DNA Evidence Bill and Jamaica

Minister of National Security in Jamaica, Peter Bunting tabled the long awaited DNA Evidence Bill in the Lower House of Parliament in April 2015. The clamours for the DNA Bill had been loud especially since Jamaica’s murder rate has fluctuated at an unhealthy high for at least the last 10 years.

The most recent data out of the police force for 2015 show that there has been an increase in murders of 65 between January to April 2015 and the corresponding period in 2014. In exact numbers, 363 people were killed over the January to April 2014 period. 428 people were killed over the similar period of 2015 – an increase of approximately 18 percent.

– 2014 Jan – April = 363 murders

– 2015 Jan – April = 428 murders

The rate of conviction in Jamaica for almost all crimes, is pitifully low. Additionally, police are often coming up with grand theories about crimes but they very rarely catch the culprits behind the crimes. No one knows if there are serial killers in Jamaica. No one knows if the petty traffic offender is at his core a merciless killer. We just don’t know.

The fear on the part of eyewitnesses to a crime in Jamaica is high. Murderers are known to have made eyewitnesses the target of the most barbaric acts of savagery. The system needs help if it going to rescue itself from savages.

I believe our investigative processes can be assisted by the introduction of and the proper use of DNA.

Perhaps one of the areas in the newly tabled DNA Evidence Bill around which there has been expressions of discontent is the clause which gives the police (detention officer) power to use ‘reasonable force’ to restrain a suspect and obtain a non-intimate DNA sample.

Clause 15(1) of the Bill recites it thus:

15 – (1) In order to take a sample from any person the following shall apply  –

(a) to take a non-intimate sample, informed consent may be given but if informed consent is not given or is subsequently withdrawn, then reasonable force may be used to obtain the non-intimate sample;

I have heard a few members of the defence bar raising concerns that any unauthorized touching of an individual using little or even reasonable force constitutes trespass to the person – itself a criminal act.

The law on battery defines battery as the application of unlawful physical force against the person of the victim. However in this instance where the intended use of reasonable force is lawful – being a provision in a statute, I do not believe the argument of trespass or battery can stand unless it can be demonstrated that the force used was unreasonable.

Under the bill, all suspects in particular offences must give a DNA sample to an appropriate person. This means, it is not for all offences wherein someone is a suspect that the police have legal authority to extract a DNA sample from that individual.

The only persons from whom a DNA sample can lawfully be taken are persons who are ‘suspected persons’ in an offence punishable by a term of imprisonment.

‘Suspected person’ means one of three things. It means:

(a) someone who has been arrested on suspicion of being involved in a relevant offence;

(b) someone who is charged with a relevant offence; or

(c) someone who has been summoned to appear before a court for a relevant offence.


The Bill contemplates and specifies that a DNA sample can only be taken from a suspected person under the following circumstances:

(a) with their consent;

(b) without their consent using reasonable force in the presence of a Justice of the Peace; or

(c) without their consent but with a court order.

It must be noted that this consent contemplated by the bill, must be given in writing and it must be given by an adult.

More anon

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A family affair

Shernet Haughton as Mayor of the Lucea and Councilor for the Green Island Division had at her disposal sums from the Local Government Ministry and the Parochial Revenue Road Programme amounting to $29M for the award of contracts in the Hanover parish council. (These funds covered the period March 2012 and July 2012 to December 2013.)

She, according to the Office of the Contractor General recommended 11 of her family members and affiliates for 22 contracts in Hanover for various works.

Contracts were awarded to her spouse, daughter, son, brother, sister, niece, sister in law, brother in law as well as the contractor who worked on her house. The total sums paid to these family members by the Hanover parish council was a combined total of approximately $3.7M – a total of 12% of the money available to her.

The practice in the parish council has been that the Councilor (in this case the Mayor being the Councilor) recommends the contractor to the Secretary Manager and as a matter of course there is no investigation as to the bona fides of this contractor. So a recommendation is tantamount to an award.

The administrative head of the parish council, the Secretary Manager says she did not know that any of the persons recommended by Shernet Haughton was a family member of Miss Haughton.

Nepotism is defined as the bestowal of official favors on one’s relatives, especially in hiring. Nepotism is the crucible for corruption. It is conduct that is to be frowned upon and should receive the highest public condemnation and disapproval. The shame that is to be poured on someone who engages in nepotism should be greater than that brought by the shame of a criminal sanction.

Nepotism is the friend of conflict of interest. Conflict of interest is proscribed by the Government of Jamaica Handbook of Public Sector Procurement Procedures. That book states that a conflict of interest will arise when the individual has a direct or indirect relationship with a contractor which may affect or might reasonably be deemed by others to affect impartiality on any matters related to his duties.

What Shernet Haughton did in recommending her family and affiliates for 12% of her allotted parish council money was a conflict of interest. She recommended family members and affiliates without declaring to the administrative branch of the parish council that interest.

