Tuesday, July 28, 2015

Walter Rodney Commission of Inquiry - Rebuttal to the Claim of Pre-mature termination of the Commission

By Selwyn A. Pieters, B.A., LL.B., L.E.C.
Lawyer & Notary Public (Ontario, Canada)
Attorney-at-Law (Republic of Guyana, Island of Trinidad)
Created July 27, 2015

The Walter Rodney Commission of Inquiry has three Commissioners: Sir. Richard L. Cheltenham, K.A., Q.C., Ph.D – Chairman (Barbados); Mrs. Jacqueline Samuels-Brown, Q.C. (Jamaica) and Mr. Seenath Jairam, S.C. (Trinidad).

The Commission’s mandate established by its terms of reference is:-
(i) To examine the facts and circumstances immediately prior, at the time of, and subsequent to, the death of Dr. Walter Rodney in order to determine, as far as possible, who or what was responsible for the explosion resulting in the death of Dr. Walter Rodney;
(ii) To inquire into the cause of the explosion in which Dr. Walter Rodney died, whether it was an act of terrorism, and if so, who were the perpetrators;
(iii) To specifically examine the role, if any, which the late Gregory Smith, Sergeant of the Guyana Defence Force, played in the death of Dr. Walter Rodney and if so, to inquire into who may have counselled, procured, aided and or abetted him to do so, including facilitating his departure from Guyana after Dr. Walter Rodney’s death;
(iv) To examine and report on the actions and activities of the State, such as, the Guyana Police Force, the Guyana Defence Force, the Guyana National Service, the Guyana People’s Militia and those who were in command and superintendence of these agencies, to determine whether they were tasked with the surveillance of and the carrying out of actions, and whether they did execute those tasks and carried out those actions against the Political Opposition, for the period 1st January, 1978 to 31st December, 1980;
(v) To examine, review and report on earlier investigations and enquiries done on and into the death of Dr. Walter Rodney.

Walter Rodney Commission of Inquiry - Arguments of Various Counsel

Basil Williams and Selwyn A. Pieters, Written Submissions of the People's National Congress, July 23, 2015
Selwyn A. Pieters and Brian M. Clarke, Written submissions of the Guyana Trades Union Congress, July 24, 2015
Andrew Pilgrim, Q.C., Closing argument of the Immediate family, July 24, 2015
Keith Scotland, Closing Argument of Donald Rodney, July 24, 2015

Mr. Pieters: Thank you very much. Selwyn Pieters for the People’s National Congress [PNC]. By way of Extraordinary Gazette dated 8th July, 2015, under the signature of Lieutenant Colonel Joseph Harmon, Minister of State, the life of the Commission was extended for the final time to 30th November, 2015. That is the date specified by the President, by which the Commission shall render its report, findings and recommendations to the President within that specified period.
It is our submission that the Commission, whose life has been extended to 30th November, has not been terminated prematurely.

Mr. Chairman, the position that we take is that nothing precludes written hearing for those issues to which the Salmon letter pertain. It is our position and the other parties may disagree, but certainly questions can be submitted in writing. The persons to whom the information is sought can submit affidavit evidence and the parties can be given an opportunity to file additional written submissions or supplementary written submissions - if that is necessary. Mr. Chairman, for that proposition I relied on a case called Vale v. Sun Life Assurance Co. of Canada [1998] O.J. No. 6466, 40 O.R. (3d) 347, per Cullity J.
Mr. Chairman: Just spell it for the purposes of the records.
Mr. Pieters: V-a-l-e vs S-u-n-l-i-f-e A-s-s-u-r-a-n-c-e Company of Canada. That was a reported decision, 1988, for the OR which is “Ontario Reports”, the third edition, 347. Mr. Chairman, my friend, Mr. Pilgrim, and rightfully so, spoke about the audi alteram partem rule  and certainly we do not disagree that in administrative proceedings nemo judex in causa sua) and other audi alteram partem exist and certainly in the case of …
Mr. Chairman: I think for the purposes of the listening public, you should try to avoid the Latin tides and if you use them, you should explain what they mean.
Mr. Pieters: Certainly Mr. Chairman. The two terms speak to issues of fairness and issues of impartiality, so they speak to those two concepts. In a case called Marks vs Minister of Home Affairs, 35 West Indian Report, at page 134, that decision cited a case called Kanda vs the Government of Malaya, 1962 AC322, in which Lord Denning, given the judgment of the Privy Council said this:
“The rule against bias is one thing.  The right to be heard is another.  Those two rules are the essential characteristics of what is often called natural justice.  They are the twin pillars supporting it.  The Romans put them in the two maxims: nemo judex in causa sua: and audi alterem partem.  They have recently been put in the two words, impartiality and fairness.  But they are separate concepts and are governed by separate considerations...   If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him.  He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them...   the judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other.”
Mr. Chairman, I say that because the fact is, the questions and evidence that Robert Corbin, for example, was required to answer have been crystallised since November, 2014, when Lieutenant Sydney James testified. We say that no plausible explanation has been offered on why a Salmon letter was not issued to him shortly thereafter. His name was serialised in the media by the consultant of the Commission, Shaun Michael Samaroo in an article called “Corbin delivered guns to the House of Israel” in the Guyana Chronicle on 3rd June, 2014. We understand the concerns that Mr. Pilgrim has raised in respect to the three business days’ notice, to which these Salmon letters were issued, but we say that no explanation has been given to us as to why the Salmon letter would not have been issued to Robert Corbin, shortly after Lieutenant Colonel James testified in November, 2014.
Mr. Chairman: Perhaps you will allow me to interrupt you just to say that, the usual practice in commissions is that, towards the end, one sends out their Salmon letters, otherwise the same person may have to get three or four, so one really determines who the persons are that merit Salmon letters when the evidence is really at an end. That would have been premature to send out one at that point. It is really not in keeping with the standard practice, but I have taken note of what you said. Please proceed.
Mr. Pieters: In respect to Norman Mclean and “Skip” Roberts, we understand that “Skip” Roberts was here for a certain period and his evidence was not taken. We also understand as well that the evidence for “Skip” Roberts would have been crystallized in January, 2015, and the same applies in respect to him that there is no explanation as to why he was not issued his Salmon letter previously. So, the PNC’s position, therefore, is that enough time has been allocated to the Commission to wrap up its proceedings, including obtaining evidence from witnesses issued Salmon letters without personal appearance. Such witnesses, as I indicated before in my submissions, can give their evidence by way of affidavit and counsel can submit written questions to those witnesses and supplementary written submissions, arising out of any evidence that becomes available, can be made. There is therefore no breach of legitimate expectation, as Mr. Pilgrim submits and no breach of natural justice of the Rodney’s family are asserted. Therefore, we submit that any request for petition to the President should be disallowed, since, indeed, one has until 30th November, 2015, to complete their mandate. Those would be my respectful submissions.
Mr. Chairman: Thank you very much, Sir. I regard your suggestion with respect to responses, by way of affidavit from those who have not yet testified, as worthy of serious consideration by the Commission. It is a question to some extent of resources as well, but it is certainly not an idea not worthy of serious considerations, so thanks very much for your submissions, Sir.

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