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Commission entitled to interpret its terms of reference, court told

Decision: Justice Hugh Southey is presiding over the judicial review into the legality of the Commission of Inquiry into Historic Losses of Land

Lawyers for the Government have defended a Commission of Inquiry set up by the Premier to investigate historic land grabs.

The commission was formed by David Burt in November 2019 with a remit to “inquire into historic losses of citizens’ property in Bermuda through theft of property, dispossession of property, adverse possession claims and/or such other unlawful or irregular means by which land was lost in Bermuda”.

The commission sat throughout last year and filed a report of its findings in December.

But two men whose cases were rejected by the COI said commissioners acted illegally when they narrowed the scope of what the inquiry could examine.

Khalid Wasi and Myron Piper gave evidence during a judicial review before Justice Hugh Southey yesterday, claiming that the commission went “beyond its authority”.

Mr Wasi testified that his case – in which he claimed he claimed he was victimised and lost property after standing for Parliament – was a perfect example of “systemic, irregular practices” that the commission was set up to investigate.

But Lauren Sadler-Best, for the Attorney General’s Chambers, countered that the commission could use its discretion to modify the terms of reference.

She also produced a raft of case law which she said demonstrated that previous commissions had acted in a similar way.

She said: “There is no impediment to a commission interpreting what can and should be included and excluded.

“There is some discretion – there would have to be – and it would be for the commissioners themselves to interpret the terms of reference.”

Ms Sadler-Best also defended Mr Burt’s original wording of the terms of reference.

She said: “There is no basis given to substantiate the ground that the Premier was unreasonable or irrational in formulating the terms of reference. The evidence indicates that the terms of reference were entirely rational.”

But Mr Justice Southey replied: “Presumably the Premier had concluded that a broad inquiry was required. Doesn’t that make it difficult for the commission to then limit its terms?”

Delroy Duncan QC, of Trott and Duncan, representing the commission, said: “The questions before you are to be looked at in the context of whether or not the terms of reference were broad, narrow, or how they were applied.”

Mr Duncan also pointed out that the word ‘“systemic” did not appear in the terms of reference.

He said: “There is no evidence on the record that any claims were turned away because they were not systemic.”

The inquiry continues.

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Published July 13, 2022 at 7:47 am (Updated July 12, 2022 at 6:27 pm)

Commission entitled to interpret its terms of reference, court told

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