in the 1990s

CONTENTS

CHRONOLOGY OF ST LUCIA COMMISSIONS OF INQUIRY

23 May 1997 St Lucia Labour Party assumed power of Government after almost fifteen years in opposition. During the election campaign the Labour Party made "good governance" an electoral promise and agreed to appoint "a Commission of Inquiry to review all cases of alleged corruption".

17/18 September 1997 Governor-General of St Lucia appoints a former High Court Judge in St Vincent and the Grenadines, Ms Monica Joseph, to inquire into a number of matters under section 2 of the Commissions of Inquiry Ordinance (Chapter 5 of the Revised Laws of St Lucia 1957) a law originating in 1903 during colonial rule. The appointment of Ms Monica Joseph was published in Extraordinary Gazette, Vol 165, No 65. The terms of reference, which covered five separate events during the life of the previous administration, appear in Annex 1.

30 September 1997 The Commission sat to hear evidence. The two former Prime Ministers, Sir John Compton (1982-1996) and Dr Vaughan Lewis (1996-1997) sought to appear at the Commission through their legal representatives, by virtue of section 18 of the Commissions of Inquiry Ordinance.

11 October 1997 Dr Vaughan Lewis challenged the validity of the Commissioner's appointment on the ground of a real danger of bias on her part, the alleged bias having originated out of events in December 1995 when the Commissioner who was then serving as a High Court judge was refused an extension of her judicial appointment beyond the retiring age of 62 so as to allow her to complete fifteen years of service which would have entitled her to a full pension.

15 October 1997 Commissioner declined to allow the two PMs representation before the Commission. Two witnesses called and questioned orally on the St Lucia National Stadium issue.

16 October 1997 Further witnesses called in connection with the St Lucia National Stadium issue. Hearing adjourned to 20 October 1997.

20 October 1997 Commissioner told that on 16 October 1997 Sir John Compton had applied to the High Court of Justice of the Eastern Caribbean Supreme Court for leave to apply for an order of certiorari to quash the Commissioner's appointment as Commissioner. Leave had been granted by Farara J for a hearing of the full application on 10 November 1997. The court ordered that the Commission should adjourn its hearings pending the court proceedings. The Commissioner duly suspended the sitting of the Commission.

29 October 1997 The Commission of Inquiry stopped its hearings pending the outcome of the application for certiorari.

10/11 November 1997 Application for certiorari was heard by Farara Ag. J. Judgment was reserved.

25 November 1997 Farara J. (Ag) dismissed the application for certiorari.

9 December 1997 Dr Vaughan Lewis gave notice of appeal. Commission set to resume hearings, but adjourned until 11 December 1997.

11 December 1997 A further witness on the national stadium issue was called and started to give evidence when counsel for Sir John Compton intimated that an appeal against the judgment of Farara J. (Ag) was being lodged by Dr Lewis and by himself. The Commissioner adjourned the sittings until the following morning.

12 December 1997 Further adjournment, to 18 December 1997, granted by the Commissioner.

18 December 1997 Commission of Inquiry adjourned sine die, on learning that the appeal against the judgment of Farara J. (Ag) had been lodged with the Court of Appeal.

29 December 1997 A stay of the proceedings before the Commissioner was granted until 12 January 1998.

12 January 1998 Hearing of the appeal before the St Lucia Court of Appeal (Byron, Ag. C J, Singh and Redhead J.JA) began.

9 February 1998 Judgment of the Court of Appeal, reversing (by 2-1 in the case of Dr Lewis and unanimously in the case of Sir John Compton) the decision of Farara Ag. J.

2 March 1998 Attorney-General of St Lucia applies to the Court of Appeal for leave to appeal to the Judicial Committee of the Privy Council under section 108(2)(a) of the Saint Lucia Constitution (on the grounds that the proceedings raised issues of great general or public importance). The Attorney-General's notice did not claim an appeal as of right under section 108(1)(c), the appeal involving a question as to the interpretation of the Constitution.

19 March 1998 St Lucia Court of Appeal (Matthew Ag. JA) grants the Attorney-General leave to appeal to the Privy Council.

20 March 1998 Government of St Lucia announces that it will advise the Governor-General (a) to suspend the warrant issued to Ms Monica Joseph until such time as the legal proceedings are resolved; and (b) to appoint Sir Louis Blom-Cooper QC as sole Commissioner under revised and more limited terms of reference.

7 April 1998 Sir John Compton and Dr Vaughan Lewis petition the Court of Appeal to discharge and reverse the order of Matthew Ag. JA on the ground that a single judge could not lawfully grant leave to appeal to the Privy Council.

7 April 1998 Governor-General of St Lucia orders revised Commission of Inquiry.

15 April 1998 Gazetted.

16 April 1998 Commission of Inquiry conducts a preliminary hearing to announce its terms of reference and the procedure it proposes to adopt for the rest of the inquiry.

3 June 1998 Eastern Caribbean Court of Appeal (Singh and Redhead JJA and Adams Ag. JA) refuse Government of St Lucia leave to appeal to the Privy Council.

16-25 June 1998 Oral hearings (Stage 1) of Commission of Inquiry.

14-23 September 1998 Oral hearings (Stage 2) concluded.

17 December 1998 Judicial Committee of the Privy Council (Lords Steyn, Hobhouse and Millet) refuse government of St Lucia special leave to appeal against the decision of the Eastern Caribbean Court of Appeal of 9 February 1998.

23 December 1998 Timetable for submission of report extended to 31 January 1999.

14 January 1999 Report to Governor-General of Commission of Inquiry.

CHAPTER I: INTRODUCTION

No public inquiry, of whatever kind, can hope to achieve the main objectives of thoroughness, fairness and expedition at no cost beyond what is reasonably necessary, without preparing the ground for the oral hearings. All the relevant documentation needs to be painstakingly retrieved from the files of organisations and individuals involved. Only after the documentation has been assembled, sifted for its materiality and organised to meet the needs of the Inquiry team, is it sensible to approach prospective witnesses for their written statements. Either because of the sheer size of the task - often the documentation is voluminous and often ill-arranged - or because the Inquiry tries to present the semblance, as well as the fact, of impartiality and independence, there is a need for professional assistance in ingesting and digesting the gathered material. In short, any public inquiry demands from the outset the active participation of counsel.

The appointment of Mr Alan Alexander SC (Trinidad & Tobago) and Mr Dexter Theodore (of the St Lucian Bar) as Counsel to the Inquiry was indispensable to the satisfactory conclusion of the Inquiry at the end of September 1998. Both of them had been instructed in the earlier abortive proceeding in October 1997 before the Hon Ms Monica Joseph. Thus they were entirely conversant with the documentation pertaining to the Roseau Bay Affair (Chapter IV) and the Shanty Town Affair (Chapter V) when this Inquiry was set in train in April 1998. As a result, it was possible to go ahead with the oral hearings in those two topics at the end of June 1998. The documentation relevant to Nationwide Properties (a topic not within the terms of reference of the earlier inquiry) was not in an advanced state of collection, let alone collocation. That state of affairs was not achieved until the summer months; the oral evidence on that topic was deferred until Stage 2 of the Inquiry, during the last fortnight of September 1998.

Whatever may be said, justly or not, Mr Alexander and Mr Theodore performed their task of preparing the documentation and presenting the facts relating to the three topics under scrutiny with consummate skill and indefatigable energy. Without their efforts, the Inquiry could not have been completed with such demonstrable efficiency and effectiveness. (I have commented elsewhere on the strictures made by Mr d'Auvergne and his counsel, Mr Michael Gordon on the manner in which Mr Alexander conducted his questioning of Mr d'Auvergne. I have stated in Chapter III that I found nothing in Mr Alexander's handling of the witnesses that in any way transgressed the ethics of the legal profession.)

The two of them were ably assisted by Ms Veronica Cenac, who was appointed by the Governor-General to act as Secretary to the Inquiry. Her assiduity, combined with a cheerful disposition in the face of some difficult administrative arrangements, was remarkable. She took everything in her stride, even the not infrequent hiccups in the air-conditioning at the Parliamentary Assembly and the more common, even persistent breakdown in the facilities at the offices of the secretariat. None of this dispirited Ms Cenac or the secretarial assistants who valiantly grappled with the task of transcribing the tape-recorded evidence. For reasons that are not entirely explicable, the transcripts of evidence for Stage 2 at the end of September did not reach me until mid-December. For that reason my report was delayed a fortnight beyond the deadline of 31 December 1998. If public inquiries are to function smoothly, it is imperative that the secretarial back-up is itself efficiently organised. In the context of a public inquiry administrative delay, like justice delayed, is a denial of that fairness owed to all participants in the inquiry process and the public keenly awaiting the inquiry's report.

Mr Gordon in his written submissions of 9 November 1998 (which are of sufficient importance and interest that I have annexed them to this report) raised two important issues. First, Mr Gordon complains that it was unfair on those witnesses who might be subjected to strong questioning that the broadcasting agencies were permitted to record and relay the proceedings of the Commission, and that this led to a wide dissemination to all St Lucians, who might be glued to their television screens avidly imbibing the spectacle of the Inquiry: "The soap operas were, for once, tipped off their highest perch," was how Mr Gordon graphically depicted the unfair effect of the public in effect sitting in the chair of the Commissioner, "and [people] were able to draw their own conclusions".

There is a highly arguable debate about the use of television cameras in the courtroom. This is not perhaps the right occasion to rehearse the arguments for and against the practice. For present purposes, I would point out that the Commissions of Inquiry Ordinance requires that the Commission shall be held in public. The warrant from the Governor-General laid down the venue of the Parliamentary Assembly as the forum for the Inquiry. Since no impediment was put in the way of the cameras which were placed in the Assembly room, I assumed that there would be no objection from the participants. At the preliminary hearing on 16 April 1998 I made a statement indicating that hearings would be in public, although in exceptional circumstances I might, on application, sit in private. I also invited any applications at the preliminary hearing on the proposed procedure. None was made. Nor, during the hearings, was any application made to limit the recording and relaying of broadcast material. It is too late for Mr Gordon, long after the oral hearings have been concluded, to complain about the supposed, adverse impact on his client (and presumably others) of TV coverage of his client's evidence. I should add that, if there was any adverse effect on the reputation of witnesses, Mr Peter Philip might have had stronger grounds for complaint than Mr d'Auvergne. Mr Phillip did not complain. Indeed, the contrary: his conduct in the witness seat can only have helped the public to understand the dilemma he faced as chairman and chief executive of Nationwide Properties Ltd.

The second issue relates to the burden and standard of proof in a public inquiry. The point is made so eloquently by Mr Gordon that I quote his words in full:

"The fact that the Commission has no power of sanction in law must not be taken to mean that the Commission has no power to sanction. St Lucia is a small country. A country where most people know each other, reputation is perhaps more important in a small community than in a large one such as the home of the Commissioner. It is the one thing that a person can hold to in times of plenty and in times of famine. It is delicate and can be destroyed by one careless word or gesture, and once destroyed lies like Humpty Dumpty who all the king's men could not put together again. Reputation is like a bucket of water filled painstakingly drop by drop. It takes years to fill it, but a careless kick can tip the bucket and send all of the water splashing to the ground. Mr Commissioner, you have it in your power to kick the bucket of Ausbert d'Auvergne's reputation. There are many who would urge you to do so, not for any objective reason, but only to fulfil some twisted political agenda of vengeance.

I said at the beginning of this submission that I would revert to the subject of the burden of proof. Mr Commissioner in a criminal case the burden is expressed in the old fashioned way as proof beyond a reasonable doubt. In civil matters the burden is lighter, being the balance of probabilities. What measure will you use in this Inquiry? I submit that you must apply a standard of proof nearly proximate to the standard required in criminal matters. Not because the subject matter of the Inquiry has raised any matter even vaguely criminal, notwithstanding that the Commission's Counsel tried to suggest this in his opening speech but because you are dealing with what most people hold most dearly, their reputation. AND THERE IS NO APPEAL."

Anyone who conducts a public inquiry cannot fail to be impressed, if not sometimes oppressed, with the onerous task inter alia, of assessing and commenting on the conduct of individuals. But an inquiry, by its very nature, is exploratory and expository; it is not adjudicatory as between rival contentions, as is courtroom litigation. It is not a court of law; it does not administer justice. It seeks to unfold the truth about an event (or events) in which individuals have taken part. In evaluating the evidence the Inquiry cannot avoid attributing and apportioning blame for the event(s) which has (or have) so perturbed the public as to require thorough investigation. And investigation calls for a search of all relevant material, without the constraints of rules which might dictate inadmissibility of evidence.

Burdens of proof are apt for those asserting a claim in the forensic situation. A public inquiry carries its own burden of ascertaining the material and analysing it, to arrive at a conclusion. Standards of proof, again, are attributes of legal process; the criminal trial calls for an exacting standard of proof beyond reasonable doubt, the civil process requiring a balance of probabilities. Neither, necessarily, is appropriate for the inquiry process.

The inquiry report imports no executive power. It can make no order; nor even make a binding decision. At most, the inquiring body may make recommendations to the sponsoring authority. To the extent that any criticism is established against an individual and publicly declared, it remains nothing more. Revelation of criminality or conduct inviting disciplinary action may, or may not follow. If it does, the relevant authority - prosecution or professional association - may take into account the findings of the inquiry, or base its indictment or charges of misconduct on such findings. But none of the safeguards attaching to the criminal justice system or preceding disciplinary process is diminished one wit. Reputations which are in jeopardy in the public inquiry are necessarily exposed in the public interest. Just as the parliamentarian may damage a citizen's reputation under the privilege of Parliament (and, incidentally, vice-versa), so too the public inquiry fulfils the similar function of exposure. (It may be that in certain circumstances the individual may claim anonymity from the public inquiry, but that would be rare.) By contrast, a reputation sullied by media publicity, may be rescued in the inquiry process. Many public inquiries are in fact set up to allay lack of public confidence in the administration of public service, and do so by exonerating the individual whose reputation has been traduced in the media by supposedly authoritative sources. The dilemma for the individual works both ways.

Mr Gordon posed the legitimate question: "What measures will you use in this Inquiry?" The answer is that, consistent with the twin aims of thoroughness and fairness (perhaps coupled with the need to carry out the inquiry expeditiously and efficiently) the totality of the material adduced before the Inquiry must be weighed judicially and judiciously so as to provide the optimum exposition of the events under inquiry. No criticism should be levelled at anyone unless there has been full opportunity to reply to it in advance of publication of the report.

If (as is the case) there is no appeal against the findings, there is always the public forum of debate. There can be nothing to prevent the individual criticised from publishing his or her response. And to the extent that there may be adverse consequences flowing from any criticism, ample opportunity will exist to resist those consequences.

The public inquiry may not be the perfect instrument for finding out the truth about scandals, disasters and other defects in public administration. But it is the recognised tool of modern democratic society that values overt public accountability. Like other modes of dispute-resolution, it can be an imperfect instrument for resolving issues of public importance. But it is the best that human society can do.

Everything in this report (excepting the annexes and extracts from written material before the Inquiry) has been composed in London between October and December 1998, save for Chapter VI (The Nationwide Properties Affair) which I was compelled to defer until the Christmas vacation due to the inordinate delay in the transcribing of the tape-recorded evidence. Hence the extension of the time limit for submission of the report from 31 December 1998 to 31 January 1999. No one in St Lucia, therefore, has seen the contents of this report prior to its receipt by the Governor-General of the 3 copies of the report accompanied by a diskette. My unbounded gratitude is due to Trevor French and Kate Challis who cheerfully accepted deflection and distraction from their ordinary duties as the secretarial support to me as the Independent Commissioner for the Holding Centres in Northern Ireland in order to turn my sometimes illegible scribble into the finished product.

Background to the two Commissions of Inquiry

This Commission of Inquiry was established on 15 April 1998 by the Governor-General, acting on the advice of the Cabinet, under section 2 of the Commissions of Inquiry Ordinance. Its terms of reference were:

TERMS OF REFERENCE

To inquire into the circumstances leading up to and surrounding each of the following events:

(a) the sale and purchase of approximately 26 acres of breach front land at Roseau Bay by Model Farms Limited (a company in liquidation) to Genesis Limited;

(b) the construction of a road in Shanty Town, Vieux-Fort, during the period, April to May, 1997;

(c) the conduct of the financial management of Nationwide Properties Limited for the financial year 1996, in light of the auditor's report, dated 15th October, 1997, which stated that his examination of the financial affairs of the Company "revealed misappropriation of company funds and lack of adequate documentation to support material account balances".

Further, to identify any legal and/or administrative deficiencies which allow or facilitate acts of impropriety, illegality or acts of misadministration by public officers or other employees of the Crown in the course of their duties and to make recommendations to remedy any such deficiencies.

And further, to make such observations and recommendations pertaining to the Commission of Inquiry and its terms of reference as the Commissioner may see fit to make.

And further, to report with all such observations and recommendations, not later than 31 December, 1998.

On 6 July 1998, by virtue of section 3 of the Commissions of Inquiry Ordinance, [see attached Appendix 1(b)] the Governor-General altered the terms of reference relating to (a) in the following manner:

NOW KNOW YE THAT I, DR CALLIOPA PEARLETTE LOUISY hereby direct that for the avoidance of doubt the meeting of the Development Control Authority on 23^rd March 1994 in connection with application No. 138/94 by Genesis Ltd. shall be considered part and parcel of the circumstances surrounding the sale and purchase of the Roseau Bay lands and therefore falls within the terms of reference of the said Commission.

It succeeded an earlier Commission of Inquiry which had become abortive as a result of successful proceedings in the courts for the recusal of the Commissioner, Ms Monica Joseph (a retired High Court judge of the Eastern Caribbean countries).

On 22 May 1997 the General Election in St Lucia resulted in a landslide victory for the Labour Party led by Dr Kenny Anthony. The losers were the United Workers Party, in which both Dr Vaughan Lewis had been the immediately preceding Prime Minister, and Sir John Compton who for some 17 years following independence in 1979 had been Prime Minister earlier; he was succeeded by Dr Lewis in April 1996.

On 17 September 1997 the Governor General, acting on the advice of the Cabinet, issued a Commission under section 2 of the Commissions of Inquiry Ordinance, appointing Ms Monica Joseph as the sole Commissioner, to enquire into:

"certain alleged corrupt practices within the administration of government prior to the May 1997 General Election".

The terms of reference of the Commission of Inquiry were further particularised (as set out in the St Lucia Gazette on 18 and 25 September 1997) under five separate subheadings; these referred to the following matters:

(a) a payment of EC$10365.15 made to Dr Lewis' wife*;

(b) a payment made to Ausbert d'Auvergne in circumstances concerning Sir John Compton*;

(c) the construction of a road at Shanty Town in Vieux-Fort;

(d) construction work relating to a national stadium* and

(e) the sale of land in Roseau Bay.

The Commissioner was then asked to enquire into:

"any and all allegations of fraud, corruption, breach of trust...etc... arising out of and in connection with any or all of the above and to make appropriate findings and recommendations".

The Commissioner held a preliminary hearing on 30 September 1997, at which various procedural matters were considered. The hearings began on 15 October 1997. Both Dr Lewis and Sir John Compton immediately raised the question of their legal representation, and who was to pay for it. The Commissioner ruled that neither was directly the subject of the inquiry and so neither was entitled to be represented under section 8 of the Ordinance. It was at that point that both men raised the question of bias on the Commissioner's part.

The "bias" proceedings

The background to the purported bias on the part of the Commissioner was as follows: In 1995 Ms Justice Monica Joseph had applied for an extension of her term as a High Court Judge beyond the ordinary retiring age, which was a normal practice. At the time Dr Lewis was Director of the Organisation of Eastern Caribbean States (OECS) and as such adviser to the Heads of Government, whose approval was required for such an extension. Sir John Compton was himself one of the Heads of Government concerned. The extension was refused. Both Dr Lewis and Sir John Compton alleged that Ms Joseph was extremely upset by the decision, which had adverse financial consequences for her in terms of full pay for the extended period and for her pension rights. It is apparent that the prime mover for the refusal was the Prime Minister of St Vincent - (one of the member States of OECS) who had been upset by an adverse constitutional decision previously given by Ms Justice Joseph. Dr Lewis and Sir John were of course, associated with the OECS Ministers' decision. As a result, they submitted, Ms Joseph in her capacity as Commissioner could not be considered impartial so far as their interests were concerned.

These protests were rejected by the Commissioner, who said that she functioned in only one way, "straight and fair". As to what had happened in 1995, she explained:

"Objection was made to extension of my service as OECS Judge by an OECS Prime Minister, but that OECS Prime Minister who made the objection was not Sir John Compton, former Prime Minister of St Lucia. So there can be no bias so far as Sir John is concerned. Dr Vaughan Lewis was an officer of the OECS and was acting not as the decision-making authority, but was executing the authority, and so far as I can see no bias can arise. I therefore do not disqualify myself from this......".

Following the Commissioner's ruling, the first witness was called. The next day, 16 October 1997, proceedings for leave to challenge the Commissioner's decisions were begun in the High Court by Sir John Compton, and on 20 October Dr Lewis followed suit. In the proceedings, both the Attorney-General and the Commissioner were made respondents. The relief applied for in each case was (in effect):

(a) an order of certiorari to quash the appointment of the Commissioner on the ground of bias;

(b) a similar order to quash her decision to continue the inquiry, on the same ground;

(c) an order to quash her decision that Dr Lewis and Sir John Compton were not entitled to be legally represented; and

(d) an order declaring that they were entitled to have the reasonable costs of their legal representation paid for by the State.

On 21 October 1997 Farara Ag J granted the two applicants leave, and stayed the proceedings of the Commission pending a substantive hearing, which he expedited. This took place before him in November, and he delivered judgment on 25 November 1997.

In summary Farara Ag. J. found:

(i) that the Attorney-General was a proper party to the proceedings;

(ii) that both Dr Lewis and Sir John Compton were entitled to representation before the Commission, in so far as its terms of reference implicated or concerned them;

(iii) that this did not entitle them to payment of their costs by the State; and

(iv) that their arguments based on bias failed in each case. In this connection, the judge drew a distinction between the Governor-General's decision to appoint the Commissioner, which he said was unassailable, and the Commissioner's decision to continue to act, which he found was not objectionable given (i) in Dr Lewis' case, that there was no evidence that he took any part in the 1995 decision not to extend her term as a High Court Judge, and (ii) in Sir John Compton's case, because it was clear that Ms Joseph did not consider him personally responsible for making that decision other than as a party to the ultimate decision.

Both Dr Lewis and Sir John Compton appealed to the Court of Appeal; judgment was delivered on 9 February 1998. As a discrete point, in both appeals the Court agreed with Farara Ag.J. that the Attorney-General was a proper party to the proceedings. Otherwise, in Dr Lewis' case its decision was not unanimous. Nevertheless the Court (Singh and Redhead JJ.A., Byron Ag.CJ, dissenting) found that there was a real danger of bias on the Commissioner's part, so that she should be prohibited from further conduct of the inquiry. In Sir John Compton's case, the Court of Appeal's decision was unanimous, and to the same effect.

The Attorney-General and the Commissioner then applied to the Court of Appeal for leave to appeal, in both cases, to the Judicial Committee of the Privy Council. These applications were heard by a single judge (Matthew Ag.J.A.) who on 19 March 1998 granted leave on the basis that the issues raised were of general and/or public importance. On 7 April 1998 further cross-applications were made to the Court of Appeal:

(i) Dr Lewis and Sir John Compton said that Matthew Ag.J.A. had no jurisdiction, sitting alone, to grant leave to appeal. They further said that no substantial question of law arose, and that former Ms Justice Joseph had resigned, so that the issues raised were now of only academic interest.

(ii) The Attorney-General and the Commissioner renewed the application for leave to appeal (impliedly conceding that this could be decided only by the full Court). Their evidence was that the Commissioner had not resigned, and that the issues remained live and important. The terms of reference of the successor Commission of Inquiry did not include three of the five matters in the earlier Inquiry. It was the intention of Government to keep these matters alive, as and when the validity of the earlier Commission of Inquiry had been resolved in the Judicial Committee of the Privy Council.

The parties' applications were considered by the full Court of Appeal on 3 June 1998. The Court refused leave for two reasons. First, the issue of bias on behalf of the Commissioner of Inquiry appointed by the Governor-General could not be categorised as raising a matter of general public importance; and secondly, the issues had become hypothetical in the light of a subsequent Commission of Inquiry superseding the earlier Commission on two of the subjects referred to in the terms of reference. It was informed - actually, misinformed - that the earlier Commission of Inquiry had been abandoned. According to the Court of Appeal's judgment on the application for leave to appeal, "the impression to be gleaned from these disclosures was that the Monica Joseph Commission had been abandoned and was now superseded by the Blom-Cooper Commission". This is not correct. Ms Monica Joseph has not resigned; the status of her Commission, in so far as it affected the two former Prime Ministers, is in suspended animation.

