Former Minister of National Security Peter Bunting says he acted on legal advice when he issued immunity certificates to the three soldiers charged with the 2010 murder of St Andrew businessman Keith Clarke.
The certificates were granted in 2016 by Bunting, that’s years after Corporal Odel Buckley, Lance Corporal Greg Tinglin and Private Arnold Henry were charged with Clarke’s murder.
A three-member panel of judges in the Constitutional Court this morning ruled that the certificates are manifestly unfair and unreasonable and therefore invalid, clearing the way for the soldiers to go on trial.
In a statement this afternoon, Bunting argued that the court was divided on the issue of whether the delay in the issuing of the certificates was unfair.
“As Minister, in signing the Good Faith Certificates, I relied on the legal advice received, and therefore could not have responsibly taken an administrative decision to deny the soldiers access to the Certificates of Good Faith,” he said.
He contends that the split decision indicates that the issues surrounding the certificates are not clear cut.
“I hope that the ultimate resolution of this aspect of the case will provide clear guidance for the future,” he said.
I have noted the judgement of the Constitutional Court on the issue of the Good Faith Certificates issued by me as the Minister of National Security in 2016.
I am mindful of the fact that this judgement could be appealed, and that there may be a jury trial for the three soldiers involved, so I will limit my comments at this time.
However, I make the following observations:
The Court was unanimous in concluding that: (1) The Minister’s power to issue Good Faith Certificates under the Emergency Powers Regulations does not infringe and is not in conflict with the principle of the separation of powers enshrined in the Constitution; and (2) The Emergency Powers Regulations do not infringe on the prosecutorial powers of the Director of Public Prosecutions under the Constitution.
The judgement highlighted the fact that, “…by issuing the Good Faith Certificates, the Minister made no determination in relation to the culpability of the Defendants. The function performed by the Minister could be described as being administrative in nature and was not a judicial process. It cannot therefore be said that, in this regard, the Minister usurped the role or function of the judiciary.”
The Court was divided on the issue of whether the delay in the issuing of the Certificates of Good Faith was unfair, and the certificates were therefore null and void.
The majority indicated that the certificates were null and void due to the length of time that had passed, without giving any indication as to what would have been a reasonable time.
As Minister, in signing the Good Faith Certificates I relied on the legal advice received, and therefore could not have responsibly taken an administrative decision to deny the soldiers access to the Certificates of Good Faith.
The split decision by the Court indicates that these are not clear cut legal matters.
I hope that the ultimate resolution of this aspect of the case will provide clear guidance for the future.