Don’t ignore the Charter of Rights

The demonstration by Parliamentarians, last week, that they would not surrender the country to criminals was bold and commendable.

Amid the fears, anxiety and death that gripped downtown Kingston due to the stand-off between lawmen and thugs, MPs from as far away as Westmoreland turned up at Gordon House to conduct the people’s business.

The Gavel was initially not in support of the House of Representatives sitting last Tuesday because we feared that the Gordon House staff was being unfairly exposed to danger.

While The Gavel accepted that it was good to send the signal that the people’s Parliament would not be abandoned because of some bad apples, the staff should not have been asked to put their lives on the line.

We were even more convinced that the legislators were making a big mistake when we considered the fact that the MPs were so scared to turn up at Gordon House that many, notwithstanding dozens of security personnel guarding their heads, found it necessary to dash for the Chamber.

While the legislators were being protected, we did not detect any extraordinary security for the Parliamentary staff, which without them, the sitting would have been impossible. However, having not heard any reports of any unfortunate events meeting those brave souls who turned up to Gordon House to support the legislators, we are now of the view that the decision to summon them was justified.

As has been reported in the media, Prime Minister Bruce Golding was in a defiant mood when he addressed the House on Tuesday. He told his Parliamentary colleagues that “the violence that has been unleashed on the society by armed, criminal elements must be repelled”.


We share that desire of the prime minister to crush criminality but we are concerned about the method that is being applied.

Golding has indicated he has asked the Leader of government business in the House to make arrangements for early debate on the anti-crime Bills. We hope that when these bills are brought to the House the concerns raised by the Opposition and civil society would be properly addressed.

We also remain concerned about the anti-gang legislation for which Cabinet has issued drafting instructions. It is our view that, without a corresponding move by Parliament to respect the rights of citizens, the enactment and enforcement of draconian legislation would only serve to create hardened criminals.

In fact, this is precisely why we find it very depressing that while Government is hell-bent on moving forward with these anti-crime and anti-gang bills we have heard nothing about the Charter of Rights, which has fallen off the Order Paper.

Frankly, given the firepower and resistance from criminals with which law-enforcers are confronted, it may be necessary to give additional powers to the police by way of the proposed bills.

However, a failure to go forward expeditiously with the Charter of Rights would send the signal that citizens are being asked to give up one pound of freedom to the State without the guarantee of an ounce of fundamental and constitutional rights being observed.

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You have been compromised, Mr PM

Prior to last Tuesday Delroy Chuck, the Speaker of the House of Repre-sentatives, had very little reason to rule on a point of order from Section 16 of the standing orders. Indeed, Chuck spent more time insisting that questions be answered at the appropriate time, but we cannot recall him being in a situation where he had to adjudicate on whether a member should hide behind the aforementioned.

Standing Order 16 gives any member the protection from being asked any questions which deals with the action of a minister for which he is not accountable to the legislature. It is that rule that formed the basis of Prime Minister Bruce Golding’s covering, as he dodged questions relating to his role in the Manatt mess.

In a statement to Parliament last Tuesday, Prime Minister Golding said he sanctioned a Jamaica Labour Party (JLP) lobbying effort to get the United States to soften its position on the extradition request for reputed don Christopher ‘Dudus’ Coke. Beyond answering a few questions, Golding was on the defensive as he begged the Speaker to rule that certain questions may not be asked of him, since he was not wearing the hat of prime minister when he sanctioned the scheme.


We find it, at the very least, incredulous that Golding would retreat behind Standing Order 16, even though he is the architect of ‘Prime Minister’s Question Time’. Section 17B of the standing orders provides that “during the Second sitting of the House in each month, there shall be a Question Time during which responses by the prime minister to questions asked of him in relation to matters of national importance and national interest shall take precedence.”

One wonders if the parlia-mentary Opposition did not remember that provision or if they had little confidence that Chuck would have been a fair adjudicator and insisted that Golding stopped ducking questions posed at him. It is our view that if the role of any member of the parliament, in a private capacity, conflicts with that to which they are accountable to the legislature, the public interest should supersede private con-siderations.

