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Brown’s lawyer: Rules were ‘bent’

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Ewart Brown's lawyer told the Commission of Inquiry yesterday that if a “rule or two had to be bent” in the awarding of government contracts it had “nothing to do with corruption or backhanders” and “everything to do with redressing the balance”.

Jerome Lynch, a top British QC, who represents the former Premier, along with former Deputy Premier Derrick Burgess and businessmen Allan DeSilva, Edmund Lee Matvey and Arthur Bryan McLeod, told the four-person panel that the Progressive Labour Party was elected on a mandate of “making sure that those who had been excluded for far too long were included”.

The mindset of those in the charge of the country, he said, was: “So what if we had to bend a rule or two to include them.”

He was challenged by commission chairman Sir Anthony Evans on how that ethos related to the awarding of substantial contracts to overseas companies, such as GlobalHue and Ambling, during Dr Brown's tenure as Premier and Minister of Tourism and Transport.

“The evidence we have heard shows that substantial payments, very substantial payments, were paid out of the jurisdiction. I just wondered how the submission you have made could be relevant to this.”

Mr Lynch replied: “I'm seeking to try, if I may, to put into context some of the contracts.”

He said he was conscious that Dr Brown, who would know about the GlobalHue and Ambling contracts, had exercised his right to privilege against self-incrimination and had not given evidence to the commission, so he could not explore those topics.

Mr Lynch said many people viewed the Commission of Inquiry as a “witch-hunt”, a perception fuelled by the fact that the panel was comprised of a “retired white British judge who knows little of black issues on this island” and a founder of the One Bermuda Alliance, references to Sir Anthony and John Barritt, respectively. He said having three white commissioners and one “relatively junior” black member [Kumi Bradshaw], along with “white lawyers” acting as counsel to the commission, added to suspicions of discrimination.

Sir Anthony responded: “So what?” The chairman said the comments were “couched in very offensive terms”.

He added: “You have gone a long way to making a political statement.”

Mr Lynch said: “You should not think this is me making a political statement.”

The lawyer said he merely wanted the commission to be alive to the fact that many people felt that way and that giving some immunity from prosecution to witnesses might have helped alleviate concerns.

He focused, in his closing submissions, on the Dame Lois Browne-Evans building project, which ran over-budget by some $26 million.

He said local firm Landmark — owned by Mr Matvey and Mr McLeod — was fairly awarded the contract after partnering with Canadian company Lisgar.

When Lisgar left the project, Dr Brown's half-brother Vincent Hollinsid and Winters George Burgess, whom Mr Burgess has described as a close friend and relative, put up collateral to secure a loan for the company and were each given an equity stake.

Mr Lynch said in such a small place as Bermuda, people were often related to one another or had close ties and nothing untoward should be inferred from that.

Dr Brown was due to appear as a witness but Mr Lynch successfully argued his right to claim privilege against self-discrimination.

Sir Anthony told yesterday's hearing that Dr Brown had sworn an affidavit asserting the right not to have to answer questions.

He added: “The commission cannot compel Dr Brown to answer those questions.

“That's his right, both at common law and under the Commissions of Inquiry Act, under which we were appointed. We have decided that there is no point in calling him to give oral evidence.”

The chairman said Dr Brown's affidavit contained an “unnecessary and intemperate remark”. He added: “I make clear that the commission does not associate itself with that sentence.”

Yesterday afternoon the commission's counsel, Narinder Hargun, made a series of closing submissions on the capital projects the panel has been charged to investigate.

He said the TCD project became a template for later capital projects where contracts that should have fallen under Works and Engineering were given to other departments that did not have the capacity or specialist knowledge to deal with them.

Mr Hargun added: “This [the TCD project] was a quite extraordinary situation where there was a total breakdown of all the controls in relation to the spending of public money on a very substantial project.

“The construction manager is selected without open tender. the construction manager selects a contractor without open tender in circumstances where the contractor is a 30 per cent shareholder, where the director of the contractor is also the director of the construction project manager, and the project manager assumes the contract on behalf of the Government.”

Mr Hargun also told the panel that “no real sensible reason has been advanced” why the TCD project was transferred away from the Department of Works and Engineering. Referring to the Heritage Wharf project, the commission's counsel added: “The project was being designed as it was being built; that is a recipe for huge expenses.”

Meanwhile, in relation to the Port Royal renovation project he said: “We have seen how business was conducted; there was no attempt at open tenders, substantial contracts were given without open tender and given to companies which the trustees were interested in, but no one seems to have been aware of a conflict of interests.”

Mr Hargun will continue his closing submissions this morning and the commission's report is due by the end of this month.

Jerome Lynch, QC, during his closing submission to the Commission of Inquiry (Photograph by Blaire Simmons)
Former Premier Ewart Brown (file photo)

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Published November 30, 2016 at 2:30 pm (Updated December 01, 2016 at 10:38 am)

Brown’s lawyer: Rules were ‘bent’

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