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Prosecuting corruption

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I read with interest Walton Brown's February 8 column in which he eloquently argues that there is minimal or no political corruption in Bermuda.

The gist of his argument is:

(i) Public prosecutions are independent of the political arena;

(ii) Where there is sufficient evidence, corrupt persons are prosecuted; and

(iii) there has been only one prosecution for Government corruption (a civil servant) and no prosecutions of high-level political corruption. It therefore follows that there is minimal or no political corruption in Bermuda.

Let's look at Walton Brown's principal assertion and the implied conclusion.

He has said that “we have a police service and public prosecutions who [sic] act independently of the political arena.”

Unfortunately, that statement is not correct. Although Section 62(1) of the Bermuda Constitution vests the Governor with power of responsibility over the police, in 1977 the Governor delegated much of that power to the Minister of Home Affairs (now the Minister of National Security). So it is incorrect to state that the police service is independent of the political arena.

In fairness to the police, I believe it is factually correct to state that the Police Commissioner (and the Police Service generally) do an extremely good job of staying out of the political arena as much as is possible on a small island of 60,000 people.

The same is true of the Director of Public Prosecutions. Both he and the Police Commissioner, as part of their jobs, have to deal with the Attorney General, the Minister of National Security and, from time to time, other Cabinet Ministers including the Premier. There is nothing wrong with this. In fact, it would be wrong if they didn't. Only by working closely together are they likely to find solutions to the large problems (particularly gang violence) Bermuda faces.

Although this means that the evidence gathering and prosecutorial functions within Government are not completely free from the political arena - which undermines the logic of Walton Brown's argument and thereby its conclusion - it does not necessarily mean that there is widespread Government corruption. It only means that political considerations may come into play.

Most of the time, such as when the police and DPP are dealing with crimes committed by members of the general public, political considerations have nothing to do with evidence gathering and prosecutorial matters. But that completely changes when the possible crimes being investigated involve persons at the highest level of Government, particularly Cabinet Ministers.

Take, for example, the recent findings of the Auditor General that the Bermuda Government unlawfully paid $30,000 in legal fees for the Deputy Premier's and the former Premier's personal defamation action in Canada. The Deputy Premier claimed it was really the Government's defamation action. But as explained in my February 7 RG article, “Government and Defamation”, that's a legal impossibility.

When the country looked to Premier Cox to remedy the situation, she not only didn't instruct the Deputy Premier to resign, but she and her colleagues continued their unlawful refusal to comply with the Auditor General's demand for documents by claiming a legal privilege that doesn't exist (see my January 31 RG article “What Legal Privilege Means”).

So now the DPP is in the untenable position of having to decide whether to prosecute violations of the Audit Act that may include proceedings against the Premier for her failure to order the Attorney General to disclose withheld documents that may discredit the Deputy Premier, the former Premier and possibly other elected officials.

In other words, the decision to prosecute could not be more squarely placed in the political arena.

Among other things, it is entwined with the political reality that if the DPP brings proceedings against the Premier or any other Cabinet Minister, he will likely permanently impair his working relationship with these elected officials, and that will hurt their collective ability to deal with other important matters such as gang crime. So the case had better be both airtight and of sufficient importance to the country to justify prosecution.

And that, unfortunately, is the unavoidable reality of living in a small country like Bermuda - the prosecution of political corruption always has political ramifications that need to be considered.

That would not be such a big deal if political corruption were a rare occurrence in Bermuda. But it appears that “Defamationgate” may be only the tip of the iceberg.

Numerous Government capital projects over the last ten years (e.g., Berkeley Institute, Port Royal Golf Course, Heritage Wharf, the new Courthouse, TCD) have collectively resulted in cost overruns of hundreds of millions of dollars. Generally, only two things can cause large cost overruns: Managerial incompetence and financial corruption.

When you consider that the cost overruns on some of these projects exceeded 100 percent of the initial cost estimates and that Government had at its disposal civil servants with collectively more than 100 years of architectural, engineering and construction expertise, it is hard to conclude that only incompetence was at play. Someone had to be doing something unscrupulous. Individually and collectively, these and other large Government contracts simply don't pass the smell test.

Not only were tendering rules violated and the recommendations of civil servants ignored in the granting of some of these and other large Government contracts, but inordinately large change orders were frequently made.

When you add to this the multiple damning reports of two Auditors-General, we are left with strong circumstantial evidence suggesting something untoward.

But strong circumstantial evidence is not enough to bring political corruption charges when the prosecutorial process is so firmly ensconced in the political arena. For the reasons set out above, if you're bringing charges against those at the highest level of Government, you better have indisputable concrete evidence, such as a money trail.

Fortunately, we have an Auditor General who remains outside the political arena and whose central mandate is to unearth unlawful and improper use of Government funds. Unfortunately, the Auditor General has no authority to investigate the last part of the money trail; she only has the authority to investigate transactions between the Government and the parties with whom it contracts. In particular, she has no power to subpoena the private records and banks accounts of these contractors to find evidence of illegal kickbacks or undisclosed interests. So unless there is some other way to follow the money, the indisputable evidence required for the DPP to bring political corruption charges is unlikely to be found.

Fortunately, the laws of Bermuda do provide a way to follow the money to reveal all the facts concerning suspicious circumstances surrounding Government contracts: a Commission of Inquiry under the Commission of Inquiries Act (1935).

It is important to keep in mind that a Commission of Inquiry is not a prosecution, nor does it require the establishment of hard facts provable in a court of law before it can begin proceedings. But to ensure that it is not used to conduct a political witch hunt, there should exist circumstances of a sufficiently suspicious nature that warrant further investigation - generally something that doesn't pass the smell test.

The problem is that only the Governor is authorised to issue a Commission of Inquiry and, because of the political sensitivities involved, he is unlikely to do so unless the Premier requests one, which is highly unlikely. Let's face it, if Premier Cox (along with her colleagues) is willing to violate the Audit Act and thereby prevent further investigation of the unlawful payment of $30,000, what is the chance that she is going to voluntarily call for a Commission of Inquiry to investigate smelly Government contracts totaling hundreds of millions of dollars that occurred on her watch as Finance Minister?

So we are left with the reality that although our laws provide a mechanism to flush out the concrete evidence needed to prosecute political corruption, that mechanism is mired in a political web of self-protection and conflict of interest.

In other words, while our noses tell us that there is something rotten in Bermuda, our collective judgment tells us that the rot is unlikely to be cleaned up anytime soon.

Kevin Comeau
Falling apart: Damaged sections of the thruster wall are seen at Heritage Wharf
A workman is shown during the construction of the new Berkeley Institute in 2005.

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Published February 23, 2012 at 1:00 am (Updated February 23, 2012 at 8:39 am)

Prosecuting corruption

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