THE INQUIRY WILL NOW SWITCH TO THE COURTS

March 5, 2013, By KNews, Filed Under Features / Columnists, Peeping Tom,  Source

A number of points can be made about the just concluded Commission of Inquiry into the unrest in Linden last year. The report of this COI was recently submitted to the President Donald Ramotar who in turn has circulated its contents to some of the key stakeholders including the parliamentary opposition.

One of the first observations about the Commission has to do with its interpretation of its terms of reference.

The Commission used a narrow interpretation of its remit and restricted itself to the events of July 18, 2012. It failed to consider in detail the antecedents to this crisis.

It was amusing to hear the opposition complain that the Commission did not inquire into the antecedents of the events of July 18 and to subsequent disturbances that occurred after this date.

However, it was the very opposition which at the most unholy hour objected to its own terms of reference. These objections eventually led to the TOR being amended to delete an inquiry into whether any political parties were behind the unrest.

It is hard to see how the full truth about what took place on July 18 and beyond could have excluded the tariff issue, the agreement reached between APNU and the government on this issue, the role played by the AFC in jettisoning this understanding, and the role played by certain political actors in instigating the unrest.

The inquiry was restricted to the events of July 18. However, it was still hoped that using a broad interpretation of its terms of reference would have led the Commission to include the antecedent causes of the unrest as well as to examining the role of certain political parties in the disturbances.

While the Commission employed a restrictive interpretation of its TOR in relation to the actual protest, when it came to the issue of compensation its interpretation was more broadbased. The TOR had merely required the Commission to make recommendations as to compensation. However, the Commission ended up making what it deemed “ awards” of compensation.

It was circumspect however in saying that these “awards” were not legal awards but should be made ex-gratia by the government.

The government therefore is not compelled to pay these amounts and there is a sound reason why the Commission could not have made such awards as legal awards.

The police were believed to have been responsible for the deaths of three men on July 18.

However, they were not proven to have been involved. While it could not have been proven just who shot the men, the Commission believed that it could only have been the police.

The Commission was not saying that the police did the shooting. It was saying that it could have only been them because they were the only ones seen with firearms.

In other words, the standard of proof in holding the police responsible was less than “beyond reasonable doubt” but was mere circumstantial and based more on a balance of probabilities.

This conclusion does not create a legally- binding liability for compensation, nor does it compel the government to pay the “awards” recommended.

In an interesting opinion, the Commission was of the view that NICIL should not be compensated for the destruction of the Linmine Secretariat.

The “awards” are however not being paid by the government; the awards have to be made by the State and NICIL is a corporate entity which ought to have been entitled to compensation because of its separate and distinct legal identity.

Finally, the report provides enough ammunition for those who wish to have the organizers held vicariously liable for the destruction to property.
The report had some harsh judgments about the manner in which unlawful actions were allowed on the bridge.

These comments can form the basis of evidence in any legal challenge asking the courts to hold certain forces vicariously liable for the resulting destruction of property.

The Commission may have ended its work but the issue of liability and compensation is not yet concluded.

It is likely to be now continued in the courts since both those who were “awarded” compensation and those who were not are likely to take this matter up in court.

And on the face of things those who were not granted awards are likely to try to recoup these losses by suing those who they believe can now, given the Commission’s report, be held vicariously liable for the destruction of their property.