I am shocked that there appears to be no law in Jamaica – neither statute or common law that can criminalize a conduct that is so offensive to good governance, so offensive to the taste of right thinking people in a developing democracy, so offensive to integrity of public offensive … just so offensive full stop.

You see it is nepotism that gives rise to the thinking that it is who you know that should get the jobs available. It excludes the capable and distant majority in favour of the incapable and close minority.

Where criminal sanction does not exist, the public clamor for decency in public office is to be at its loudest. Miss Haughton might not be prevailed upon to resign her seat but she should be prevailed upon to begin restoring decency and accountability in public office.

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The second coming and gay rights

Approximately 35 independent nations of the Americas are to meet in Panama between April 10 and 11, 2015 for the summit of the Americas – a coming together based on the concepts of democracy and free trade. Cuba will be present for the first time – a history making moment.

America’s 44th President and Leader of the free world, Barack Obama is scheduled to be in Panama for the summit. He makes a three hour or so stop in Jamaica en route to Panama. This is only the second time since independence in 1962 that a sitting President of the United States will visit Jamaica. The late, Ronald Reagan came in 1982 when Edward Seaga was Prime Minister.

Political vulgarity and contempt for the people of Jamaica is on display. Several persons have reportedly seen and photographed road patching exercises taking place at night. Obama’s official caravan cannot fall into a pothole. The citizens must however suffer damage to front end and great inconvenience of road patching by day if money is found to do the work.

No politician resists making a promise that cannot be kept. Leaders especially during the period leading up to an election are wont to spew chocolate promises to a gullible electorate. These promises are often without much thought as to whether the promise makes sense, whether it can be fulfilled and whether there is any intention of fulfilling it.

In the debates leading up to the 2011 general elections, Portia Simpson Miller in her bid to appease the gay community, promised that she would bring the provisions under the Offences Against the Person Act which criminalize sex between consenting adults of the same sex to the parliament for a conscience vote.

Speaking in the debates she said – “our administration believes in protecting the human rights of all Jamaica. No one should be discriminated against because of their sexual orientation. Government should provide the protection and I think we should have a look at buggery law and that Members of Parliament should be given the opportunity to vote with their conscience on consultation with their constituents…”

No timeline was given for this promise to be kept. But the Jamaica Labour Party, JLP, having demonstrated that no government has any inherent right to two terms, they having been booted from office after one term, there was expectation – at least on my part – that action would be taken by Prime Minister Simpson Miller to bring the offensive statute to parliament for a conscience vote – in this term in office.

Note – there was no promise for a change in the law but for the law to be brought to parliament for a discussion and a conscience vote. With one year to go before general elections are constitutionally due, no move has been made to get to the bottom of the buggery matter. There seems to be some acceptance that since gays are not being killed or beaten daily then there should be comfort in leaving the matter where it is at.

The Prime Minister demonstrated her intention not to move on her promise when confronted by gay rights activist in New York.

This was her response to the heckling – “nobody ever hear the government of Jamaica beating up gays – not one. SO, let me tell you something, you want to disturb you can disturb but this woman come here with the blood of Nanny of the Maroon, the spirit of Marcus Mosiah Garvey and this woman is not afraid of no man nowhere everywhere and I will speak the truth everywhere”.

She refused to accept their right to speak and to lobby freely for decriminalization of buggery in Jamaica however offensive their manner by resorting to her old tirade of telling them she is not afraid of any of them – no man, no woman, no where – she is prepared to fight and she is prepared to disregard the right of those who also wish to fight.

I hope for the sake of minorities the world over that the gay rights activists refuse to back down. I hope they picket every and any venue in which the Prime Minister or any other person who has made an unfulfilled promise to the electorate speaks. I hope they are not prepared to resile from their positions especially since the electorate in Jamaica has long lost its fire.

It takes great courage keeping one’s mouth shut especially when the stakes are high.

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Constitution vs skulduggery

Edward Seaga, the sole surviving constitutional crafter  in his usual candor declares that Andrew Holness, Leader of the Opposition should go to the Privy Council for a proper ruling on the undated resignation letters debacle.

He finds backbone for his assertion (which is without much company now) in his view that the framers of the constitution contemplated that the Senate groups would vote en bloc and therefore provide a fetter for government power when necessary. He says further that no independent thought is contemplated by any single senator. All thoughts and votes especially should be in line with the party position – forget freedom of conscience.

Incidentally these arguments are not new. They were put to the Court of Appeal by Mrs. Gibson-Henlin, one of the lawyers for Andrew Holness.  The court summarizes her submissions thus – “Mrs Gibson-Henlin contended that appointments to the senate are based on partisan representation. In this context, it is artificial to speak of the independence of the senate in a vacuum. This was so because a strong cohesive opposition is required in the senate for veto purposes”.

