Bethel v The Commission of Inquiry into the Conduct and Operation of Bahamasair Holdings Ltd, the Hotel Corporation of the Bahamas and the Bahamas Telecommunications Corporation et Al
| Jurisdiction | Bahamas |
| Judge | Stra.C.Han. J. |
| Judgment Date | 11 June 1996 |
| Court | Supreme Court (Bahamas) |
| Docket Number | No. 1261 of 1995 |
| Date | 11 June 1996 |
Supreme Court
Strachan, J.
No. 1261 of 1995
Mr. Philip Davis and Mr. Charles Mackey for the applicant.
Mr. Jon Isaacs and Ms. Rochelle Deleveaux for the respondents.
Judicial review - Order of certiorari — applicant made a request for an order of certiorari for the purpose of having quashed the report of the Commission of Inquiry or alternatively all adverse findings and consequent recommendation as they related to the applicant — Whether there was an unlawful representation — Whether the findings and recommendation were reached in breach of the requirement of natural justice or fairness — Whether the commission's findings were compromised by the appearance of bias or lack of independence — Court held that the application succeeded.
Having obtained leave on 22 December 1995 to apply for an order of certiorari to remove into this Court “for the purpose of having quashed the report of the Commission of Inquiry (the Commission) or alternately all adverse findings and consequent recommendation as they relate to the applicant, or such parts thereof as the court sees fit, including the recommendation that there be “investigation with a view to prosecution” of him, the applicant now seeks to make good his application. It should be added that he also asked for but not obtain a stay of the investigations, that the Commission was appointed pursuant to the provisions of the Commission of Inquiry Act (Ch. 172) was comprised of three members, one an eminent jurist, one distinguished accountant and one a distinguished businessman. After reporting to the Governor General, its report was debated and accepted to Parliament and, as with the inquiry, attracted great media attention and public debate.
Of particular importance are the provisions of the Commission's terms of reference. Three state-owned corporations were targeted for wide ranging investigations covering many years. So it was, that as regards Bahamasair Holdings Limited (Bahamasair), the Commission was to inquire into “the practices, procedures. Policies, systems and mechanisms, financial and otherwise” and report upon the extent of and the methods employed in the conduct and operation of Bahamasair with specific reference to the following:–
“(a) the expenditure of public funds allocated to or received by them;
(b) the awarding of contracts by them;
(c) ….
(d) in relation to Bahamasair Holdings Limited, the circumstances touching and concerning the acquisition, repair and maintenance of property and, in particular, the purchase of leasing of aircraft and their parts and equipment;
(e) ….
(f) their procurement, policies and practices;
(g) their employment practices including but not restricted to the employment and dismissal of staff;
(h) any and all allegations of fraud, corruption, breach of trust, conflict of interest or any wrongdoing whatsoever made by anyone against any person whatsoever arising out of and in connection with any or all of the affairs of Bahamasair;
(i) the examination of all banking arrangements entered into by them, and their financial activities generally, and more specifically the management, care and conduct of their financial affairs; and
(j) the examination, analysis and consideration of their practices, procedures, policies, systems and mechanisms, financial and otherwise, with the view to making such recommendation as may be considered appropriate in respect of any abuses or wrongdoings, or that would prevent any future abuse or wrongdoing and ensure the proper functioning and administration of the aforenamed public entities:”
The inquiry into these matters was, by section 7 of the Act required to be “full, faithful and impartial”, and “in accordance with directions”, if any, in the mandate. Their report once forwarded to the Governor General was next transmitted to both Houses of Parliament where it was, of course, considered and later published and became, like the inquiry, the subject of wide media coverage and discussion.
On the opening day of the Commission, the President's statement, intended it appears to give guidance and information, was as follows–
“1. My colleagues and I have been appointed by His Excellency, The Governor General, to be members of this Commission of Inquiry pursuant to the Commissions of Inquiry Act (Chapter 172 of the 1987 Revised Edition of the Statute Law of the Bahamas), to conduct a diligent and full inquiry into the extent of and the methods employed in the conduct and operation of Bahamasair Holdings Limited, the Hotel Corporation of The Bahamas and The Bahamas Telecommunications Corporation.
