IN the wake of  criticisms of the Report of the Linden Commission of Inquiry(CoI) by the political opposition, the legal team that was appointed to work with the commission has stated that if the proceedings had been conducted as a trial in a criminal court, the police would not have been found guilty. Additionally, the issue of ‘contributory negligence’ would have been applied in the cases where compensation for loss and damage was made.

Attorneys-at-Law Latchmie Rahamat, Peter Hugh and Euclin Gomes assessed the report during an interview aired over the weekend on the National Communications Network.
Referring to statements which were widely publicised that the police were responsible for the deaths of the three protestors, Attorney Gomes explained that taking a single line of the report alone was irresponsible. He emphasised that the line which says ‘the police are culpable’ taken without considering the basis upon which the commissioners arrived at the statement, should be considered along with the rest of the report in its entirety.
Further, the call for persons to challenge the issue of compensation in the court could see some persons receiving nothing.
Attorney Hugh observed, “If they go to court to challenge the compensation, they would have to testify. The rules of the court would have to be adhered to. They run the risk of some people getting more, some people getting less, and some people getting nothing at all. ”
Hugh explained that while the CoI was conducted in an informal setting, there are rules in the formal court system. “Rules of how damages are assessed and awarded. For instance, certain amounts claimed, special damages, have to be pleaded, and they have to be proved. You can’t say I used to work for $100,000; you have to prove it. Unlike the commission, where you say I am a seamstress, and I work for this, unless you can prove it in court, you may not get that compensation. So it is open to people to approach the court, but they do run the risk.”
Attorney Gomes further explained that the commission, directly and indirectly, alluded to the fact that there ought to have been greater responsibility shown on the part of the organisers. “We have a document which is comprehensive; it dealt with all aspects of what’s happened. It cannot be read in part, it has to be read in its entirety,” he insisted.
In terms of the claims for compensation, Gomes pointed out that while the CoI’s recommendations are not binding on any party, those persons who believe it is inadequate have got recourse.
Endorsing Hugh’s observation, Gomes stated, “In a civil court, there is a guideline for calculating compensation…there is also the principle of contributory negligence as well; had the Commissioners factored that in, some people would not have been entitled to any compensation.”
The three lawyers are of the view that the entire process was professional, though informal with statements collected, witnesses called and questioned.
Attorney Rahamat, who joined the hearings in the third week, observed that the entire process was transparent and open to the public. “The integrity of the commission remained intact from the beginning, up until the report was submitted. The report was in keeping with the evidence and just.”
Gomes stated that the commissioners themselves had said that no person would be excluded, and went to Linden to take evidence and bent over backwards to accommodate persons who stated they had something to contribute. He noted also that persons were afforded adequate time to give their evidence. “No one was hurried, they were patient. Intimidation associated with the court room was absent. People spoke freely, as much as they wanted.” He also noted that witnesses were assisted by attorneys who helped them to prepare and present their statements.
On the findings of the commission, the three lawyers all agreed that the report should not be taken in individual sections or pieces, but, “One should look at the entire report rather than just the summary.”
Hugh pointed to several paragraphs which indicated that there was no direct evidence that the persons were shot by the police.
“They (the Commissioners) are saying thus, that because there is no evidence presented to the commission, they are drawing an inference, because there is lack of evidence before the commission, that anyone else was armed, we do not know, that is why I believe they came to that conclusion.”
Rahamat reiterated that, “the commissioners wrote very clearly, but you must read it in its entirety, to understand how the commissioners were able to reach that particular finding.”
“One needs to understand the standard of proof used by the commission. They made their findings on a balance of probability, and the standard of proof is not like within criminal trials where proof must be beyond a reasonable doubt.”
What they have done, while they are saying that there is a lack of direct evidence that ‘look it is the police who caused the death of these three persons’, they are still in fact on a balance of probability. Making the finding that it was the police who were responsible, because of the fact that the only evidence they had before them talking about who was armed, the only evidence they received was that the police were the only ones seen with guns. It is the lack of evidence upon which they were able to reach this conclusion.”
On the responsibility issue, Hugh pointed to the section of the report which stated, “That had the protestors responded favourably to the withdrawal request made by the police, the result of the event would have been completely different.”
Similarly, Rahamat pointed to the paragraph which stated: “This is indicative of the attitude of the organisers of the protest and they must accept some responsibility for what subsequently transpired on the 18th July, 2012 at Linden.”
She emphasised that there are three to four paragraphs specifically naming several organisers of the protests, who are also members of parliament, and the report was not very favourable in regard to them.
“The report is written in such a way that it did not only lay blame at the feet of the police, but it laid blame at the feet of the organisers. It even said at one point in time that the march could have been cancelled and everything could have been avoided.” Attorney Rahamat said.
On the compensation issue, the lawyers noted that the commission explained in the report that they were authorised to recommend compensation whether they found the police guilty or not. They also explained that the commissioners, in examining witnesses for compensation, examined their demeanour while making their claims, and whether they were there as part of the illegal protest or not. This fact affected the amount of compensation granted.
Each claimant was assessed individually, and the reasoning of the commissioners was given in the report, before they stated the amount granted to each individual.