Her submission was not left unanswered. The Honourable Mr. Justice Panton, President of the Court of Appeal answers the submissions in this way – “it may be in the minds of some persons a good political argument but it does not help in determining the validity of the letters in questions”.

The Senate, Justice Panton says “is a very important part of the machinery in this country. The constitution makes it so. Good governance requires mature deliberation on legislative measures. Each senator is expected to give conscientious thought to every topic that comes before the senate for discussion and vote. Every member of the senate takes an oath to be faithful and bear true allegiance to Jamaica, to uphold and defend the constitution and the laws of the Jamaica and to conscientiously and impartially discharge his or her responsibilities to the people of Jamaica”.

The President declares further “the responsibilities are to the people of Jamaica not to an individual not to a club group or section of Jamaica. In view of that oath, it would be against the spirit of the constitution if one were to bind one’s conscience otherwise”.

Whatever the political machinations of legislators happen to be, they have a duty to the people they serve to ensure that they draft statute that when interpreted by the judiciary will have the meaning they intend. Their words must therefore be clear and precise so as to prevent ambiguity or confusion in interpretation. Nothing in any of the sections relevant to this discourse remotely allows for the interpretation Mr. Seaga has placed on the constitution and the role of the senate. As the learned President of the Court of Appeal says “that may be a fancy political argument but nothing more”.

That Mr. Seaga recalls that the intent of the legislators as communicated to the drafters was to have senators vote en bloc is not discernible from the clear wording of the constitution. Additionally I would not now place great reliance on Mr. Seaga’s memory as he has encouraged Mr. Holness to take the matter to the Privy Council when the said constitution provides that in matters of this nature, the decision of the Court of Appeal is final.

I have questioned as well whether if that is the understanding of leaders as to how the senate should operate then why would there be a need for any undated resignation letter? The various leaders could simply strongly impart that message to the people they select for recommendation to the Governor General.

Insecurity of the mind whether brought on by real or imagined or feared events or personalities can cause all kinds of schemes to be created or used. The creation and/or the need for the creation and use of undated letters of resignation by Andrew Holness is/are the product of insecurity of person. They were meant to keep all senators in terror and to make them excessively submissive to their nominator even if made no sense to do so.

These decisions by the constitutional court and the court of appeal should be hailed as a triumph of the constitution over political skulduggery.

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Unjustifiable NHT

Some of the greatest wrongs in this world are not deemed unlawful but are simply unjust and unjustifiable. They leave one with a sense of being violated and left exposed. Perhaps the best I have heard this put in a case against the treatment of workers by the Jamaica Flour Mills is thus – ‘the treatment of the workers showed man’s inhumanity to man’ – this is a case where the action of the Flour Mills was characterized by the Court of Appeal as unjustifiable.

Not all incidents would bring a feeling of this exact kind but the sense of injustice one feels is something very close to that.

In recent years, the National Housing Trust which was set up with a particular statutory mandate to provide housing for the poor has been the entity to which governments go without batting an eyelid as to whether withdrawing funds from it is within its mandate or not.

The first major draw down on the NHT was for $5 billion by P.J. Patterson – who in the face of public outcry said it was a one-off transaction. As I now recall, to regularize that transactions, the NHT Act was amended after the action of Patterson was done.

In 2012 or so, the country was told that the NHT would give up $11 billion yearly for the next 4 years to the government’s treasury so that payments could be made to the IMF. Again, the Simpson-Miller government made the announcement and then attempted to amend the law to reflect that intention. That $44 billion four year drawdown is now subject to a court challenge in the Supreme Court and is to be heard in May, 2015.

This recent purchase of property in Orange Grove by the NHT for purposes yet fully understood as positions change depending on whether one is hearing from the Board Chairman, Easton Douglas or the Prime Minister, has been an understandably contentious transaction.

The Chairman at a press conference in all his defiance says during the 38 year history of the NHT, the line Minister who happens to be the Prime Minister has never been informed about any transaction by the NHT.

Easton Douglas fails to mention and put into proper context all the circumstances that would cause this particulate deal to be different from all others – if indeed no reporting was done in the past:

(a) this is an awful lot of money to be drawn from the trust for purchase of property especially given the two mentioned above;
(b) the current business on the property at Orange Grove falls way outside the scope and mandate of the NHT;
(c) there is not even the slightest resemblance in what the NHT does and what Outameni, which occupied land at Orange Grove, is about;
(d) NHT had information or ought to have information on the projected financial viability of Orange Grove in light of its past dealings;
(e) All previous withdrawals from the NHT where the provision of housing has not been the focus HAVE been contentious – ALL.

That the NHT Board overlooked all of the above and bought the property for $180 million is a breach of their roles as fiduciaries. A fiduciary has a duty to exercise skill and care in its dealings. If the fiduciaries fail as I believe they did, then the Prime Minister as line Minister should not.

