Letters to the Editor

More at stake than just the immunity certificates

Friday, April 13, 2018

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Dear Editor,

A surprising move by defence attorney Paul Beswick, representing the three soldiers charged with the death of Keith Clarke, has led to the trial being halted by High Court Judge Glen Brown.

Beswick argued that the certificates prohibit the soldiers from facing criminal prosecution. The certificates are reported to have been issued by then National Security Minister Peter Bunting on February 22, 2016, which is almost six years after the death of Clarke.

The minister of national security is empowered by section 45(1) & (3) of the Emergency Powers (No 2) Regulations, 2010 which is a subsidiary legislation to The Emergency Powers Act. The minister may grant immunity to any member of the security forces in respect of any act done in good faith during the emergency period. However, it would appear at first instance that this provision has conferred a sweeping authority upon the minister, who is not even required by the Act/regulations to give any reason (with respect to factual circumstances of an individual case such as this) for his decision. But the provision does hint at the need for the minister to make an assessment of the situation before granting or refusing to grant immunity. Where is this hint? It is encapsulated in the term “good faith”, which is heavily dependent on the factual matrix of the case.

It is now the duty of the Supreme Court, upon the initiation of a judicial review of the minister's decision, to ascertain what had informed the decision and ultimate rule on whether the minister's decision to grant the certificates of immunity was in line with his ministerial authority or whether it was motivated by external factors that should not have influenced his decision.

The length of time that it took the minister to grant immunity, almost six years, does not look prudent and does raise quite a few concerns with this provision in so far as it does not seem to place a time limit for the issuing of such certificates, which means immunity can be granted at any time.

Furthermore, it is important that a person's constitutional right to life and liberty be rigorously upheld and currently, as it stands, a certificate of immunity bars prosecution of all sorts whether criminal or civil.

There is more at stake here than immunity certificates, and so an interested body with sufficient standing should seek a judicial review of the decision and to further push for there to be some curtailing amendments to this provision.

Even in a crime-riddled society like ours, it is nonetheless important for us to balance the rights of each citizen with national security measures and operations and not to slowly open the floodgates for the security forces to operate with impunity.

Joseph Willis





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