Sunday, January 21, 2018

The ‘1990’ enquiry:two unresolved issues

The report of the Sir David Simmons commission of enquiry into the 1990 attempted coup is most welcome. It represents the fruit of a responsible and excellent decision by the Kamla Persad-Bissessar administration, for which it must be complimented without reservation. The report makes easy reading partly because much of the material is already very familiar and the repetition of much of the contents. The report castigates the incompetence and the deep dysfunctionality of the national security administration ope­rating at the time and identifies that factor, along with the complacency of the political directorate who ignored the numerous warnings, as the main factors which allowed the attempted coup to take place.

There are, however, two matters of importance which I think the report elides. The first is the reasons why neither former prime ministers Basdeo Panday nor Patrick Manning pursued an enquiry, as distinct from whether they had prior knowledge, and the second relates to the unsatisfactory outcome of the matter in the courts which allowed the insurgents to walk free.

On the first issue, Mr Manning did not testify because of illness. Panday’s testimony revealed he did not institute an enquiry because “it was not on his agenda”. The commissioners left it at that without comment, presumably because it was not strictly within their terms of reference. Recall that this was an assault on our Parliament and our democracy by armed insurgents who wanted to kill the then prime minister, held parliamentarians hostage, caused 24 deaths and hundreds of injuries and triggered looting that cost the country and the business community over $400 million.

The report reveals the selection of leadership of the Police Special Branch was politicised. Lance Selman was removed because he was perceived to be too close to the People’s National Movement (PNM), and successive heads removed until the hapless Dalton Harvey remained, an intelligence officer who, despite numerous reports from his subordinates to the contrary, thought the Muslimeen posed no imminent threat.

The tragic events clearly demanded an enquiry to assess the causes and to implement measures to minimise the risk of reoccurrence. The unpopularity of then prime minister ANR Robinson and the National Alliance for Reconstruction (NAR) was irrelevant. How does this not make it onto the agenda of a government, especially after the court matter had ended? If the Special Branch was held to be in dereliction of duty, why not those two former prime ministers for failing to hold an enquiry?

Our politicians seem not to recog­nise there are certain sacred cows—institutions whose effective functioning are so important that they must be treated as above partisan politics and the best professional minds found to lead them. The national security agencies must be included among these. Had we internalised that lesson through a timely enquiry, would Ralph Brown have been summarily dismissed from the fledgling Strategic Services Agency (SSA) in 1996 and could the manifestly unqualified Reshmi Ramnarine really have been appointed to head the Security Intelligence Agency (SIA)?

The second issue is more complex. One gets the impression the commissioners leaned toward the position of Michael de la Bastide, Martin Daly and Fyard Hosein, who crafted the amnesty document, that a proper reading of the Constitution made the amnesty a dead letter from the outset, that is, the President is not empowered to give an amnesty in his own discretion and it is really a power which resides in the Cabinet. Duress was a second limb of invalidity. What is revealed in the report is this constitutional point was never pleaded and, more significantly, the team of de la Bastide-Daly-Desmond Allum that was initially slated to prosecute the insurgents was displaced because of what Daly described to the commissioners as “politics”. What might have been the result had we risen above “politics” and placed the prosecution in the right hands?

But the commissioners avoid comment on the Privy Council’s “abuse of process” ruling with the deferential statement that: “The Privy Council has made final legal pronouncements on the issues and it is no part of the function of this commission of enquiry to debate those issues in this report. It would be wholly inappropriate to do so.”

I am not sure why it was deemed “wholly inappropriate” since the commissioners themselves noted de la Bastide’s comment that the Privy Council decision remains a source of perplexity for citizens who wanted to have justice done in this case of treason, conspiracy, wounding, damage to property and terrorism! The perplexity is patent. Habeas corpus was granted on the assumption the amnesty was valid. The Privy Council then found it was invalid, but could nonetheless find prosecution of the insurgents an abuse of process because habeas corpus had been granted and could not be appealed.

The highest appellate court is there to do justice and in some cases where the precedents are scarce or nonexistent and the circumstances are novel, to do practical justice. The Privy Council never troubled itself to ask what practical justice demanded, but remained within the confines of “tabulated legalism” and found the possibility of abuse of process a sufficient reason to let the insurgents walk free, free to foment gang warfare and to thumb their noses at the judicial system, including the commission of enquiry itself!

Our politicians must learn certain matters, such as national security and the prosecution of major crimes, are so important to the public interest that partisan politics, ethnic competition and petty jealousies must be set aside and the best people selected and the best possible decisions taken in the national interest. That is the true meaning of the oath that they take on assuming office.

• Dr Terrence Farrell is a former deputy Central Bank governor and former chief executive of One Caribbean Media Ltd, parent company of the Trinidad Express Newspapers.