The Prime Minister has failed in:
(a) Failing to establish frequent and proper briefing by the Board on all matters touching the NHT especially one that had all the designs of being very contentious;
(b) Accepting and delivering to the people of Jamaica a script that made no sense and in which large chunks of it were out of line with previous statements by the Board Chairman;
(c) Having been informed of the improper transaction, the Prime Minister instructed the Board to explore; whether the costly purchase could be used for among other things -tourism venture – a purpose that falls way outside the NHT mandate;
(d) Being presented with a case of breach of duty by Board members at the highest level, she failed to appreciate that there was a breach and therefore failed to act appropriately and remove the Board;

Those actions are akin to the treatment of the workers of the Jamaica Flour Mills years ago – ‘unjustifiable’ – exacerbated because it is the Prime Minister who has failed her wider constituents opting instead to appease her political constituents.

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Dead body pose

September 3

It’s session 2 of my 30 day challenge.

The pain in my shoulder or some areas of my back lingers. I will not be stopped. The rewards I get from Bikram yoga are so great, it will take much more than this pain to stop me. At any rate, it is exactly matters like these I go to Bikram to work on.

I am there. As usual the room is full. There are 39 people rostered for the 30 day challenge. All 39 will compete for the same air – hot air. I am focused on every move. They take a lot of physical strength but greater mental strength is required. Rafa says ‘don’t think just do it’. We comply.

A back pain travels with me – the product of my adding 2 children to the world population. In all my Bikram yoga practice I am focusing on healing my back. When I started Bikram I struggled through some poses because of that pain. I could not move from shavasana (dead body pose) to a straight sit up. I did it my way – like a ripe old lady- but that is the only way I could. Now I can do the sit up with a minor adjustment of the legs – no pain. My hope is that at the end of the 30 day challenge I will be able to do that pose without making any adjustments. Already my back pain is ever so slight.

The practice is hard but it feels great. Sweat oozes from my back and face. Every piece of cloth or clothes on or near me is wet. I replenish with sips of coconut water plus another concoction I made. The poses are harder for me as I go deeper into them. I focus my mind as if I am preparing for the next Olympics. I have heard Rafa several times saying to others who don’t push enough ‘don’t waste your money and come to Bikram if you are not going to push’. I am pushing.

I lie on my back in shavasana and all I see and think about are the blades of the fan spinning above me for that short period of time. My mind is tabla rasa – blank. As I came into this world, so am I when I am in shavasana at Bikram Yoga. I feel I am getting there and I am doing all I can to stay there.

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‘Lock the knee’ – DAY 1

September 2
My first session of the 30 day challenge.

Today I consumed approximately 3 litres of just water to prepare my body for the challenge. I have started taking around with me a full bottle of 1.5 litres of water to ensure that I drink as much as that. I must re-hydrate properly as I lose so much water through sweating in Bikram yoga.

It’s 5:45 PM. I enter the large room at 17 Latham Avenue. The class is full. Approximately 30 people are in a room stretched out in 105 degrees waiting to kill the body so we can live fully again. Some are already sweating a lot. I never enter the room and remain for a long time before the class begins.

I like doing my yoga or general work out in the same place all the time. The slightest change in my position whether in yoga or at the gym can throw me off just a bit. I like my spot.I am territorial – I guess.

My water and coconut water are in place. I take no chances in not drinking enough. The first week of doing Bikram yoga, I had a scare. It was early one Sunday morning, I got up to use the bathroom and was slapped with unbearable vaginal pain followed by faint streaks of blood. The other details need not come here but I ended up in hospital the morning – kidney stones.

I had pushed my body in the heat and not drank enough to replenish my system. My kidneys rebelled and I suffered but – briefly. The doctors theorized that the stones were passed out by me hence the pain. Nothing showed up on the scan. I believe my system was out of sort before I started Bikram. I have interpreted that episode to mean that Bikram yoga will correct a lot that is out of alignment. I now ensure if nothing else goes into my system, water does.

The class is tough but I love the lessons it teaches. Determination, focus and balance. I can’t make a lot of the poses correctly. They take time – listening, breathing, focusing and pushing the body to the limit. Rafa beckons over his headset shouting ‘Emilee, lock the knee, lock the knee, lock the knee…’ ‘Emilee, no backward bending…’ I make the adjustments as best I can and I reap the rewards.

Rafa speaks many languages. His English is very good though he speaks it with a Spanish tilt. Spanish is his mother tongue. He teaches some classes and others are taught by his girlfriend, Kayla. They make a lovely couple I think. Other classes are done by Jamaica’s, Yolande Small.

It’s the end of day one for me. I feel a slight pain somewhere in my back, close to my shoulders but I am not really sure. I will not be daunted. I look forward to day 2. I feel good.

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