Mr President, despite the level and intensity of the criticism made of my handling of this matter, I have endured in good faith and good conscience.
"when US authorities received the intercepted communications pursuant to a joint law enforcement memorandum between the United States and Jamaica that governs the obtaining and sharing of such communications, US authorities had no reason to believe that such information was not shared in accordance with Jamaican law. Indeed, given that such sharing had occurred since the 2004 conclusion of the memorandum without any question being raised about its propriety under domestic law, what was anomalous from the perspective of the United States was that questions were raised in this particular case that had not been raised in any prior case. The United States Government therefore fails to find any basis for the assertions by the Government of Jamaica that the United States government actions were in violation of the terms or spirit of this joint memorandum and rejects such assertions in their entirety."
"There is no basis under the Treaty to treat comparable extradition requests differently. Given that Jamaica has previously extradited individuals to the United States on similar charges involving similar evidence, the United States questions why this request has been treated differently."
There was nothing 'similar' about this case as the excerpts suggest, Mr President, as my analysis will show later, but the US position, put briefly, was that it was not prepared to accept any deviation from precedent(s) established by prior cases in considering this case.
The Law
The Extradition Act (EA)
I now cite, Mr President, excerpts from the laws/agreements (supra) which provided the basis for my view that the request was in clear breach of the Treaty and other arrangements agreed upon by the parties.
The Section provides the nexus with the EA.
(2) Section 16(1) – A request for assistance under this Act made by a foreign state-
(a) shall be refused if in the opinion of the Central Authority (ie the Minister of Justice)
(1) compliance with the request would contravene the provisions of the Constitution, or prejudice the security, international relations or other essential public interests of Jamaica.
The Section provides the basis for considering legal as well as public interest concerns in exercising my discretion.
(3) Section 19(1): provides that request to Jamaica shall be executed in accordance with the relevant laws in force in Jamaica and the procedures applicable under those laws.
The MOU established the mechanism for the interception of telephonic and electronic communications and the following excerpts from the agreement are extremely important.
"Intelligence obtained will be used for intelligence purposes only and not in Court proceedings. Accordingly when disseminated to designated agencies it will have the following caveat: this information is provided only for intelligence purposes in an effort to develop potential investigative levels.
It cannot be used in affidavits, Court proceedings, subpoenas, or for legal or judicial purposes.
Any interception of communications by the Jamaican Authorities will be carried out strictly in accordance with the requirements of Jamaican law.
Similarly, such intercept product will be held and, if appropriate passed on by them strictly in accordance with the requirements of Jamaican law."
Section 4(1) provides that – an authorized officer may apply to … a Judge in Chambers for a warrant authorizing the person named in the warrant –
(a) to intercept .. such communications as are described in the warrant; and
(b) to disclose the intercepted communication to such persons and in such manner as may be specified in the warrant
Facts
Mr President, I attach a chronology of events for the period which confirm that the parties were continuously engaged in an effort to resolve the matter. There is absolutely no substance to the criticism of "delay and dithering".
I make the further observation, Mr President that this was a dispute between two sovereign countries, and had to be conducted with patience and civility.
There has been criticism of my Affidavit filed in support of the suit seeking a 'Declaration' from the Court as to the scope of my Authority. The contention being that it is inconsistent with my Affidavit filed in opposition to the application seeking leave for a Judicial Review to quash the Order authorizing the issue of the authority to proceed since nothing had changed.
but It is notorious that sometime after the filing of the 'Declaration' the factual situation changed dramatically. There was not only a high level of public mistrust, but key organizations/institutions signalled their intention not to co-operate with the Government unless the extradition issue was resolved.
It was clear that the public interest concerns had become paramount and compelling and that this required exercising my discretion so as to at least diminish and/or allay those concerns. I, therefore, advised the Cabinet that, in the circumstances, I would be signing the authority to proceed and did so on May 18, 2010. I state for the record that at no time did the Prime Minister give me any directions as to how my discretion should be exercised.
CONCLUSION
Two further observations:
Manatt Phelps and Phillips (the Firm) is a firm of Lawyers as well as Lobbyists. Any contact which the Solicitor General had with the firm was in their role as lawyers, and any engagement of the firm in that capacity would have required the imprimatur of the Solicitor General and myself. There was no such engagement.
2. The firm, it is said, has business with many Sovereign countries. It should, in the circumstances, have had no difficulty in providing the requisite proof of its assertion that it had a contract with the Government of Jamaica. It is entirely unacceptable that what they continue to offer as proof is a document signed by Mr Brady, money paid by Mr Brady and alleged meetings with Ministers/officials. The fact is, it is they who assert that a contract exists and so they must provide the proof: to date they have not done so.
3. The point needs to be made also that it would have been perfectly legitimate for the Government to have engaged the firm as Lobbyists while proceeding to raise questions at the bureaucratic level about the legal deficiencies of the request.
This is a Treaty and the request gave rise to some issues which would have been more appropriately dealt with at the Executive level of the US Government. For example, the timing of the request having regard to the fact that the Government which was new in office, had to confront the dire economic circumstances caused by a world wide recession, there was a real possibility of social disruption, given what occurred on two previous occasions and there certainly would have been a catastrophic dislocation of the Government's economic programme. There were legitimate concerns which could have been properly raised at the Executive level of the US Government.
The fact that matters went awry by the derelictions of Mr Brady does not transform the approach into a scandal as the spin doctors have now convinced most Jamaicans.
Labeling it a scandal served the purpose of deflecting attention from the genuine concerns raised in the extradition issue.
Finally, Government senators have been criticized for issuing a statement supporting the Prime Minister and for saying that he did nothing wrong. The Prime Minister has already explained that he knew nothing about the details of the arrangement made with Manatt by Mr Brady: none-the-less, as leader of the Party he took responsibility for it.
Taking responsibility as a Leader for the derelictions of a member of your organization is not, without more, a basis for impugning the integrity of the Leader, but rather a matter for commendation having regard to the consequences he knew he would likely face. Read More…
A review of the record will confirm that at no time did I give any indication of an intention to refuse the request. I was of the view that these were serious allegations which if true, should not be allowed to escape adjudication. That is why in the negotiations with the US I indicated that I would sign if they could provide additional evidence and withdraw the wire tap evidence. The fact is that the request as prescribed deviated from agreed/established procedures. This jeopardized not only Mr Coke's interest but the future interest of Jamaican citizens. The GOJ had no intention of blocking the extradition request, but on the contrary to secure a resolution of the matter on a basis which was transparent and ensured fairness to all.