The application for leave to appeal was heard by Satrohan Singh J.A., Redhead J.A., Adams Ag. J.A., only Mr Justice Redhead having been a party to the appeal; he had delivered the judgment of the majority.

The applications by both Dr Lewis and Sir John Compton were, in any event, misconceived. There was, and is no basis for a valid challenge to the appointed Commissioner of Inquiry on the ground of bias, other than by way of judicially reviewing the appointment by the Governor-General acting on advice of the Cabinet. So long as the Commissioner holds the warrant of appointment as gazetted, he or she is bound to carry out the task assigned to him or her. If there is any proper claim that the Commissioner is biased, the challenge must be directed to the Governor-General, on the ground that no reasonable Governor-General, knowing the facts which are said to contribute bias and inappropriateness of the appointment, could have properly made the appointment. This is well-established law in England: see R v. Secretary of State for Health, ex parte the Prison Officers Association, 15 October 1991 where an application was unsuccessfully made to remove four members of the Mental Health Act Commission appointed by the Secretary of State to inquire into allegations of ill-treatment of patients at Ashworth Special Hospital. The test applied by Kennedy J (as he then was) was whether the Secretary of State had so acted in a manner that no reasonable Minister could conceivably have acted.

In the proceedings before the St Lucian courts there was no suggestion that the Governor-General on advice of the Cabinet acted unreasonably. In my view, the Commission of Inquiry of 17 September 1997, in so far as these matters have not been replicated in this Commission of Inquiry, remains legally extant.

The St Lucian Government lodged a petition for special leave to the Judicial Committee of the Privy Council. The petition did contain a submission, albeit secondarily to the main argument over bias, that the challenge by Dr Lewis and Sir John Compton was misconceived, inasmuch as it was not open to the Commissioner to disqualify herself from continuing to conduct the inquiry. Once the Commission was appointed, she was bound by the terms of her appointment to conduct the inquiry unless and until the Commission was either terminated by, or was completed by the delivery of the report to, the Governor-General. Any challenge could be directed only at the Governor-General's decision.

The Judicial Committee of the Privy Council, on 17 December 1998, dismissed the Government of St Lucia's petition for special leave to appeal against the decision of 9 February 1998 of the Eastern Caribbean Court of Appeal disqualifying Ms Monica Joseph from chairing the Commission of Inquiry set up on 17 September 1997. It will now not be legally possible for the Governor-General of St Lucia, on advice of the Government, to issue a fresh warrant appointing Ms Monica Joseph to inquire into the outstanding matters which, on the face of them, involve either Sir John Compton QC or Dr Vaughan Lewis. The question remains, however, whether a fresh warrant should now be issued appointing an alternative suitable Commissioner(s) to conduct an inquiry into such outstanding matters.

So long as it remained legally possible for Ms Monica Joseph to be reinstated as Commissioner under the Governor-General's warrant of 17 September 1997, it would have been entirely appropriate to revive the Inquiry under her chairmanship. After all, the attempts by Sir John and Dr Lewis to seek her recusal on the grounds of perceived bias would have failed; they should accordingly suffer the consequences of a self-induced failure. As it has transpired, they have been successful in the courts to frustrate the proper efforts of Government to hold a public inquiry into matters of public interest. To negative the success of Sir John and Dr Lewis now by the device of a fresh Commission of Inquiry might be regarded as vindictive. I do not think, however that that attitude would be right.

Since that question must be for St Lucians to answer, I decline to come down on one side or the other. Accordingly, I make no recommendation in that regard. I would add only this: If there is to be any fresh inquiry I strongly urge that the Commission be composed of three members, drawn from other parts of the Eastern Caribbean.

Preconception, prejudices and bias

It might be helpful if I said something about the concepts of bias and partiality. The famous American Judge, Jerome Frank, said in a case in the US Court of Appeals for the 2nd Circuit, In Re J P Linahan Inc. 138F.2d 650 (1943): "If .....'bias' and 'partiality' be defined to mean the total absence of preconceptions in the mind of the judge, then no-one has ever had a fair trial and no one ever will".

Preconceived views in the minds of any sensate being are inevitable. The human mind, even at infancy, is no blank piece of paper. We are all born with predisposition. The process of education and socialisation creates attitudes which affect each one of us in judging situations, attitudes which precede reasoning in particular instances and which, by definition, are pre-judices. Without acquired pre-conceptions ("slants" is the pejorative word, usually to be found in newspaper reports that are based on prejudice on), life could not go on. Every habit constitutes a pre-judgment; were these pre-judgments (or habits) absent in the individual, and were the individual obliged to treat every event as a precedent presenting wholly novel problems, he would go mad. Interests, points of view, preferences, likes and dislikes, loves and hates, are the essence of living for all, except perhaps for those marooned on a desert island. Bias (and partiality) must connote something more than preconceptions (and prejudices). To be biased is to take on an attitude that is in a different dimension to the essential characteristic of the sensate human being.

Ms Monica Joseph will undoubtedly have acknowledged in herself a predisposition to regard the action of those who denied her an extended period on the Bench as inimical to her judicial career and full pensionable retirement. To dub her response - quite apart from her declared absence of any personal animosity to Sir John Compton or Dr Vaughan Lewis - as bias is to infer an improper attitude to her presumed judicial approach to the task of conducting a public inquiry. On any interpretation of the established facts, a finding of bias was, in my view, unwarranted.

The Politicising of the Commission of Inquiry

From the outset there flowed an underlying current of political hostility to the Inquiry, punctuated at times in the Inquiry process by overt political conduct on the part of some of the participants. No doubt, active members of the outgoing administration of the United Workers Party (UWP) felt aggrieved at the new, Labour Party administration, putting under the searchlight some contentious public activities of the pre-election period. It was natural that the battles on the hustings, won and lost on the day of the General Election on 22 May 1997, would be re-fought, post-election. The political rivalries did in fact linger on. But it must be remembered that one of the promises in the election manifesto of the St Lucia Labour Party (SLP), in proclaiming future "good governance", was that governance of St Lucia in the recent past would be subject to a public inquiry.

Under the heading, Anti-Corruption, the manifesto said:

"The long rule of the UWP has been characterised by the increasing abuse of public office for private gain by many individuals closely associated with the party. The Labour Party has always maintained that abuse of public office should never be tolerated and preventive measures must be put in place to discourage corruption at all levels. To this end, an SLP Government will:

Appoint a Commission to review all cases of alleged corruption, determine which instances provide a basis for prosecution and, most important, to recommend measures to prevent recurrence of these abuses".

This Commission of Inquiry is the fulfilment of that electoral promise. In winning the General Election so decisively, the Labour Party was bound not merely to fulfil its promise but was also carrying out a public demand.

The status of a commitment by a political party in its election manifesto, after its election, was considered by the English Courts in Bromley London Borough Council v. Greater London Council and another [1982] 2 All ER 129. In that case the majority party in the Greater London Council had issued a manifesto in which it promised to cut the bus fares on London Transport by 25%. The majority of the Council treated its election as a mandate to fulfil that promise. The House of Lords held that the London Transport Executive, to whom the Greater London Council made grants, had to run its operations on ordinary business principles. The Greater London Council, in exercise of its undoubted discretion to determine the proportion of income which the London Transport Executive received from fares and grants, could exercise that discretion according to its own judgment of what best met the transport needs of London. But it also had a fiduciary duty to the ratepayers of London, when making a grant to the London Transport Executive, which had to be weighed in the balance of its other obligation to users of London Transport. The decision of the Council was thus a thriftless use of ratepayers' money and was in breach of fiduciary duty.

Three of the five Law Lords held that the GLC had not exercised its discretion lawfully in regarding itself as irrevocably bound by the majority group's commitment in its election manifesto to implement the reduction in fares, regardless of the loss of rate support grant and the consequential cost to ratepayers, which had not been foreseen when the commitment in the election manifesto was made. In the Court of Appeal Lord Denning MR dealt directly with the status of an election manifesto. He said:

"A manifesto issued by a political party, in order to get votes, is not to be taken as gospel. It is not to be regarded as a bond, signed, sealed and delivered. It may contain, and often does contain, promises or proposals that are quite unworkable or impossible of attainment. Very few of the electorate read the manifesto in full. A goodly number only know of it from what they read in the newspapers or hear on television. Many know nothing whatever of what it contains. When they come to the polling booth, none of them votes for the manifesto. Certainly not for every promise or proposal in it. Some may be influenced by one proposal. Others by another. Many are not influenced by it at all. They vote for a party and not for a manifesto".

Lord Denning's view, downgrading the politico-legal essence of an election commitment, because he supposed that it addressed only its own supporters and not the electorate, was not endorsed by those Law Lords who referred to it in the context of the GLC's fiduciary duty to the ratepayers of London. Lord Wilberforce said (p.158J) that, once it became apparent, post-election, that the ratepayers' burden would be approximately doubled, the GLC acted in breach of its fiduciary duty to its ratepayers: "It failed to hold the balance between the transport users and the ratepayers, as it should have done". Thus Lord Wilberforce was giving the election manifesto commitment full weight, to be adjudged in the light of subsequent financial estimates and in the context of a duty to others of the electorate than transport users.

Lord Diplock (p.165 c-e) impliedly rejecting (if not ignoring) the populist view of Lord Denning, acknowledged the impact of a manifesto commitment and gave it a truly democratic role as a compelling factor for policy-making by the majority party. He said:

"A council member once elected is not the delegate of those who voted in his favour only; he is the representative of all the electors (ie adult residents) in his ward. If he fought the election on the basis of policies for the future put forward in the election manifesto of a particular political party, he presumably himself considered that in the circumstances contemplated in the manifesto those policies were in the best interest of the electors in his ward, and, if the democratic system as at present practised in local government is to survive, the fact that he received majority votes of those electors who took enough interest in the future policies to be adopted by the GLC to cause them to cast their votes, is a factor to which considerable weight ought to be given by him when participating in the collective duty of the GLC to decide whether to implement those policies in the circumstances that exist at the time that the decision falls to be made".

Lord Brandon put the true position of an election manifesto clearly: (p. 182 e-f)

"In my view it is plain for two reasons that the GLC did not exercise its discretion lawfully. The first reason is that, if and in so far as they exercised their discretion at all, the majority of the GLC considered themselves bound to exercise it in the way they did because they had promised to do so in their election manifesto. It is, of course, entirely appropriate for a council, the majority of whose members have been elected after setting out a particular policy in their election manifesto, to take into account, and give considerable weight to that circumstance when exercising their discretion in relation to that policy after they have been elected and come to power. It is, however, entirely wrong for such a majority to regard themselves as bound to exercise their discretion in relation to that policy in accordance with their election promises, whatever the cost and other countervailing considerations may turn out to be. In my view it is an inevitable inference from the evidence taken as a whole that the majority on the GLC, when they approved the proposals for a 25% overall reduction in fares, were motivated solely by the belief that, because they had promised such a reduction before their election, they were completely and irrevocably bound to implement it after being elected".

The new Government in St Lucia might positively have laid itself open to serious criticism had it not set up the Commission of Inquiry. The fact that the earlier Commission was aborted as a result of a successful judicial challenge by Sir John Compton and Dr Vaughan Lewis (two former Prime Ministers) might have induced the Government to abandon the whole exercise, in the cause of controlling public expenditure. That it persisted in accordance with its electoral pledge, to considerable financial cost, should, in my view, be applauded, and not excoriated by the losing politicians of the Government, pre-May 1997. I ought to add, for avoidance of any misunderstanding, that the premise under which the Commission was to be appointed - namely, "anti-corruption" - did not (and could not) preordain the Commission's findings. In anticipation of the rest of this report, no actual corruption has been found; only a high degree of maladministration in government, amounting in some instances to impropriety on the part of Ministers and, palpably, one public official. Yet, as I explain hereafter, bad governance is the breeding ground for corrupt practices.

When the St Lucia Labour Party won the general election by an overwhelming majority on 22 May 1997 it, no doubt, began to consider its manifesto commitments, including its promise to the electorate to set up a commission to review aspects of public administration under its predecessor in government. In deciding, on or before 17 September 1997, to advise the Governor-General to establish a Commission of Inquiry under the sole chairmanship of Ms Monica Joseph (a retired High Court Judge of the Eastern Caribbean States) the Cabinet would, in exercise of its undoubted discretion to implement its manifesto commitment, have calculated the likely cost to the public purse of such an inquiry. Since it would be the same public which democratically voted the Labour Party into power that would have to foot the bill for the Commission of Inquiry, the only balancing factor would be the fairness of the inquiry towards those whose conduct would come under public scrutiny, in the light of the terms of reference of the Commission.

The size of the predicted costs of the Commission of Inquiry would undoubtedly be a matter of general concern and in particular the politicians of the opposition party. No one, however, would have any basis in law for challenging the exercise of the Cabinet's decision to advise the Governor-General to establish the Commission of Inquiry, unless it could be said - which is highly unlikely - that no reasonable Cabinet could have come to such a decision within the bounds of sanity. Any challenge to the public inquiry should be confined to those institutions other than the courts of law. Judicial review could not be an appropriate way of airing publicly any discontent about the Inquiry, other than its procedure.

Any Commission of Inquiry is inevitably infected by political considerations. After all, the Commission of Inquiry Ordinance itself speaks of an inquiry into any matter in which an inquiry would, in the opinion of the Governor-General, be for the public welfare; the inquiry into matters of a public nature are described as the "conduct or management of any department of the public service, or of any public or local institution, or the conduct of any public or local offices" of St Lucia. Since under the 1978 Constitution of St Lucia the Governor-General acts in accordance with the advice of the Cabinet (see Article 64) the setting up of a Commission of Inquiry is in effect a government decision. Quite apart from the initiation of an inquiry, the subject matter will intrinsically be "political".

There can be no quarrel with a public debate over the propriety of a public inquiry, which is conducted outside the inquiry process, although a modicum of restraint in discussion of the matters under inquiry, while the Commission of Inquiry proceeds to do its job, would not go amiss. After all, the Commission of Inquiry possesses the powers of the Supreme Court to summon and examine witnesses and the Commissioner is immune from action for anything done, qua Commissioner. The Commission of Inquiry, although not a court of law and not administering justice, is quasi-judicial and generally entitled to be treated like a court. But if, within the bounds of propriety and appropriate courtesy, there is nothing wrong with a debate in the public fora, the inquiry process should not be used as a platform for political statements. In two respects there appeared to me to be a departure from what I regard as the bounds of proper conduct of a witness at the public inquiry. The Inquiry process is not amenable to the political rhetoric of the hustings.

Sir John Compton

Sir John Compton was invited to give evidence on the Shanty Town Road affair. To that end he submitted a written statement on 22 June 1998, the first day of the oral hearings of Stage 1 of the Inquiry. The written statement provided largely a useful and interesting historical background to the social problems in the Shanty Town area of Vieux-Fort. The written statement ended up as follows:

"The Governments over which I presided never intended to abandon them [the people of the area] and this inquiry would not have been necessary had not the obstructionist tactics of the St Lucia Labour Party since 1983 prevented the implementation of the project.

The partial completion of the project has given the residents of "Shanty Town" such pride in their new surroundings that they now refer to their new home not as "Shanty Town" but as "Beverly Hills".

I hope that the Labour Party now in Government by continuing the project will give the people of the Mangue similar pride and by continuing the drainage project rather than waste money on what I consider a political witch hunt and a personal vendetta against me". (emphasis supplied.)

Although this statement was tinged with party political controversy, it seemed to me unobjectionable, having regard to both its form and timing. It was, moreover, not read out for the media (TV and press) to relay to the public of St Lucia.

At the hearing a week later, Sir John came to give evidence as a witness. Although he was represented by counsel, he chose not to be led in his questioning but proceeded to speak at great, if not inordinate length. He further declined my invitation to be seated. He did not so much as give evidence from the witness seat (like all other witnesses) as to declaim on issues that were not directly pertinent to those strictly limited issues about authorisation of a public contract, which I had to determine. It is interesting to observe that the transcription of Sir John's evidence is described (by the transcriber, not by me or the secretariat) as "Statement by Sir John Compton". I endeavoured on occasions during the hour-long "statement" to interrupt and bring Sir John to deal with the narrow questions in which I needed to have his answers. He was not to be deterred from delivering a political speech. That this was evident by one exchange between Sir John and myself can be seen from the following extract:

Commissioner: Well now Sir John, I think you have really covered all that I want to hear about the authorisation, but is there anything else you want to tell me about that?

Sir John: Yes, you speak, let's speak about the road to ......

Commissioner: You must remember, I am not a jury, Sir John.

Sir John: No, no, no, but the jury is out there [pointing dramatically to the window of the Parliamentary Assembly where the public hearing is being held]. When you have turned your backs and written your report, they are out there and I have to face them.

Commissioner: Absolutely, and I will too, Sir John.

Sir John: I have to face them [the words, as transcribed, are italicised as to indicate the emphatic nature of the language]. These are the people, who, on whose, whose understanding my character is being in issue now. That is the people, these are those I have to face. Now, let me speak about the other one, about the road at the back of the , the Club Med.

Sir John's "Statement" did not end there. After another lengthy passage in his speech, the following dialogue between Sir John and me took place.

Commissioner: Now, Sir John, Sir John..........

Sir John: .....and now my conduct is being, being...... Commissioner: Sir John, Sir John, I'm not concerned with any of these matters [referring to "improvement and rehabilitation of earth works section of the road in the back of the Quarry Products"].

Sir John: Well, I am, I am.

Commissioner: Forgive me, forgive me Sir John. This is my Commission of Inquiry.

Sir John: Yes, Sir.

Commissioner: ........ and as far as I am concerned, the question of the Shanty Town Road is a very, very simple - well, not simple but narrow issue - about the authorisation of the works that were to be done on that road, and all the background to it in your own political position, interesting as it is, is really of no concern of mine.

Sir John: You know, as I said, the jury is out there.

Commissioner: Yes, it is.

Sir John: And I am concerned about it.

Commissioner: But you are not addressing the jury at the moment; you are addressing me.

Sir John: Having, having written your report, whatever it is I have to live with it.

On 23 July 1998 the Commission of Inquiry issued a notice of particulars of criticisms which might be made of Sir John's conduct in the Commission's report. The notice stated that "on 29 June 1998, as a witness at the inquiry into the Shanty Town Road affair, you committed an abuse of the process of a Commission of Inquiry by deliberately delivering an overtly political speech". On 28 July 1998 Sir John submitted the following response:

"Abuse of Process - overly [sic] Political Speech

I consider the matters referred to the Commission of Inquiry, about which I was summoned to testify, to be overly [sic] political in nature and consequently required an appropriate response. This I sought to give and feel, in the circumstances, completely justified in so doing".

On 14 September 1998, at the resumed oral hearing of the Inquiry, I pointed out to Sir John's counsel, Mr Kenneth Monplaisir QC that there had been a misunderstanding. The word used in the notice was "overtly". I invited Sir John to reconsider his response. On the following day, Mr Monplaisir told me that Sir John had had the matter drawn to his attention, but did not wish to alter his response. Sir John's response concluded with a paragraph, headed "General" It read:

"General

As a tax payer of this country, I fail to understand why millions of Dollars of the taxes of the people of this country should be employed in a Commission of Inquiry to determine, whether it was contrary to staff orders to recommend the employment on a temporary basis, at a salary of EC$3,000.00 per month, (a maximum expenditure of EC$9,000.00) of a St Lucian from the Vieux-Fort area to supervise the construction of a road in the Vieux-Fort area which was part of a project approved by the Parliament of St Lucia.

This I consider an abuse of the Commission of Inquiry Ordinance and a wanton and indefensible waste of the money of the tax payers of St Lucia.

Let me repeat that I consider this Inquiry to be politically motivated and consequently its challenges will be given appropriate responses".

I have now to consider whether the provisional criticism should stand. Re-reading Sir John's words at the Inquiry and his self-justification of them in his response to the notice of criticism, I do not have any hesitation in concluding that Sir John was seizing the opportunity of the public forum of the Inquiry (press and TV in full presence) deliberately to make a party political speech not only about the supposed impropriety of the Government in setting up the Commission of Inquiry, but also to allege that "this Inquiry is politically motivated and consequently its [presumably the Inquiry's] challenges will be given appropriate responses".

Was Sir John's conduct "an abuse of the process of a Commission of Inquiry?" I could answer that question in the affirmative only if there was a general understanding that the use of the witness box as a place for making a political speech was an abuse. I am not at all sure that, had Sir John conducted himself in like fashion in a court of law, he would have been committing a contempt of court. There would not have been any risk - least of all, not a substantial risk - of any interference with the course of justice. And what was said would not constitute a scandalising of the court. If it would not have been a contempt of court, it follows that it should not be regarded as an abuse of the process of the Inquiry. Having said that, I must not be taken to approve of Sir John's conduct. While withdrawing the provisional criticism, I retain my strong feeling that Commissions of Inquiry must be left to "make a full, faithful and impartial inquiry" without being embroiled in the political maelstrom that prompted the setting up of the inquiry, or in any issue that arouses political partisanship. To permit participants in the Inquiry to take the opportunity afforded by their witness-status to indulge in a politicisation of the Inquiry is to pitchfork the Inquiry into a political arena not of its making, not of its choosing and not of its function of independence and impartiality. I sincerely hope that, after the experience of this Inquiry, it will become the established norm and practice that Commissions of Inquiry will be insulated from any political influence that may pervade the subject-matter of the inquiry.

I should add that I would have been helped towards my task had Sir John not been so keen to indulge his political appetite (and, I should say, aptitude for debate) over the Commission's terms of reference, instead of meeting the potential criticism of his actions head-on. If I am permitted to say so, I feel that Sir John would do better to adopt the role of elder statesman, to which he is eminently suited, rather than to rake over the embers of political battles of the past or to fight fresh political issues.

If I absolve (as I do) Sir John of any criticism on the score of his personal conduct at the Inquiry, I cannot criticise Mr d'Auvergne, more particularly since I have not given him any prior notice of possible criticism. But I cannot let pass some written comments he made in his written response to the notice of criticism about his conduct in the Roseau Bay affair in the years 1991-1994.

Mr Ausbert d'Auvergne

In his written statement in answer to the notice of potential criticism of 23 July 1998 Mr d'Auvergne wrote in his concluding paragraph:

"My response to the criticisms" which may be made by the Commission of my conduct relating to the Roseau Affair, has sought to address the issues in a manner which will enable the Commission to dispassionately establish the facts, and the truth of the matter at hand, instead of fulfilling the role intended for it as the accessory to cynical destruction of the reputation of persons.....".

In his written response of 25 August 1998 to the letter of potential criticism served on him on 23 July 1998 Mr d'Auvergne prefaces his personal answers with an attack upon the initiators of the Commission of Inquiry - namely, the Cabinet in its advice to the Governor-General - and upon counsel to the Inquiry, Mr Allan Alexander SC (Trinidad). In so far as there might be implied some criticism of the Commissioner or the secretariat of the Commission I was assured by Mr Michael Gordon, Counsel for Mr d'Auvergne that none of Mr d'Auvergne's remarks was intended to apply to me or the Commission.

Mr d'Auvergne states at the outset that the contents of the 'Notice of Criticisms.... have served to confirm my impression, formed on the basis of the Stage 1 proceedings [22-26 June 1998 inclusive] that the objective of those who originally established this Commission is not "to impartially determine the facts of this matter, but rather to fulfil some predetermined agenda of victimisation"; and at the end of his preface he expresses willingness to answer the potential criticisms, "notwithstanding my [Mr d'Auvergne's] opinion that the initiators of this process would like to believe that the findings of the Commission have been pre-ordained". It is not for the Commission to reply to these allegations made of the Government in setting up the Commission. All I can say is that whatever Government may seek to achieve as a result of the Commission of Inquiry, my report has in no sense been "pre-ordained" by anyone. At the time of Mr d'Auvergne's suggestion I still had an open mind. That is not to say I had an empty mind. (I began to write the section in my report on the Roseau Bay affair in late October, only after I had received written submissions from Mr Michael Gordon earlier that month.)

Mr d'Auvergne's remarks which are directed at Mr Alexander do, however, require an answer. Mr d'Auvergne states that "the highly subjective and emotive tone of the 'Criticisms' is completely consistent with the patently hostile and adversarial style of the Counsel to the Commission during Stage 1". I should point out that letters of criticism go out under my authority and in my name. I in fact drafted them - with Mr Alexander's assistance. I take full responsibility for their content, style and tone. Judgment about the propriety of the letter of criticism can be made by the reader of the report: the letter and its verdict appear at the end of chapter IV.

