But this retroactive move might very well undermine the spirit of the COI whose purpose is to establish whether there is evidence of corruption, abuse of office, or other serious dishonesty within public office.
A major theme that arose from the COI since its inception was the concerning trend of past and present members of the House of Assembly (HOA) outrightly breaching their statutory obligation to declare their interests (such as businesses and properties) into the territory’s Register of Interest.
It is clear from the responses of some HOA members that they essentially consider the matter to be a trivial issue. Some have rationalised that the BVI is small and ‘everybody already knows who owns what’. No doubt, those who have sought to trivialise the issue have missed the point entirely. A breach of the law is a breach of law. Furthermore, one would expect those you write the laws of the territory to be goods stewards of upholding them; regardless.
This brings us back to the COI and its international attorneys now seeking permission to practise law in the BVI; months after commencing their duties. This could be perceived as something that reeks of hypocrisy and could potentially erode public confidence in the very system (the COI) that was called to help correct some of the abuses and/or neglectful behaviour seen among those who govern us.
At present, there is nothing explicit in the BVI’s antiquated Commission of Inquiry Act of 1880 that appears to require COI attorneys to be called to the bar.
That is except for Section 13 of the Act which stipulates that a barrister or solicitor can be appointed to assist the Commissioner to examine or cross-examine witnesses on any matter deemed relevant to the inquiry.
When Richard Rowe — a local attorney representing some HOA members in the COI — raised similar concerns recently, the COI’s commissioner, Sir Gary Hickinbottom said he did not consider the work being done in support of the COI to be ‘practising law’ per se.
With due respect to the Right Honourable commissioner, his response is flawed and ill-conceived considering that the COI’s team of attorneys have been, among other things, ‘examining and cross-examining witnesses’ as well as fielding “legal submissions” from other lawyers since day-one.
In fairness to Sir Gary, he has since indicated that any attorney that needed to be called to the BVI bar would seize the opportunity to do so — and so they have. Surely, such actions suggest that Sir Gary now accepts that the work of the COI, in at least some ways, is actually ‘practising law’. However, it seems the COI did not think it prudent to suspend its hearings until they crossed that hurdle.
Under the territory’s Legal Profession Act it is a criminal offence (punishable by a fine of $10,000) for any legal practitioners, whether within the BVI or in another jurisdiction, to practise BVI law without holding a valid practising certificate.
Under the circumstances, it would be reasonable to conclude that the COI and its attorneys have been contravening the law.
Yes, the COI is now moving to correct this unfortunate faux pas. And based on the damning revelations that happened as a direct result of the inquiry being called, the COI is undoubtedly an important and justifiable undertaking that is in the public’s interest. But the proverbial horse has already bolted.
This now raises an all-important question: How will the COI’s misstep potentially affect the Commissioner’s findings and any possible outcomes of the inquiry?
These and other questions threaten to cast a shadow on what seems to be an otherwise transparent process that has largely been welcomed and embraced by the BVI populace.