Court reserves judgment on certificates in Keith Clarke case
Published:Saturday | February 13, 2021 | 12:31 AMTanesha Mundle/Staff Reporter
The Court of Appeal has reserved judgment in the case brought by the three soldiers charged with the alleged murder of St Andrew businessman Keith Clarke.
The court, after hearing submissions on Wednesday, Thursday and Friday, reserved judgment on the final day, but has not indicated when the judgment will be handed down. The judges have, however, stated that they will give the matter priority.
Corporal Odel Buckley, Lance Corporal Greg Tinglin, and Private Arnold Henry are trying to get the court to make a ruling that the good faith certificates issued to them in 2016 by then National Security Minister Peter Bunting are valid.
The soldiers are seeking to have the Court of Appeal set aside the February 2020 ruling by the Constitutional Court that the immunity certificates were invalid, null and void and that the soldiers should stand trial. The ruling was made after Clarke’s widow, Claudette, challenged the validity of the certificates.
The certificates were expected to protect the soldiers, who were charged for Clarke’s murder in 2012, from facing prosecution in relation to the shooting death of the businessman at his home on May 27, 2010.
Defence attorney Michael Hylton, QC, who is representing the soldiers, argued that the certificates of indemnity offered a constitutional pardon of sorts, insulating them from being tried.
But Clarke’s widow, who had brought a counter appeal and is the first respondent in the current matter, wants the court to find that the certificates are in conflict with the separation of powers principle enshrined in the Constitution and are ultra vires and, by Section 2 of the Constitution, are null and void.
Her attorney, Dr Lloyd Barnett, submitted arguments that the certificates were issued after the emergency powers regulations had expired and that is “clearly ultra vires and unlawful”.
Barnett also argued that there was nothing in the regulations empowering the governor general to make regulations that will operate after their date of expiration and, in particular, after the expiration of the emergency period.
Additionally, he said that the certificates impinged on the constitutional rights of the director of public prosecutions (DPP) to institute and continue criminal proceedings and on the constitutional power of the court to try persons charged on an indictment.
Deputy Solicitor General Althea Jarrett, who is representing the attorney general, the second respondent in the appeal case, argued that the issuance of the certificates outside of the expiration period did not render them null and void and that it is not the time period that is key but the acts for which the certificates were granted.
Jarrett posited that the certificate is issued on the assumption of good faith, and that the regulations provide an avenue for immunity certificates granted on the grounds of acts of good faith to be challenged and as such does not infringe on the prosecutorial powers of the DPP or on the judiciary.
Consequently, she is asking for the certificates to be ruled valid.
Meanwhile, the Office of the DPP, in its submission, sought to convince the judges to maintain the lower court’s decision that the soldiers are to stand trial.
While contending that the issue of the good faith certificates is yet to be determined, prosecutor Adley Duncan argued that the trial should be allowed to proceed and that it is an appropriate forum for the issue of the indemnity to be sufficiently addressed.
The appeal was heard by Justices Jennifer Straw, Frank Williams and Vivene Harris via Zoom.