Mr d'Auvergne continues his prefaced remarks by adding: "In no way therefore can the approach of the Counsel to the Commission in the Roseau affair be deemed to be objective, or impartial. Indeed, the manner in which this matter is being addressed by Counsel seems to reflect his knowledge that there is no recourse against this travesty, which seems to have been set up with sole objective of the establishment and confirmation of some predetermined and politically expedient conclusion. The affiliations of the Counsel to the Commission are well known to me and I therefore understand his eagerness to play to a particular audience". The remarks end up with a reference to a statement made by Mr d'Auvergne on 30 September 1997 before Commissioner Monica Joseph which is not reported to me, and I have not tracked back to the transcript of those hearings.

Mr d'Auvergne misunderstands the role and function of counsel to this Commission of Inquiry. I explained counsel's position vis-a-vis the Commission in my statement on 16 April 1998 on the proposed procedure for conducting the Inquiry. I said:

Mr Alan Alexander, Senior Counsel from Trinidad & Tobago has been appointed (or I should say, re-appointed, since he was involved in the earlier Commission) as counsel to the Inquiry. His duties include advising me on any matters of law or evidence that arise, and presenting the evidence. His role in so doing is one of strict impartiality. To that end, he will at the opening of the Inquiry set out what is factually known from the documentation and the written statements from the witnesses, and will indicate the scope of the Inquiry. He may pose relevant questions for the Commission to answer in its report. But he will not be making a final speech at the end of the hearings; in that way I conclude that he can maintain the perception of impartiality, so necessary in a public inquiry.

That statement requires some elaboration. Counsel to a Commission of Inquiry is not independent; he or she is dependent on the requirements of the Commission to elicit evidence which it wants explored and uncovered. But he or she is impartial in the sense that, while he or she serves the Commission's interests, the manner in which that task is performed is, in the traditions of the various Bars of Commonwealth countries, uninfluenced and undirected by the tribunal. Counsel may be friendly or hostile to a witness as he or she thinks appropriate. What must be kept in mind is that counsel is not a member of the Commission and does not participate in the decision-making or even in writing the report. He does not dictate the process.

As I indicated in the opening statement, I insist on visible detachment of counsel from the process of assessing the value and weight of evidence by not allowing a final speech from counsel to the Commission (I should add that in this respect I depart from the normal practice of Commissions of Inquiry which do use their counsel in assisting in the analysis and evaluation of evidence).

At the time of Mr Alexander's questioning of Mr d'Auvergne on 25 and 26 June 1998 I did not conclude that there was anything remiss or untoward in the questioning. Had I noticed anything unfair I would have intervened. Since the hearing I have read and re-read the transcript of the hearing - at pages 253-328 - and can find nothing, even faintly, objectionable. Of course, when reading a transcript one misses the tenor of the questioner. I can detect from the transcript that Mr Alexander was certainly probing Mr d'Auvergne's answers to questions. However uncomfortable Mr d'Auvergne found the questioning, Mr Alexander was never unfair. When, on occasion, Mr Alexander exhibited some forensic irritation at the witness's answer, I intervened. For example at p. 261 the following exchange appears:

A d'Auvergne: No, I'm not saying so Sir.

Commissioner: Ought they not to have registered them at the time when the fact was existing?

A d'Auvergne: Yes what I am saying is that a large measure of responsibility for the registration of shares and of filing documents lies with the Company Secretary.

Commissioner: Yes.

A d'Auvergne: And some of these arrangements lapsed and when, because of the new Companies Act we had to do continuances and we had to look at the provisions of the new Companies Act certain.....

Counsel Alexander: Mr d'Auvergne? [Displaying evident irritation.]

A d'Auvergne: ...certain....

Commissioner: Let him finish.

A d'Auvergne: ....certain deficiencies and inadequacies were drawn to our attention and we moved to comply with all our companies.

Commissioner: I see. But they ought to have been registered in 1992, is that right?

A d'Auvergne: The ideal thing........

Commissioner: And there was a failure to do so on somebody's part.

A d'Auvergne: Yes. The ideal thing is to register simultaneously, but when you fail you pay penalties.

Counsel Alexander: Now, Mr d'Auvergne, there are several instances in respect of companies which you formed where share transfers are not registered like this one until after you had retired from the Government service, is that so?

A d'Auvergne: That is correct.

An example of counsel's understandable irritation, unhindered by me appears in the following exchange:

Counsel Alexander: Now, backtracking, when you received the offer, copy of the offer from the Liquidator to the Government, you became aware that some of the lands offered for sale to the Government was the Fond Manger lands?

A d'Auvergne: Correct.

Counsel Alexander: And you became aware of the fact that those lands were set aside for the erection of factory shells?

A d'Auvergne: That is contained in the document, yes.

Counsel Alexander: And therefore they were lands of commercial and industrial value?

A d'Auvergne: That is what is contained in the document, yes.

Counsel Alexander: I'm not asking you what is contained, I'm asking you of whether you became aware?

A d'Auvergne: I am indicating to you that that is what is contained in the document.

Counsel Alexander: Answer my question please, Sir.

A d'Auvergne: I am responding that that was what was contained in the document.

Counsel Alexander: Did you become aware of these questions that I have put to you?

A d'Auvergne: I became aware of what was contained in the document.

Counsel Alexander: I did not ask you that.

A d'Auvergne: Well, that is what I am responding Sir.

Counsel Alexander: I have asked you, Mr d'Auvergne, whether you became aware of the fact that Fond Manger lands was reserved for erection of factory shells, did you become aware of that?

A d'Auvergne: I will repeat, I will repeat, I became aware of the contents of that document, yes.

This seems to me to be a typical exchange between witness and advocate and can be adjudged unfair only in the sense that a witness whose conduct is under the searchlight feels that his questioner is being unfair.

Mr d'Auvergne is a highly intelligent man. He held the highest office in the public service. He was well equipped forensically to protect himself. He was not that kind of vulnerable witness who so often needs to be protected by the tribunal. I have no hesitation in rejecting Mr d'Auvergne's verbal assault. I would add only that before I received Mr d'Auvergne's letter of 25 August 1998 I would not have taken any adverse view of Mr d'Auvergne. It will be noted that, at the conclusions of the evidence, I thanked him "very much" and he responded in like fashion to my releasing him:

Michael Gordon: Thank you, Mr d'Auvergne.

A d'Auvergne: Thank you.

Commissioner: Mr d'Auvergne, thank you very much.

A d'Auvergne: Thank you, Commissioner.

Commissioner: And you're released from....

A d'Auvergne: Thank you very much.

Commissioner: And I hope you can catch your plane in good time.

A d'Auvergne: I will try my best to do so Sir.

At the resumed hearing of the Commission of Inquiry on 14 September 1998 I drew the attention of Mr d'Auvergne's counsel, Mr Michael Gordon, (to whom a copy of Mr d'Auvergne's statement was sent) to the passage cited. Mr Gordon assured me that the words were not directed at me personally or in my capacity as the Commissioner inquiring into the matters referred to in the Commission's terms of reference. While it might appear that Mr d'Auvergne, without legal advice on the specific point, was suggesting that the Commission was fulfilling the role intended for it by a politically-motivated Government, I accepted (and repeat the acceptance now) his assurance that the observation was directed solely at those who sponsored the Commission of Inquiry and was a matter that could be addressed outwith the Inquiry process.

Mr d'Auvergne's criticisms of counsel to the tribunal have unfortunately been repeated and elaborated on by Mr Michael Gordon in his written submissions to me, dated 9 November 1998. (They appear in full in Appendix 4 to this report.) He embellishes, with supposititious comment. Mr Alexander, he asserts, was "aggressive, accusatory, brow-beating and wholly adversarial....was uninterested in the reality and the perception of impartiality". These comments are unworthy of an able advocate; they are also unwarranted. In respect of criticism 3 Mr Gordon submits that the criticism is "patently from the pen of the Counsel to the Commissioner. The language is exaggerated, emotive and based upon a burning desire to 'convict'." Mr Gordon asks rhetorically: "What were 'the extensive commercial interests' of Mr d'Auvergne"? Under the heading of criticisms 5 and 6, Mr Gordon concludes that "it is difficult not to develop the impression that they have been drafted with such emotions of antipathy as to cause logic to flee in disarray".

Mr Gordon can rest assured that I, and I alone take responsibility for the issuance and content of a notice to participants in the Inquiry of any potential criticism.

His criticism must be taken as a reflection of my attitude to his client. Whereas I would have assumed that Mr d'Auvergne was expressing his own - no doubt sincere - riposte to the questioning of him by Mr Alexander, I expected that his legal representative would let the matter rest at that juncture, and that the client's cause in that, highly personalised respect would not find an echo or endorsement in the written submissions of his legal representative. The use of such florid language as "emotions of antipathy" causing "logic to flee in disarray" cannot displace or erase the essential point that Mr d'Auvergne was in manifest breach of Order 4.7.

" Order 4.7 provides:

An officer shall not at any time engage in any private activity which might:

(i) bring the officer or the Government into disrepute;

(ii) conflict with his official duties or responsibilities;

(iii) place him or give the appearance of placing him in a position to use his official position for his private benefit;

(iv) make him unavailable for reasonable out of hours duties or official commitments;

provided that an officer, who is of the opinion that any private activity upon which he is engaged or in which he has a private pecuniary interest might offend against the provisions of this Order, must declare it fully to the appropriate Service Commission and must comply with such conditions or restrictions as the appropriate Service Commission after due enquiry, may consider necessary."

Mr Gordon repeats the erroneous view, expressed by Mr d'Auvergne, that by contrast with the absolute requirement of Order 4.9 (a public officer having to seek leave to bring legal proceedings, such as a libel action) Order 4.7 contains a discretionary element by virtue of the proviso. I indicate below that this is a misconstruction of Order 4.7. The proper way to interpret the Order is to determine whether the Officer has engaged in any prohibited activity. Each of the four sub-orders of Order 4.7 has to be judged according to an objectively assessed factual situation. If the Officer has engaged in such activity, then he will be excused therefrom if prior to his engagement, he had fully declared it to the appropriate Service Commission and had complied with all conditions and restrictions imposed on him by the Commission in respect of the said activity. This is the route down which the defaulter can escape disciplinary action: it is enshrined in the proviso. If, for whatever reason the proviso cannot be invoked, escape from breach is not possible.

It is, I think, Mr Gordon's initial, flawed approach to the construction of Order 4.7 that leads him to interpret the Commission's framing of the criticisms as having some ulterior purpose or improper (in the sense, unfair) motive for questioning Mr d'Auvergne. (Perhaps hostility is envisaged.) At one time I had thought that Mr d'Auvergne's line of defence was that he acted in a manner that was common among all civil servants in St Lucia. But the written submissions from Mr Gordon, wisely, do not follow that highly dubious defence to breaches of Order 4.7. (See notice of criticism No 2 in respect of Mr d'Auvergne at the end of Chapter IV.)

There is a question as to the constitutionality of Chapter IV of the Staff Orders, and in particular Order 4.7. Does the prohibition on a public officer engaging in any private activity conflict with any right guaranteed under the St Lucia Constitution? Article 11 of the Constitution provides that no person shall be hindered in the enjoyment of his freedom of assembly and association which, inter alia, includes associations for the protection of the person's interests. Article 11(2)(c) qualifies the freedom to the extent that the law "imposes restrictions upon public officers that are reasonably required for the proper performance of their function".

Even if it could be argued that Order 4.7 does more than is reasonably required for the proper performance of the functions of public officers, I would in any event regard the breadth of Mr d'Auvergne's activities on behalf of Genesis Ltd (see Chapter IV below), and his seniority in the hierarchy of the public service as constituting a proper restriction upon him.

Mr Gordon, notably, did not argue the point that Order 4.7 is too widely framed so as to conform with the constitutional freedom to protect the individual's right of personal freedom in respect of property rights and interests. Had he done so, I would have dismissed the argument, but it would at least have put a respectable gloss on Mr d'Auvergne's otherwise hopeless defence.

Should Mr d'Auvergne (aided by his legal representative) be contemplating a challenge to my report by way of judicial review on the ground of unfairness towards Mr d'Auvergne, either by Counsel or myself, I would state that I have sought to exhibit conspicuous even-handedness as between the procedural safeguards to be accorded Mr d'Auvergne and the requirement of my warrant from the Governor-General to find the truth about the circumstances surrounding the sale of the Roseau Bay land to Genesis Ltd, the thinly-disguised corporate veil for Mr d'Auvergne's business interests. The conclusion must be that there are no signs of a proactive regime instituting a properly rationalised system of checks and balances, designed to prevent wrongdoing by public officials.

It should be stated in fairness to Mr d'Auvergne that he never, as I understood his case, claimed that he was unaware of the provision in Order 4.7. Indeed, he was keen to observe that the restrictions on the private activities of civil servants were unduly, if not totally disregarded by all his colleagues. If a few civil servants did apply for exemption from the prohibition in Order 4.7, it was more likely to be out of abundant caution than any recognition that the prohibition was generally enforceable. Mr d'Auvergne did say at the Inquiry, however, that during his time of (seven years) as Permanent Secretary in the Ministry of Personnel he did not recall any submission being made to the Public Service Commission for exemption under Order 4.7. It was in his capacity of Permanent Secretary, Personnel that Mr d'Auvergne in 1988 had to deal with a request submitted by the Ministry of the Public Service (Personnel) on behalf of an officer requesting and receiving permission to be engaged in private activities in conformity with Order 4.7 of Staff Orders. The following correspondence indicates that Mr Johannes Leonce, Permanent Secretary of a Government department applied to be given permission to become a director and shareholder of a company engaged in the bakery business, which the applicant considered was not "incompatible, inconsistent or in conflict with" his official duties; if any other business were to be undertaken "he would need to seek the further approval" of the Public Service Commission. The chairman of the Public Service Commission was Mr W P Husbands, later to become the liquidator of Model Farms Ltd. A copy of the permission from the Public Service Commission was sent to Mr d'Auvergne in his capacity of Permanent Secretary, marked in two places "PERSONAL AND CONFIDENTIAL". But, again in fairness to him, the documentary material relating to Mr Leonce's application in 1988 was not put to Mr d'Auvergne during his questioning. He would obviously qualify his answer now by saying - correctly, I would surmise - that there was the sole exception that proves the rule! The question for me is two-fold: First, as a matter of consideration did the restraints of Order 4.7 bite directly on Mr d'Auvergne's commercial activities in Genesis Ltd from its promotion in early 1992, to the incorporation of the company on 20 July 1992, until he left the service on 14 August 1994, by which time the company had acquired the properties at Roseau Bay from the Liquidator of Model Farms Ltd? And, secondly, was Mr d'Auvergne obliged to seek exemption from the restraints of Order 4.7 by virtue of the proviso thereto?

Order 4.7 of Staff Orders

The Staff Order for the Public Service of St Lucia, dating with effect from 25 August 1983, and superseding the General Orders of the Windward Islands made in 1956 and Colonial Regulations stated: "Where the revised Staff Orders are silent on any matter relating to the employer's rights in the living, control and discipline of staff, the provisions of the General Order 1956 and Colonial Regulations continue to exist". They applied in full vigour to Mr Ausbert d'Auvergne, who was in the Public Service of St Lucia from 1980 (in particular from 1992) till August 1994.

Private Interest

Mr d'Auvergne's main defence to the criticism that he was in breach of Order 4.7 of the Staff Order for the Public Service of St Lucia of 25 August 1983 was that "this Order provides for the exercise of one's opinion or judgment" and that he acted on the basis of his opinion that his private activities did not warrant a declaration to the Public Service Commission for the simple reason that in his opinion, none of his private interests "fell within the range of activities which might bring about the situations envisaged in sub-sections 4.7(i), 4.7(ii), 4.7(iii) and 4.7(iv)". He concluded that his opinion on the matter "was reasonable and was neither irrational nor self-serving".

On a matter of construction alone, Mr d'Auvergne is hopelessly wrong. Order 4.7 imposes a prohibition on any person holding or acting in public office from engaging in any private activity which might involve one or more of a number of consequences deleterious to Government. The proviso to Order 4.7, to which Mr d'Auvergne attaches prime, almost exclusive importance, does not in any way derogate, or permit derogation, from the prohibition. As I have already explained, all that the proviso does is to allow the public officer to obtain such dispensation from the Public Service Commission as it thinks fit, as and when the public officer reports the matter. Indeed, if the public officer recognises that he might be committing a breach of Order 4.7, he is under an obligation to declare his private activity fully. In the absence of any declaration, the prohibition bites every bit as deeply and fiercely as if it had been declared to the appropriate body under the proviso. In short, no reliance can be placed on the proviso in judging whether there has been a breach of Order 4.7 (i) to (iv).

Mr d'Auvergne's breaches of Order 4.7

I entertain no hesitation whatsoever in concluding that Mr d'Auvergne's activities from early 1992 till August 1994 in his chairmanship and managing directorship of Genesis Ltd conflicted with his official duties. He was demonstrably in possession of information about the Government's rejection of any purchase of the Seaside Lands (i.e. Model Farms Ltd's plots of land). On the same day that Genesis was incorporated, the memorandum to the Cabinet relating to Model Farms Ltd's land was dated. Unless Mr d'Auvergne's left (public service) hand did not know what his right (Genesis) hand was doing synchronously, he must have had the benefit of knowledge, unknown other than to the inner circle of Government. The following exchange at the Inquiry made the point:

Mr Alan Alexander Q: Can you tell me of any person in St Lucia utside of Cabinet and the Authorised Office who would have had the knowledge that you had?

Mr d'Auvergne: A: Outside of Cabinet, and the Authorised office?

Mr Alexander: Q: And yourself.

Mr d'Auvergne: A: And myself, probably none (emphasis supplied).

Mr Alexander: Q: Do you regard that as inside information?

Mr d'Auvergne: A: What Sir?

Mr Alexander: Q: The knowledge which you had.

Mr d'Auvergne: A: Not at all.

Mr Alexander: Q: Not at all?

Mr d'Auvergne: A: No.

Commissioner: Q: But it wasn't outsider information was it?

Mr d'Auvergne: A: It was restricted information, yes.

The admission that it was "restricted information" amply bears out the proposition that as a civil servant possessed of restricted information touching on the interests of his (the civil servant's) private commercial interests there was potentially an inherent conflict with his official duties or responsibilities. Since there has been no direct evidence that Genesis Ltd (and therefore Mr d'Auvergne) did benefit from that duality of freedoms I have not upheld the potential criticism under Order 4.7(ii), but I add that the potentiality to conflict should in any event have prompted Mr d'Auvergne to quash any suggestion of actual conflict by applying for exemption. Moreover, I have no doubt that anyone - and I do mean anyone - knowing of the potential conflict, would say that it placed Mr d'Auvergne (or gave the appearance of placing him) in a position to use his official position for his private benefit under Order 4.7(iii).

I do not think that Mr d'Auvergne's grave misjudgment of his duty to apply for exemption to the Public Service Commission brings him within Order 4.7(i) as bringing himself or the government of St Lucia into disrepute. Much more venality than a failure to disclose private activities such as to confer potential benefit would be necessary - probably, nothing short of the commission of fraud or other serious crime would qualify. (The US Impeachment criteria of "high crimes and misdemeanours" alone would suffice to qualify under Order 4.7(i).) Finally, on Order 4.7(iv) I have had no evidence that Mr d'Auvergne's activities on behalf of Genesis Ltd rendered him unqualifiable for reasonable out of hours duties or official commitments. It is worth pointing out that the St Lucia Staff Orders are of post-independence vintage. Mr Cletus Springer, who succeeded Mr d'Auvergne as Permanent Secretary in the Ministry of Planning, Development and the Environment in August 1994, but is now retired, remembers the revision of the Staff Orders in 1983 when he was serving in the Ministry of Personnel, and recalls that he had a hand in the work of revision. Mr Springer helpfully explained that "we took quite some pains to extract the colonial legacy or vestige of colonialism" from the draft of the 1983 Orders. He thought that they could now do with some updating and revision, "but in large part they do bring some order and bearing to the management of the Public Service". I recommend that that should be done. I would draw the attention of those who will be engaged in the revision of the staff orders to pay special regard to the constitutional provisions touching on the fundamental freedoms. The Privy Council in de Freitas v. Permanent Secretary of Minister of Agriculture, Fisheries, Lands and Housing and others [1998] 3 WLR 675, has indicated that restraints imposed on civil servants may violate freedom of expression. In that case, a junior civil servant in Antigua had taken part in public demonstrations against government corruption evidenced in the public inquiry into the transhipment of guns and ammunition in Antigua (see Guns for Antigua (1990)) by picketing opinion on matters of national or international public controversy the headquarters of the Ministry of Agriculture. The Permanent Secretary to the Ministry regarded that the civil servant was in breach of section 10(2)(a) of the Civil Service Act of Antigua and Barbuda which provided that the civil servant may not publicly express an opinion (Order 4.16(b) of St Lucia Staff Orders). Disciplinary action was threatened by reference of the case to the Public Service Commission.

The Board, reversing the Eastern Caribbean Court of Appeal (Floissac CJ, Liverpool and Singh JJ) and reinstating the judgment of Redhead J in the Supreme Court of Antigua and Barbuda, held that the restraint imposed on civil servants by section 10(2)(a) was more than was reasonably required for the proper performance of their functions, and, although the legislative object of section 10(2)(a) was sufficiently important to justify limiting civil servants' freedom of expression, and the restraint imposed was rationally connected with that objective, a blanket restraint which imposed the same restrictions on a junior civil servant as on the most senior civil servant was disproportionate to that objective and was shown "not to be reasonably justifiable in a democratic society" thus contravening section 12 of the Constitution of Antigua and Barbunda (section 10 of the St Lucia Constitution).

CHAPTER IV The Roseau Bay Affair

The 26 acres of beach-front at Roseau Bay became the subject of sale in September 1994 by a government agency, Model Farms Ltd (in voluntary liquidation) to a development company, Genesis Ltd. The story of the sale and purchase of the land, which had been intended for agricultural purposes in tenanted small holdings, focuses on two actors - Mr Nathalbert Husbands, the liquidator of Model Farms Ltd, and Mr Ausbert d'Auvergne, at the relevant time simultaneously the Permanent Secretary to the Ministry of Planning and the chairman and managing director of the purchasing company, Genesis Ltd. The former's conduct was questionably negligent in failing arguably to perform a public duty; the latter was manifestly in flagrant breach of a public officer's conduct in discharge of his public duties. But, first, the background to their respective roles in the sale and purchase.

The model farms

St Lucia Farms Ltd, which was incorporated in October 1978, by the St Lucia Model Farms Act 1982, was guaranteed by the Government of St Lucia loans from the Commonwealth Development Corporation and Geese Industries Ltd. In addition, the Minister of Finance was empowered to grant exemptions from the payment of taxes, duties or fees to the Roseau Valley Smallholder Project, a project undertaken by the St Lucia Model Farms Ltd, situate at Roseau, which was "intended to be developed into model agricultural small holdings".

St Lucia Model Farms Ltd had three corporate objectives:

(a) to develop lands and settle smallholders by way of a fifteen year lease with expected farmer ownership of their lands at the end of the period of the lease;

(b) to provide administrative, technical and financial support to farmers registered with the company; and

(c) to maintain all farm infrastructure (roads, drains, etc).

On 27 March 1991 the Government of St Lucia, which had a ¹/₃^rd shareholding in an issued share capital of $30,000, following a petition by tenant farmers (including Mr Noel George) of St Lucia Model Farms, complaining of lack of confidence in central management, set up an independent committee - an administrative assistant in the Ministry of Agriculture was secretary to the committee - to review the operations of the farm and to examine complaints of farmers. The Committee (whose report, in July 1991, was not made public) found agricultural productivity had declined rapidly from 16 tons per acre in 1986 to 9 tons per acre in 1990. Average farm earnings had correspondingly dipped from EC $69,834 in 1986 to EC $29,672 in 1990. The company's debt position had worsened appreciably over the same period. The Committee also found that morale among farmers was low, creating despondency and promoting a militant attitude and poor behaviour. The farmers sought equality with their colleagues in the rest of St Lucia. Independence from the company was sought.

Given this background, the Committee inevitably recommended the outright sale of land to farmers and the winding up of the company. The consequential recommendation was the immediate transfer of property by way of sale of the land "to farmers under strict covenant". In arriving at a price for each farm, the Committee preferred an option that favoured the purchasing farmer. The Government, in September 1991, accepted the Committee's recommendation for outright sale of the land to farmers, "priority to be given to the present occupiers". The St Lucia Development Bank would be requested to make funds available "for assistance to farmers who are willing to purchase".