But we don’t believe that Tuesday’s incident just happened. It was clearly a deliberate plan by the prime minister to thwart the efforts of the Parliament to unearth the whole truth behind the engagement of Manatt, Phelps & Phillips. We are left to wonder whether Chuck, being a member of the JLP, was in on the plot to stall the efforts in the House.

We feel that Golding, at the very least, abused the standing orders which, in fact, makes allowance for personal explanation. Under Standing Order 19, a member, with the “leave of the Speaker, and the indulgence of the House, may make a personal explanation to the House”. Golding argued last Tuesday that his statement reflected his role as leader of the JLP and not as prime minister. In this case, his statement, on the face of it, appears to be a personal explanation. However, at no point during the sitting did Leader of Government Business Andrew Holness or Golding seek leave of the Speaker to make a personal statement. The matter was not even put to the House for a vote and no form of indulgence was sought.

Standing order sidelined

We also believe that by linking the vast portion of his statement to his sole role as leader of the JLP, Golding either ignored or abused the provisions of Standing Order 11A. The section, which deals with contents of statement, clearly states that “a statement by a minister shall be limited to matters which directly relate to the subject or department with the responsibility for which he has been charged or which are of urgent national importance”.

Perhaps the time has come for the Standing Order committee to revisit sections 11A and 19 or else Parliament may find itself bombarded by other uncon-scionable, self-seeking, hide-and-seek performances. The fact that both Golding and Foreign Affairs Minister Dr Ken Baugh were prepared to answer questions tabled by the Opposition in Parliament last Tuesday indicates that Government was ready to deal with all matters arising. If Golding was not prepared to answer obvious questions from his statement, he should not have spoken to the matter in the House, except when he provided answers to those questions that had been tabled.

Having made his “personal statement” to Parliament in the segment which allows ‘Statement by Ministers’, we are left to ponder whether Golding has reflected on the oath he took when he was sworn in as member of parliament. Like every member, he pledged to “be faithful and bear true allegiance to Jamaica”, to “uphold and defend the Constitution and laws of Jamaica” and to “conscientiously and impartially” discharge his responsibilities to the people of Jamaica – “So help me God.”

Golding has made it clear that his struggle with the United States for it to observe the extradition treaty is not to protect ‘Dudus’ but rather to defend the Constitution and to ensure “constitutional rights do not begin at Liguanea”. We have no doubt that the prime minister is batting on a constitutional wicket.

But let us reflect on a section of his ‘personal statement’ to Parliament: “I sanctioned the initiative, knowing that such interventions have in the past proven to be of considerable value in dealing with issues involving the governments of both countries. I made it clear, however, that this was an initiative to be undertaken by the party, not by or on behalf of the government.”

While the prime minister insisted he was wearing the hat of leader of the JLP at the time, we believe there is everything wrong with the move and wish the prime minister to explain to us why any political party should intervene in a government-to-government affair. Until a suitable explanation comes, we will hold the view that Golding did not “conscientiously and impartially” discharge his responsibilities to the people of Jamaica and for that reason, he appears, on the face of it, to be compromised.

Make them tremble, Mr Minister

Having listened to the presentation by Senator Dwight Nelson, the national security minister, to the Upper House on Friday, we are even more convinced that Government is groping around in the dark in the fight against crime.

The majority of our murders, Nelson said, are the result of organised crime syndicates that are bent on maximising their profits from crime. Yet, despite projecting this view, we have not seen that strategy from Government that gives us any reassurance that there exists any will to hit at the core of organised criminality.

As far as The Gavel is concerned, organised crime spreads its tentacles far and wide and the drivers of these rings normally sit in high places and are well protected. Not only do we want to hear that great ‘we-are-coming-to-get-you’ declaration but we also want a ‘flush-and-destroy’ strategy that would cause even the most powerful of criminals to tremble.

The minister did say that Government would be strengthening the enforcement of the Proceeds of Crime Act by increasing the number of agents available to investigate financial crimes, particularly in the area of civil forfeiture which will allow the authorities to seize the assets of criminals.

Revitalise Operation Kingfish

But we can’t seize properties unless persons are convicted in court and it is proven that their gains are from criminal activity and are therefore ill-gotten. It therefore begs the question: What is the strategy of taking down these criminal masterminds and is there the will to do it? Nelson, like most Jamaicans, is aware that at another point in our history, Operation Kingfish was to be charged with this responsibility. It appears, however, that Kingfish has been morphed into just another police unit which no longer has a mandate of taking down elite criminals. We must go back there.

