- Parliament, Madam Speaker should take note of a recently delivered judgement of the Judicial Committee of the Privy Council (JCPC) in the case of Hinds and Others (Appellants) v the Director of Public Prosecutions (Respondent) delivered on Monday, April 19, 2021.
- The case is significant as it brings to an end the legal challenges brought by the appellants to avoid giving evidence in open court. But more importantly the JCPC clarified that section 16(3) of our Constitution applies to proceedings under the Mutual Assistance (Criminal Matters) Act (MACMA). Moreover, the judgement declares the importance of how section 16(3) of the Constitution protects litigants who give evidence in open court.
- I want to thank our courts for emphasizing the importance of the principle of open justice.
- It is disappointing that a straightforward issue such as this had to go to the Privy Council for them to reinforce that, (i) section 16(3) of our Constitution applies to proceedings under MACMA, and (ii) the best remedy against injustice, and to ensure fairness in our justice system is for matters such as the Trafigura matter to be dealt with in open court. This Constitutional protection is for the benefit of all citizens of this great Country and if the appellants are standing on good ground, they should have nothing to worry about if their evidence is taken in open court.
- The core of the principle of open justice lies in the benefits of the proper administration of justice arising from public scrutiny of judicial proceedings. It ensures that proceedings are conducted fairly and in a manner which recognizes the rights of any individuals involved in the proceedings before the courts.
- As this Parliament is aware, the Trafigura matter is coming from as far back as 2006 when it became public that the Company Trafigura Beheer BV Amsterdam (Trafigura) was being investigated for allegations of contravention of:
- the Dutch Penal Code in relation to contributions to political parties, bribery, among other things; and
- the Organization for Economic Co-operation and Development (“OECD”) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (1997).
- It is time for this matter to be brought to an end. Fifteen (15) years have elapsed since this matter was brought to the public’s attention and to date the people of Jamaica are not clear as to what took place. It is incumbent on the parties to cooperate with the DPP to bring closure to this matter.
- I agree with the Leader of the Opposition that the matter should be disposed of once and for all. Let us get this matter over with, “Let the truth come out, and let the chips fall where they may”.
- The allegations were that Trafigura made certain donations to the People’s National Party through a Jamaican Company called CCOC Association and as a result of these allegations, the Government of Jamaica was asked to undertake various investigations by interviewing witnesses, including the appellants.
- The appellants refused to provide any assistance on the ground that they were unable to assist in any investigation of bribery because they knew nothing about it.
- It was because of the appellants’ unwillingness to assist, that the Central Authority (our Director of Public Prosecutions) resorted to seeking the intervention of the Court under the provisions of the Mutual Assistance (Criminal Matters) Act (section 20) (MACMA). It is really unfortunate that government officials, who to the best of our knowledge were not under investigation, refused to cooperate with the DPP in a matter as important as this.
- By order of the Court made on November 17, 2010, the appellants were ordered to appear before a Judge of the Supreme Court to give evidence on oath in response to the questions being asked by the Government of Netherlands in their investigation of Trafigura.
- In response, the appellants sought an order from the Full Court that if their evidence is taken in open court, it would be a contravention of their rights because the provisions of section 16(3) of the Constitution which requires that proceedings are dealt with in open court, did not apply to the taking of their evidence under MACMA. In other words, the appellants wanted to give their evidence in the privacy of the Court Chambers, out of the eyes of the public.
- The Full Court refused this application on the basis of the principle of open justice and were of the view that even when a matter was heard in Chambers, the judicial process remained an essentially public function.
- The appellants filed an appeal against the judgement of the Full Court and this appeal was dismissed by the Court of Appeal. They then sought and received leave to appeal the decision of the Court of Appeal at the Privy Council on the grounds that, among other things, section 16(3) of the Constitution does not apply to proceedings under section 20 of MACMA and, the taking of evidence in public contravened section 19 of MACMA.
- The Privy Council dismissed every ground and supporting submission of the appellants, as being misguided and without merits. It further emphasized that open justice protects the appellants as they still have the right to refuse to answer questions where they may incriminate themselves – in other words, the right against self incrimination was reinforced in this judgement as it applies to the appellants.
VIEWS AND ANALYSIS
- The Jamaican people now need to know all the facts such as:
- what, if any, was the nexus between the alleged donation to the PNP and the renewal of the Trafigura Contract to continue lifting oil for Jamaica.
- If it is found that the donation was a “political donation”, why was it given to CCOC Association?
- These are a few of the many other questions that should be answered in open court so that this long-standing matter can be properly ventilated, and where relevant, the law is strengthened.
- I must highlight the view of the Privy Council that where evidence is to be taken by a judge under section 20 of MACMA, it should be in open court with access to both the public and the press. To interpret and do otherwise would seriously hamper the efficacy of MACMA and inhibit Jamaica’s ability to meet its international obligations relating to the provision of mutual legal assistance.
- I agree with the Privy Council that there is a legitimate public interest in exposing MACMA proceedings to public scrutiny to ensure that they are properly and fairly conducted, especially since the nature of the matter is one which is capable of affecting the polity of the country.