The Supreme Court has struck out a claim that the legislation that established a commission of inquiry unconstitutionally lacked a right of appeal.

Raymond Davis and Lynda Swan argued that their inability to appeal the commission’s report into historical land losses had breached their right to a fair hearing under the Bermuda Constitution.

However, Assistant Justice Keith Robinson found last week that because the commission was not an “adjudicating authority”, there was no requirement for a right to appeal.

He wrote: “It is clear from the wording … the 1935 [Commissions of Inquiry] Act that what a CoI is tasked as a matter of statute to do is to inquire into the subject matter assigned to the commission and to report the result of that inquiry.

“It may well make findings of fact in conducting the inquiry within its terms of reference but those findings of fact are not binding either on any court or indeed the legislature.”

Mr Justice Robinson added that it was not necessary or appropriate to state if he accepted or rejected the plaintiff’s criticisms of the CoI, noting that the Court of Appeal had already made findings regarding the complaints.

The Commission of Inquiry into Historical Land Losses was established in 2019 to examine thefts of property and to “identify any persons, whether individuals or bodies corporate, responsible for such historical losses of citizens’ property”.

Mr Davis, also known as Khalid Wasi, brought forward several complaints, including that he had been unfairly treated by the Bermuda Housing Corporation for his political opinions.

He also alleged that he and other innocent Black businessmen had suffered losses because of the actions of the Bank of Bermuda in the midst of an investigation into a “fraud ring”.

However, the commission said the complaints fell outside its remit, branding them “commercial disputes”.

Mr Davis and Myron Piper argued successfully before Assistant Justice Hugh Southey that the commission acted illegally when it denied them the chance to testify before it.

The two claimed that the scope of the commission at first was too broad and that it acted beyond its powers when it defined what its remit should be.

While the CoI appealed the ruling, the Court of Appeal dismissed its appeal in a decision handed down in 2024.

In the ruling, Sir Christopher said the CoI had come to the conclusion that it was only to investigate “systemic” conduct, while Mr Justice Southey had determined that the CoI should investigate land losses caused as a result of an imbalance of power.

In the wake of the ruling, Mr Davis and Ms Swan launched a separate legal action arguing that their rights had been breached because there was no way to appeal the commission’s report.

However, in a hearing in April, Lauren Sadler-Best, for the Attorney-General’s Chambers, argued that the commission was not an “adjudicating authority” and was not empowered to determine issues of civil or criminal liability.

Mr Justice Robinson noted that the commission was not able to make findings of fact that were binding in any legal sense, let alone determinations of rights or obligations, even if the legislature could act upon its conclusions.

He added: “It is also true that if this were to occur, such legislation could impact directly the civil rights and obligations of those subject to that legislation.

“However, that is an issue for the democratic political process and does not mean that the Bermuda Constitution is engaged because this is a possible political outcome.

“It is not so engaged.”

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