The Government further decided that St Lucia Model Farms Ltd should be voluntarily wound up. That was effected on 16 November 1991 by company resolution on 31 October 1991 by notice given on 5 November 1991, gazetted on 16 November 1991, by "N P Husbands, Liquidator". The Government had also resolved to introduce legislation to ensure that lands designated for agriculture would be "maintained for agriculture purposes and not sub-divided for re-sale". That was to be effected in legislation. The Land Conservation and Improvement Act 1992 (which came into force on 18 April 1992) established a Board and conferred on it functions relating to the general supervision of land and water resources. The Board could make Protection Orders:

Protection Order

[Section] 6.-(1) subject to section 7 the Board may, where it deems it necessary for the conservation or improvement of land or water resources or to secure proper economic and efficient utilisation of all land, make Orders hereinafter called Protection Orders.

Second Schedule (section 6(2))

Lands known as -

(1) Model Farms Lands.

(2) Mabouya Valley Development Project Lands.

The Government further determined that the Ministry of Agriculture and the St Lucia BGA should co-ordinate their activities to "ensure compliance with land use policy, maintenance of waterways, etc, assist farmers with the planning and management of their enterprise, transfer of technology and guiding a crop diversification/rotation programme".

The composition of the Land and Conservation Board was stated under the first schedule to include among other officials, the Permanent Secretary of the Ministry of Agriculture (Chairperson); the Director of Agricultural Services of the Ministry of Agriculture; and four other members not being Government officials appointed by the Minister. These four had to have an active interest in land conservation and at least two of them to be from the out districts.

By Minute dated March 3, 1995 from the Permanent Secretary, Ministry of Agriculture, the Cabinet Secretary was requested to facilitate the publication of the appointment of persons to the Board in the St Lucia Gazette for purposes of public information.

According to the notice, the appointment was for a two year period effective March 1, 1995. Those appointed under the First Schedule 1 (H) were:

Mr Clem Bobb

Mr Percival McDonald

Mr Philip La Corbiniere

Ms Deborah Bushell

The Board's file indicates several attempts at holding the inaugural meeting of the Board.

i. Letters of 12/13 September 1994 inviting Board members to an inaugural meeting on October 4, 1994.

ii. Letters of February 21, 1995 inviting members to an inaugural meeting on March 2, 1995.

iii. Letters of November 7, 1995 inviting members to an inaugural meeting on November 14, 1995.

The agenda for the meeting contained the following heads:

- Opening Remarks

- Address by Minister

- Procedural Matters

- Regulations

- Administrative Requirements:

Secretarial

Budget

- Any Other Business

Although apparently the inaugural meeting took place there is no record on file to indicate the outcome. Indeed, there is no document on file to indicate that the Board ever met, and for all purposes it is now defunct. There is correspondence on file from the Chairman to members of the Board, at least one item, soliciting support for a project (correspondence dated November 1, 1996), and there is some evidence to indicate that several attempts to convene Board Meetings, other than the inaugural meeting, were unsuccessful.

The Commission of Inquiry was told on 25 June 1998 that the question of reactivating the Board was currently before the Minister for Agriculture. This failure to implement an important piece of legislation is yet another example of bad governance during the middle 1990s.

The sale of Model Farms Ltd's assets

Ten days before the coming into force of the Land Conservation Act 1992, Mr Husbands wrote to the Prime Minister, Sir John Compton, offering to sell to Government all or some of the Model Farm lands at Roseau, specifically "Seaside Lands (35 acres)". The letter stated:

"I understand that Government may wish to purchase some of the Model Farm lands at Roseau for Industrial and Commercial purposes and also for community development including housing, schools, playgrounds etc.

Indeed, this is an opportune time for Government not only to review and plan the development of this area, but also to acquire the necessary lands to spearhead this development, because it can be anticipated even now that the West Coast road access could bring about a shift of the population to central areas of service like Roseau.

In this connection, I wish to offer Government the remaining lands and buildings of Roseau "en bloc" or such areas as Government require, before opening the area to bids from the public.

A summary with a brief description of these lands and buildings is attached and I would ask that Government indicate as soon as possible the areas it would wish to purchase. Perhaps the anticipated acquisitions could be included in the up-coming budget if possible".

On 23 April 1992 the projected purchase by Government of the Model Farms Lands was referred by the Cabinet to the Ministry of Planning for advice. On 20 July 1992 Mr Ausbert d'Auvergne, who was then the Permanent Secretary to the Ministry of Planning, Personnel, Establishment and Training prepared a memorandum for the Prime Minister to present to Cabinet on 23 July 1992. (Mr d'Auvergne was first employed in public service in September 1981. On 1 July 1987 he was appointed as Permanent Secretary in the Ministry of Planning, Personnel, Establishment and Training until he left public service in 1994). The memorandum stated that:

"The enhancement of the West Coast Road will make the West Coast more accessible with a consequent increase in the demand for land for diverse activities. The development of the Massacre lands and the proximity of this entire region to Castries will increasingly transform the numerous communities which already exist into dormitory settlements.

This transformation will create the need for land for commercial, industrial and service facilities and the impending sale of the St Lucia Model Farms lands in the Roseau Valley offers an excellent opportunity for the reservation of land for these sorts of use".

Mr d'Auvergne's recommendation to cabinet was that Model Farms be sold "to the public in accordance with the proposal set out in the letters from the Liquidator dated 7 April 1992".

The Government agreed that five itemised parcels of land, not the subject of any of the land in this Inquiry, should be acquired. But "other lands" including "Seaside Lands", which are at the heart of this Inquiry, were to be sold by Model Farms to the public in accordance with the proposal set out in the letter of 7 April 1992 to the Prime Minister. Attached also to the letter to the Prime Minister was a summary of the "potential use and value of remaining SLMF lands". Under the heading of Seaside Lands (35 acres) which were valued at EC $175,000 it stated: "Presently, these lands have little agricultural value due to salinity and high water table and flooding problems. However, with some major development works, the area can be converted into industrial, tourist resort or residential facilities". Those precise words - namely, that the lands might be appropriately developed for purposes other than specifically agricultural - were lifted directly from a memorandum of 29 August 1990 sent by the project manager of St Lucia Model Farms Ltd to the company chairman.

The genesis of Genesis Ltd

Meanwhile, on 17 July 1992, memorandum and articles of association of Genesis Ltd were filed with the Registrar of Companies with a view to its incorporation on 20 July 1992. One of Genesis Ltd's objects was to act as hotel proprietors. On 18 July 1992 share transfers for transmission of subscribers' shares in Genesis Ltd were executed in favour of Mr Ausbert d'Auvergne and Ms Reine James; Mr d'Auvergne was also a director of the Company. Mr d'Auvergne told the Inquiry that it was in August 1992, when he was only 36 years old, that he intended to leave public service. Mr d'Auvergne has stated that by the beginning of 1992 he was investigating lands to engage in an enterprise for a concrete block plant. In his written statement to the Inquiry, dated 24 July 1998, Mr d'Auvergne stated:

"It was my intention to leave the Public Service at the end of August 1992 and from the beginning of 1991, I began to make arrangements, which would provide me with employment and income after my departure.

The principal business activity in which I intended to become involved was a large-scale concrete block and concrete products facility. I proceeded to incorporate a company, Concrete and Construction Products Limited which would operate the concrete block plant, and another company, Genesis Limited, which would undertake commercial developments utilising concrete products and building materials manufactured or sourced by Concrete and Construction Products Limited".

To that end he promoted the incorporation of two companies and was engaged in negotiations for the acquisition of a suitable site for the block plant. On 12 October 1992 he was writing to his cousin, Susie d'Auvergne about the prospective purchase of plots of land: "If the price offered will influence the decision of the entire parcel [of land] then I am prepared to offer whatever price is reasonable to achieve this objective".

Mr d'Auvergne, in his oral evidence, was asked whether there was any significance in the fact that Genesis Ltd had the power in its Memorandum of Association to enter into activities of tourist development. His answer was: "Because I used several legal firms or lawyers to incorporate companies for me and my instructions in every case were to incorporate "omnibus" companies which would allow these companies at the time I chose to use them to engage in any form of business activity. So you will find that the objects of those companies were very broadly defined, giving these companies the ability to operate in any sphere of business activity. (emphasis supplied.)

A year after Model Farms Ltd went into voluntary liquidation the liquidator conveyed 6.03 acres of Model Farms lands to Francis and Ivinia Joseph. The deed of sale of 23 November 1992 contained a covenant "to use the property for farming purposes only and not to permit any encroachment over the property". Between December 1992 and February 1993 a survey of 6 Lots of the Model Farms land, together with the Queen's Chair and the access roads to the Lots was completed. On 28 April 1993 the liquidator conveyed 6.33 acres of Model Farms lands to a tenant farmer, Elias and Elizabeth John. The deed of sale noted that "Model Farms Lands has been declared to be subject to a Protection Order" under the Land Conservation and Improvement Act 1992. It contained the like constraint limiting the use of the land for farming purposes. On 13 June 1993 Genesis Ltd purchased from another tenant farmer, Mr Noel George, his option to purchase another Lot. During May and June 1993 Genesis Ltd entered into negotiations with the liquidator for the purchase of the remaining five Lots at a price averaging $4,870 per acre. The liquidator had received two separate valuations of $5,000 and $4,000 per acre.

The liquidator, Mr Husbands told the Inquiry that Mr d'Auvergne had approached him on behalf of Genesis Ltd, expressing a desire to purchase the five Lots. The liquidator was mindful of the provisions of the Land Conservation and Improvement Act 1992 which placed the Model Farms land under strict conservation control. Hence, irrespective of the risks of flooding that permeated the Model Farms lands, the 1992 Act could place restrictions and limitations as to the use of the property, which could further depress what might otherwise be considered the true-market price. During the Inquiry the suggestion of a depressed purchase price by Genesis Ltd was canvassed. But I find no grounds for saying that the liquidator obtained other than a fair price. In coming to that conclusion I have not overlooked the fact that in August 1994, December 1995 and April 1997 Genesis Ltd mortgaged the five Lots for considerably enhanced amounts of money, such as to suggest a cheap bargain of the Lots in 1994. But I do not draw any inference from these bald facts. Nothing otherwise suggests a contrary conclusion.

Ausbert d'Auvergne

Like so many bright young men from St Lucia in the 1960s and 70s who came under the inspiring intellectual leadership of Sir Arthur Lewis (remarkably one of the two St Lucians to win a Nobel Prize), Mr d'Auvergne received his tertiary education in the United Kingdom. He was awarded a BA (Honours) degree in Economics and Social Studies by Manchester University; he went on to take an MA (Honours) in Development Studies before returning to St Lucia and joining the public service in 1980 as Economic Planning Officer, from which position he rose in 1981 to be Chief Economic Planner and to Deputy Director of Finance Planning in 1982. On 1 July 1987 he was appointed Permanent Secretary, Ministry of Planning, Personnel, Establishment and Training until he resigned from the service in August 1994. Part of the MA course in public administration at Manchester University involved a course in the role of bureaucracy in a developing country, designed specifically for students from developing countries ("It was in fact one of my areas of specialisation").

For some years he had been the chairman of the Caribbean Centre for Administration Development, an organisation established by the CARICOM Governments; in that capacity he had occasion to make representations to the Heads of Government Conference. He was also active in meetings of International Public Administration organisations. And Mr d'Auvergne told me that he has acted as a consultant "to some Governments on public administration matters". By no stretch of the imagination could it be said that Mr d'Auvergne was a greenhorn in public administration, as it is conceived and practised in the British style of government upon which the Caribbean territories of the Commonwealth have modelled themselves.

From 1 September 1992 until 14 August 1994 (when he left the public service) Mr d'Auvergne was the Permanent Secretary in the Ministry of Planning, Personnel, Establishment and Training. (His previous career in the civil service of St Lucia which began in November 1980 is set out in the enclosed annex). As such he was "the head of the whole department of Planning of Government and Administration head of the Civil Service of St Lucia". He had also "been appointed chairman of the Board of the Development Control Authority established under the Land Development (Interim Control) Act". These facts are extracted from a statement of claim in an action for libel started in March 1994, by Mr d'Auvergne against the publisher, editor and printer of the Crusader Newspaper.

Prior to the issue of the libel proceedings, Mr d'Auvergne applied to the Public Services Commission for permission to bring the proceedings in accordance with Order 4.19 of staff orders. Mr d'Auvergne wrote on 6 October 1993 and the same day received approval to issue civil proceedings (I reproduce the letters indicating the alacrity with which the Public Service Commission granted permission to Mr d'Auvergne).

Mr d'Auvergne's libel action

On 6 October 1993 Mr d'Auvergne wrote to the Chairman of the Public Service Commission seeking permission under Order 4.19 of Staff Orders to institute libel proceeding against the editor, publisher and printer of the Crusader newspaper. Over several issues of the newspaper, from August to December 1993, there appeared allegations of corruption, attempted bribery and conflicts of interest involving individuals within the top echelons of the public service. Mr D'Auvergne was clearly identified as a key figure in a "tangled web of corruption". Permission was instantly granted, and a writ was issued on 4 March 1994. A defence was filed on 21 October 1994, since when there has been a deafening silence. At the time of the Inquiry there was no indication that the case has been listed for trial. Delayed justice is no justice. Litigation which has not been concluded within 4 years from the issue of proceedings is not tolerable, but neither Mr d'Auvergne nor the defendants seem to have displayed any concern about the failure of their libel action to come to trial.

On the face of it, Mr d'Auvergne's conduct could be said to be inconsistent. On the one hand, he invoked the provision in Order 4.19 to gain permission to sue the Crusader newspaper for libel and yet, on the other hand, he ignored his ability to gain exemption under 4.7 from the prohibition on his commercial activities which were the subject of the media criticism. On reflection, I do not think that Mr d'Auvergne could be properly criticised for this. Mr d'Auvergne had to take the positive action of seeking official approval as a pre-condition of the prospective litigation. Contrariwise, Mr d'Auvergne, having taken the view (wrongly, I have held) that he was committing no breach of Order 4.7, felt that he was entitled to remain passive and inactive so far as the Public Service Commission was concerned. This is not inconsistency; it is a separate issue.

At one point in the hearing it was suggested that Mr d'Auvergne was applying double standards in having the temerity to bring a libel action while he must have known that his conduct in purchasing the lands at Roseau Bay was reprehensible. I accept Mr Gordon's submission that it is "laughable" that somehow in the libel action, Mr d'Auvergne would escape cross-examination of his official position under Order 4.7, although I would not go so far as to accept that such a risible suggestion "bespeaks an absolute unfamiliarity with the law and procedure used in defamation trials". I have withdrawn the criticism No 4.

Mr d'Auvergne's chairmanship of the Development Control Authority

On 13 April 1994, at the 5th meeting of the Development Control Authority, with Mr d'Auvergne in the chair, the application from Genesis Ltd for approval-in-principle for development at Roseau Bay was brought to the Authority's attention. The minutes indicated that at the outset of consideration of the Genesis Ltd application Mr d'Auvergne declared his interest, but there was no record that Mr d'Auvergne withdrew from the meeting at any stage, nor of his non-participation in the discussion. The conclusion of the Authority's deliberations was that the application should be deferred for a report from the St Lucia Air and Seaports Authority. At the 6th meeting of the Authority on 4 May 1994 the Executive Secretary informed the members that the report was not to hand (Mr d'Auvergne was not present at that meeting). At the 7th meeting, on 25 May 1994, the minutes of the meeting disclosed the following item:

"APPLICATION REGISTRATION NUMBER : 138/94 - GENESIS LIMITED - ROSEAU BAY DEVELOPMENT PROJECT/COMMERCIAL - ROSEAU BAY, ANSE LA RAYE

The Executive Secretary read a letter dated April 25, 1994 which he received from the St Lucia Air and Seaports Authority.

The author stated that it appeared that the construction of the subject port would definitely have a negative impact on the revenue of the Authority and in this regard the Authority will have to conduct a revenue impact assessment.

The St Lucia Air and Seaports Authority was also of the view that the question of development of Ports in St Lucia should be organised and accordingly, a national ports master plan should be drawn up as part of the national sectoral plan.

Members granted Approval-in-Principle to the application. On the matter of the developer undertaking site clearance and earthworks in order to facilitate preparation of detailed plans. Members agreed to grant Approval subject to the developer receiving approval from Cabinet for use of the Queen's Chain". (emphasis supplied.)

Mr d'Auvergne's declaration of interest, recorded in the minutes for the 5th meeting on 13 April 1994, was not repeated at the 7th meeting on 25 May 1994, but I readily assume that there was no need to repeat the declaration in the minutes of that meeting. It could properly be inferred. But what about observance of section 3(10) of the Land Development (Interim Control) Act 1971?

This sub-section provides that any member of the Development Control Authority with an interest in applications before the Authority shall not take part in discussions or vote on any such application. When confronted at the Inquiry on 25 and 26 June 1998, for the first time since the meetings of the Authority in 1994, Mr d'Auvergne gave the following answers to questions from counsel to the Inquiry.

Mr Alexander: Q: Now during the discussions you remained in the Chair?

Mr d'Auvergne: A: As I've indicated before, my practice was to leave, declare an interest and to leave.

Q: I beg your pardon?

A: As I've indicated before, my practice has always been to declare an interest and to vacate the room.

Q: But did you vacate on this occasion?

A: As far as I can recall, yes.

Q: If you did vacate then, it would mean that there would have been only three members of the Authority? [Under section 3(5) of the 1971 Act the meeting would have been inquorate if there were fewer than four members.]

In answer to questions from his counsel, Mr Gordon, Mr d'Auvergne gave the following replies:

Mr Gordon: Q: Would you tell the Commission, how this [the application to the Development Control Authority] came about?

Mr d'Auvergne: Q: There is a convention which is generally accepted that if you sit on a Board or Committee and a matter in which you have a direct interest or an interest comes up you declare that interest and you absent yourself from its deliberations. That was my practice at all times.

Commissioner: Q: But Mr d'Auvergne you can go one better than that. The statute provides under subsection 10 of section 3, that you may not vote on it and you may not participate in any discussion about it. Are you saying that you neither voted on the application being made by Genesis nor did you take part in any of the discussions in the Authority about it. It that right?

Mr d'Auvergne: A: That is correct.

Q: You were complying with the statute?

A: That is correct.

Mr Gordon: Q: Thank you Mr Commissioner. You say this was your practice. Were there any exceptions to that practice?

Mr d'Auvergne: A: There were none......

I might start the meeting, depending on the order in which that particular application, you know, was to be taken or when it was to be taken on the agenda. I would start a meeting, when it came to that particular application, I would declare my interest, vacate the room and allow the Deputy Chairman to assume the Chair".

.............

A: That is correct, if there were four to start with.

Q: And if there were three members of the Authority, the Authority was improperly constituted.

A: That is not correct, Sir.

Commissioner: Q: ........there's no indication [referring to the fifth meeting on 13 April 1994] in the document that you vacated the chair, is there?

Mr d'Auvergne: A: That can be easily established by calling two members of the Authority who were also present.

Commissioner: Q: I asked you about the document, the record, the numbers of the meeting which are ..........

Mr D'Auvergne: A: I agree, do not indicate that.

Commissioner: Q: All it indicates is that you indicated an interest in the application and one would assume thereafter that you took part in the discussion, wouldn't you?

Mr d'Auvergne: A: Correct.

[Mr d'Auvergne's attention was then brought to section 3(5) of the 1971 Act.]

Mr Alexander: Q: If you had left the meeting in accordance with your practice, there would not have been a quorum?

Mr d'Auvergne: A: That is correct.

[Mr d'Auvergne's attention was drawn to section 3(10) of the Act.]

Mr Alexander: cites section 3(10):

"Any member of the Authority shall not vote upon or take part in discussion of any matter before the Authority in which he has directly or indirectly by himself or his partner any pecuniary interest".

Mr d'Auvergne: A: Correct.

Q: I take it that when you declared your interest, you declared that you had a pecuniary interest in the matter?

A: Correct.

Q: And therefore you were disqualified?

A: Correct.

Q: And to be disregarded?

A: Correct.

Commissioner: Q: But you agree, do you not Mr d'Auvergne that looking at pages 30 to 35 there is a very extensive discussion about the nature of the application.

Mr d'Auvergne: A: There is not an extensive discussion about the application. There is an extensive.......

Q: No?

A: Sir, let me clarify, no Sir.

Mr d'Auvergne: Sir, can I clarify this? There is not an extensive discussion. There is an extensive presentation by technical staff. Everything you see here is the content of a submission of technical staff right up to page 34. The only discussion, which is reported here, is on the top of page 35, which constitutes around 10 lines. The rest is, the practice is, when an application comes in it is appraised by technical staff, a report is put in. That report you see, the contents of these pages.

Q: Absolutely accurate, Mr d'Auvergne, but you were sitting there listening to the presentation being given by your staff

A: Sir, I would like, no this was not a presentation, it was the contents of a written report which was submitted in advance. Now I would like the Commission to avail itself of the opportunity of asking members of the Authority who were present on that day whether or not I withdrew?

Mr Alexander: Q: The minutes, do they constitute a correct record?

Mr d'Auvergne A: The Minutes?... They constitute a correct, not necessarily a complete record.

Mr Commissioner: Q: You see Mr Martyr [an official attending the meeting] then makes a suggestion to the members of the Authority that two matters should be dealt with before approval is given?

Mr d'Auvergne: A: Correct.

Q: Right. He also then states about the environmental impact and then members deferred consideration of this application in the light of what Mr Martyr was saying.

A: Correct.

Q: There was discussion about that, wasn't there?

A: "Members deferred consideration of this application," full stop. Not necessarily in the light of what Mr Martyr said, they deferred it. And the decision, the decision which was taken Sir, during the course of a discussion on any matter, members will express opinions on many things.

Q: Yes, certainly, that is discussion?

A: Yes. So what the Authority finally decides the basis on which it decides to make, and grant an approval or otherwise is what is generally consideration of this application "full stop". "The application is to be referred to the Sir Lucia Air & Seaports Authority for comments". That is what the decision was.

Q: But in deciding to defer the application, the Authority was making a decision?

A: It was, yes.

Q: And you were a party to it?

A: Sir I was at that meeting, as I have maintained before, I always leave the room during a, any mattter in which I am.......

Q: Come, come Mr d'Auvergne, if you had left the meeting at that point, it would have been recorded in the minutes, wouldn't it?

A: Sir there have been instances where members have left the room or vacated, you know on issues they have an interest, where it has not been recorded. This has had to be subsequently inserted.

Mr Alexander: Q: So at that meeting, a letter had been received from the St Lucia Air and Seaports Authority, that is one of the matters minuted in the meeting that we had referred to earlier?

Mr d'Auvergne: A: Yes.

Q: And approval in principle was granted subject to Genesis receiving approval for the use of the Queen's Chain?

A: That is....

Q: So the two matters.......

A: That is recorded here.

Q: The two matters which were stated in the minute and of the meeting on which the application was deferred, were considered in this meeting, that is the St Lucia Air and Seaports Authority's position and the use of the Queen's Chain. Those are the two matters which are discussed here, which are minuted here. Is that not so?

A: Yes Sir.

Q: Yes, and having discussed these two questions, approval in principle was granted. Is that not so?

A: Yes, Sir.

Upon consideration of the documentary and oral evidence before the Inquiry, I find as a fact that neither at the 5th meeting of the Development Control Authority on 13 April 1994 nor at the 7th meeting on 25 May 1994 did Mr d'Auvergne, having declared his interest in the application of Genesis Ltd at the outset of the 5th meeting, withdraw. Was Mr d'Auvergne in breach of section 3(10) of the Land Development (Interim Control) Act 1971? Section 3(10) does not mandate withdrawal of the interested member. It prohibits any member from voting upon or taking part in discussion of any matter in which he has a pecuniary interest. The notice of potential criticism raised the question whether Mr d'Auvergne was accordingly in breach of Order 4.26 of the Staff Orders (misconduct). I make no finding in respect of that, principally for the reason that it was not specifically raised during Mr d'Auvergne's evidence. Nor did Mr Gordon address that part of the potential criticism. My reasons for so finding are as follows: Withdrawal from the meeting is Mr d'Auvergne's stated method of compliance with section 3(10); it is not the criteria posed by the section. Presumably this is what Mr Gordon meant by saying that it is "inessential". If Mr d'Auvergne's declared method of complaince was "withdrawal", his compliance or not is to be taken against that factual assertion.

The natural inference to be drawn from the absence of any record in the minutes of Mr d'Auvergne's "withdrawal" at any relevant stage of the Development Control Authority's deliberations at its 5th and 7the meetings is that Mr d'Auvergne did not "withdraw". The fact that his declaration of interest is recorded, tends to strengthen the force of the inference that "withdrawal" never took place. Any minute-taker (and members at the meeting who confirmed the accuracy of the minutes) would have regarded Mr d'Auvergne's removal from the meeting (and the assumption by the Deputy Chairman of the chair) of sufficient significance as to demand a recording of that fact.

