Gun licences are being granted under a 40-year standing order which gives the Minister of Home Affairs the final say instead of the Firearms Act, which says divisional commanders are supposed to be the final arbiters.
The Disciplined Forces Commission described the current practice as irregular in its interim report, which has yet to be debated by Parliament even as public concern about the issue continues to grow.
It has come into sharp focus because of the granting of licences to suspected death squad member Axel Williams and more recently Gopaul Chowtie, who was killed after committing a robbery.
"In truth, it is the Minister on whom Parliament has reposed general responsibility for firearms control," the Disciplined Forces Commis-sion's interim report says.
"However, it is significant to note that Parliament intended that his powers should be exercised by uniform and standard regulations and not by direct supervision," the report further says.
The granting of firearm licences is governed by section 18 of the Firearms Act Chapter 16:05, which says that applications are to be made to the prescribed officer for the area in which the applicant resides.
The section also says that the officer shall grant the licence or permit in such cases only where he is satisfied that the applicant has a good reason for purchasing, acquiring or having in his possession the firearm or ammunition.
Under Regulation 3 of the Firearm Regulations made by the minister under section 45 of the act, the prescribed officers have been identified as the divisional commanders and officers of or above the rank of assistant superintendent under their command.
While the act says the minister has responsibility for regulating and controlling the grant of licences, it is noted that it does not appear that it contemplates that the minister should have a veto over proposed individual grants or refusals.
"Parliament must have intended that the minister himself should not have the direct statutory function of granting firearm licences," says the report, "but rather should be statutorily responsible for appointing a fit and proper person to do so.
"By comparison, under section 32, Parliament has directly conferred the minister himself with the power to authorise the possession of fully automatic firearms or machine-guns (as such firearms are commonly called). This power is usually employed for the purpose of arming enforcement agencies in consonance with the nature of their duties."
The report says the commission was alerted, albeit anecdotally, to the possibility that many grants have been or are being made on the basis of extra-legal considerations.
"Concerns have been expressed about the manner in which firearm licences are being granted and the involvement of the Minister of Home Affairs in the process," it was noted.
But it appeared to the commission that such concerns were rooted in an irregular practice that began as long ago as 1964, when Standing Order 91/1964 was instituted.
Presenters on behalf of the police force told the commission that the procedure, which is applied to the assessment of firearm licence applications, is contained in the force's Standing Order 91/1964.
Standing Order 91/64 provides for a firearm licence to be granted by divisional commanders only if the police commissioner and/or the minister approve the application of the grant. It also provides that a licence will not be granted if the commissioner or minister disapproves.
According to the report, "the practice has become so commonplace and ingrained that applications for firearm licences are routinely addressed to the Commissioner of Police rather than to the prescribed authority, i.e., the relevant divisional commander for the area in which the applicant resides."
But the commission found that the Standing Order could not be lawfully substituted for the provisions of the Firearms Act or the Firearms Regulations.
"A standing order made by a Commissioner of Police cannot replace section 18 of the Firearms Act and Regulation 3 of the Firearm Regulations.
"The procedure that applies to the applications for firearm licences is the procedure prescribed under the Firearms Act and not the procedure made by a Commissioner of Police, whether or not made under the Police Act," the report notes.
The commission held that the Standing Order originated from a misconception of the application of the Police Act, which gives the commissioner responsibility for the command and superintendence of the force, subject to the general orders and directions of the minister. This, it was noted, might have influenced these officials to erroneously believe that they have the statutory authority to superimpose themselves over or to superintend the statutory function of divisional commanders.
It was noted that Home Affairs Minister Ronald Gajraj was of the view that the Standing Order had not been misconceived and was being applied intra vires the Police Act.
But the commission pointed out that the Police Act had nothing to do with the granting of firearm licences. Further, they noted it was the commission's view that the Standing Order was ultra vires the Firearms Act.
"To purport to exercise regulatory control under the Police Act is to needlessly attract allegations of unlawful political interference in the processes relating to the grant or refusal of firearm licence applications," the commission said; "no doubt, such allegations have been made against many ministers perhaps from a purely legal point of view with justification."
Nevertheless, the commission also observed that there might have been good and valid reasons for the creation of the Standing Order, reasons which might be of relevance now. It also noted that if the minister did not think that divisional commanders could perform their functions properly, he could use the regulatory powers the act granted him, rather than usurp their functions.
It was stated that the commission had been made aware of a significant number of licence revocations, which were ordered where there was a breach of the conditions under which the grants were made. The commission pointed out that such revocations, individually and collectively, pointed in the direction of ill-considered grants and insufficient regard to the criteria which governed such grants.
Death Squad suspect Axel Williams' upgraded licence was approved by Gajraj and former Police Commissioner Floyd McDonald even before the start of a Coroner's Inquest which had been ordered into the death of the man he shot.
Chowtie, who was suspected of involvement in piracy was also accused of being involved in a plot to overthrow the pre-1992 government.
The commission felt the divisional commanders were the fittest persons to act as prescribed officers as they ought to know the people in their respective divisions.
Nonetheless, the commission concluded that there was a need for some authority to have a supervisory function over the prescribed officers to ensure that they complied with the provisions of the act and the ministerial regulations. They also agreed that since the police commissioner had administrative control over divisional commanders under the Police Act, he might be the most fit person to perform the supervisory function. Accordingly, it was also recommended that the commissioner should, in turn, be responsible to the minister for the performance of his supervisory functions.
Meanwhile, addressing recommendations that all firearm licences be revoked and reviewed, the report said this could not be done generally without infringing important legal procedural safeguards. Rather, they added that it could be done only on proper grounds in each individual case. But the report also emphasised that in any case the Firearms Act leant heavily against liberal grants.
After similar allegations of corruption, Jamaica's government has said it would set up an independent authority to issue licences.
"An independent central authority will be established to exercise more stringent controls over the issuing and renewal of licences
and the Firearms Act will be amended accordingly," Jamaica's Governor General Sir Howard Cooke told Parliament at the beginning of the month.
The Jamaica Constabulary Force manages the issuance of licences and there had been complaints that licences had been issued to known criminals and other shady characters.
These complaints led to an audit which has so far found that the Jamaican police have revoked scores of licences and seized up to 300 licences from persons who should not have had them.
The National Assembly has yet to examine the Disciplined Forces Commission interim report, which was submitted in December.