Bethel v Douglas et Al

JurisdictionBahamas
CourtCourt of Appeal
JudgeNorville, P.
Judgment Date24 April 1994
Neutral CitationBS 1994 CA 1
Docket NumberCivil (Constitutional) Side No. 48 of 1993
Date24 April 1994

Court of Appeal

Melville, P.

Civil (Constitutional) Side No. 48 of 1993

Bethel
and
Douglas et al
Appearances:

Mr. M. Glinton, Mr. F. Smith, Mr. L. Mortimer Jr. and Mr. L. McDonald for the appellant.

Mr. E. Turner for the 1st, 2nd, and 3rd respondents

Mr. H. Forde Q.C., Mr. R. Marques and Miss R. Delaveaux for the 4th respondent.

Mr. E. Turner for the 1st, 2nd, and 3rd respondents

Mr. H. Forde Q.C., Mr. R. Marques and Miss R. Delaveaux for the 4th respondent.

Administrative law - Commissioner of Inquiry — Appellant summoned before Commission to answer certain questions — Commission appointed by Governor General under provisions of Commissions of Inquiry Act, Cap. 172 (Bahamas), s. 2 — Whether Commission armed with coercive powers — Whether Governor General had power to appoint a commission to inquire into criminal conduct or a crime.

Constitutional Law - Fundamental rights and freedoms — Appellant summoned before Commission of Inquiry to answer certain questions and informed of right to be represented by counsel — Whether appellant's constitutional right to silence breached — Constitution (Bahamas), article 20(7) — Whether appellant's constitutional right not to be subjected to unlawful search breached — Constitution (Bahamas), article 21(1).

Norville, P.
1

Purporting to act under the provisions of Section 2 of the Commissions of Inquiry Act, Chapter 172 (the Act), His Excellency the Governor General, on, 30 December 1992, issued a commission to three Commissioners to inquire into and report on certain matters set out in the Commission. The first respondent replaced the person who had previously been named as president of the Commission by an instrument of appointment dated 11 February 1993. The other members the Commission are the second and third respondents. They are named as the first, second and third respondents in the originating summons.

2

By the terms of reference, the Commission was to make a diligent and full inquiry into the “extent of and the methods employed in the conduct of and operation of Bahamasair Holdings Limited, The Hotel Corporation of The Bahamas and The Bahamas Telecommunications Corporation with specific reference to the following matters, namely:” There were then set out in subparagraphs lettered (a) to (j) the matter to be investigated: of which subparagraph (h) has been the subject of much debate.

3

This Court as in the Court below is concerned in matters affecting Bahamasair Holdings Limited (Bahamasair) only. Bahamasair is a company incorporated in The Bahamas in which the majority of the shares — which were purchased with public funds — are held in trust on behalf of the Government and people of. The Bahamas. In accordance with their mandate, the Commissioners began their inquiry at public sessions in which witnesses gave evidence. One such witness was a Mr. Duncan Rapier who through his company, Sovereign Aircraft Ltd. (Sovereign) — which received US$1,000,000 odd as a commission for securing the sale of three Dash 8 aircrafts by Boeing Dellaviland to Bahamasair.

4

At the time of the purchase of the Dash 8 aircrafts, Mr. Philip Michael Bethel — the father of the appellant was then the chairman of Bahamasair. Sovereign had entered into an agreement with Famona Investments Ltd. (Famona) whereby the latter for its assistance to the consultant would receive in excess of US$786,000.00. Part of that amount was paid into the account of Famona and another part into another account in the name of Regon Trading Company Ltd. (Regon). One Mr. Edward Williams and one Mr. Frederick Murray were the beneficial owners of both Famona and Regon.

5

Mr. Williams testified before the Commission that he had paid US$200,000.00 to the appellant for an interest in certain lands which were owned by the appellant, and which immediately thereto had been owned by his father. From those circumstances, the Commissioners were anxious to inquire whether or not the sale of the land was a genuine transaction or whether it was a ploy whereby the appellant had received moneys to be passed on to his father and to which the latter was not entitled. Accordingly the appellant was summoned to appear before the Commission on 16 August 1993 to testify about the receipt of the moneys and whether he was acting merely as a conduit in passing the moneys to persons who were not entitled to it.