Mr Gordon, in his written submission of 9 November 1998, contends that whether Mr d'Auvergne left the room or not is irrelevant. Not so. It is relevant as Mr d'Auvergne's suggested mode of compliance with section 3(10). What he does submit is relevant (and in conformity with the Act) is that Mr d'Auvergne "declared an interest and did not take part in the discussion: "He conformed to the letter and spirit of the Act".

But did Mr d'Auvergne take part in the discussion? I am prepared to accept that he may not have made any specific, substantive contribution to the discussion, which at the 5th meeting no doubt took the form mainly of a presentation by officers of their view of the application. The spirit of section 3(10) does, to my mind, encompass sitting in the chairman's seat and listening to and absorbing the information provided by officers. To the extent that Mr d'Auvergne did not actively participate substantively in the proceedings, the letter of section 3(10) still covers the taking part as chairman. So it must be remembered that Mr d'Auvergne was the chairman throughout the discussions and in such capacity, he orchestrated the proceedings. Irrespective of this, Mr Gordon's submission could not in any case apply to the vote at the 7th meeting when planning permission was approved by all those present, presuming a quorate meeting of all four members, including Mr d'Auvergne. That fact cannot under any circumstances be said to be irrelevant.

In accordance with my reasoning on the application of section 3(10), the question of fact posed is: Do I accept Mr d'Auvergne's assertion that in accordance with his stated practice he left the room, at least prior to the decision-making process at the 7th meeting on 25 May 1994? I do not accept his assertion.

First, Mr d'Auvergne modifies his evidence by saying that, "as far as he can recall" he did leave the room. Allowing for a lapse of nearly four years, during which time Mr d'Auvergne, had no cause to remember the events of April/May 1994, I think his answer is reasonable. He could not, conscientiously, say that he actually recalled leaving the room. He relied, understandably, on his stated practice in such situations. But that does not resolve the doubt about whether he did leave the room. Mr d'Auvergne invited me to call other members who were present, Mr Martyr (the officer at the meeting) could not assist the Inquiry. He could not say one way or the other whether Mr d'Auvergne left the room. The other members of the Authority were informally approached by the Secretariat to the Inquiry. None was able to make a positive statement. Sadly, the minute-taker has died.

The inference to be drawn from the simple declaration of interest of 13 April 1994 in the minutes of the meetings adverse to Mr d'Auvergne's case, might be displaced if there was some evidence to support the contrary view. Mr Gordon resorts to the fashionable device of contending that minutes of meetings do not inevitably record everything, and the absence from the minutes of any note of removal of Mr d'Auvergne is not to be treated as other than "an inessential" fact, according to Mr Gordon an understandable omission by the minute-taker and subsequently by the members who approved the minutes of the previous meeting (and the fifth meeting too), signed as an accurate record by the Chairman, which for the 7th meeting was Mr d'Auvergne. I quote Mr Gordon's submission verbatim:

"Mr d'Auvergne stated that it was his recollection that he left the meeting. You, Mr Commissioner, stated, by the way of a question, that if Mr d'Auvergne left the meeting, then surely it would have been recorded in the minutes (See page 313, line 15 of Transcript). The experience of the Commissioner is undoubtedly wider and more varied than my own, however, in my own experience, minutes are frequently deficient in recording inessential matters. The fact is that Mr d'Auvergne declared his interest at the commencement of the meeting and if he stayed at the meeting there is no mention of his taking part in the discussion. The short point is this. If it is the view of the Commissioner that if the Minutes did not record Mr d'Auvergne absenting himself, then he did not; then it must equally be the view of the Commissioner that if the Minutes did not record Mr d'Auvergne taking part in the discussion, then he did not".

To conclude with these criticisms, whether Mr d'Auvergne left the room or not is, with great respect irrelevant. What is relevant, and in conformity with the Act is that he declared an interest and did not take part in the discussion. He conformed to the letter and the spirit of the act".

I do not take such a charitable attitude to the deficiencies of minutes. The whole purpose of recording decisions at committee meetings is to avoid arguments thereafter about what was decided. The issue whether Mr d'Auvergne was present or absent during the meeting must start with the presumption that he was present throughout. He is shown at the heading of the minute as being in the chair. That was an essential detail. If he ceased to be present at any stage, likewise that was an essential detail. Its omission is fatal to any argument against the inference that he was present.

Dr Vaughan Lewis

Dr Lewis became the Prime Minister on 2 April 1996, having been first elected to Parliament on 16 February 1996, in succession to Sir John Compton who stood down to become Senior Minister. He had previously been the Director General of the Organisation of Eastern Caribbean States. As Prime Minister Dr Lewis presided over Cabinet meetings. On 19 September 1996 the Cabinet considered a memorandum from the Ministry of Planning Development and Environment, and approved the grant of a 25-year lease to Genesis Ltd of the Queen's Chain at Roseau Bay. The proposal had been granted approval in principle by the Development Control Authority in May 1994, to which reference has been made. The Ministry recommended approval by the Cabinet subject to certain conditions, irrelevant to the issue before the Inquiry.

Dr Lewis, at the Inquiry, assumed that all the members of the Cabinet would have known of the directors and shareholders of Genesis Ltd, which would have disclosed Mr d'Auvergne's involvement. The key question, put to Dr Lewis, was, whether on the occasion of the approval of the lease of the Queen's Chain, he knew the background to that approval - namely, that the Queen's Chain abutted on the shore side of the farm lands sold three years earlier by the liquidator of Model Farms Ltd to Genesis Ltd. The inference that was suggested by Counsel to the Inquiry which might be drawn is that, since Mr d'Auvergne was at the time of the sale of the lands at Roseau Bay the Permanent Secretary to the relevant Ministry, Dr Lewis should have put two-and-two together and queried the propriety of Mr d'Auvergne's incompatible function as civil servant and executive officer of a private company engaged in commercial affairs involving Government.

Had Dr Lewis been a government minister in the years when Mr d'Auvergne was a senior civil servant (1991-1994) it might be reasonable to expect Dr Lewis to have made the link between the sale and purchase by Genesis Ltd (alias Mr d'Auvergne) of the lands, and the grant of the lease of the Queen's Chain at Roseau Bay. Even then, it would not follow necessarily that Dr Lewis would, or should have been alerted to the impropriety of the dual roles of Mr d'Auvergne. Having reflected on this issue - in any event, marginal to the Roseau Bay affair - I cannot think that the potential criticism can possibly be sustained. After all, no one among Dr Lewis's colleagues in Cabinet, who doubtless were infinitely more familiar with the activities of Mr d'Auvergne and Genesis Ltd, seems to have raised the matter for consideration of Cabinet action at the end of 1996. So complete is my negation of the potential criticism of Dr Lewis that I think it should never have been made. Dr Lewis is owed an apology, to the extent that he was entitled not to be taken to task for having exhibited evident umbrage at the Inquiry over the potential criticism made of him. It was no doubt that Dr Lewis' misinterpreted protestations which prompted the issue of the notice of criticism.

Mr Nathalbert Husbands

Mr Husbands was served with a notice of three potential criticisms. The first referred to the fact that in the deed of sale between St Lucia Model Farms Ltd (in voluntary liquidation) and Genesis Ltd no covenant restricting the use of land to agricultural purposes was inserted, whereas contemporaneously such covenants were inserted into the deeds of sale to Francis and Irina Joseph and to Elias and Elizabeth John. Mr Husbands stated that he excluded the servitudes from the lots sold to Genesis Ltd because, acting on reliable information, he decided that they were unsuitable for farming, whereas the lots sold to the Josephs and the Johns were, by definition, suitable for farm lands. The evidence before me indicated that, at the very least, the constant flooding of the area rendered most of the land unsuitable for farming. In the circumstances I do not think that Mr Husbands acted unreasonably.

The second cause for criticism was that Mr Husbands had given insufficient good reasons for not having sought bids from the public, having regard to Government policy to confer priority to purchase by farmers. During the oral submissions by Mr Anthony McNamara on behalf of Mr Husbands I withdraw the potential criticism. Once the land was properly regarded as unfit for farming, any such criticism falls away.

Third, the complaint is laid that Mr Husbands should have taken some action - notably, a report to the Public Service Commission - when he was confronted, in September 1993 in the sale of the lands to Genesis Ltd, with an easily recognisable breach by Mr d'Auvergne of Order 4.7 relating to the prohibition on the part of public officers to engage in private activities.

I do not need to relate the previous knowledge which Mr Husbands had. He readily conceded, in the course of his oral evidence to the Inquiry, that he was aware that when Mr d'Auvergne made the offer on behalf of Genesis Ltd to purchase the Model Farms lands, it was he (Mr d'Auvergne) who had been negotiating on behalf of Government in respect of the offer Mr Husbands had made to Government for the sale of those very lands. This was after the letter of 7 April 1992 from Mr Husbands to the Prime Minister. That apart, Mr Husbands was well aware of Mr d'Auvergne's status as Permanent Secretary to the Ministry responsible for deciding the policy towards, and implementing the decision relating to, Model Farms Ltd. Above all, Mr Husbands had been the Chairman of the Public Services Commission and was thus directly involved in the administration of the public service and the disciplining of public officers. It is that fact that supplied the essential ingredient to the complaint. The point arose in questions put by me to Mr Husbands. I cite the relevant passages:

Q: ....when you were negotiating with Mr d'Auvergne on behalf of Genesis Ltd in September 1993 ..... you knew of course that he had been (and was) the Permanent Secretary to the Ministry of Planning?

A: Of course, of course, Sir.

Q: You find that strange that somebody who would have been involved on behalf of Government in the transactions over Model Farms Ltd should suddenly appear as a private businessman acting on behalf of Genesis Ltd?

A: Why should I enquire, because I don't know whether he has authority for that, I am not to inquire whether he has authority. It could look strange, but it's not for me to inquire or debar anybody.

Q: You said it could look strange?

A: It could look strange.

Q: Did it look strange to you at the time?

A: I say it could look strange; it did look strange, but I am not in a position to debar anybody from talking to me about anything in relation to acquire.

Q: Did you raise a query with anybody?

A: It's not my position to raise a query with anybody".

While there might be some misunderstanding about what was meant by "strange" - Mr McNamara did submit that it had nothing to do with the duties of public servants - it is clear to me that Mr Husbands understood, unmistakably, that it refers to the surprise at seeing a senior public servant engaging in commercial negotiations on behalf of a private party. And Mr Husbands must have realised the impropriety of such behaviour. I find that Mr Husbands knew then that the rules relating to public servants were being deliberately flouted. The criticism of Mr Husbands is that he did nothing about it. That is the gravamen of the complaint.

There is in law no duty on the ordinary citizen to report the breaches of Staff Orders by civil servants. There may be a moral duty, but nothing more. But Mr Husbands was in a special position. He had once been the chairman of the Watchdog body over the conduct of public servants. In that capacity he would know how important it is to enforce the disciplinary code for public servants. He was in a special position of responsibility towards the enforcement of Staff Orders, more than was any other potential whistle-blower who is a colleague of a public servant. Unless those in such positions, as Mr Husbands, act when they discern serious breaches of Staff Orders, it will never be possible to assure the public that misdeeds of public servants will not go uncorrected.

I find that this criticism of Mr Husbands is well-founded. I think that he should have drawn the attention of the relevant person or authority to the wrongful acts of Mr d'Auvergne.

NOTICE OF CRITICISMS

Mr Ausbert d'Auvergne

NOTICE OF CRITICISMS

Mr Nathalbert Polycarp Husbands

NOTICE OF CRITICISMS

Dr Vaughn Lewis

 CHAPTER V The Shanty Town Road Affair

Historical background

The terms of reference require me to inquire into the circumstances leading up to and surrounding the construction of a road in Shanty Town, in Vieux-Fort during the period, April to May 1997. Although the issue for me to determine lies within a narrow compass - it boils down to what took place at a foursome meeting on 25 or 26 February 1997 culminating in a discussion on 8 March 1997 - the scene needs to be set against a backcloth of protracted efforts by the outgoing administration to forge ahead, with some impatience, with the building of a road in Shanty Town as part and parcel of a larger programme of development in the Vieux-Fort area. Ever since independence in 1979 there had been much talk of getting rid of the rebarbative squalor which for too long has punctuated and permeated the lives of St Lucians' resident in the second most populous part of the island. The sense of urgency pervaded the nature of that meeting on 26 February 1997, and the event on 8 March 1997.

The town of Vieux-Fort lies at the southern-most tip of the island of St Lucia. It started its life as a settlement on swamplands near the mouth of a river where slaves on the neighbouring sugar estates lived.

Until the early 1940s the town of Vieux-Fort was a fishing village and a source of labour for the neighbouring sugar estates. The Vieux-Fort river, on whose banks the settlement was established, flowed into the eastern bay (the Atlantic ocean with its continuous whitecaps). The estuary was often blocked by sand causing the adjacent low lying area to become a flood plain, particularly during the rainy season. This area became known as "The Mangue" and was largely free of human settlement.

In 1940, under the Land Lease Agreement with the United States of America, large tracks of land were leased to the US Government, for the establishment of a military base. In order to establish a military runway and supporting facilities, the Vieux-Fort River was diverted from the eastern side of the town of Vieux-Fort to the Western side, thus reducing the incidences of flooding in the old estuary (The Mangue).

As the demand for workers to construct the military base grew, thousands of workers from all parts of St Lucia, and the neighbouring islands of St Vincent and Barbados poured into Vieux-Fort, putting severe pressure on the housing accommodation. These migrant workers (both St Lucian and other Caribbean people) established a squatter settlement on the swamp lands which was the former estuary of the Vieux-Fort river. After the base was closed in 1945, many of these squatters remained and established a more permanent settlement.

This settlement lacked the basic amenities of access roads, water, electricity or drainage. Neither the British, who remained as the colonial government until independence was granted in 1979, nor the US Authorities who surrendered the Lease in 1964, did much to solve the problems of poor drainage and other unsatisfactory conditions of the squatter settlement.

In the post-war years elected politicians began to address the problems. The late Mr Bruce Williams, who on two occasions was elected as the parliamentary representative of the area, took this on as his personal crusade, pursuing it until his death in 1995. His successor, Mr Peter Josie eagerly took up the mantle of crusader.

In 1968 a firm of Canadian consultants carried out work on a Master Plan for the redevelopment of the Vieux-Fort area. This plan included the town of Vieux-Fort, the Mangue and surrounding areas. The idea was to attract investment in the tourism and industrial sectors. As part of this plan, the existing runway, built by the Americans during the 1940's, was expanded to accommodate jet aircraft which is to-day St Lucia's international airport at Hewanorra. Attempts to interest Canadian investors to participate in the development of Vieux-Fort, in accordance with the Master Plan, was very actively pursued and a number of investors indicated interest in several sectors, but their interest waned after the Governor General of Canada received a hostile reception during his visit to the university campuses of Mona, Jamaica and Cave Hill, Barbados. It was not helped by the student riots at Sir George William University in Montreal in 1970.

Between 1970 and 1995 several attempts were made to effect the drainage of the "Mangue" but these were ineffective, primarily because of inadequate financing. The "Mangue" remained a source of concern, both as a social problem and a health hazard.

On 20 December 1978 St Lucia was granted independence and came into existence on 22 February 1979. Soon afterwards the squatting on Government lands adjacent to the town of Vieux-Fort, appeared to be given official sanction and accelerated to the extent that, when the Government again changed in 1982, squatting could not easily be reversed without risking civil disorder. The area, which became known as "Shanty Town", was thus a potential slum area - it had no publicly maintained or properly surfaced road, no water and no electricity.

In 1990 the Government took a fresh initiative to promote the development of the Vieux-Fort area by upgrading the port facilities to accommodate roll-on, roll-off vessels and containerised cargo. This involved dredging and reclamation of the port area. The contract was awarded to a Japanese company. This involved the presence of a dredge machine in St Lucia. The Government decided to take advantage of the presence of this equipment in the Vieux-Fort area to carry out reclamation of an area to the south of the Vieux-Fort town and to seek financing for the construction of a marina and associated facilities in the area. Financial provisions were made in the Estimates of Expenditure.

In 1993, Vieux-Fort was declared by the Prime Minister and Minister of Finance, Sir John Compton, introducing the country's budget, as "the new frontier for development". The Prime Minister ended his speech:

"In venturing into these new frontiers, the existing town will not be left behind. The blight of the Mangue will be removed through adequate drainage and road improvement, the squatters in the "Shanty Town" will either be given title or be resettled elsewhere, and the old Vieux-Fort will be fully incorporated into the new, as St Lucia and Vieux-Fort enters the 21st Century".

Over the past few years, one factor - the human factor - appeared to frustrate all attempts to implement fully the plans for the drainage of the Mangue area.

The unplanned development and irregular siting of the houses necessitated the relocation of some of these houses to enable the construction of the road and the location of the drains. This met with considerable resistance from the persons immediately affected. A breakthrough appeared to come, however, in 1996 when Mr Peter Josie, the elected representative for the area left the Labour Party in opposition and joined the United Workers' Party; he was made a Minister in the Administration headed by Dr Vaughan Lewis. Mr Josie was the natural and avid successor to Mr Bruce Williams as the ardent spokesman for Vieux-Fortians. He brought all the verve and energy of a man with the insistent urge for social justice for the slum dwellers of Shanty Town. He told the inquiry:

"I became Parliamentary Representative for the area in 1987 and many persons from Vieux-Fort convinced me that I should continue the struggle to help the Mangue and Shanty Town residence to find suitable land on which to relocate. Included in this programme was a letter to the Secretary of State for Foreign Office and Commonwealth Affairs at the time to make monies available for the re-development of Vieux-Fort. That letter to the Secretary of State was read in the Parliament of St Lucia around 1988. The British Minister at the time indicated that the development of Vieux-Fort was now a matter for the Government of St Lucia. I therefore turned my attention to the Minister of Finance and Development of St Lucia who at that time was Prime Minister John (now Sir John) Compton."

The Project for the area was provided for under Head 91, Item 18 of the 1996-97 Estimates and involved:

The construction of an access road through The Mangue linking Clarke Street with the New Dock Road; and the provision of adequate drainage for the area. The project involved the relocation of a number of houses in the areas of Lower La Tourney and "Shanty Town".

In order to provide temporary shelter for the dislocated residents, the area of the Bacadere was backfilled, and the drains in that area were cleared to prevent and alleviate the flooding. Five wooden houses were commissioned from Nat & Associates at an erected cost of EC$20,000 each. These houses were provided with electricity, water, communal toilets and laundry facilities.

The residents of the La Tourney area objected to the fact that "slum dwellers" were being placed among them. And for this reason and other reasons, such a proximity to their place of work (many of the persons affected were fishermen and dock workers) it was decided to relocate some of the affected person in the "Shanty Town" area. This necessitated the improvement of the road access to the area, the provision of water and electricity. All these things were done, not only as part of the Mangue Drainage and Reclamation project, but also as part of the general improvement of Vieux-Fort.

On 1 November 1996 the Permanent Secretary to the Ministry of Planning, Mr Cletus Springer wrote to the chairperson of the Departmental Tenders Board (with copies to the Prime Minister, Dr Vaughan Lewis, the Senior Minister, Sir John Compton, Mr Peter Josie and the Chief Engineer) stating that the Government was about to embark on a "phased upgrading programme of the Mangue settlement in Vieux-Fort. The first phase will entail the construction of a road (as shown on plan) to improve traffic circulation within that settlement". The construction of the road envisaged the relocation of nine houses to a portion of the Horace Giraudy estate at Vieux-Fort. On 18 November 1996 the chairperson of the Development Tender Board gave written approval to the Director of Finance (with a copy to the Accountant General) for the award of the contract to LEFCO Equipment Rental, rounded-off in the sum of EC$50,000 (LEFCO's bid had in fact been EC$48,885.77). The four signatures to the approval were: the representative of the Ministry of Finance, the Quantity Surveyor, Ministry of Planning, the Chief Engineer and the Permanent Secretary to the Ministry of Planning. The bid could properly have been dealt with at departmental level, but as a matter of abundant caution, the Tenders Board was approached for its approval.

In December 1996 Mr Springer was instructed by Sir John Compton as Senior Minister to start implementing the Mangue Reclamation Project. This reclamation was intended to facilitate the construction of the first four roads linking New Dock Road and Clarke Street. Mr Springer received no instructions regarding the construction of a road in the Shanty Town area. He told Sir John that he would require written confirmation, which was never forthcoming.

Mr Nicholas Glace's appointment as supervisor

By letter dated 29 January 1997 the Permanent Secretary to the Ministry of Planning, Mr Springer, wrote to Mr Nicholas Glace, at an address which was care of Mr Peter Josie. Mr Josie, who had been elected to the Parliamentary Assembly in 1974 as a member of the Saint Lucian Labour Party and since 1987 the representative for the area, had in 1996 crossed the floor to join the Saint Lucian United Workers Party, the party then in power, but which lost the general election on 22 May 1997. Copies of that letter were sent to Mr Josie and to the Senior Minister, Sir John Compton, who had been the Prime Minister until April 1996 and had become responsible for outstanding drainage and development projects in the Vieux-Fort area. The letter was also copied to the Chief Engineer, Ministry of Communications, and the Engineer South.

The letter appointed Mr Glace as the Project Supervisor of the Mangue Development and related projects with effect from 1 February 1997 on a month-to-month basis at a salary of EC$3000 per month. He was to be stationed at Vieux-Fort where he resided and was to report to the Engineer with responsibility for the South. He was instructed to supervise all aspects of three works - (a) relocation of residents from the Mangue to the Giraudy/Boriel lands; (b) landfill operations at Giraudy/Boriel lands; (c) roadworks at Upper Shanty Town. The penultimate paragraph of the letter read as follows:

"Please note that you are not to award any contracts, or incur any expenditure unless such expenditure has received the prior approval of the Engineer/South and/or the Permanent Secretary, Ministry of Planning".

At the foot of the document dated 3 February 1997, Mr Glace signed his name to the receipt and acceptance of the appointment.

On 28 February 1997 Mr Springer wrote to Mr Glace at the same address, c/o Mr Peter Josie, with copies to the same four persons who had received copies of the letter of 29 January, terminating Mr Glace's appointment with immediate effect. This revocation of Mr Glace's appointment led to a protest in a letter, dated 7 March 1997, which ended up with Mr Glace saying that he was offering his services "FREE OF CHARGE". Mr Springer replied on 11 March explaining the circumstances of the appointment being revoked, and rejected the offer of unpaid services. The letter concluded, however, that "as a private citizen, you are free to assist by way of advice to Mr Josie. However, it would not be proper for you to give instructions [the word was underlined] to the contractors or to the persons being relocated". Mr Glace appears in fact to have been engaged in supervision on site, at least well into March and probably until the beginning of April. For the purposes of determining the issues, it matters not when Mr Glace's appointment was ultimately terminated.

It appears that some years back - probably around 1989 - Mr Glace had left the public service in unspecified circumstances. Officially, Mr Glace was said to have been dismissed as, to use his own words, "he may have made a mistake some years ago, which resulted in an unfortunate situation". He said he thought he had paid for his "misgivings" - an odd choice of language. Mr Glace was adamant that he had resigned from the public service, and had not been dismissed.

The Inquiry has not been able to examine what happened in 1989 - no documentation has been produced relative to it. It matters not. Whatever it was that prompted Mr Glace's departure from the public service, I have drawn no inference - adverse or otherwise - on Mr Glace's evidence on the crucial issue, viz, who it was who purported to give authority to Mr Thomas Boriel as managing director of National Constructions Ltd to do certain works relating to the project at Vieux-Fort.

It is convenient to state that Mr Glace was insistent that an "instruction" was not an "award of a contract". Referring to a letter of 26 February 1997 (to which I will shortly allude) Mr Glace protested: "This is an instruction given to me by these people and I never awarded any contract to anybody, because I would have signed contracts". As Mr Springer's letter of 11 March 1997 demonstrates, the lack of any authority to "award any contracts, or incur any expenditure" amply covered the giving of instructions to a contractor to do work. Giving an "instruction" was effectively to incur government expenditure, even if it was not, strictly speaking awarding a contract. Mr Glace cannot, I fear, claim exoneration on such a specious ground. Either he was given authority to tell Mr Boriel to go ahead with certain works, or he was not. In fact Mr Glace's own hand-written letter of 26 February 1997 talked of authority "to contract your company to execute the following works". And in his written statement to the Inquiry on 18 June 1998 he had said that he "was instructed by the Senior Minister [Sir John Compton] and the District Representative [Mr Peter Josie] to contract National Constructors Ltd to undertake the following works" not including the Shanty Town Road. Was it either, or both of the two ministers who gave any such instruction?

The instructions to Mr Boriel : where did they come from?

