cross-examine.
In addressing Mr. Henriques, the Chairman later stated:
Chairman: But for the moment I am concerned about the duplication of cross-examination, not duplication really, what appears to me to be a division of the right to cross-examine witnesses between Mr. James and now Mr. Atkinson wants to cross-examine fully and he was able to do this because he was able to tag on to Councillor McKenzie, and Mr. Dabdoub, of course, would want to do a similar thing because he could tag on to Mr. Seaga. Well, all this, I can tell by reading the transcript, prevents us from moving forward and I am simply trying to correct what was initially a lenient position taken by the Commission.
Mr. Henriques: I have tried, sir.
Chairman: We gave the latitude and Counsel ran away with it and I am trying to pull it back.
The ruling, of course, did not affect Mr. Henriques or his clients or any other member of the so-called Jamaica Labour Party team of lawyers except Mr. Dabdoub who had separated from the rest of the team and was representing Mr. Seaga only.
Mr. Atkinson continued to represent the Citizens Associations and could have continued as a member of Mr. Henriques' team if he so wished. Mr. Henriques' and Mr. Atkinson's walk-out was therefore an unfortunate reaction to the ruling and in solidarity with Mr. Dabdoub.
At the end of the ruling, the Chairman said to Messrs Atkinson and Dabdoub that they were not without remedy. In the Commission's judgement, those remedies were twofold. First, counsel could have applied for participant status for their respective clients and left it to the Commission to consider. If the application was granted, then counsel would have had the privilege of cross-examining as any other participant would have.
Second, they could have applied for leave to have the ruling judicially reviewed in the Supreme Court. They chose the latter course, but leave was refused by the Chief Justice and by Mr. Justice Clarke in ex parte proceedings.
When will the Commission take a view of the locus?
The Commission's position on this is contained in the following excerpt from the transcript of proceedings:
Chairman: I will make a ruling after consultation with my colleagues. I will adjourn for five minutes.
(Short break)
Mr. Atkinson, we will dismiss your application and the brief reason is this as I said earlier the Court I mean the Panel of Commissioners do intend to take a view of the place, but in due time, in due time for us and it makes sense to us to take the view when all the evidence concerning the place has been given and we will have then before us where each witness says things happen, okay, and we can judge what one says against the other witness and make up our mind as to what reasonably to accept and what not to accept.
If on the other hand, if what you tell us you want now is that we will -- would require us to take the decision now having commit himself another witness will come, we have to take that into consideration that is how we see it and we don't think that this is conducive to the work of the Commission so your application is dismissed but you have the decision of the Commission the word of the Commission through me that in due time we will go down and take a view and counsel will be with us, okay.
What this means is that the Commission will take a view at the conclusion of the evidence on Phase 3 and before hearing submissions, and not after hearing all the evidence in the enquiry as has been suggested.
