Judge rules there was ‘illegality in the handling’ of case by Commission of Inquiry

A Commission of Inquiry set up to investigate land grabs acted illegally when it changed its own terms of reference, according to a Supreme Court ruling.

Assistant Justice Hugh Southey ruled that the commission “misdirected itself” when it limited the scope of its remit and subsequently refused to hear testimony from at least one complainant.

The Commission of Inquiry into Historical Land Losses was set up by David Burt, the Premier, in 2019 to examine historical thefts of property and to “identify any persons, whether individuals or bodies corporate, responsible for such historic losses of citizens’ property”.

But shortly after convening, the seven-member panel drew up its own terms of reference, redefining what cases it would investigate.

According to Raymond Davis — who submitted two complaints to the commission alleging that he lost property through unethical, systemic and irregular practices — that went beyond the commission’s authority.

In one complaint to the CoI, Mr Davis said that he had signed a contract with the Bermuda Housing Corporation in the 1980s to renovate his property portfolio. He alleged that the corporation reneged on the contract after he ran for Parliament as an independent candidate. As a result, he was forced to sell his property at a loss.

In a second complaint, Mr Davis — also known as Khalid Wasi — said that he was one of 87 Black businessmen who were ordered by the banks to pay off loans before payments were due.

At a judicial review hearing last month, Mr Davis said that his experiences were prime examples of cases that the CoI was set up to investigate.

He said: “I gave them bundles of evidence. They were supposed to investigate and never did.”

Instead, the CoI ruled that his complaints fell outside its remit because they were commercial in nature.

In his ruling yesterday, Mr Justice Southey agreed with Mr Davis and fellow applicant Myron Piper that the CoI had acted outside its authority.

At a hearing held via Zoom, the judge said: “I have also concluded that the commission misdirected itself about the scope of that commission in a way that was potentially material in the case of Mr Davis. There was illegality in the handling of your case.”

Mr Justice Southey acknowledged that the terms of reference drawn up by the Premier were drafted “in a manner that is far from perfect”.

But he added: “That however, does not necessarily mean that they are flawed.

“Although I accept that the Commission of Inquiry was entitled to consider and interpret the meaning of its terms of reference at an early stage … this cannot mean that the commission had the power to determine its own terms of reference. It must correctly interpret the terms of reference set for it.

“If it were for the commission to determine the meaning of its own terms of reference, that would undermine the division of responsibilities.

“It is for the appointing authority to determine what the commission must investigate. The appointing authority sets terms of reference that must have a single legally correct meaning that the commission must then comply with.

“It appears to me that it is clear that there was concern that land had unjustly been lost as a consequence of the actions of ‘the rich, the powerful, and the connected’. Further, the concern was to ensure that as many such cases as possible were considered.

“It should be noted, in particular, that the obligation is to conduct a ‘full’ investigation. There is no discretion to investigate only some matters that are within the scope of the terms of reference.”

Mr Justice Southey accepted Mr Davis’s argument that his complaints should not have been rejected on the basis that they were commercial in nature.

He said: “It appears to me that the terms of reference require an investigation of any case where it is alleged that there was an imbalance of power in the past that caused a loss of land.

“The Commission of Inquiry erred by apparently concluding that Mr Davis’s cases were outside the scope of the terms of reference on the basis that they amounted to a commercial dispute. There is no reason in principle why a commercial dispute cannot relate to a power imbalance.”

Commission went massively over budget

During last month’s judicial review, lawyers for the Commission of Inquiry said it was forced to reduce the scope of its investigations because it was under both time and financial constraints.

The Commission of Inquiry was established on November 1, 2019 with an approved budget in the amount of $325,000 and a timeline of 40 weeks to complete its work.

The CoI made reference to “the limitations of the time, financial and manpower resources provided to it to research matters”.

But as Mr Justice Southey noted in his ruling yesterday, those limitations were either ignored or extended.

The judge quoted part of an affidavit by Wayne Perinchief, the commission’s deputy chairman, who wrote: “The commissioners did not allow the budget to impact whether or not claims fell within the [terms of reference] or the extent of the inquiry into these claims. The [CoI] in fact went over budget and the cost was in excess of $1 million.”

Mr Davis said last night that the ruling was a victory for justice.

He said: “The commission misdirected itself. They acted illegally and that was our case.”

He added that the review was just the first step in getting his complaints about land grabs heard.

“Obviously the Commission of Inquiry has now disbanded, so I can’t present my case to them,” he said.

“I have to find out what my next steps should be and which court I can go to to get these matters heard.”

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