On 26 February 19974 Mr Glace wrote the following hand-written letter:

NATIONAL CONTRACTORS 748 454 5208

Ministry of Planning

The three items on which Mr Boriel was being asked to carry out the building works did not mention any road at Upper Shanty Town. Mr Glace states that the letter was written either on the day of a meeting which he had with the two politicians and Mr Boriel, or it was written the following day. Suffice it to say, the instruction to Mr Boriel to execute the work on the Shanty Town Road took place some little time later, but was never documented. If the letter of 26 February 1997 accurately recorded the giving of authority from either Mr Josie or Sir John Compton, or from both of them jointly, it seems more than likely the same process (without confirmation in writing) preceded the authority to Mr Boriel to engage in the Shanty Town Road works.

Mr Glace's evidence on the events of 25 or 26 February, is clear and, apart from the conclusion of the encounter, is uncontradicted. Mr Glace, who had been in post as supervisor for a month and had not by then had his appointment revoked, was invited to a meeting by Mr Josie at the Skyway Inn, a small modern hotel at the end of the runway of the International Airport of Hewanoora, about half-a-mile from Shanty Town, the Mangue and Bacadere. When he arrived at the meeting he found Mr Boriel there, together with several men from the Ministry (in fact all the relevant Ministries were represented). About 15 people were present to discuss progress on the various projects at Vieux-Fort. Both Mr Josie and Sir John Compton were present. Following the meeting, the Ministry officials dispersed and Mr Glace was invited by Mr Josie to accompany him, with Sir John and Mr Boriel, on a tour of the various projects in Vieux-Fort. The four men went first to the Old Beanfield Road. Mr Glace's evidence to me was as follows:

Nicholas Glace: "On arrival at the site at the Old Bean Field road, Mr Peter Josie indicated to the Senior Minister that this road he would have liked or it was earmarked for LEFCO to do it, but because of problems LEFCO had been encountering with its equipment, he was suggesting to the Senior Minister to allow Mr Boriel to do the job. Mr Compton agreed. I was there, he was there, Mr Boriel was there. If I may say something further on that, by afternoon on the same day of the tour, even before this instruction was sent to Mr Boriel, Mr Boriel's equipment was already on the job at Old Bean Field road. From there we went on to the Bacadere and almost the same thing happened. Mr Josie told Mr Compton that Quarry Products were experiencing problems on the site, which is true, because I can say that at the time Quarry Products had only one bulldozer on site, one grader and one truck transporting materials for over 5 miles to the site and that was probably time wasting and wasting money also. So this was indicated to the Senior Minister that this was happening and Mr Josie suggested to Mr Compton that we should bring in or call in Mr Boriel to continue the works at Bacadere. Mr Compton agreed to bring in Boriel. All this was said in my presence. Then Mr Josie turned to me and said, "Mr Glace you call in Mr Boriel to start the job".

It is convenient at this point to relate the facts relating to the Upper Shanty town Road. Mr Boriel told the Inquiry in his written statement of 18 June 1998, that on 8 March 1997 Mr Glace had approached him (Mr Boriel) "on behalf of the then District Representative, Mr Peter Josie, for assistance in providing the necessary equipment for executing certain excavation works on the Shanty Town Road". Subsequent to the excavation and relocation works, Mr Boriel said that he was again approached by Mr Glace "on behalf of Mr Josie, for our assistance in completing the road". Mr Boriel indicated that he needed supporting documentation in order for him to execute the required works. Pending such documentation "as promised by Mr Josie", Mr Boriel "out of good faith", undertook the work. During the construction work, Mr Boriel said that he was told that the necessary documentation was forthcoming. No such documentation was ever received.

On 26 June 1997 Mr Boriel had given that version of events in a letter relayed to the new Minister of Communications:

26 June 1997

The Hon. Senator Calixte George

Minister of Communications, Works, Transport and Public Utilities

Micoud St., Castries

St. Lucia

Dear Sir

RE: CONSTRUCTION OF THE SHANTY TOWN ROAD (VIEUX-FORT)

During our discussion on Tuesday 24th June 1997, whilst you were on your tour of the Vieux-Fort area, I was indeed surprised to learn that the Ministry of Planning and your Ministry were unaware of the construction of the above referred road.

As you may be aware, the Ministry of Planning had undertaken a number of long overdue development projects in the town of Vieux-Fort during the latter part of last year. My company was invited to submit a quotation on one of these projects, but we were unsuccessful in our bid.

On the 20th [sic] of February 1997, Mr Nicholas Glace of the Ministry of Planning informed me that the Senior Minister and the Former District Representative had authorised him to contract my company to execute certain works (see attached copy of letter). During the execution of these works, I was further requested to undertake other works related to the redevelopment programme. Prior to and during the execution of these works, I had requested from the Former District Representative documentation from the Ministry of Planning related to these additional works. I was told on more than one occasion, that the documentation was in place and that I would soon be receiving them. To date I have received no such documentation.

Invoices for all works done have been submitted, (see attached copies) but to date no payments have been received. I would appreciate your Ministry's assistance and co-operation in the processing of the invoices. If required, I would also be willing to meet with a designated representative of your Ministry for a site visit and inspection of the various projects.

May I take this opportunity to wish you and your Ministry success in your endeavours, and I look forward to a harmonious working relationship with your Ministry.

Yours faithfully

NATIONAL CONTRACTORS LIMITED

________________________

THOMAS BORIEL

(Managing Director)

cc The Hon Dr Kenny Anthony

Prime Minister and Minister of Finance, Planning and Development

In a letter of 22 July 1997 to the Prime Minister, Dr Kenny Anthony, Mr Springer concluded that Mr Boriel's letter of 26 June 1997 "tells the whole story".

Nothing that I have heard in the Inquiry has thrown any doubt on Mr Boriel's statement. I fully accept it as an accurate account. I do not doubt that he did get oral instructions from Mr Josie to carry out the works at the Shanty Town Road. He appeared to continue to do the work, at least until 11 April 1997 when Mr Glace was replaced by Mr Pierreson Emmanuel; the work appeared to continue until the day after the General Election on 22 May 1997. Mr Josie does not deny the approach made by Mr Boriel. In his evidence he said:

Peter Josie: "When LEFCO started the work they could not finish the work. Mr Glace approached me and he told me what shall we do because LEFCO cannot finish the work. I told Mr Glace there were other contractors who submitted bids. What about those contractors? He said to me that Mr Boriel was one of those, so I said I would take the matter to Sir John. I went to Sir John but he was not there at the time, he was either out of office or out of the island, I don't remember which one, but I was liaison between Sir John and the Permanent Secretary".

But Mr Josie has consistently denied that he had given any authority:

Peter Josie: "Mr Boriel came to me, Mr Boriel is a Vieux-Fortian, the work was being done in the constituency that I represented. As far as I was concerned it was not Peter Josie's work, it was work for people who needed that support and when Mr Boriel spoke to me I promised to go to Sir John. When I didn't get Sir John, I went to the Permanent Secretary whom I thought was the correct person".

Mr Josie added that he had made unsuccessful endeavours to get written support for the promise he had made to Mr Boriel. Mr Josie went on to assert, with vigour, that he has done nothing wrong and he would do the same again to-day.

One thing is, to my mind, crystal clear. Sir John Compton was not a party to the suggested giving of authority on 8 March 1997 for the work on the Shanty Town Road. That responsibility lies fairly and squarely on Mr Josie's shoulders. Later on, I will say why I think Mr Josie acted as he did, and the extent to which he must accept criticism. It follows logically that I should find that Mr Josie did purport to give authority to Mr Boriel on 26 February 1997 in connection with the three items of work, which did not include the Shanty Town Road. It is understandable that Mr Glace should have concluded, both from his experience as supervisor of the various projects initiated by Government and from his knowledge of Sir John's abiding interest in the developments at Vieux-Fort, that the two politicians were jointly giving him authority to instruct Mr Boriel. But such inferred conclusion cannot affix Sir John with the responsibility.

It might be said, with justification, that Sir John was throughout the relevant period (January to May 1997) identifying himself as a direct supporter of all Mr Josie's activities, and was thus rendering himself jointly responsible for the latter's actions in connection with the various projects. But I do not think it right to draw the inference that such identification automatically affixes Sir John with having wrongly given authority to Mr Glace to go ahead with instructions to Mr Boriel on 25 or 26 February 1997 or, more pertinently, on 8 March 1997. He cannot, for the reasons I have stated, be held responsible for the action taken on 8 March specifically in connection with the Shanty Town Road aspect of the project.

I would have expected Sir John to have been fully aware of the proper administrative procedures for the authorisation of government contracts. He has had a long and distinguished career in the government of St Lucia. A mere assertion from him that he gave no authority to Mr Glace to instruct Mr Boriel at any time should be enough. The only doubt that creeps into my instinctive conclusion is Sir John's recommendation that Mr Glace be appointed the supervisor of the works. He must have known about Mr Glace's departure from public service in 1989 and might, therefore, not have recommended his re-employment. Since, however, I have not been able to find that Mr Glace was dismissed from public service, but that he may have resigned as a result of some undisclosed incident - "misgiving", Mr Glace describes it - I cannot conclude that Sir John was in any way at fault in recommending Mr Glace. In any event it was Mr Josie apparently who suggested Mr Glace to Sir John, so that the latter's recommendation to the Permanent Secretary was second-hand.

There is, moreover, a piece of evidence in the form of documentary material that suggests that Sir John was alive to the need for proper procedures. On 28 February 1997 (on the very day that Mr Springer was revoking Mr Glace's appointment) Sir John wrote, in his capacity of Senior minister, to Mr Springer, with copies to Mr Josie and the Divisional Engineer (Vieux-Fort).

Honourable Senior Minister

Permanent Secretary, Planning

cc : Honorable Peter Josie

Divisional Engineer

(Vieux-Fort)

February 28th 1997

I will be grateful if you will expedite arrangements for the payment of work done by the contractors for the preparation of the site and the relocation of the residents of the Mangue affected by the proposed road and payment for the temporary decamping houses (seven in number), ordered from NAT and associates.

Provisions should also be made for the payment of Mr Glace for supervisor of the works.

(1) A certificate from the Divisional Engineer of the Ministry of Works is required for payment of the reclamation works. (Head 91-18 is the relevant rubric.)

Senior Minister

The hand-written note at the foot of the page reads "Accountant for attention. 3/3". The note to Mr Springer's deputy indicates that Mr Outer, the Engineer for the South, is unable to accede to Sir John's request unless he [Mr Outer] is authorised to do so from his own supervisor, the Chief Engineer. The signature is of the Accountant in the Ministry of Planning, dated 17 March 1997.

The fact that Sir John, in that letter, recognises the need for a certificate of works from the Divisional Engineer of the Ministry of Works - and he cites Head 91-18 of the authorised expenditure by Government - is evidence that Sir John assumed that the contractors for the Mangue re-development were covered in respect of the work they were engaged upon. Of course, at that time, the authority to go ahead with the Shanty Town Road work had not been given by Mr Glace, on the say-so of Mr Josie. Sir John's letter argues forcefully in favour of his total understanding about the proper method for authorisation of governmental contracts and for subsequent payment.

I return to the finding that Mr Josie alone improperly authorised Mr Glace on 8 March 1997 to go ahead with the construction of the Shanty Town Road, and why he came to commit what I regard as a pardonable offence. In his appearances before the Inquiry Mr Josie presented an excitable figure. His demeanour, in the relative tranquillity of the Inquiry room (in the chamber of the Parliamentary Assembly) would likely indicate a display of uncontrolled exuberance when on site in his much-loved Vieux-Fort. I conclude that Mr Josie allowed himself to be swept along on a tide of overweening enthusiasm. Mr Josie might have been soliloquising the words of Derek Walcott that "light broke through the rain in Vieux-Fort and horses grazed, their hides wet". (The Bounty: A Santa Cruz Quartet, No. 35, p.76.)

This episode might be explained on the basis of the ineffectiveness on Mr Josie's mind of a proper system of authorisation of government contracts. If so, his conduct might not be so readily pardonable. It would be the absence of yet another sign of a proactive regime designed to prevent wrongdoing by public officials. The Shanty Town Road affair is a good example of the root cause of assumed ministerial ascendancy. This culture of governance seems to be reflected in the attitude of Mr Husbands in the Roseau Bay Affair, when he said: "It's not my position to raise a query with anybody".

NOTICE OF CRITICISMS

Sir John Compton

NOTICE OF CRITICISMS

Mr Peter Josie

CHAPTER VI The Nationwide Properties Affair

Shortly after the election of May 1997 Mr Peter Philip (in the capacity of Manager of Nationwide Properties Ltd) wrote to the Prime Minister, Dr Kenny Anthony. The letter was dated 27 June 1997 and did not purport to be in answer to any letter emanating from the new administration; there was no letter on the file disclosed to the Inquiry. If there had been some oral communication, the Inquiry has not heard any evidence to that effect. The letter, which in tone was unsolicited, read as follows:

June 27, 1997

Hon. Dr. Kenny Anthony,

Prime Minister,

Prime Minister's Office,

Government Buildings, Castries.

Dear Prime Minister,

Please find enclosed, a report re: the operations of Nationwide Properties Ltd from its inception to year ending June 30th, 1997.

This report is to aquaint you and your Cabinet with the status of the Company.

I wish also to draw to your attention that the company's auditors Messrs G. Llewellyn Gill & Co, has audited the financial statements of the company for all the years in question and copies of those statements have already been submitted to both the Ministry of Planning & Development and the Prime Minister's office.

I would be pleased to discuss the report with you and officials of the Ministry if you so desire.

Yours sincerely,

PETER PATRICK PHILIP

MANAGER

While the Inquiry has not seen any letter in reply, action from Government was both forthcoming and swift. The Ministry of Public Service prepared a memorandum on 11 July 1997 for a Cabinet meeting of 31 July 1997 at which a new Board of Directors was appointed. The Cabinet approved new arrangements by Nationwide Properties for an auditing of the company's accounts; directed that a physical evaluation of existing houses be conducted with the intention of disposing units with no commercial value; that measures be instituted to recover unpaid rent; and that the recommendation, for the management of the Government residential house stock to be under the supervision of the Urban Development Corporation, to be put on hold, pending the outcome of the audit. An extraordinary meeting of Nationwide Properties Ltd was held on 15 August 1997. The meeting was short and to the point. A letter of 12 August 1997 from the Prime Minister and Minister of Finance was tabled as a shareholder's resolution (i.e. the Government) nominating seven persons to form the new Board. On 17 October 1997 the new Chairman wrote to the Prime Minister forwarding an advanced copy of the newly audited financial statements for the period ending 30 June 1996 and 30 June 1997.

This activity was in stark contrast to what had passed for governmental interest, let alone activity, before May 1997, as will become clear from the rest of this chapter. The report of the auditor, Mr Eustace Francis, of 15 October 1997, reads as follows:

"I was engaged to conduct an audit of the accompanying balance sheet of Nationwide Properties Limited as of 30 June, 1996 and the related statements of income, accumulated deficit, and changes in financial position for the period then ended. These financial statements are the responsibility of the company's management. My responsibility is to attempt to express an opinion on these financial statements based on my examination.

I conducted my audit in accordance with generally accepted auditing standards. These standards require that I plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation.

My examination revealed misappropriation of company funds and lack of adequate documentation to support material account balances (emphasis supplied). The company was continually billed for automobile expenses including fuel, tires and vehicle servicing when no vehicle was owned by Nationwide Properties. In the period examined, $10,348, billed to the company, related to the above noted vehicle expenses. Cellular phone charges, for a non-company, cell phone, in the amount of $3,372, was charged to Nationwide during the current period. The leasehold improvement account carries a historical balance of $105,732; there is no evidence in the company's records to support any portion of this balance. The balance in the properties maintenance & repairs account as of 30 June, 1996 was $264,732; my examination revealed supporting documentation to substantiate $87,456 (33%) of that amount.

Based on the above paragraph, the scope of my work was not sufficient to enable me to express, and I do not express an opinion on these financial statements.

15 October, 1997

Eustace C. Francis, CPA"

In the light of that report it was hardly surprising that Government found it necessary to order a public inquiry. By that time - October 1997 - the Monica Joseph inquiry had come to a shuddering halt. Hence, the conduct of the financial management of Nationwide Properties Ltd for the financial year 1996, in the light of the auditor's report, was tacked on to the two events which had formed part of the earlier public inquiry.

Mr Eustace Francis, a certified public accountant, gave helpful evidence to the Inquiry on 16 and 17 September 1998. In his questioning by counsel for the Tribunal, he explained that by stating that his examination of accounts had revealed misappropriation of funds he meant that company funds had been directed to activities other than company activities. During further questioning by Mr McNamara, Mr Eustace did not elaborate this meaning, but he was positively not suggesting any criminality in the "other activities". Mr Francis agreed, for example, that loans to directors or to staff did not constitute misappropriation, so long as the loans were properly approved. In totality, Mr Francis' evidence echoed the final statement of his report of 15 October 1997 that the "scope of my work was not sufficient to enable me to express, and I do not express an opinion on these financial statements". If, in fact there has been no further examination of the accounts since the hearings in September 1998, I recommend that Mr Francis should be invited to complete his work.

General administrations of Nationwide Properties Ltd

If the conduct of the financial management of Nationwide Properties Ltd in 1996, in terms of administration of a government agency, has left a good deal to be desired, it pales into insignificance by comparison with general administration. There has been revealed to the Inquiry a lamentable tale (or more accurately, a trail) of woeful omissions and acts of maladministration over the four years, 1993-1997. It adds to the overall failure in public administration both of public accountability and individual responsibility of those in public service.

The story begins in September 1992. By a Cabinet Conclusion No. 490, dated 8 September 1992, it was determined to establish a company, wholly owned by Government, to manage all the residential housing belonging to Government. The determination gave the seal of approval to an earlier Cabinet decision of 28 July 1988 which advised "that an inventory be taken by the Ministry of Planning of all Government residential properties throughout the island, and that these properties be vested in a company wholly owned by Government, to be managed along commercial lines". A memorandum of 1 December 1989, submitted to a Cabinet meeting of March 1990, referred the matter to a ministerial committee to examine recommendations of the Housing Authority. On 5 November 1992 Cabinet voted to make available EC$250,000 to the company for repair work on Government houses. (The Permanent Secretary to the Ministry of Planning at the relevant time was no less than Mr d'Auvergne who subsequently submitted the memorandum to Cabinet on 25 August 1992 for its September meeting.) At its meeting on 8 September 1992 the Cabinet also decided that the company was to be managed by a Board of Directors comprising five persons, to be appointed by Cabinet. It also approved the Memorandum and Articles of Association for the proposed company which were subscribed on 15 July 1993, the date of the incorporation of Nationwide Properties Ltd. The subscribers to the Memorandum and Articles of Association were the Urban Development Corporation, through Mr Peter Philip and the then Director of Finance, Ms Zenith James; as such Ms James represented the Ministry of Finance. The Urban Development Corporation was a corporation owned by Government, so that the two subscribers held the subscribers' shares in trust for the St Lucia Government.

Three of the Articles of Association are relevant to the subsequent flaws in the administration of Nationwide Properties. First, Article 47 provides that an annual general meeting shall be held in every calendar year, and not more than fifteen months shall be allowed to elapse between any two annual general meetings. Thus, in the case of Nationwide Properties, it was expected that some statutory general meeting would be held by the end of 1994; with regular and general meetings thereafter. Article 79 provides that the business of the Company shall be managed by the Directors who, by virtue of Article 87 may meet together as they think fit for the dispatch of business; and, by Article 94 the Directors are required to cause proper minutes to be made, inter alia, of all general meetings and of the proceedings of all directors' meetings and of all business transacted at such meetings. Any director is entitled, by Article 89, to summon a meeting of directors.

Second, Article 78 concerns the circumstances in which a director is permitted to enter into any contract with the company and will not be liable to account for any profit made by him, provided that he declares his interest in such a contract. Article 78 reads as follows:

"A director may contract with and be interested in any way whether directly or indirectly in an actual or proposed contract or arrangement with the company either as vendor, purchaser or otherwise and shall not be liable to account for any profit made by him by reason of any such contract or arrangement. Provided that the nature of the interest of the director in such contractual arrangement be declared at the meeting of Directors at which the question is first taken into consideration. If his interest then exists or in any other case at the meeting next of the Directors held after he became interested and it shall be the duty of the director so to declare his interest. No director shall vote as a director in respect of any contract or arrangement in which he shall be interested and if he does so his vote shall not be counted. He may be required by the majority of the other directors to withdraw during the discussion of such contract or arrangement but for this purpose he shall be counted into quorum present at the meeting".

Third, Article 70 specifies that the number of directors shall not be less than two, nor more than seven. On 4 March 1993 the Cabinet determined that the Board of Directors would comprise six persons to be directors of the company "to manage Government's residential housing stock for a period of two years". The Cabinet meeting appointed the following persons:

Mr Peter Phillip - Chairman/Chief Executive Officer

Mr Vaughn-Louis Fernand

Mr Francis Denbow

Mr John Charlery

Mr Adrain Dolcy

Mr Mark Louis - Chief Establishment Officer

Cabinet agreed that Mr Peter Phillip should hold the position of Chief Executive Officer for a period of one year in the first instance. The Salary Scale for the Executive Chairman/General Manager was to be EC$36,000-$46,800. (emphasis supplied).

Mr d'Auvergne, as Permanent Secretary to the Ministry of Planning, Personnel, Establishment and Training, wrote on 14 April 1993 to Mr Phillip c/o Urban Development Corporation, informing him that he had been "nominated to serve on the Board of his company for a period of two years in the first instance - one of which you will function in the capacity of Chief Executive Officer"; the other five members serving on the Board were listed. In so far as the management of the business of Nationwide Properties is concerned, the only other appointment of directors, subsequent to the appointment made on 4 March 1993, was made by Cabinet four years later, on 31 July 1997.

Mr Peter Patrick Philip (variously spelt Phillip)

Mr Peter Philip has been a business man in St Lucia throughout his adult life; in particular he runs a company with his wife, called Care Services Ltd, incorporated on 28 February 1980, of which he is managing director. He has also been engaged in politics as a member of the United Workers Party. He was a member of the legislative assembly from 1982-1987, during which period he was Minister of Trade, Industry and Tourism, 1982-1985 and Minister of Works and Transport, 1985-1987. On leaving Government in 1987 he was appointed chairman of the Urban Development Corporation until 1996. He was nominated by Cabinet in 1993 to become the chairman and Chief Executive officer of Nationwide Properties Ltd. Hence, there is no lack of experience of public service in Mr Philip's career. But, in my judgment, he misconceived the role and function of Nationwide Property. Throughout his evidence Mr Philip insisted that his duty as Chairman and manager was to operate Nationwide along "ordinary business principles". He conceded, only grudgingly at the end of his evidence, that he was bound to function under public law principles, even though the management of government housing was housed within a private sector framework. As a result he did not readily entertain the relationship of the company with government departments. Even by private sector standards Mr Philip performed well below par, as I will explain hereafter. Nevertheless Mr Philip deserves credit for his candour in giving his evidence and his commendable demeanour under some searching questions about his managerial conduct. If he is to be criticised (as indeed he is) his failures would appear to be no more apparent than other persons in public administration. His maladministration of Nationwide Properties Ltd was not ameliorated, indeed was colluded in, by those in government (both the Ministry of Planning and Ministry of Housing) who neglected, through its nominees on the Board of Directors, to monitor and exercise any perceptible control over the activities of the company. How was it that there was no insistence on the holding of Board meetings after December 1993? And why did not Government (the sole shareholder) insist on the holding in 1994 of an annual general meeting?

From March 1995 (when the two year period of office of the six directors lapsed) there were no directors. Again, why did Government not take steps to ensure continuity in directorships? It appears, moreover, that until August 1997 there were only three meetings of the validly-nominated Board of Directors - namely, on 25 May 1993, 30 September 1993 and 2 December 1993, although at the first of the three meetings it was agreed that Board meetings should be "held on the first Thursday of the month in the forenoon". (To these matters I now refer.)

The three Board meetings of 1993

At the first meeting on 25 May 1993 the Minister of State responsible for Housing, Hon Michael Pilgrim, addressed the Board. He stressed the Government's policy that home ownership had become a social imperative in its own right. Against that general policy the Minister told the Board that its role would be to implement Government policy with regard to housing and ensure the maintenance of Government properties. While his speech conveyed the overriding impact of social housing as a public function, he did remind the Board that "at all times it must be operated as a private company with a view of [sic] making a profit". Since the company was a government agency, with no private shareholders, it might properly aim to achieve a surplus in any financial year, rather than make a profit.

At the first meeting the chairman, Mr Peter Philip, referred to the acquisition of office premises for the company. He said that office accommodation had been "identified and secured, although renovations had not as yet commenced pending the receipt of working capital from Government". What, on the face of the record, he did not do was to declare his interest; the accommodation arranged for Nationwide Properties Ltd was tenanted from Care Services Ltd, Mr Philip's company. A tenancy was created by an agreement dated 25 June 1993 between Nationwide Properties Ltd, on whose behalf Mr Philip signed the agreement, and Care Services Ltd, on whose behalf Mrs Cecile Ashlyn Philip signed. Husband and wife were the sole shareholders in Care Services Ltd, as they were in an associated company called Property Shop Ltd. The tenancy was for "the front top section, Care Services Building" from 1 April 1993, at a monthly rent of EC$2,700.