The Gavel believes that one aspect of organised crime that we do not hear enough of is that which involves politicians, especially in garrison constituencies. In fact, before coming to power in 2007, Bruce Golding’s Jamaica Labour Party, which now forms the government, acknowledged the link between politics and crime so much so that it pledged to apply some of the brightest, freshest approaches to tackling the monster. Among the promises were to enact into law the relevant provisions of the Code of Political Conduct with appropriate criminal penalties as part of a broader move to break-down garrison politics. Golding’s team also promised that the political ombudsman would be required to monitor the conduct and activities of political representatives, especially in garrison constituencies, and report to Parliament. He would also be entitled to refer any matter to the Director of Public Prosecutions. Any report made to Parliament by the political ombudsman which reflects negatively on the conduct of any elected official would constitute grounds for impeachment and removal from office. We have seen no such move to deliver on these promises.

We don’t consider it mere coincidence that, as Nelson said, more than 70 per cent of the murders and shootings occur in the parishes of St James, Clarendon, St Catherine and St Andrew. All of these parishes have elements of garrison constituencies and, based on what we have heard from the police, operatives in these problem areas take orders from ‘bigger bosses’ in other garrisons.

We believe that it is high time Government moves to honour its promise to break down these garrison walls which are a threat to law enforcement. The fact that Nelson did not even mention the issue in Parliament gives us little comfort that there is any such determination at this time.

Action needed

We have heard Nelson’s philosophical junk about the street crime unit, consultation committees and legislation such as the repressive anti-crime and anti-gang bills. We have also heard about the need to increase the use of technology in crime fighting and, to the minister’s credit, he has acknowledged the power of communities in fighting crime.

However, what Nelson has not done is that he has not given Jamaicans a reason to believe he is on top of his game. Surely, he has not convinced anyone that they will not die in vain should they stand up in their communities and lead the fight against crime


Government not ready to tackle crime

It has become abundantly clear that the Government is absolutely clueless about finding solutions to crime.

Having listened to the chief servant, Prime Minister Bruce Golding in Parliament last week, we are left to feel that we are on the Titanic – waiting to live, waiting to die.

With more than 500 Jamaicans murdered since the start of the year, our prime minister seems to be suggesting that our best hope is for us as a people to surrender our right and hope for the best.

He still seems to think that the anti-crime bills before Parliament are somewhat of a silver bullet and that their implementation will be to the benefit of law enforcement.

But The Gavel would be devastated if the parliamentary Opposition backs away from its position that the anti-crime bills are unjust. Those anti-crime bills, we believe, are nothing but a ripe area for criminologists looking at legislative mistakes.

El Salvador has already admitted that its anti-gang laws were big mistakes. They had experimented with tough policing against youths and strong anti-gang legislation and found that it led to increasing levels of serious crimes.

We understand the prime minister’s anxiety to get the nation settled. We understand why he would appeal to the gallery to say he is going to jail all gunmen and murderers and let them know that they cannot hold the ship of state at ransom, hence the reason for his draconian crime bills.

Presumption of innocence

However, a fundamental issue that is not captured by the crime bills is the presumption of innocence. In fact, these bills are proposing, in one instance, that once a person who is on bail for a certain kind a crime is accused of committing another serious act, his chances of making bail again should be slim. This is nothing shy of nonsense.

In all of the discussions, Golding and his guys have consistently said that the record indicates that several persons accused of major crimes were on bail at the time they were alleged to have committed the second offence. However, what is missing from the discussion is the corresponding set of statistics as to the reason these persons were offered bail in the first instance.

Even without the facts to support us on this point, The Gavel believes that, as is the case throughout the entire criminal justice system, judges are forced to offer bail because the prosecution is not ready to proceed.

Now, just imagine taking any Jamaican off the street, accuse him of a crime and stuff him into an overcrowded lock-up and keep him there for up to 60 days while the State, with all its resources, determine if a case has been made out again him strong enough for conviction in a criminal court.

