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Justice served piecemeal is no justice at all

The Commission of Inquiry into Historic Land Losses

The Commission of Inquiry into Historic Land Losses in Bermuda is a noble pursuit, certainly a needed inquiry longed for by many, given the history of irregular property acquisitions in the mid-20th century.

One would recall when this motion was first proposed that the Governor did not act upon it for a few basic reasons: cost, how it was proposed to be funded, and whether there were sufficient cases to warrant a Commission of Inquiry.

These question were given to the Government by the Governor and left unanswered, which upon reflection might have been a strategic mistake on the part of the former.

After the Second World War, Bermuda was struggling to regain its economic activity and revive its tattered economy. Tourism had been suspended and our principal ship, the Queen of Bermuda, was being used by the naval forces for the transport of military personnel and returning to tourism only after the war ended.

In the late 1940s up to about the 1960, Bermuda had a lot of rural lands, and housing was sparse in many parishes. Cow pastures and pig farms were commonplace. Literacy? While most people could read the Bible and most of the population had at least a primary education, there was only a small sector that was educated beyond high school or tertiary level.

For many land owners, particularly the elderly, there was a great challenge to understand the subtleties of land transactions — such as the legal risk of losing properties through adverse possession claims. Hence, the late 1940s was a fertile territory that provoked a feeding frenzy by some astute and conniving property lawyers, realtors and even vestry persons. Not to mention the equation with voting based on land and who owned properties. There was the impulse to control land in order to control the vote.

It could be posited that most persons when they first heard the historic “land grab” motion was being revisited with no need for permission from the Governor — as it was instead presented as the Premier's sponsored Commission of Inquiry — presumed that it would be centred primarily on Tucker's Town.

However, the late Walton Brown knew when he introduced the motion — with a nod to his family's own submission to the commission — that it was going to be broad enough to entertain other similar cases. That being the new legal option available, no doubt the commission became swamped with a caseload of land-grab complaints against the Government, individuals and institutions for cases, even as recent as the 1990s and up to present day. Some cases no doubt were classics and against financial institutions and real estate companies given the "Wild Wild West" nature of business and banking transactions in the 1980s and early 1990s.

Most persons would know that resolving property conflicts in Bermuda can be a costly proposition. I can recall in one case alone, launched by an individual against a bank, seeing a legal bill for the plaintiff exceeding $900,000 — and the case was incomplete at that stage. I have also seen property matters between spouses and families being settled with a hefty legal bill of $300,000. One could only imagine the cost of resolving property issues of an entire nation spanning many decades.

This issue of costs perhaps belies and underscores the question the Governor asked the minister and the Parliament when the motion was passed. Britain is obviously a much larger country than Bermuda, thus its public inquiries would also be more extensive. Public inquiries require thousands of written pages of documents and research time.

For Britain, as an example, one such inquiry was called the "Bloody Sunday Inquiry", which cost the Government ₤210.6 million. OK, that was about a massacre in Ireland involving British soldiers killing 26 civilians; however, it is an indication of costs nevertheless. The point being that a public inquiry, if it's going to be fair, must be adjudicated properly, and that will cost.

Truth, in these instances, needs to be attained through adequate investigation and adjudication, and must be properly funded in order not to sacrifice justice owing to budgetary constraints. Half-delivering justice by slicing it to meet a budget is injustice and a disservice to the public good.

In hindsight, this might have been an important consideration the Governor was trying to resolve before supporting the motion, but overlooked by the Government. I don't believe anyone, including the Governor, could have known what types or how numerous the caseload would have been and probably needed a survey of sorts before actualising any inquiry.

After analysing the 2005 British Act on public inquiries, one of the fundamental requirements is impartiality, a point raised in the parliamentary debate by Brown when he emphasised there should be no local realtors or bankers or any persons who would have conflicts of interest appointed to the commission. That issue of impartiality is very hard to achieve in Bermuda where business interactions are near incestuous. Perhaps, it might have been better to establish a proper Inquiry, as I believe was Walton's desire, to be facilitated by the British Government to ensure impartiality, which is a principal point of its own for a public inquiry.

A preliminary amount of $325,000 was reported on March 5, 2020 in The Royal Gazette regarding the budget for this commission. The budget for the previous commission investigating three auditor-general reports started with a budget of $480,000 then saw two increases, topping at $1.1 million.

I don't know if any budget was ever tabled or discussed openly in Parliament for the land-grab inquiry, particularly without knowing what would be the extent of a probable caseload; nor do I know of a prescribed "acid test" to ensure there could be an impartial commission selected, or how to scrutinise a commission in light of the nature of cases in Bermuda's social and commercial environment. But, for sure, they allocated far less for the historic land grabs, which would be an infinitely wider commission than that of the previous commission for the auditor-general reports.

The scope of the inquiry announced to the public was wide and its remit, like the term for claims — as against whom and for how far back — had no limits as far as can be ascertained from the local motion that passed in the House of Assembly.

Here is where the tyre meets the road: if the commission has a limited budget because the Government doesn't have or cannot appropriate the necessary funds to sustain a caseload that requires human and capital resources, or if the commissioners selected are not sufficiently removed from the cases so as not to cause conflicts of interest, what is the expected result?

The only thing the commission could do under such circumstance is either admit or report back to the Government that it does not have adequate resources to meet the caseload and do it justice — or it serves justice in slices. It appears the latter was the chosen option, which means it must cut the caseload by creating their own short list of achievable results, even if it meant not fully investigating the complaints it did chose. Meaning the commissioners had also to remove cases that caused conflicts of interest with the panel, rather than remove the limited panel. The least complicated or easy to resolve, euphemistically called "the low-hanging fruit", was chosen in order to fulfil the commission’s limited time and financial allocation. Such a scenario does not satisfy the commissioners' duty under the Commission of Inquiry Act 1935, which calls for a full, faithful and impartial inquiry.

In the meantime, while the Government, in attempting to fulfil a long-desired and "hot" political objective of a land-losses inquiry, may have set itself up for failure to deliver on a pervasive issue that has hampered many families for decades, and which will continue to hamper them with no redress — and may be a lost opportunity to recover.

That is, of course, unless we can impress upon the Governor that the merit of a Royal Commission is warranted, given we have new evidence of cases fulfilling one of the Governor's original questions on where the evidence was for cases that warranted a public inquiry. Also given that many such cases happened during the period of the Colonial Government. We need to send this commission back to the feet of the Governor's powers to conduct a commission with the proper resources like those sought originally by Walton Brown.

Lesson have been learnt, and one must never feel too high or proud to not accept learned wisdom from the experiences of the British Government. Which is no suggestion that the governor rules or knows best, but rather that wisdom invariably exists and at times, even great ideas and noble pursuits need to be tempered by experience and wisdom.

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Published March 12, 2021 at 8:00 am (Updated March 11, 2021 at 3:54 pm)

Justice served piecemeal is no justice at all

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