Professor Stephen Vasciannie

THE EDITOR, Sir:

In The Sunday Gleaner, dated November 18, Mr. Ken Jones makes certain statements about work done by the Attorney-General's chambers in respect of the Trafigura matter ('Our Conflict-causing Constitution'). I wish to clarify the issues, and explain the context in which the advice was given.

On June 26, the Director of Public Prosecution (DPP) raised the question as to whether he was authorised to give assistance to Dutch authorities in the investigation by those authorities into the Trafigura matter, pursuant to the United Nations Convention on Transnational Organised Crime. He raised this question in a telephone conversation with Professor Stephen Vasciannie, Deputy Solicitor-General. At that time, Professor Vasciannie had been the head of the international division of the chambers for at least four years, so the question was certainly put to an appropriate representative of the chambers.

Professor Vasciannie's response was set out in a letter to the DPP, dated June 27. In it, He indicated that the scheme for the provision of mutual legal assistance involving Jamaica is set out in our Mutual Assistance (Criminal Matters) Act. Part III of that act states the circumstances in which Jamaica may provide assistance to foreign states. In effect, this act stipulates that, subject to certain exceptions, the DPP may give assistance to a foreign state where: (a) the foreign state is a party to a "relevant treaty", and (b) an order under Section 31(2) of the act is in force in respect of that relevant treaty.

Professor Vasciannie correctly pointed out that both Jamaica and the Netherlands were parties to the "relevant treaty", namely, the U.N. Convention on Transnational Organised Crime. As he further noted, however, no order was in force pursuant to Section 31(2) of the Mutual Assistance (Criminal Matters) Act. Given the absence of a ministerial order concerning the Convention on Transnational Organised Crime, the DPP was not authorised to give assistance to the Dutch authorities in respect of Trafigura.

Clarity and completeness

For completeness, I should set out the language of Section 31(2) of the act, pertaining to the ministerial order. It reads:

"(2) Where any relevant treaty has been made with any foreign state, the minister may, by order, declare that the provisions of this act shall apply in respect of such foreign state, subject to such exceptions, adaptations or modifications, as the minister, having due regard to the terms of such treaty, may deem expedient to specify in the order for the purpose of implementing such terms."

In effect, the treaty requirements need to be incorporated into Jamaican law by an act of the Jamaican Government. This is a standard requirement; in common law countries, treaties must normally be incorporated into local law before they can have domestic effect.

I should make two additional points. The first is that Professor Vasciannie provided his response to the DPP within one day of receiving the request, and trans-mitted a memorandum with his opinion to both the then Attorney- General and the Solicitor-General before responding to the DPP. There was no delay by Professor Vasciannie in giving the opinion after being requested to do so.

Secondly, Professor Vasciannie's opinion clearly indicated that there was a legal barrier that prevented the Government of Jamaica from rendering assistance to the Dutch authorities and this barrier could only be removed by the passing of a ministerial order pursuant to section 31(2) of the act.

I trust that this clarifies the matters and properly explains the circumstances under which the legal advice was given by these chambers.

I am, etc.,

PATRICK W. FOSTER

Solicitor-General (Actg.)