Triumphed over Babylon

We need no criminologist to tell us that the man, who is innocent of the charges and has been denied his rights because of these anti-crime bills, would turn against the state. And that another man, who may have committed the crime but because of the shoddy investigation done by the police, is freed, will be glorified as having triumphed over Babylon.

Before we get to the stage of lock up and throw away keys, there are many areas of our criminal justice system that first have to be improved. It is for this reason that we are saddened that Golding has neither identified these areas, nor has he given us reason to hope.

Beyond being saddened, we are concerned about the tone of the prime minister on the issue of US guns coming into Jamaica. He has gone to the extent of saying he would like to see the US approach the issue of illegal guns coming into Jamaica with the same vigour with which Jamaica attempts to stop drugs from leaving our shores.

PM serious

However, we have not seen anything from the prime minister, which suggests he is serious about tackling the issue head on.

Long before he became Prime Minister, Golding acknowledged that garrisons were fertile ground for the breeding of criminals. So convinced he was about it that his party’s manifesto said a Jamaica Labour Party government would de-garrisonise communities. It has not happened and these communities have spawned little ‘shottas’ who now terrorise the country.

We were hoping that the prime minister would have used his budget presentation to illustrate that he is committed to taking the profit, fame and style out of criminality.

We were hoping to hear of a real strategy to crush criminal networks and organised crime. What we got was nothing.

Perhaps this anti-crime strategy is still being worked out and the national security minister, Dwight Nelson, will speak about it whenever he makes his state of the nation address in the Senate. We have no idea when that will be or what will be contained therein. We just have to wait; wait to live, wait to die.


Incredible Davies

WE ARE struggling to digest Dr Omar Davies’ contribution to the budget debate. When he spoke last week, the opposition spokesman on finance said Audley Shaw’s projections for revenue collection and the budget deficit were so incredible that the Government may have to implement new taxes this fiscal year.

Davies contended that Shaw’s record at missing targets gave little comfort that the numbers projected would hold. He pointed, for instance, at the budget deficit which Shaw last year projected to be 5.5 per cent but was later revised to 10.6 per cent as the year dragged on.

Our issue is not so much with the soundness of Davies’ criticism. Instead, The Gavel believes that if the criticism was coming from someone other than Davies, it would be more palatable. We submit that Davies is like a surgeon who loses most of his patients on the operating table.

Davies, who served as finance minister for 14 years, had a habit of missing targets. Who will forget that Davies told the nation that he would have balanced the budget in the 2005-06 fiscal year?

“If we fail to balance the budget in ’05-06, accommodation of any new wage increase in ’06-07 will imply a continuation of a deficit position or will require a major tax package,” Davies said in April 2005.

Recipe for disappointment

The records show that not only did Davies fail to balance the books, but also that Jamaicans have never escaped the pain of tax packages of finance ministers – from Davies to Shaw. We are certain that Davies, as he did in his budget presentations, will blame bad weather – hurricanes – for throwing out his deficit targets. This is very much the same way that Shaw, who is yet to have a hurricane, blames international conditions for his failure to meet targets. We consider these excuses disingenuous. The fact is that any planning for fiscal targets must take into account exogenous events such as natural disasters and other shocks. Forecasting with only best circumstances in mind is a recipe for certain disappointment.

Having said that, we believe that Shaw’s projections are cutting it so close Jamaicans will weep and moan if one variable jumps out of place. What if he is unable to arrange the ‘fire sale’ of the country’s assets that he has planned? What if, as we expect, aggregate demand continues to decrease leading to less taxes being collected?

Meanwhile, one must go beyond Davies’ lack of credibility to assess the contribution of the parliamentary Opposition to the budget debate last week. Opposition Leader Portia Simpson Miller touched on all the right areas as she bemoaned the decrease in the standard of living of Jamaicans.

However, for a party that has been declaring that Jamaicans have had enough of the Bruce Golding-led government, and has gone around the island with wide-ranging consultations in various forums – the opposition lacked prescriptions and sold itself short.

When Golding walks to the crease tomorrow, it is expected that he will mount a strong response to the Opposition PNP. We expect him to tell Simpson Miller why ‘Farmer Joe’ has become so poor and disillusioned. The Gavel would not be surprised if Golding blames the 18 years of the PNP for his administration’s plight.