It does not appear that the draft of the tenancy agreement (or any indication of the proposed terms of the agreement) was placed before the Board of Directors at any time for its approval and for adoption. The minutes of the first meeting (and the two subsequent meetings in 1993) do not specifically disclose that Mr Philip declared his interest in the tenancy agreement entered into between Nationwide Properties Ltd and Care Services Ltd.

Mr McNamara, on behalf of Mr Philip, makes a vigorous reply to the charge of non-disclosure of Mr Philip's interest in the tenancy agreement. He says, first of all that minutes of a Board meeting "hardly ever give the specifics to the extent that if a matter is recorded in a general way one can rely on it as clearly establishing what was or what was not in fact said". I reject the idea that in a minute recording the identification and securement of office premises one is entitled to read in a declaration of interest of a member (in this case the chairman) of the Board. Mr McNamara further argues that it is absurd to suppose that in an item on the Board's agenda dealing with "office space" no one would have asked more about the accommodation. Assuming in favour of Mr Philip that some discussion did take place which did not find any mention in the minutes, I fail to see how that would encompass a declaration of interest in the tenancy agreement. If it had, the minute-taker would undoubtedly have noted the matter for the record. Mr McNamara, with an ingenuity that does his forensic skills much credit, argues that "to get a real insight as to the knowledge of the directors (about Mr Philip's interest in the tenancy agreement) one must go a little further into the minutes and indications of the subsequent Board meetings". The announcement at the beginning of the meeting that he was managing director of Care Services Ltd cannot suffice to fulfil the duty of disclosure of an interest in the tenancy agreement.

At the second Board meeting of 30 September 1993, which must have taken place at the tenanted premises, the chairman welcomed the Board members, as Mr McNamara, touchingly notes "to meet the staff and tour the premises after the meeting". This, so it is argued, must be coupled with knowledge of Board members of Mr Philip's association with Care Services Ltd. I did not think it would be profitable to call any of the erstwhile directors of Nationwide Properties Ltd. Assuming (a large, but not a rash assumption) that each of them did know of Mr Philip's interest in the tenancy agreement, that in no way absolves Mr Philip of his duty under Article 78 to disclose his interest, to be recorded in the Minutes. The most that one could reasonably infer from the combined effect of declaration of a preliminary interest in Care Services Ltd and any knowledge which Board members might reasonably be expected to have was an intelligent guess that Mr Philip did have an interest in the tenancy agreement, within Article 78. But an "intelligent guess" must constitute the threshold of inference-drawing; it falls short of the requirement imposed by Article 78 of a declaration, written or oral, by the interested person of the interest in the tenancy agreement.

The fact that the Directors might have had the knowledge of which disclosure is meant to put them in possession, does not face up to the question of disclosability. It might mitigate the offence of non-disclosure; it does not absolve the declarer of an interest to make his declaration. I have no hesitation whatsoever in finding a breach by Mr Philip of Article 78 of the Articles of Association. Had this been an isolated incident, it could be regarded as a forgivable aberration. As it is, it constitutes only the first of a series of acts of maladministration. His failure is symptomatic of the general attitude towards openness and accountability in public administration.

I should, en passant, refer to Article 94 which provides that the minute of any Board meeting, "if purported to be signed by the chairman or by the chairman of the subsequent meeting [which these were not] shall be conclusive evidence without any further proof of the facts stated therein".

At that meeting, under the heading Non-Payments of Rents, the Chairman stated that there had been no response from Government ministers who occupy houses, and that government would have to make a decision regarding the payment of rent. The Chairman promised to write to the Minister of State for Housing, Hon Michael Pilgrim, in this regard. Nothing appears on file disclosing any such correspondence.

At the end of the third meeting the minutes record that "the directors wished each other seasons greetings". They might just as well have said their fond farewells, since they left the meeting never again to meet as a Board and to learn whether the Christmas holidays had been pleasantly spent or whether Nationwide Properties was failing (as was happening) to perform its public duty over government housing.

Breaches of Articles 79 (Board meeting) : 47 (General meeting)

It is idle to spend time examining the breaches of the Articles by the Directors and the Chief Executive. Suffice it to say, since July 1995 the business of Nationwide Properties Ltd was illegally conducted. Article 79 opens with the words: "The business of the company shall be managed by the Directors...... In so acting the Directors shall in all cases conform to the provisions of the Act [the Commercial Code of St Lucia]". Furthermore, by Article 89 "a director may, and on the request of a director, the Secretary shall, at any time summon a meeting of the directors". No annual general meeting in any of the calendar years, 1994-1997, was ever held. For that lapse the Directors (including Mr Philip) are jointly responsible. None of the directors has been asked to make a statement or give evidence to the Inquiry, since it was possible to obtain all the necessary background information from Mr Philip who remained ostensibly carrying on the functions of the company throughout the period, post-December 1993 (the date of the last meeting of the directors). No useful purpose could be served by the calling of the Directors. To the extent that they failed to perform their duties during their two-year period of office, they could and should have been prompted to perform their duties of their fellow-director, Mr Philip, who was in full-time employment. But there is a more overriding explanation, if not excuse for their failure.

It was the Government which was the exclusive shareholder in the Company - moreover the Government had its own representative on the Board, ex officio, in the appointment of the Chief Establishment Officer. The only conclusion that can be drawn from the absence of any action by Government in the years 1993-1997 to cause directors' meetings to be held or for the annual general meetings to be convened is, to say the least, a total disinterestedness in the operation and management of Nationwide Properties Ltd. Mr Philip told the Inquiry that he kept Ministers and senior civil servants constantly informed of developments in the company, and that he repeatedly requested promised directions on policy. I have no reason to disbelieve Mr Philip; he obviously had direct access to Ministers who were his former ministerial colleagues and political party associates. But since he could not identify any particular recipient of his approaches, and since there was no documentation evidencing any such contacts, the Inquiry did not pursue what would be a costly exercise without establishing anything more than the suggested government disinterestness in the agency it had created. It might, of course, have shown a high degree of incompetence in public administration.

Beyond noting this deplorable state of affairs in flagrant non-compliance with the rules of corporate management, nothing is to be gained by documenting each detailed act of non-compliance and identifying the malfeasants. Before the Inquiry, Mr Winston Taylor (who was, with others, appointed to the new Board in August 1997) gave evidence of the efforts being made to remedy the consequences of the past. I have every confidence that Nationwide Properties Ltd will be run on a proper basis. The efforts made so far are impressive, with the resignation of Mr Philip on 6 September 1997 and proper accounting methods put in place. Mr Taylor, in particular, has instituted regular reporting to the Prime Minister. And an extraordinary general meeting of shareholders was held in July 1997.

Personal loans

From August 1995 to July 1997 the company made loans, apparently without interest to Mr Philip and a member of staff, Mrs Beverley John as follows:

Date P Phillip B John

TOTALS $68,200 $20,166.92

None of these loans was sanctioned by the Board of Directors, for the simple reason that the first of the loans post-dated the existence of any Board. Mr Francis, in reporting his audit of October 1997, was adamant that the sanction of the Board would be required. In his submissions to the Inquiry, Mr Philip concedes that he dealt with the question of loans "in a less than formal matter and without the level of judgment and professionalism which he normally displayed in operations and might otherwise have applied". While that approach might be somewhat over-generous in terms of oversight and lack of judgment, I do not conclude that there was anything covert about the handling of the loans, or indeed fraudulent. At the time that he was conducting his audit, Mr Francis did not have any evidence before him that the loans (or any of them) had been repaid. On examination it does appear, although characteristically the mode of accounting for the repayment was faulty, that most of the loans were repaid within six months and none was left outstanding beyond one year from the creation of the loan. If this disclosed something short of prompt repayment the culpability is venial. It may be that the Company should, under its new management, seek to recover interest for the period of non-repayment.

Telephone calls

On the footing that the "misappropriation of funds" meant no more than improper system of accounting, Mr Philip was at fault in not making formal arrangements, properly documented, for the use and payment of telephones with Urban Development Corporation and Care Services Ltd. He was also to blame for making informal arrangements with those two companies in the absence of authority from the Board of Directors. I have not bothered to explain the arrangement whereby supplies and services were set off against the cost of telephone bills; whatever the propriety of such an arrangement the method of accounting was defective.

Not to be so lightly dismissed was the improper use in 1996 and 1997 of a telephone line (450-0385) belonging to Nationwide Properties for Mr Philip's personal calls to private persons abroad. Cable & Wireless (St Lucia) submitted an account to Nationwide Properties Ltd for EC$558.00 for the period of April-May 1996 as follows:

Similar accounts were submitted for the period June-July 1996 in the sum of EC$1,895.40 and for Jan-Feb 1997 for EC$751.35.

Faced with the documentary evidence from Cable & Wireless, Mr Philip was keen to accept his financial responsibility, and made proper if protracted payment. He sought to mitigate his impropriety by claiming "to date [September 1998] Nationwide has never sent Mr Philip a bill relating to his specific [ie. personal, international] calls". This is disingenuous, since the management of the company in 1996 and in 1997 (until July) was solely in his control, there being no Board of Directors. My recommendation is that Nationwide should insist that payment is made forthwith by Mr Philip for all his personal calls made on Nationwide's telephone number 450-0385. The fact that Mr Philip is now publicly criticised in this report suffices as a penalty for improper conduct on his part.

Apart from the criticisms levelled at the general management of Nationwide Properties, from December 1993 until July 1997, there remained the further three questions relating to the financial administration of the Company. Was there misappropriation of funds of Nationwide Properties? I have been at pains that I do not understand the auditor's use of that word as to connote anything other than maladministration of company monies in the manner indicated in the auditor's report and in the items relevant to Mr Philip personally. The responsibility for that mismanagement must lie with Mr Philip. The second question relates to the documentation to support the material account balances. The documentation was clearly inadequate by any standard of accounting. The final question is: was the financial management of Nationwide Properties for the year 1996 (the period of Mr Francis' audit) conducted properly? The answer is, no, it was not. As I have indicated, I take the view that financial control is now in place under the new chairmanship and Board of Directors, post-September 1997.

NOTICE OF CRITICISMS

Mr Peter Philip

CHAPTER VII Public Inquiries: A Study of OECS Legislation

Legislation regulating Commissions of Inquiry in Saint Lucia has been, and is broadly common in approach, in its statutory mode of expression, to that of all the other member-States of the OECS. All of the statutes in the independent member-States date back to colonial times, in some cases as far back as 1880. Saint Lucia's is of 1903 vintage (amended only slightly in 1916, 1933 and 1961). All OECS 'Commissions of Inquiries' laws are, thus, intrinsically over ripe for review and revision. At the conclusion of the instant Inquiry into Standards of Public Life in Saint Lucia, the Attorney-General of Saint Lucia and the Director of OECS jointly hosted, on 25 September 1998, a seminar, acknowledging thereby that a review was both necessary and timely. The exchange of views at the seminar was seen as the first step in an attempt to formulate recommendations for establishing a model statute for future regulation of public inquiries. In the light of the discussion, I offer some thoughts of my own as a contribution to the ongoing debate primarily on the second of two questions - first, what scandals, disasters or other untoward happenings should attract a public inquiry; and, secondly, what form should the public inquiry take?

Inquiry or not?

This is a question broadly for Government. All the statute can, and should do, is to set the parameter. The current legislation in OECS countries generally provides for the appointment of commissions with power to inquire into the conduct and management of any Department of the public service, or of any public or local institution, or of any public officer in the respective territories. Inquiries in the OECS countries also may be empowered to conduct an inquiry into any matter which, in the opinion of the Governor-General (acting on the advice of the Government) "would be for the public welfare". "Welfare" seems an odd word to use, even if it connotes the health and prosperity of society. Clearly, whenever the public confidence in some aspect of public life is undermined by some scandal, disaster or impugned integrity of those in public service, a public inquiry is called for. Only a thorough investigation and probing of the facts to search out the truth of what happened, why it happened and who was responsible for the happening, will restore public confidence. The statutory power to order an inquiry should, therefore, encompass the notion of a public interest in independent inquiry, alone satisfying a public demand to know what happened. There are numerous reasons for setting up an inquiry, rather than simply taking governmental action or relying on court action. Here are five main considerations:

1. Horror or disquiet needs to be assuaged quickly. By announcing an immediate inquiry, the Government recognises the importance of the matter and assures the public of speedy investigation.

2. Frequently, the events to be investigated involve allegations of fault by government or public authorities, so it is important to allay fears of a "whitewash", by providing for public inquiry under an independent chairman, who need not be drawn from the ranks of the judiciary, past or present.

3. Disasters and events causing public anxiety go beyond the interests of individual victims who may have a cause of action; they require deeper and more searching inquiry.

4. A public inquiry gives an opportunity to all who reasonably have an interest in making representations to do so. It thus has a cathartic effect for victims, relatives and, via the media, the public in regard to distress, recriminations, speculations and rumours.

5. A committee of inquiry, as well as establishing the facts, and possibly assigning responsibility, can make recommendations to avoid recurrence.

Form of Inquiry

The former Prime Minister of the United Kingdom, Sir Edward Heath, during a debate in the House of Commons on 8 July 1982 to approve the appointment of the Falkland Islands review under the chairmanship of Lord Franks, said: "The plain fact is that we have never succeeded in finding the perfect form of inquiry". Nearly two decades later, after a growing number of public inquiries, that statement still holds good. The Arms to Iraq Inquiry report by Sir Richard Scott in 1996 aroused acute controversy because he abandoned the supposed rules formulated in 1966 by the Royal Commission under Lord Salmon. Sir Richard thought that the rules would be "inoperable, ineffective and inefficient". Following the Scott report, the Lord Chancellor, Lord Mackay of Clashfern, asked the Council on Tribunals to consider the issues raised, and to offer advice. On 21 November 1996 the Lord Chancellor published the Council's advice, which was to the effect that it would be "wholly impracticable to attempt to devise a simple set of model rules of guidance that would provide for the constitution, procedure and powers for every inquiry". Such issues, the Council advised, "should be addressed by taking into account, for each inquiry, the objectives of effectiveness, fairness, speed and economy". The Council's advice attempted to inject a conciliatory note into the adversarial versus inquisitorial debate, by suggesting that, the "the differences between the two sets of recommendations [that of Salmon and of Scott] are largely ones of terminology and emphasis".

Public inquiries are definitely not courts of law, the latter with their prescribed rules of evidence and established practices and procedures. There has been no better statement of the basic aims and procedures of public inquiries, in contrast to litigation, than Lord Scarman's statement at the preliminary hearing of the Red Lion Square Inquiry (1974):

"I shall refer briefly both to the character of the Inquiry that it is my duty to hold and also to the terms of reference. First of all - and I stress it - this is an Inquiry not a piece of litigation. It is not the sort of adversary-type confrontation between parties with which we English lawyers are familiar in the criminal and civil trials of our country. This inquiry is to be conducted - and I stress it - by myself.

This means that all the decisions have to be taken by me. Let me indicate now so that there need be no misunderstanding, what are the implications of what I have just said. First of all, it is I, and I alone, who will decide what witnesses will be called. I also decide to what matters their evidence will be directed. There is, in an Inquiry of this sort, no legal right to cross-examination, but I propose, within limits, to allow cross-examination of witnesses to the extent that I think it helpful to the forwarding of the Inquiry, but no further. I also have to determine how witnesses will be examined, bearing in mind the inquisitorial rather than the adversarial nature of the Inquiry. All witnesses will first be examined by Tribunal Counsel. An opportunity will then be afforded to those persons who have been granted representation to cross-examine the witnesses called. The cross-examination will be subject, of course, to the limits that I impose, and it should be directed to eliciting matters that affect those who are represented. No witness will be called to give evidence unless he or she has first given to the Tribunal a written statement of evidence. It is from the written statements of evidence submitted to the Tribunal that I shall make my selection as to the witnesses to be called. The only criterion that I propose to observe in exercising this power of selection will be the extent to which, in my judgment, the witness can help the Inquiry".

Yet it is constantly stated that the Commissions of Inquiry must act judicially in the conduct of their proceedings. The Salmon Royal Commission on Tribunals of Inquiry (1966) injected into the inquisitorial system of the UK's 1921 Act a heavy dose of adversarial legalism, by insisting that procedural safeguards of the legal system should be "maintained, extended and improved". It proceeded to enunciate six principles, describing them as "cardinal" - of the highest importance that [they] should always be strictly observed".

Sir Richard Scott, in the Arms to Iraq Inquiry report, made a frontal and uncompromising assault on the six principles. While he accepted that the procedure adopted by the Inquiry had to be fair, he regarded the Salmon principles to be "alien to an inquisitorial inquiry". In turn, Lord Howe of Aberavon QC (a former Foreign Secretary) has taken Sir Richard to task, re-affirming the Salmon principles and saying that the very reason for the incorporation of these "alien" principles was that they were, in Salmon's view, a necessary modification of inquisitorial procedures". To adopt a sharp distinction between the adversarial (Salmon) and the inquisitorial (Scott) approaches is to fortify the case for importing recognised procedural safeguards as advocated by Salmon. Better, then, to avoid distinctive labels.

Judicial powers

The legislation in the OECS countries, while specifically providing for the Commissions to make rules for their own guidance and for the conduct of the management of the proceedings before them, nevertheless do positively confer quasi-judicial powers on them. Commissions "shall have the powers of the Supreme Court to summon witnesses and to call for the production of books, plans and documents; and to examine witnesses and parties on oath. Unless every person who is asked to give evidence does so willingly (as was the case in the Scott inquiry which proceeded under prerogative powers without enforcement procedures) some coercive powers on potential witnesses will be necessary.

The legislations in the OECS further provide that every person refusing or omitting, without sufficient cause, to attend at the time and place mentioned in a summons served on such person, shall be liable on summary conviction to a fine and imprisonment.

This also extends to persons refusing to answer or to answer fully and satisfactorily, to the best of their knowledge and belief, all questions put to them by or with the concurrence of the Commissioners. It is also an offence for a person to refuse or omit, without sufficient cause, to produce any books, plans, documents or other matters in his possession or under his control and mentioned or referred to in the summon served on him. Provisions are also included to ensure the orderly working of Commissions. The penalties for the above infringements are relatively low, sometimes extending only to a fine. (For example in Antigua, the penalty must not exceed $3,000 or imprisonment for one year, or both.) There are also provisions in the respective Acts to punish witnesses who wilfully give false evidence to an Inquiry. In addition, the legislation allows Commissioners to deal with situations of contempt.

All this adds up to an uneasy amalgam of inquisitorial process but according to the standards of the adversarial nature of litigation in the Anglo-Saxon legal systems. In contemplating modern statutes on public inquiries, the legislators need to determine at the outset the conceptual nature of these instruments of public administration, to serve the overriding principle of "good governance". Should the inquiries reflect, more or less, legal regimes which import the practices of the courts?

An academic commentator said recently: "The dramatic advance of public law standards since the sixties in court, tribunal and inquiry procedures in general has diffused the rather formal and rigid rules laid down by Salmon into a much richer expectation of more developed means to ensure fairness." Whatever the merits or demerits of extensive legal representation at an inquiry, it is hard not to agree with Lord Howe's recent statement, in the course of an address to the British Association's Annual Festival of Science, at Cardiff, on 7 September 1998, that none of the contentious departures by Sir Richard Scott from precedent seemed to have produced any visible advantage, whether in terms of the economy or well-being of the inquiry. Sir Richard's Scott inquiry lasted for thirty eight months; it cost ú5million. It produced a report of inordinate length – 1,806 pages produced in five volumes. It did not contain a summary of its conclusions. It received adverse criticisms on the score of its obfuscatory phrasing. Sir Richard could, and should have written much more shortly, assigning a mass of detail to appendices, usable then by only the cognoscenti. None of this touches, however on the conceptual character of the inquiry.

Every court or other legal tribunal is designed to provide a forum for dispute-resolution between citizen and citizen, or citizen versus the State. Every court or tribunal has necessarily powers to enforce its decisions or orders. Likewise, regulatory bodies, whether voluntary or statutory, have powers to discipline those subject to regulation. In that context there are "parties" to the proceedings, whose rights and interests need to be safeguarded, both substantively and procedurally. The dictates of fairness - or "natural justice", if you will - will vary in application according to the nature of the dispute and the means chosen for its resolution. Most, if not all courts and tribunals also have in-built appellate machinery of some kind.

Public inquiries are creatures of wholly different circumstances. They are of an extempore and ephemeral nature, brought into existence in response to an event, their existence being encompassed within a finite time limit. They are ad hoc, to meet a special purpose of public accountability. Initially at least, their establishment is unlikely to pinpoint any individual for potential criticism, and when they do, the criticisms are no more than that. Rather, public inquiries focus on an event, in which individuals have been involved and may, only in the unfolding of the inquiry, become identified as liable to criticism. Until the moment of identification, the individual may be a participant in the inquiry (depending upon the expectation of identification) and never a party, since being a party envisages or implies some rival in litigious dispute. The Commission of Inquiry cannot make any finding of guilt or impose any penalty; it can only make a report to the Governor-General: see Latham C.J. in McGuinness v. Attorney-General of Victoria (1940) 63 CLR 73 at 84, and Bethel v. Douglas [1995] 3 All ER 800, 806 f to j and 810g. The High Court of Australia rejected an argument that the Crown had no power to appoint a commission of inquiry into whether or not any person had been guilty of a crime because such commission would supersede the ordinary courts of justice without affording the normal rights, privileges and protection to accused persons.

A Commission of Inquiry possesses no executive power, unless it has been given some specific decision-making function, such as making orders as to costs. It was on that score that the Privy Council in Mahon v. Air New Zealand Ltd entertained a successful challenge to the decision of a Royal Commission in the form of an inquiry held in New Zealand into the aircrash disaster on Mount Erebus. Otherwise, the courts will exercise their judicial review powers sparingly, and then almost invariably only to ensure procedural safeguards. They will generally not indulge in reviewing the findings of the Commission; there is, deliberately, no appeal against the findings of a Commission of Inquiry. And such findings should not be allowed to be called into question by the courts of law. Otherwise the purpose would be lost. The clearest exposition of the juridical autonomy of public inquiries and the flexibility of their procedures appears in the unreported judgment of Sir Thomas Bingham MR (as he then was) in R v. Secretary of State for Health, ex parte Crampton. That judicial review challenged the Minister's decision to order a non-statutory inquiry, while reserving the power to confer statutory powers on the inquiring body, if found necessary. The inquiry was held in private by an ex-Parliamentary Commissioner for Administration, Sir Cecil Clothier QC, who declared that he would conduct the inquiry "in the manner of an ombudsman's inquiry". The challenge allowed Sir Cecil's reasons for favouring an inquisitorial form of inquiry as opposed to an adversarial procedure conflicting with the accepted wisdom underlining the British legal systems. Sir Thomas Bingham, giving judgment, said:

"That is in my view a gross over-simplification. It does not follow that the procedures suitable for inter-parties litigation or criminal prosecution are by any means necessarily appropriate for a fact-finding exercise intended to result in management recommendations, a task quite unlike that which is entrusted to a court of law. On this ground also there is in my judgment no arguable case made out.

I turn, therefore, to the question of procedure. In this respect it is said that the procedure which is proposed is defective for a number of reasons. The inquiry will have to act as detective, inquisitor, advocate and judge. Parties subject to criticism, whether they be management, staff or employees within the Hospital, must, it is said, have the opportunity to hear the evidence, to cross-examine and to make submissions. Witnesses, it is pointed out, may be unwilling to give evidence if they are not afforded this protection. The parents will be unable to be represented throughout the hearings and will not be reimbursed save for the costs of their own appearances. The parties will not be alerted to the need to seek advice or protection in advance and will not know what, if any, case is made against them. Lastly, it is said that there will be no full record of all the evidence which will be made available to the public.

