Tonight, the PUP is one step close to knowing whether the Supreme Court will make the Commissioner of Police investigate Elvin Penner for immigration fraud.
Today Chief Justice Kenneth Benjamin, heard the PUP's arguments on why he should issue Writ of Mandamus to compel the Commissioner of Police to commence a criminal investigation against Elvin Penner for his role in the Citizen Kim affair.
The Opposition Party is trying to force a criminal investigation before the 6-month statute bar is up. Kim's passport was fraudulently obtained, by Penner in early September. Penner told the media in an email that he is the one who, quote, "personally went with (Kim) to the passport office to see to it that he would get proper attention and would get his passport the same day."
Of course, we now know Kim was in a Taiwanese jail at the time, but Penner says he's the man who pushed his papers through.
And, now, there's more. Before the hearing today, a confidential memorandum between the Office of the Director of Public Prosecutions and the Head of the Police National Criminal Investigations Branch was leaked to the media. 7News has obtained a copy of that document, and it demonstrates clearly that Penner has not been the subject of any investigation, and that there has been no substantial investigation into immigration irregularities. But, more importantly, it shows that brakes were put on the police investigation.
Reading from memorandum, DPP Cheryl-Lynn Vidal writes, quote "In his statement, ASP Julio Valdez says… 'After the documents were examined it was observed that several nationalities were approved by Immigration to individuals without meeting the criteria for approval, yet they were processed and approved'. She continues - and this is the important part - "The Officer then…remarkably, concludes, '…this line of the investigation did not continue, due to instructions, no other follow was made.'" End quote.
So, armed with this confidential memo, the PUP's case was bolstered before Chief Justice Benjamin today. The attorneys for the Leader of the Opposition believe that this memo shows clearly that, on instructions, Penner had received some sort of protection from the police.
That's the background for a hearing that took up center stage in downtown Belize City today. Daniel Ortiz reports:
Daniel Ortiz reporting
A small group of supporters of the Mandamus move started assembling at the court at around 9 a.m., an hour early.
They knew, however that the media would be out in full force to see how far the court would go to entertain the argument that the ComPol failed to fulfill his duty.
Stephen Latchman - Protester
"The message is that people need to stand up and start to fight against all the wrong things that are happening in Belize because there is a whole lot of things and if I start naming - it's not only the issue with Elvin Penner and Castro and the cover-ups that been going on in the government right now. There are a lot of other issues that people need to get up and stand up and be counted."
But on this day, what counted was that the Leader of the Opposition brought a case against the Police Commissioner hoping that the court would agree with them that Elvin Penner should, at the very least, face the scrutiny of a criminal investigation for a scandal that's given the country an international black eye.
Hon. Francis Fonseca - Leader of the Opposition
"I think what is very important and what is very clear from today's proceedings is that the government of Belize, this UDP government represented today by the deputy solicitor general and the commissioner of police made it clear that there will be no investigation into this matter as far as they are concerned. For the first time the Belizean people have heard and it was only because we forced them to come to court - for the first time the commissioner of police has said he will not investigate this matter, he has made that determination, that decision and we want to know on whose instructions."
Since the Won Hong Kim Scandal unravelled, we've learned of an investigation by the Financial Intelligence Unit, the Immigration Department, the auditor general and the Police Department. But in his sworn evidence for this Mandamus hearing, Commissioner Whylie admits that Penner was never the subject of their investigation.
Daniel Ortiz
"Commissioner, can I ask you a question sir?"
Allen Whylie - Commissioner of Police
"I have no comments gentlemen."
His refusal to address the issue head on only added more fuel for the Opposition to criticize that he's being influenced and used as a political tool to afford Penner protection.
Hon. Francis Fonseca - Leader of the Opposition
"The cover-up is getting even worse than the initial crime and I am saying to the people of this country, this matter will bring down Mr. Barrow's government - it will bring down his government. He refuses to investigate. We have to conclude that the only reason he is refusing to investigate this matter is because he knows that there are many others in his government involve in this matter. The Belizean people deserve answers to these questions and that is why the People's United Party has taken this step of coming to court. It's not something we decided on likely. We have come to court to force an investigation into this matter - to force the commissioner of police to act and the commissioner of police must decide whether he will follow the instructions of the political bosses or whether he will act in the best interest of the people of this country."
But, a key component of Fonseca's case for Mandamus is that leaked memo between the DPP and the Head of NCIB. She states clearly that her hands are tied by the evidence before her, and that at a certain point, the investigator received instructions to halt his investigation. She wants to know who gave the instructions, and so does the Opposition.
Hon. Francis Fonseca - Leader of the Opposition
"There was an investigation started but that investigation was halted on instructions and the Belizean people need to know and deserve to know on whose instructions that investigation was halted. The People's United Party is here in court today seeking justice for and on behalf of the people of Belize. Everybody is united in this country in wanting an investigation into this matter, you've heard it over and over - the churches, the unions, the business community, everybody is demanding an investigation into this matter and who is standing in the way? Who has come here to court today to defend my Penner once again, to prevent even an investigation. We are not finding the guilt or innocence, we are not assuming guilt or innocence, we are simply asking on behalf of the people of this country that the government/state carry out its duty. Obviously it is a very damning memorandum, it is very serious when the director of public persecutions who is charge with responsibility for laying criminal charges in this country. When the director of public persecution is asking the Belize police department to respond and say who instructed you to cease investigating this matter, the DPP is asking that and in fact the DPP is saying where are the files that I need. If I am going to carry out an investigation provide me with the files from the Immigration Department, don't ask me just to look at a private individual - you say files went missing and you want me to look at that. Give me the files that concern Mr. Penner and others."
And that gave him the platform to make this statement.
Hon. Francis Fonseca - Leader of the Opposition
"When you have a government ladies and gentlemen that is prepared to defend crimes where there is clear evidence of criminal activity and we now have a government which is saying we will stop at nothing to protect the persons involve in these crimes - then that government has lost the moral authority and the legal authority to continue to govern this country and we call on all of them starting with Mr. Barrow to resign, step down, resign - you have lost the authority to govern this country."
Chief Justice Benjamin has reserved judgement in this case to be delivered on Monday.
The attorneys who represented Opposition Leader Fonseca were Edwin Flowers, Anthony Sylvester, and Kareem Musa. Commissioner Whylie was represented by Avting Solicitor General Nigel Hawke. He submitted that the Commissioner of Police must be able to use his discretion when making decisions on whom to investigate if it could reasonably be deemed a fruitless effort.
He added that a Writ of Mandamus cannot be justified where the Commissioner of Police has exercised his discretion not to investigate. According to Hawke, a Writ of Mandamus is to be used when an official has not fulfilled his/her statutory duty. In this case, the Commissioner fulfilled his duty when he decided not to investigate.
Attorney Fred Lumor appeared on behalf of the DPP Vidal and made submissions before the Chief Justice that she should be removed from the case as an interested party.
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