The Commission of Inquiry will not come to any conclusions on whether criminal activity occurred within the government during the years covered by its investigation into the mishandling of public funds.

The final public hearing of the tribunal was told yesterday by Narinder Hargun, counsel to the commission, that the role of the panel was to make referrals to the appropriate authorities, where there was a “real possibility that there has been improper activity, criminal activity, potential wrongdoing”.

“The commission is not making any recommendations as to whether there has been any criminal wrongdoing,” said Mr Hargun.

“The commission is not in a position to make those findings of fact.”

Commission chairman Sir Anthony Evans agreed, pointing out: “We don’t have to say whether there should be a prosecution. We have to say whether there is evidence of possible criminal activity. We don’t have to form any view on guilt or innocence.”

Mr Hargun, in his closing remarks, said the commission’s three functions were to:

• make recommendations about financial safeguards and actions which could reduce operational risks;

• refer evidence of possible criminal activity to the Director of Public Prosecutions and evidence of disciplinary offences by civil servants to the head of the civil service, both of whom could carry out their own investigations; and

• highlight any matters which may be appropriate for asset recovery, surcharges for civil servants or civil court proceedings.

He gave a summary of each of the projects the commission has heard about since its public hearings began in September, suggesting ways in which the four-person panel may wish to interpret the evidence.

Overall, he said it was “difficult to avoid the conclusion that the decision-makers — whether accounting officers or ministers — treated financial instructions as a guide, rather than rules”.

Mr Hargun referred to comments made at the tribunal by former public works minister Derrick Burgess and his lawyer Jerome Lynch, QC, who also represents Ewart Brown, on why certain contracts were given to certain firms, sometimes without a tender process or Cabinet approval. The rationale they gave, he noted, was that the policy of the Progressive Labour Party government was “to assist small contractors, particularly black, small contractors”.

He said: “There were a number of contracts awarded to small contractors but the commissioners should draw a distinction between those contracts and other contracts, dealing with very substantial amounts [of money].”

He said the $70 million contract for the Dame Lois Browne-Evans court and police building “wasn’t given to a small, black contractor, it was given to an established white firm”.

In that case, Mr Hargun said the complaint was that contracts were entered into where there were “insiders” who could benefit.

The same could arguably be said, he added, about two other multimillion dollar contracts: the Heritage Wharf cruise ship pier at Dockyard and the Port Royal Golf Course.

He said the issue at the heart of another matter, involving One Bermuda Alliance Senator Vic Ball, was “one of conflict”.

Mr Ball, when principal purchasing and supply officer for the Ministry of Public Works, did not disclose that his father had a 50 per cent stake in a company he recommended for a $1.4 million government project.

Mr Hargun said the commissioners needed to consider whether it was acceptable for Mr Ball to have “kept it quiet” on the grounds that he didn’t want to influence the PS’s view. “You may think that that is an explanation that’s difficult to accept,” he said.

He discussed the waiving of a tender process for the emissions contract awarded to Bermuda Emissions Control Ltd, a company founded by former Premier Dr Brown’s cousin Donal Smith.

The lawyer said the Public Accounts Committee had already concluded that this was, “to put it bluntly, an exercise in favouritism”.

The commission is due to deliver its findings by the end of the month.