House Commences Debate on Independent Commission of Investigations (Amendment) Bill, 2023

Debate on a Bill that will address legal and practical concerns for the Independent Commission of Investigations commenced in the House of Representatives on Wednesday (May 10).

The Independent Commission of Investigations (Amendment) Bill, 2023 will indemnify and validate certain actions, done in good faith, by the agency, its employees, and the Commissioner.

The Bill was piloted in the House by Minister of Justice, Hon. Delroy Chuck.

In his remarks, Mr. Chuck said the Bill seeks to amend the law to provide for the sharing of information with specific bodies, such as the Office of the Director of Public Prosecutions, the Jamaica Constabulary Force and the Jamaica Defence Force; allow a member of the Security Forces, authorised by the Commission, to serve a summons on any law-enforcement officer or a specified official; expand the provisions relating to delegation under the Act and allow the Commission to initiate or continue an investigation, notwithstanding that criminal proceedings are under way.

The legislation will also validate and indemnify the disclosure of information done in good faith by the Commission, the Commissioner, and employees of the agency against liability during the period July 29, 2010, up to March 16, 2018; and indemnify the Commission, the Commissioner, and the Commission’s employees for arrests executed and prosecutions initiated or conducted in good faith, during the period July 29, 2010, to March 16, 2018.

Mr. Chuck said the amendments before the House have been in the pipeline for some time.

He informed that a Joint Select Committee of Parliament was established in 2015, as statutorily mandated, to review the Independent Commission of Investigations Act (the INDECOM Act) and its operations.

The Committee’s Report included several amendments to the Act, some of which have been incorporated in the new Bill.

Mr. Chuck said concurrent with Cabinet’s consideration of the Report, certain provisions of the INDECOM Act were being challenged in court.

“As a result, Cabinet thought it prudent to await the outcome of the case prior to implementing the recommended amendments to the INDECOM Act. From its inception, the Commission operated on the premise that it had powers to arrest, charge and prosecute members of the security forces, until in 2013 when the Jamaica Police Federation (JPF) challenged this practice in the full court. At that point, the Commission ceased this practice,” he stated.

“However, the Full Court, in its 2014 judgment, ruled that the Commission indeed had the power to arrest, charge and prosecute members of the security forces. Upon the judgment of the Full Court in 2014… the Commission resumed exercising prosecutorial powers,” the Minister added.

Mr. Chuck noted that the Federation appealed the Full Court’s decision and, in 2018, the Court of Appeal ruled that the Commission did not have the power to arrest, charge and prosecute members of the security forces.

“At this point, the Commission desisted exercising prosecutorial powers. The matter was appealed to the Judicial Committee of the Privy Council, who in 2020, affirmed the Court of Appeal’s ruling. In its judgment on May 4, 2020, the Privy Council pronounced that the Commission’s role, pursuant to the INDECOM Act, is investigative and does not confer any expressed or implied powers on the Commissioner, the Commission, or its staff to prosecute incident offences,” Mr. Chuck said.

The Minister advised that on May 27, 2020, consequent on the judgment of the Privy Council’s Judicial Committee, he moved a motion in the House to adopt such recommendations of the Report of the Joint Select Committee, as seen fit, and other measures to strengthen the Commission.

Mr. Chuck said the circumstances leading to the need to validate and indemnify certain actions of the Commission, the Commissioner and employees of the Commission were that prior to the decision of the Full Court in 2013, a single arrest, prosecution and disclosure of information in support of prosecutions was done in good faith and in furtherance of the Commission’s work.

“The decision of the Judicial Committee of the Privy Council brought to the fore the need to validate and indemnify the disclosure of information done in good faith by the Commission, the Commissioner and employees, and indemnify the Commission, the Commissioner and the employees of the Commission for arrests executed and prosecutions initiated or conducted in good faith for the period July 29, 2010, the date when the work of the Commission began, and March 16, 2018, the date of the decision of the Court of Appeal,” Mr. Chuck stated.

He further indicated that the remaining amendments to the INDECOM Act, outlined in the Joint Select Committee’s Report, save and except those that will no longer be pursued, will be introduced to the House after further consideration by Cabinet.

Debate on the Bill was suspended and will continue at the next sitting of the House.