UK judge to hear judicial review of inquiry into historic land loss
A judicial review into the Commission of Inquiry into Historical Loss of Land is set to go ahead after the Governor agreed to bring in an overseas judge to hear the matter.
The call for a review of the commission’s conduct was first made in January, 2021 by Raymond Davis, also known as Khalid Wasi, and Myron Piper. They said they were blocked from testifying and claimed the commission was a sham that failed to act impartially.
But one year on, that case has yet to be heard – because all of the island’s civil court judges have conflicts of interest.
Last month, Mr Davis wrote to Rena Lalgie, the Governor, calling for an independent judge be appointed to hear their case and any future cases relating to the commission, adding that the legal system was “in crisis”.
They also urged Ms Lalgie to act before a 500-page report on the commission’s findings was debated in the House of Assembly. They claimed that debate should be blocked, as it was sub judice.
In a statement released yesterday Government House confirmed that a judge had been drafted in to hear the case for a judicial review.
The statement said: “Her Excellency the Governor has agreed to appoint Mr Hugh Southey QC, a Deputy High Court Judge in England and Acting Justice of the Grand Court of Cayman, to act as an Assistant Justice of the Supreme Court of Bermuda.
“The Governor has been advised by Chief Justice Narinder Hargun that he intends to assign the judicial review application concerning the Commission of Inquiry into Historic Losses of Land in Bermuda to Assistant Justice Southey QC.“
The announcement marks an apparent about turn by the Governor. In a letter to Mr Davis and Mr Piper on Monday, Ms Lalgie implied that she would take no action in their case.
Ms Lalgie acknowledged that she was responsible for appointing the Chief Justice and judges in the Supreme Court.
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 their role to carry out the responsibilities of the courts.
“With regard to your request pertaining to the Speaker of the House of Assembly, the Speaker has the discretion to determine if matters are sub judice, and it would be inappropriate for me to attempt to influence the manner in which he decides to exercise that discretion.
“Although I note your concerns, I am conscious of the fact that this matter is currently before the courts. Therefore it is my intention to limit my comments to what I have outlined above so as not to interfere with the administration of the case.”
That position was questioned by Mr Davis who pointed out that, under Bermuda’s constitution, a Governor can appoint an Assistant Justice “on such terms and conditions of service as he may think fit”.
Mr Davis said: “We complained that, by their own admission, both the Chief Justice and the court registrar, said all the commercial judges were conflicted. We sought her help to appoint 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 Commission of Inquiry into losses of land was a heartfelt matter for many people, but as it went on, it became apparent that the way it was handled was flawed.
“It couldn’t act fairly or impartially because of the way it was composed. There were so many conflicts of interest.
“We pointed that out a year ago when we called for a judicial review. That’s why we wanted a ‘time out’, so that our complaints could be heard.”
The commission was established in October 2019 “to inquire into historic losses of citizens’ property in Bermuda”.
It was beset by a number of controversies after its first public hearings got under way in September, 2020.
In October 2020, Ivan Whitehall, the commission’s senior counsel, stepped down for “personal reasons” and was replaced by Dirk Harrison.
A month later, two COI investigators wrote to the commissioners expressing concerns over “the integrity of the commission’s proceedings”, including the protection of witnesses and alleged conflicts of interest among commissioners. When the contracts of the two investigators expired shortly after, they were not renewed.
In November 2020 police launched an inquiry after one investigator claimed that documents and personal papers were removed from her desk.
In January 2021, the commission was branded a sham by Raymond Davids and Myron Piper who claimed they were barred from giving evidence at the hearing.
They filed an affidavit calling for an injunction and a judicial review, claiming that the commissioners were conflicted because they had close links to the institutions under investigation.
But their reasons for wanting a judicial review were never heard – because all commercial judges on the island were conflicted.
Throughout the 12 months that Mr Davis and Mr Piper fought for their review to be heard, the commission continued its work, interviewing witnesses who alleged that land had been misappropriated from their families.
Mr Davis added: “This is a complete turnaround by the Governor from what she told us in her letter on Monday, but it is great news.
“I can’t predict what’s going to happen next, but I hope that reason will prevail in this matter. At least we now have an opportunity to present our case before an impartial judge – something that we have been fighting for so long.”