Updated: February 09, 2022 15:37
Rena Lalgie, the governor (file photo)
A judicial review by the Commission of Inquiry into Historic Land Loss is set to take place after the governor agreed to bring in a foreign judge to hear the case.
The call for a commission conduct review was first made in January 2021 by Raymond Davis, also known as Khalid Wasi, and Myron Piper. They said they had been barred from testifying and claimed the commission was a sham that had not acted impartially.
But a year later, that case has yet to be heard – as all civil court judges on the island have conflicts of interest.
Last month Mr Davis wrote to Rena Lalgie, the Governor, asking that an independent judge be appointed to hear their case and any future matters relating to the commission, adding that the justice system was “in crisis”.
They also urged Ms Lalgie to act before a 500-page report on the commission’s findings is debated in the House of Assembly. They claimed the debate should be blocked, as it was sub judice.
In a statement today, Government House confirmed that a judge had been brought in to hear the case for judicial review.
The statement read: “His Excellency the Governor has agreed to appoint Mr Hugh Southey QC, Associate Justice of the High Court in England and Acting Judge of the Cayman Grand Court, to act as Associate Justice of the Supreme Court of Bermuda.
“The Governor has been advised by Chief Justice Narinder Hargun that he intends to refer the application for judicial review regarding the Commission of Inquiry into Historic Land Losses in Bermuda to Deputy Justice Southey QC.”
The announcement marks an apparent reversal on the Governor’s part. In a letter to Mr Davis and Mr Piper on Monday, Ms Lalgie hinted that she would take no action in their case.
Ms. Lalgie acknowledged that she was responsible for appointing the Chief Justice and Supreme Court justices.
But she added: “However, I must be mindful of the independence of the judiciary, as it is not my role to assign specific judges to specific cases.
“The judiciary is established as a separate and independent branch of government, and it is its role to discharge the responsibilities of the courts.
“In relation to your request regarding the Speaker of the House of Assembly, the Speaker has the discretion to determine whether questions are sub judice, and it would be inappropriate for me to try to influence the manner in which he decides to exercise this discretionary power.
“While I note your concerns, I am aware that this matter is currently before the courts. Therefore, I intend to limit my comments to what I have described above so as not to interfere with the administration of the case. »
This position was questioned by Mr Davis who pointed out that under Bermuda’s constitution a governor can appoint a court clerk “on such terms and conditions of service as he deems proper”.
Mr Davis said: “We complained that by their own admission the Chief Justice and the Registrar of the Court said that all commercial judges were in conflict. We asked for his help in appointing an independent judge.
Mr Davis said of the appointment: “I am absolutely delighted – this is great news, not just for me but for the people of Bermuda.
“The Land Losses Commission of Inquiry was an issue close to the hearts of many people, but over time it became clear that the way it was being handled was flawed.
“He couldn’t act fairly or impartially because of the way he was made up. There were so many conflicts of interest.
“We pointed this out a year ago when we asked for a judicial review. That’s why we wanted a “time out”, so that our complaints could be heard.
The commission was created in October 2019 “to investigate historic losses of property of citizens in Bermuda.”
It has been plagued with a number of controversies after its first public hearings began in September 2020.
In October 2020 Ivan Whitehall, the commission’s lead counsel, resigned for “personal reasons” and was replaced by Dirk Harrison.
A month later, two COI investigators wrote to the commissioners expressing concern about the “integrity of the commission’s proceedings”, including witness protection and alleged conflicts of interest among the commissioners. When the two investigators’ contracts expired shortly thereafter, they were not renewed.
In November 2020, police launched an investigation after an investigator claimed personal documents and papers were removed from his office.
In January 2021, the commission was called a sham by Raymond Davids and Myron Piper who claimed they were not allowed to testify at the hearing.
They filed an affidavit seeking injunction and judicial review, saying the commissioners were in conflict because they had close ties to the institutions under investigation.
But their reasons for wanting a judicial review were never heard – because all the commercial judges on the island were in conflict.
Throughout the 12 months that Mr. Davis and Mr. Piper fought to have their review heard, the commission continued its work, interviewing witnesses who alleged land had been diverted from their families.
Mr Davis added: ‘This is a complete reversal by the Governor from what she told us in her letter on Monday, but it is great news.
“I can’t predict what will happen next, but I hope sanity will prevail in this case. At least we now have the opportunity to present our case before an impartial judge – something we have been fighting for so long.