2. We, as Commissioners, have, under section 6 of the said Act, with the approval of the Governor General appointed Mr. Colin C. Deane and Miss Teizena G. Coakley, to be the Secretary and Assistant Secretary to the Commission.
3. By virtue of this Order the Commission is also empowered, under section 10 of the said Act, to cause summonses to be issued for the attendance of any person named in the summons to give evidence upon oath of the truth of any fact relating to the matters to be inquired into or any other matter touching or appertaining thereto, and to produce documents or things including the power to retain.
4. In section 12 of the said Act any person whose conduct may become the subject of this Inquiry or who is implicated or concerned in a matter under inquiry shall be entitled to be represented by counsel at the whole of the Inquiry. Any other person who may consider it desirable that he should be so represented may, with the leave of the Commission, be represented by counsel. Applications for such leave to appear should be made in writing addressed to the Secretary to the Commission, at the Commission of Inquiry Building, Thompson Boulevard, P.O. Box N-321 7, Nassau.
5. Notices have already appeared in the press inviting any person who feels that he or she is able to assist the Inquiry to come forward. The Commission would welcome the full cooperation and assistance of members of the public in this regard.
6. Any person desirous of giving evidence should contact the Secretary to the Commission at the Commission of Inquiry Building, Telephone 326-4550/4 and indicate to him the substance of the material he or she wishes to put before the Commission.
7. As a general rule all evidence at the hearing is to be led through counsel assisting the Commission including that of persons seeking to adduce evidence on their own behalf who will be required to submit in advance a copy of the proposed evidence to counsel for that purpose. However. where circumstances justify such a course. any particular person may be allowed. By special direction of the Commission. to produce evidence through his own counsel.
8. After examination by counsel assisting the Commission, cross-examination will follow.
9. The Commission may upon occasion notify persons whose conduct is thought likely to be the subject of inquiry by the Commission before the evidence relating to him is taken so that he/she may attend the hearing and. if he/she so wishes, arrange to be represented by counsel. If a person is named by a witness to his or her detriment without prior notice, steps will be taken to inform the person thus named and arrangements will be made for that witness to be made available for cross-examination by counsel on behalf of the person named; or that person himself, if not represented, may cross-examine through the Commission.
10. The Commission will follow the practice normally adopted by Commissions of Inquiry into matters of this kind. but it is to be remembered that we are not sitting as a court. We are here to inquire into and report upon the extent of and the methods employed in the conduct and operation of Bahamasair Holdings Limited, the Hotel Corporation of The Bahamas and the Bahamas Telecommunications Corporation.
11. The Commission will sit in this hall each day as necessary from Monday to Friday. The hours of sitting will in general be from 10:00 a.m., to 1:00 p.m. and from 2:30 p.m. to 4:30 p.m. However, the Commission reserves the right to vary these times in extenuating circumstances.”
(Emphasis added)
Paragraph 340 of its report concerns the applicant and reads –
“We are satisfied that the contract entered into by Boeing De Havilland and Sovereign was for the corrupt purpose of passing on a bribe to any person in the Bahamas whose duty it was to decide on the acquisition of aircraft for Bahamasair. The contract between Sovereign and Famona was in furtherance of that corrupt purpose. A substantial portion of the Commission paid by Boeing De Havilland was paid out within the same time frame in roughly similar amounts to close relatives of Mr. Philip Bethel and Mr. Darrell Rolle two former Chairmen of Bahamasair. The so-called purchase of an interest in a property development in Eleuthera and the “loan” for the restaurant franchise were in each case merely a device to attempt to conceal the payment of bribes to Mr. Philip Bethel.”
Paragraph 341 is also about him: there the Commission's findings in numbers 10 to 14 inclusive are –
“(10) Mr. Bethel's usurpation of the powers of the Board and his ongoing interference in the day-today operations of the airline was disastrous.
11) The collusion between Mr. Bethel and Mr. Prokocimer caused gross mishandling of, and a total lack of accountability for, the Bahamas Express Programme. This in turn caused substantial loss to the airline.
(12) Mr. Bethel's politically motivated increase of the work-force exacerbated the airline's loss.
(13) Mr. Bethel's attitudes did much to erode staff morale and generally exercised an...
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