No-shows no surprise

THE HEARING of evidence is yet to begin, but already there is at least one major question looming over the commission of enquiry into the Paria diving tragedy.

The enquiry will be a key test of whether the provisions of the Commissions of Enquiry Act are fit for purpose in a world that has changed dramatically since the law was last amended – in 1976.

Specifically, all eyes will be on the issue of whether people who are summoned to give evidence comply.

The enquiry secretariat last week confirmed two days have been set aside to deal with procedural matters on September 7 and 8. Such a procedural hearing is customary, assisting in delimiting the shape of the proceedings and the overall timeline.

Yet to a large extent it matters not how much advance planning goes into any fact-finding mission if, ultimately, the most important witnesses decide not to show up.

Counsel to the enquiry, Ramesh Lawrence Maharaj, SC, is of the view this may not be an issue.

“We do not believe there would be occasions for witnesses who are subpoenaed not to comply with their subpoenas,” he said this week.

But perhaps Mr Maharaj is being somewhat optimistic. If there is one feature common to all enquiries ever held in this country, it is that in every case there are people who did not wish to attend and who resisted requests to do so.

While under the Commissions of Enquiry Act a commission can summon witnesses to give evidence under oath, the fine for anyone who fails to heed a summons is just $2,000. This is on par with, say, a ticket for a traffic offence.

Given that many enquiries involve issues that intersect with commercial considerations or even serious questions of liability, it is not hard to imagine someone opting to pay a relatively trivial fine in lieu of being subjected to scrutiny. This is so even as witnesses who are summoned enjoy a right not to incriminate themselves on the stand.

The problem of witnesses being no-shows is one of the key reasons why many people have lost faith in enquiries: will they hear all the evidence, and if not, what are the chances of the enquiry achieving any concrete results or changes?

While it is possible for evidence to be taken from a wide array of sources, there is still often a desire on the part of the public to hear things from the horse’s mouth, even if the bulk of the evidence is documentary in nature.

We do not yet know how the Paria enquiry will play out or whether its findings will make any meaningful difference. But we do know the fine for witness non-attendance should have been changed a long time ago.