Law Association misleading public — Bernard

Chairman of the Commission of Inquiry into the Piarco Airport Project, former Chief Justice Clinton Bernard, has responded to a letter from the Law Association of Trinidad and Tobago urging the Commission to exercise great caution with respect to following the procedure of the British inquiry under Sir Richard Scott of the Privy Council. The full text of the letter was read into the records of the Piarco Inquiry last Wednesday and is reproduced below:

May 13, 2003

The Honorary Secretary,
Law Association of Trinidad and Tobago,
Suite 4, Chancery Courtyard,
13-15, St Vincent Street
PORT-OF-SPAIN

Attention: Mr Hendrickson RM Seunath SC

Dear Sir

My Commission acknowledges your letter dated 28th April, 2002 enclosing an article by Lord Howe of Aberavon (Howe) and in reply to ours of 9th April, 2003 forwarding to you an Addendum to the opening statement of this Inquiry (Statement) which was accompanied by the Inquiry’s procedural rules (Rules). We were aware of Howe’s article which is critical of the Scott Inquiry’s refusal to afford legal representation to those appearing before it.

The Statement and Rules above, which were forwarded to you as long ago as August 2002 would have made you aware that this Inquiry, unlike the “Scott Inquiry” has given the right to all persons appearing before it who are interested in its Terms of Reference to be legally represented. Accordingly, Howe’s article which is a criticism of Scott’s decision to refuse such legal representation to him and others during the course of an Inquiry in which Howe was a witness, bears no relevance to the present Inquiry.

What is more, the Council has on previous occasions publicly criticised this Inquiry for identifying persons interested in its Terms of Reference as “subjects” while now “going on record” in connection with Howe’s article on the issue of legal representation. As the Council will be aware however, the “subjects” of the Inquiry are the very persons entitled as of right under the Commission of Inquiry Act Chapter 19:01 to legal representation. The relevant Section reads as follows:
“Any person whose conduct is the subject of the inquiry under this Act or who is in any way implicated or concerned in the matter under enquiry, 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 commissioners, be represented in the same manner.”

The issue of legal representation, therefore, has been addressed by this Commission strictly in accordance with the Act. Conversely, your Association has publicly criticised this tribunal precisely for identifying the persons entitled to legal representation by the Act. In so far as legal representation has fallen within the discretion of the tribunal under the Act, had your Council enquired, it would have become aware that not a single request for legal representation has been refused, and on occasion, such representation has been insisted upon by the Tribunal. We have even adjourned sittings from time to time in order to accommodate such persons when their lawyers were not available.

The Association has issued several press statements critical of this Inquiry without first apprising itself of the correspondence passing between this Inquiry and persons interested in its proceedings. If your association had sight of such correspondence, we feel sure that it would not have issued such releases. The end result is that the Association has taken an uninformed, but, nevertheless belligerent approach to the Inquiry, a scenario which is curious to say the least. We would welcome any other comments you may wish to make about the procedures adopted at this Inquiry, which, as far as our researches have gone, was the first to issue a detailed Statement and Procedural Rules for the assistance of all.

Your Council’s wish to “go on record” as advising great caution against following the procedure at the “Scott Inquiry” is utterly misleading to the uninformed reader. Not only is this Inquiry not adopting the procedure of the Scott Inquiry but your Council must be aware of this from the Statement and Rules in its possession. The Council must, as well, be aware that the Scott Inquiry was conducted within the parameters of a statute materially different to our own Commission of Inquiry Act.

As is apparent from our consideration of the issue in our Statement, we have given considerable time to the matter of procedure. In this regard, we share the opinion of Howe in the article provided by you that:
“Sir Richard seeks support for his approach from Sir Louis Blom-Cooper as well as from Lord Scarman’s management of the Red Lion Square Inquiry. Each of these credit-worthy authorities lends support in the passages cited by Sir Richard, to the proposition that those in charge of inquiries need to exercise wide discretionary power to control their proceedings, including the role and behaviour of advocates. But on the crucial point that lawyers can and should be excluded altogether neither Sir Louis nor Lord Scarman arrives at Sir Richard’s conclusion.” As there is no exclusion of lawyers before this tribunal, we are sure that your Council, having studied the Article and our Statement and Rules, would conclude that its words of caution are unnecessary, and as a responsible body, withdraw them.

Please be guided accordingly.

Yours faithfully

CLINTON BERNARD, TC, SC
For and on behalf of the Chairman and
Members of the Commission

The letter was copied to Karl Hudson Phillips, President of the Law Association, and attorneys Russel Martineau and James Aboud.