But he must go beyond “it’s your fault”, and paint a clear picture of where Jamaica is going and how his government intends to take the country to that new beginning, of which he so often speaks. Our greatest disappointment would be if the prime minister fails to address, in a fulsome way, the issue of crime.

Provide clarity

Meanwhile, when Shaw closes the debate on Wednesday, we hope he will disappoint those among us who feel that a new tax package is not far from being announced. We also hope that Shaw will use the opportunity to add clarity to the government macro-economic policy which is as clear as a river in spate. And, before we forget, Shaw must tell us how the gas tax has been performing and provide clarity on the money being given to the Road Maintenance Fund.

So far, it has been a decent, though not spectacular, budget debate. Now Golding and Shaw need to lift the standard and give us hope.

Shaw falls short

When finance Minister Audley Shaw set about financing the national budget last year, a heavy $8.75-per-litre tax was levied on the backs of all persons purchasing fuel. Needless to say, end users of goods and services, in which fuel was a critical component, felt it in their pockets.

Shaw, at the time of announcing the gas tax, projected it would earn $13.3 billion, 20 per cent of which would be paid into the Road Maintenance Fund (RMF). The finance minister also promised that this year the amount paid into the Fund would increase to 35 per cent, and then to 50 per cent over the next three years.

But like some ‘fit it and forget it’ auto-mechanic, Shaw has not spoken about the gas tax since. The Gavel waited, and waited, and waited to hear about its performance last Thursday as he opened the 2010-2011 budget debate but, in his more than hour-long presentation, he stayed far from it. We wanted to hear about the yield from the gas tax and whether the committed portion was being used for what was intended. We also wanted to know if the commitment to gradually increase the percentage of the tax paid into the RMF was still a solemn promise.

The finance minister did not touch the topic and we are so disappointed.

However, Shaw being mute on the gas tax was just one source of our dissatisfaction. The minister’s proposal of a flat-tax for some category of persons is worrying, to say the least. The idea behind the implementation of this tax is to capture those self-employed persons such as masons, taxi men, painters, and carpenters or sky juice vendors who refuse to pay income tax.

The literature tells us that the flat-tax is simple to collect and that it has fewer loopholes for manipulation, but we believe that Shaw’s proposal runs the danger of imposing on Jamaicans who are earning below the tax threshold, the burden of paying income tax that they are exempted from paying under the law. While we support the move for tax reform and would like to see it happen sooner than later, we believe the flat-tax approach would be one of the most draconian measures implemented.

It is the view of The Gavel that Government should peg the delivery of certain services to the filing of tax returns. Those Jamaicans who are unable to provide proof of having filed tax returns for the last tax year should be required to pay the full cost for the service. In the case of health care at public facilities, persons should not be required to present this proof until after they have accessed the service.

People seeking documents such as passports, police records and drivers’ licences should be barred from accessing these services unless they provide proof of having filed their tax returns at the last due date. We are mindful that people might lie on their tax returns but The Gavel submits that it is the job of the tax administration department to investigate and establish the accuracy of returns filed.

The approach being proposed by The Gavel would work just as well as the excellent suggestion by the finance minister to twin the application for a tax compliance certificate with the registration for some professional groups. It is high time that we not only talk about the need for all Jamaicans to pay their fair share of taxes but we must also ensure that we are fair in administering tax policies.

It, therefore, brings us to the critical question of the banking act, which has, for too long, aided tax cheats in their dirty deeds. It is an open secret that while tax administration has been able to use third party information such as the purchase of property to track down tax avoiders and evaders, the vast majority of delinquents slip through the cracks. We all know that many persons allow money to sit in their bank accounts and then allow third parties to use it on their behalf, skillfully avoiding the taxman.

Until Government is able to garner the gumption to make the tax administration department a truly independent entity, free of political manipulation, and then give them the power to look into bank accounts and demand Caesar’s share, governments will forever speak haplessly about the need for tax compliance.

There is no doubt that bank accounts hold the greatest clue about who is not paying their fair share of taxes. Failure to address this will mean more gas tax, more flat-tax, more salt tax and the dream of reducing personal tax will continue to be elusive.


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The Gavel Posted by: The Gavel April 12, 2010 at 11:31 am