6

On the very day when the appellant should have appeared before the Commission, he filed his originating summons impleading the three Commissioners as well as the Attorney General as defendants. By his summons, the appellant sought a number of declarations and injunctions against the Commissioners, as well as orders, writs or directions pursuant to Article 28 of the Constitution in enforcement of any rights or freedoms to the protection of which he is entitled. In his affidavit in support of his summons the appellant sets out his grievances.

7

These complaints have been succinctly set out in the judgment of the learned Chief Justice, which I now quote:

“He was not named in the Commission's terms of reference as a subject of inquiry. He was never an employee of Bahamasair nor was he employed anywhere in the public service. He learnt via the news media that at least one witness summoned before the commission to answer questions relative to the inquiry into Bahamasair, had referred to him by name. He did not consent beforehand to anyone releasing information about him or his personal affairs. The atmosphere generated by televised and radio broadcasts of the Commission's proceedings which he described disparagingly as carnival like, was inherently prejudicial and liable to be detrimental to the reputation of any person summoned as he was, to give evidence in public about private personal matters. The fact that Bahamasair fell within the ministerial portfolio of his father compounded the prejudicial circumstances under which he was required to appear. On 10th August, 1993, as advised by counsel and attorney, he subjected himself to interrogation by one Sergeant Roy Saunders, an investigator of the Commission, but on legal advice, objected to several questions put to him which were disrespectful of his privacy and that of others. Sergeant Saunders terminated the interview on account of the plaintiff's unwillingness to answer the questions put to him, but informed him that he should expect to be summoned to appear before the Commission on 16th August, 1993. A summons was indeed served on him on 12th August, 1993, accompanied by a letter under the hand of D. Bart, a counsel to the Commission, advising him of the nature of the questions that would be put to him and of his entitlement to be represented by counsel. The plaintiff brought these proceedings because he feared that unless, restrained by this Court, the first three defendants could coerce his attendance in obedience to the summons and compel from him answers to questions and the production of documents of a personal nature despite his not being the object of any criminal or other investigation.”

8

In his judgment delivered on 19th November, 1993 the Chief Justice concluded on this note:

“I will enumerate the main conclusions which result from all the reasons appearing in this judgment, and determine the several questions framed in the originating summons:

  • 1. The Commission of Inquiry is lawfully authorized to make the inquiry by the Letters Patent, which were issued by the Governor General pursuant to section 2 of the Commissions of Inquiry Act Chapter 172.

  • 2. The unrebutted presumption of regularity renders unnecessary the determination of the question whether the Governor General, in issuing his commission under section 2 of the said Act, acted either in his own deliberate judgment or in accordance with ministerial advise.

  • 3. The Commission of Inquiry was appointed by the Governor General acting as a persona designata under section 2 of the Act. The Commission of Inquiry constituted by the Letters Patent issued by him, is not a Royal Commission appointed by Her Majesty in the exercise of the royal prerogative.

  • 4. On the principle in Attorney General v De Keyser's Royal Hotel, the prerogative power at common law to appoint a Royal Commission of Inquiry was supplanted by the statutory payer to appoint a Commission of Inquiry, created by section 2 of the Commissions of Inquiry Act, Chapter 172.

  • 5. The terms of reference of the Commission are manifestly directed to lawful objects of the Act and are intra vires.

  • 6. There is not, on any basis, any violation of the doctrine of the separation of powers recognized in the Constitution, by reason of the exercise by the Governor General of his power under section 2 of the Act to issue a Commission.

  • 7. The Commission of Inquiry Act, Chapter 172, is wholly intra vires the Constitution.

  • 8. The Letters Patent constituting the Commission of Inquiry are in every respect lawful.

  • 9. The plaintiff is bound to attend the inquiry and give evidence and produce documents before the Commission in obedience to the summons wherewith he has been served.

  • 10. The Commission is not restrained from issuing any further summonses to the plaintiff or anyone else acting duly under section 10 of the Act.

  • 11. No violation of the plaintiff's right against self-incrimination under Article 20(7) of the Constitution is involved in his appearing at the inquiry to testify in obedience to the summons issued by the Commission.

  • 12. No right of the plaintiff to privacy as enshrined in Article 21(1) of the Constitution is violated by reason of his or his trustee being required by summons to attend and give evidence and produce documents at the inquiry.

In consequence of all the reasons appearing in this judgment, all the questions raised by the plaintiff in the originating summons ere resolved against him, and all declarations, injunctions and other orders prayed for are...

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