It is necessary first of all to remind oneself that this challenge by way of judicial review is directed to the Secretary of State's decision, not to the procedure which the inquiry either has adopted or may adopt, which is not the subject of these applications. There is a broader and more important point. It is necessary to remind oneself of the objects of the inquiry, which are to ensure that the facts are fully investigated and all relevant lessons learned, that all necessary changes are made and that public confidence in the paediatric services of this and other hospitals is restored in Lincolnshire and elsewhere. To that end it is essential that the inquiry should be searching, thorough and completely independent. It is essential that it should be conducted fairly. It is very highly desirable that the inquiry should be concluded as soon as reasonably possible consistent with the duty of full and fair investigation. It is highly desirable that the inquiry should not cost more than reasonably necessary to ensure a full and fair investigation. It is lastly essential that the inquiry should culminate in a full, fair, fearless, independent and objective report covering all matters falling within the terms of reference. The procedural concerns which have been raised relate to the second of these aims. To allay those concerns Sir Cecil Clothier has now indicated that witnesses will be informed in advance of the areas the inquiry wishes to cover with them; that points of potential criticism will be put to witnesses whether at an initial hearing or subsequently and witnesses will be given a full opportunity to respond; and that those likely to be criticised in the report will be given the opportunity to see that part of the report which relates to them and to respond to it before the report is submitted. The inquiry has already indicated that witnesses may be accompanied by a friend or legal advisor during their attendance and it is quite obvious that the inquiry will be vastly assisted by any representations which any relevant professional body may make either as to the present or as to the recommendations for the future.

In the end, the effectiveness of an inquiry of this kind depends not on the procedure adopted but on the integrity, energy, skill and fairness of the tribunal and particularly the chairman. They and he will wish their inquiry to meet the highest standards, not only as a matter of professional duty, and not only out of concern for the public interest, but also, and at the lowest, because their own standing and reputation will be affected by the outcome".

Legal representation

If one of the consequences of a report of a public inquiry is the ability to make adverse comments or conclusions relating to individuals, are each and every one of such individuals entitled to legally-recognised procedural safeguards at every stage, or at least at some point, before the report is published? All the OECS countries' legislation give a resounding affirmative response. The uniform provision states:

"Any person whose conduct is the subject of inquiry under this Ordinance, or who is in any way implicated or concerned in the matter under inquiry shall be entitled to be represented by Counsel at the whole of the inquiry, and any other person who may consider it desirable that he should be so represented may, by leave of the Commission, be represented in the manner aforesaid". (emphasis supplied).

This provision is a full-blooded expression of the right to be heard, so vigorously proclaimed as an essential feature of "natural justice" and the fourth of Salmon's six principles.

In a public inquiry a right giving individuals protection against adverse criticism akin to that afforded to parties in litigation significantly lengthens the proceedings, adds immeasurably to the costs to the public purse, leads to lapses of time in the report of the inquiry being published. Conversely, it is argued, with some justification, that to subject individuals to adverse criticism, without a full opportunity of answering the criticisms before and during the inquiry, and thereby protecting their reputations in the public eye, is not tolerable. Any adverse criticism may be a highly influential prelude to disciplinary proceedings or even a precursor to later legal proceedings, civil or criminal. But it must be said that the consequences of adverse criticisms are at least one stage removed from the inquiry process and therefore do not put the individual directly or immediately in jeopardy. None of the safeguards in any subsequent disciplinary or legal process is diminished; at most the later proceedings may be tainted by the inquiry's findings. It is for that reason that fairness demands some form of protection less ample than is envisaged in legal proceedings. Legal representation throughout the whole of the Inquiry is neither warranted nor a necessity.

Some guidance is provided in the investigations under the Companies Act in England. The report of one inspector (usually two, a barrister and an accountant conducting their investigations in private) has no adverse legal consequences, though matters highlighted in the report may lead public authorities to consider legal proceedings and initiate a prosecution. In the case of Re Pergamon Press Ltd, [1971] Ch. 388 two companies, managed and operated by the late Robert Maxwell, were under investigation. Mr Maxwell and other directors refused to respond to questions unless they were informed of chapter and verse of each allegation of wrong-doing, and were given an opportunity to comment upon them. The inspectors refused to do this, and the directors claimed a breach of natural justice, in effect claiming to impose upon the inspectors an aspect of the adversarial function. The Court of Appeal rejected the claim. It held that, while the inspectors had always to act fairly, that could be achieved by putting the gist of any potential criticisms to the directors and giving them an opportunity to comment upon them. The preliminary nature of the proceedings was an important consideration, combined with the need to respect the confidentiality of informants and to ensure that the investigation could be conducted efficiently and expeditiously. The Court noted specifically that if further legal proceedings were forthcoming, individuals would be able to make appropriate representations: Maxwell v. Department of Trade & Industry.

In another case the Court of Appeal held that in conducting investigations the Commission for Racial Equality had to act fairly, but that was achievable if the individual was told in broad terms the case against him and given a reasonable opportunity of answering it. That right to fairness should, the court said, be accorded to a person, whenever he "may be subjected to pains or penalties, or be exposed to prosecution or proceedings, or deprived of remedies or redress, or in some such way adversely affected by the investigation and report": R v. Race Relations Board, ex p. Selvarajan.

The provision, as of right, of legal representation throughout the inquiry, for any person "implicated or concerned" in the matters under inquiry, and a qualified legal right where the individual considers it desirable to be represented, should not be repeated in any further legislation on Commissions of Inquiry. Instead, legal representation should be left in the sole discretion of the Commission. Sir Richard Scott was right in denying the direct participation of lawyers in the Arms to Iraq inquiry. An inquisition is not to be treated as a courtroom exercise in forensic skills on behalf of clients seeking to defend their personal interests regardless of the public interest.

That is not to say that lawyers should be precluded from participation in public inquiries. Lawyers are rightly seen to be useful in such a proceeding. Their experience in handling a vast amount of documents and presenting the relevant material is valuable both to the inquiry and to the witnesses themselves. In a special "chairman's note" to lawyers, Lord Justice Phillips in the BSE inquiry explained that "lawyers have the skill essential to ensure that witness statements cover the relevant ground without becoming unnecessarily prolix". And he expressed the hope that any organisation which played a major part in the BSE story would instruct counsel to attend the hearing, or at least those parts of it with which they were concerned so as to assist in the presentation of evidence. It could be desirable, for example, "to have lawyers present during the tribunal to turn to for assistance if any topic arises for urgent investigation".

Presentation of the evidence can of course be safely left in the hands of counsel for the Tribunal, together with any legally drafted written statements from a witness's lawyers. It is at the stage of potential criticism that the individual witness may need protection. If the inquiry can be split into two stages - first, that of fact-finding and secondly, that of analysis of proved material - the safeguards are relevant more, or even exclusively to the second stage. So long as the legal representatives have unimpeded access to all documentation and transcripts of evidence, they can perform their protective role perfectly well at the second stage. Their appearance as advocates at the first stage might assist, but it is not vital in terms of fairness to their clients.

Public or private

The various OECS statutes state that "in the absence of a direction to the contrary, the inquiry shall be held in public". That seems to strike the right balance between the need to restore public confidence by conducting openly the proceedings, with a power to go into private session, if necessary, and the occasional cases where privacy is dictated. Banking law, for example, requires a high degree of confidentiality. Hence Lord Bingham of Cornhill's inquiry into the BCCI collapse was conducted in private, with counsel generally present only when their own client was giving evidence. (Counsel was unable to question other witnesses.) In other cases there is a variance of choice between conducting the inquiry wholly in private, with no legal representatives, and being fully public. The National Health Service in the UK - probably the most fertile field for public inquiries - offers many illustrations of this: see Inquiries After Homicide, ed. by Jill Peay, Duckworth (1996).

If the inquiry is conducted in private, it must not mean that the inquiry is secret or unpublished. Government should be compelled, by statutory provision, to publish, unexpurgated, any report of a public inquiry, unless there are grounds of national security for excising any objectionable matter. One possible justification for the private conduct of an inquiry is that it may shorten the duration of the inquiry. Certainly, if privacy is accompanied by the absence of legal representation, the costs will be substantially reduced. The Council on Tribunals, in its post-Scott report to the Lord Chancellor, recommended that a target-date for completion of an inquiry's work and submission of its report should invariably be announced at the time of setting it up. While the statute cannot sensibly put a time limit, it can provide that all terms of reference to Commissions of Inquiry should include a deadline for submission of the report, with a proviso that the Commission may always seek an extension of time from the sponsoring authority.

Composition of Commission of Inquiry

Criticisms of the Scott inquiry itself were directed first at the composition of the tribunal. Sir Richard Scott was sitting alone and without the benefit of any independent or expert colleagues or assessors. The great majority of public inquiries (whether established under some statutory authority or other power) have usually more than one Commissioner sitting on the Inquiry. The exceptions to the rule appear to be essentially inquiries where the task is in the nature of fact-finding, when judges are functioning in familiar territory. Under the 1921 Tribunals of Inquiry (Evidence) Act in the United Kingdom there have been three occasions where a judge sat alone. Lord Scarman's Inquiry into Violence and Civil Disturbances in Northern Ireland in 1969 was just such an instance, although two lay assessors were appointed to the inquiry; later, in a two and a half year inquiry, they were relieved of most of their role. Simultaneously, and perhaps unfortunately, Lord Widgery's Inquiry into Bloody Sunday in Londonderry in 1972 (which took only a few weeks to complete) was held without assessors, although Lord Widgery was offered by the then Prime Minister, Sir Edward Heath, the opportunity to sit with members; he declined. It is interesting to note that a fresh inquiry into Bloody Sunday, ordered by the British Government earlier this year under the 1921 Act is headed by a Law Lord, Lord Saville of Newdigale, supported by two retired judges from the old Commonwealth. Lord Cullen's inquiry into the shooting tragedy at Dunblane in 1996 was a one-judge affair; no adverse comments seem to have followed on that ground. Outside of the 1921 Act, a single commissioner is rare in inquiries in the United Kingdom. Lord Scarman, however, in the Brixton riots of April 1981 sat alone in the inquiry set up by the then Home Secretary (Mr William Whitelaw as he then was) under the Police Act of 1964. The current inquiry into the Stephen Lawrence homicide is being headed by Sir William McPherson, a retired High Court judge, sitting together with assessors. The overwhelming majority of inquiries that involve some specialist knowledge are characterised by the presence of an "expert" or functional "wing men" (perhaps that ought to be men or women) who are not, according to the terminology, just book-ends to support the chairman. Thus in the Hillsborough disaster before the beginning of the Liverpool v. Nottingham Forest semi-final in the FA Cup Lord Taylor of Gosforth (then Lord Justice Taylor) sat with a senior police officer and a structural engineer. Lord Justice Phillips, who is now engaged in the BSE inquiry, has specialist assessors to assist him in what is obviously a very specialist subject.

The many national health service inquiries, including the dozens of inquiries into homicides committed by mental patients, follow the pattern established a long time ago in the late 1960s in the case of the inquiry into Ely Hospital. So too for many of the 1921 Act inquiries, ranging from that presided over by Lord Edmund-Davies (then Lord Justice Edmund Davies) into the Aberfan tragedy in 1966/67 to that led by Lord Bingham of Cornhill, (then Lord Justice Bingham) into the BCCI bank collapse in 1992, each with the assistance of expert lay assessors, and each expressing appreciation of "experience and expertise........invaluable insights and guidance" thus made available to them.

There is an issue about the nature of "wing men". Should they be members of the Commission of Inquiry or just act as assessors advising and assisting, but not being responsible for the writing of the ultimate report, or for that matter signing it? Lord Justice Butler-Sloss in the Cleveland inquiry into child sexual abuse in 1992 was assisted by a consultant paediatrician, a director of social services and a senior police officer, but she took sole responsibility for the report. As was the tradition, she thanked the three of them for the help that they had given her.

If the Commission of Inquiry needs specialist expertise, it can of course always obtain it by the expert giving evidence to the Tribunal. That at least gives the participants appearing before the Inquiry an opportunity to ask questions of the expert. If the expert is part of the tribunal, specialist issues may go unnoticed and unchallenged; the appearance of acting behind closed doors with specialist advice is unfortunate in terms of openness and fairness of the procedure. If the expertise needs to be there throughout the inquiry - and that is probably the exception rather than the rule - it is better that he or she be represented on the panel as a member taking responsibility, jointly with other members, for the ultimate report. Even if there is a specialist on the panel, an expert can still be called. It may be desirable to do so in order to provide independent opinion, independent of the panel. In the recent North Wales Child Abuse Inquiry, Sir Ronald Waterhouse, a retired high court judge, sat with two members, a former member of the social services inspectorate and a chief executive of a local authority, but he also had as "advisor" a retired Chief Constable to advise by way of written report only on the policing aspect of child protection. It is a device worth noting.

The Council on Tribunals put the point succinctly. "Wing members" to an inquiry not only "enhance public confidence in the fairness of the process and in the inquiry's conclusion, they can afford the inquiry chairman helpful support and some protection against errors of judgment in matters of both substance and procedure". If the inquiry involves consideration of broad policy issues, then, the Council concluded "a spread of expertise will almost always be advisable". I am less certain about the latter point, if, as is frequently the case, the inquiry into a public scandal or disaster throws up policy issues. The better way of handling them is to conduct seminar(s) on the policy issues. This would equate the exercise in the inquiry which examines the particular incident or event, with a purely policy-driven inquiry which is the stuff of a Royal Commission or Departmental Committee. Thus the spate of miscarriages of justice in the 1980s led to the setting up of the Runciman Commission on Criminal Justice, 1991-1993.

One other aspect of the composition of a Commission of Inquiry is: who makes the appointment? In the British system it is invariably the Government which has selected the persons to conduct the inquiry. Broadly speaking, this method has not aroused much opposition, although one is aware of mutterings in some political quarters in some inquiry cases, and we have now witnessed in the Caribbean territories something of the sort by way of attempts to remove an inquiry chairman on grounds of bias. (I have commented elsewhere on the inapplicability of the ordinary rules as to the bias of judges.) The Israeli approach is not without interest. If the sponsoring authority, namely, the Government or some other public authority, wants a judicial or other senior legal figure to chair a Commission of Inquiry, it is the Chief Justice of Israel who selects the Chairman. This would be no less protection against recusal of the Chairman than if he or she was assigned to try the case in an ordinary court of law. If there was ever a case of bias in the procedure, it would be a question for the ordinary judicial process of nominating a replacement, thus avoiding the need for judicial review.

Another way of avoiding public criticism is for the sponsoring authority to look outside of its own territory for the presiding panellist. Finding a candidate from abroad has its own hazards, in that any such person having insufficient local knowledge to satisfy his or her credibility is a problem. But, given awareness of the limitations of lack of local knowledge, it should be possible to find a suitable chairman. It may be that Governments in the Eastern Caribbean countries could look to the OECS for nominations. Finally should public inquiries always be chaired by a judge or someone who has held high judicial office, or a senior counsel? Not invariably so, seems to be the correct answer.

Having dealt, I hope at not too inordinate length, with the composition of the inquiring body, what about its method of conducting the inquiry? The initial issue is the role played by Counsel to the Inquiry. Until the 1960s it was the practice under the 1921 Act for the Attorney General of the day to act as Counsel for the Inquiry. Without expatiating on the range of public responsibilities of an Attorney General under the Anglo-Saxon systems, it is now the received wisdom that a lawyer connected with Government cannot be neutral in any inquiry which has a political slant to its subject matter. In the Scott inquiry Sir Richard Scott sat side by side with his Counsel, Ms Presiley Baxendale QC, alternating in the questioning of witnesses, described by Lord Howe of Aberavon as "like partners in a double barrel inquisition". One experienced Minister of the Crown, Sir Richard Luce, the first witness before the Scott Inquiry, said that he was at a loss to understand why he "faced an aggressive interrogation by questioners who would appear to act as prosecuting advocates rather than independent seekers of the truth". Sir Richard Luce amplified that to the Council on Tribunals: "The presence of a judge accompanied by a barrister sitting side by side immediately creates an atmosphere whereby the judge is identified with the barrister; if the barrister then acts as though in a prosecuting role this immediately leads towards the adversarial approach. This is what happens in this inquiry from the very first day and it is this which led to charges of injustice by witnesses, including me". The Council on Tribunal has expressed a clear view on this matter: "It is important...that counsel should not be seen to be part of the Inquiry panel....the roles of the tribunal and counsel should be seen to be distinct....the perception of their separate role is greatly enhanced if they are physically separated from each other in the inquiry room". I am not sure if the Council on Tribunals has got it quite right. While it is true that counsel "should not be seen as part of the Inquiry Panel" and that their roles are distinct, there is however a symbiotic position. While counsel pursues the questioning in the manner he or she thinks fit, he or she asks only about the matters the inquiry wants asked, and not otherwise. Counsel should not pursue avenues of inquiry, however pertinent or interesting, simply because he finds them so. After all, the inquiry, not its counsel, selects the witnesses and selects the area of evidence it wishes to hear, and it is the Inquiry which issues notices of criticisms, what are known in the British systems as Salmon letters. But, for all the separate functioning of counsel, the objectives of the panel and its counsel are precisely the same; only the methods are different. Counsel seeks to probe and question, while the panel remains the controller of the procedure and, most important of all, remains the sole decision-maker. It has always been my practice to ask counsel to open the inquiry and indicate the issues which are for determination, but I never allow him or her to make a summation or final speech. Counsel's function ends with the last witness's evidence. Thus, any sense of unfairness on the part of counsel - he can be friendly or unfriendly to a witness as he feels fit to do - is confined to the eliciting of evidence; he or she, therefore, does not become identifiable with the panel. His or her posture is merely to assist the process of investigation of the matters under inquiry, not to influence its decision-making, as would an advocate for the prosecution.

The statute obviously cannot prescribe, but it can and should indicate the preferences. Generally, Commissions of Inquiry should be composed of no fewer than 3 members, nor more than 5; the Chairman should usually be legally-qualified; the members should be jointly responsible for the report. St Lucia's Commission of Inquiry Ordinance allows for a single Commissioner or a multiple of Commissioners, which seems sensible.

Public inquiries should be sparingly used, if only because they are costly and cause anxiety among those put under the spotlight of investigation (normally in public). Neither the Salmon nor the Scott approach is the universal answer to the proper or correct form of an inquiry. It will depend on the subject-matter to be scrutinised by a public inquiry. Whatever form is adopted, resort to the process needs to be circumscribed by Statute and restrained in political and ministerial motivation. Wade and Forsythe, in their Administrative Law (7th ed. 1994) commenting on the UK 1921 Act said: "An inquiry of this kind is a procedure of last resort, to be used when nothing else will serve to allay public disquiet, usually based on unsustained allegations, rumours or disasters" (p. 1007). Sometimes the allegations and rumours prove to be accurate, and then only the public inquiry can achieve the desired purpose.

Finally, above all else it must be remembered that a tribunal of inquiry is not a court of law; it does not administer justice. But it must ensure that, in performing its unique function, it can operate properly, and that fairness permeates all its procedures and its findings.

CHAPTER VIII Conclusions & Recommendations

From the limited, but not unrevealing perspective of the Commission of Inquiry I have discerned a culture in St Lucia of studied indifference or, at the very least, inattention to the practice, even the concept, of public accountability - a cultural climate in which administrative torpor is often the consequence, and malpractices in government (including corruption) can thrive, unhampered by detection or, if and when uncovered, by disciplinary action. I have identified in this report certain aspects of serious malpractices and maladministration in government. A senior civil servant disregarded, if not positively defied, a clear prohibition on engaging at any time in any private activity which might be in conflict with, or harmful to Government; a breach by a former Minister in Government of the strict rules relating to governmental contracts; and a series of acts of mismanagement, not to say improper action by the chairman and chief executive of a government agency established to manage Government housing. Each of these public service delinquencies needs to be addressed as a matter of urgency, with the exception of Mr Josie's pardonable offence at Vieux-Fort. Civil servants need to be reminded that they "are required to familiarise themselves thoroughly with staff orders" (Order 1.3) and "to acquaint themselves with Government notifications and orders" (Order 1.5). Ministers and civil servants should be reminded of the rules relating to public expenditure; and those persons appointed to public authorities or government agencies must comply strictly with their remits.

But more - a great deal more - will be needed to dispel the pervasive influence of the culture that I have identified. Otherwise, the allegations of corruption which prompted the Government to establish the Commission, will continue to flow. The suspicion in the public's mind that the machinery of government is not working, and consequently that corruption is rife, is almost as damaging to the public weal as individual corruption itself. Good governance, which can be sustained only by training and education in public administration, is the key to the future stability and development in the territories of the Eastern Caribbean.

The culture of indifference or inattention to public accountability has now (at last) been, by implication, addressed in the shape of the new (post-May 1997) Government in St Lucia which appropriately decided to set up a Commission of Inquiry pursuant to a clear commitment in its election manifesto. The new Government in St Lucia has been uncomfortably aware of the past backwardness in good governance. That recognition is a necessary first step towards dispelling the culture. The second step, it is to be hoped, will come with publication of this report. The citizens of St Lucia will be able to read the Commission's findings on the matters which they were able to watch on their TVs during the Commission hearings. Openness and justice demanded that the proceedings of the Commission should have been screened on TV, as well as seen and heard by those attending the sessions at the Parliamentary Assembly.

But, given these prerequisites to reform, change will not come overnight. An impetus towards a changed attitude in the various departments of Government will be necessary. If Government has at least put St Lucia on the road to "good governance" by encouraging the exposure of past failures, the future demands a permanent searchlight. Mr Justice Brandeis of the US Supreme Court once said that "sunlight is the most powerful of disinfectants". St Lucian sunlight on government has been too often clouded over - Derek Walcott's fog, perhaps - by an unwillingness of those in authority to expose to public scrutiny the public activities of either themselves or of others.

St Lucians should be assured that failures and malpractices in Government, once identified, will not go publicly unnoticed. And a system of public accountability alone can ensure that. To that end my principal recommendation is that there should be established - preferably by statute - an independent Standing Commission for Standards in Public Life. Since a country with a population of less than 150,000 people cannot hope to staff such a Commission with the degree of independence and expertise necessary for such a body, I would urge that the member States of the OECS combine their resources to establish the body for all nine territories. I venture to suggest, that the member-states of OECS (respectively, together with Barbados) should set up one Commission for the nine countries, with members and staff drawn from all of them. There is surely a commonalty of standards of public life among the Eastern Caribbean islands that invites a unified approach.

At the seminar on Commissions of Inquiry on 25 September 1998, Mr Hugh Rawlins of the University of the West Indies, brought to the attention of his audience the constitutional provision in St Lucia for an "Integrity Commission" for the register of the financial interests of members of Parliament, a fact of which no mention was ever made at any stage by any participant in the Inquiry, including, I have to admit, myself. Mr Rawlins stated:

"It would appear, however, that since it is now necessary to have an ongoing inquiry [a reference to this Commission of Inquiry] there is sufficient evidence of the ineffectiveness of the Integrity Commission. It may be that this institution lacks the necessary statutory, departmental and other support facilities for effective, independent operation".

The constitutional provision in section 119 states:

(1) The Integrity Commission shall obtain declarations in writing from time to time of their assets, liabilities and income from Senators and members of the House (including Ministers and Parliamentary Secretaries) and from the holders of such other offices as Parliament may prescribe.

(2) There shall be such provisions as may be made by Parliament in relation to the due performance by the Commission of its functions under this section, including powers, privileges, immunities and procedure and the security and confidentiality of the information it receives.

Whatever may be the state of play, if any, with the Integrity Commission the conclusion must be that there have been in the past no signs of a proactive regime instituting a properly rationalised system of checks and balances, designed to prevent wrongdoing by public officials.

In recommending an OECS-based Standing Commission for Standards in Public Life, I would expect some immediate inquiry by the Government as to what, if anything, has been done in pursuance of sections 118 and 119 of the Constitution since 22 February 1979, the date on which St Lucia was accorded fully responsible status within the Commonwealth, and for making plans for dove-tailing sections 118 and 119 into the Standing Commission on Standards in Public Life, thereby to keep under constant review all aspects of the machinery of government, reporting regularly to Parliament. The Commission should be headed by a senior citizen of one of the nine territories who will readily command the respect of all shades of public life in the island; there is no room for the outworn adage of "a job for the boys". It is not within my remit to suggest the form which the Commission should take, or its precise scope.

I am aware that the Department for International Development (DFID) in the UK has funded institutional reform of the customs services in St Lucia and that reform of the St Lucian police force is underway, following a visit of a retired officer from the Metropolitan Police. DFID's office in the Caribbean is currently reviewing how best it can assist in the reduction of poverty, an essential part of which will be to study relevant activities in good governance. These are welcome steps in encouraging good governance in the whole region. My plea is that particular attention should be focused on the rejuvenation of the standards of public administration, supported financially by the UK in setting up a vigorous programme of training and education for public servants in the OECS countries.

Until the infrastructure of public administration is assured by the introduction of modes of accountability in public office, there is little purpose in making detailed recommendations arising out of this Inquiry. I refrain from doing so, confident in the knowledge that the present Government is determined to engage in public sector reforms.

The Labour Party's election manifesto, in May 1997, promised to "enact new legislation to govern the public service; to that end it proposed to publish, within 12 months of assuming office, a comprehensive White Paper on Public Sector Reform, seeking "to develop consensus on the way forward". To date that has not appeared. I do not anticipate its contents, but expect that it will address more, if not all, of the issues thrown up by the Inquiry.