fp Turks and Caicos

In earlier articles we sought to explain the nature of the current Commission of Inquiry, and why – offering no defense for anyone brought before it – the Inquiry itself may have been brought in a most unusual way; to say the least.

In previous commentary, we referenced The Hon. DonHue Gardiner – an appointed Member of the House of Assembly on the government side – who opposing the constitution of the Inquiry and its purpose said that it ought, by rights, to have been constituted, if at all, to assist in the setting up of dormant, but existing Turks and Caicos constitutionally required institutions and agencies; such as the Public Complaints Commission and the Human Rights Commission, etc.

If fact, so compelling was the question for Gardiner that he wrote the Commission directly, with the result that they have docketed him for testimony, near the end of this week.
As for the lawyers, a more serious question arises: It is notable from previous commentary that Maurice O. Glinton and Edward Fitzgerald QC are two senior barristers and officers of Her Majesty’s Courts. It is unusual that such counsel in proceeding such as the Turks and Caicos Commission of Inquiry are not allowed opening statements, where they request it explicitly, in some way to get on record to raise concerns about substance and procedure.

This morning those requests were refused. Both Glinton and Fitzgerald thought it odd and incongruous with the standards the very fact of a Commission of Inquiry implies.
One crucial problem is the rule of “Audi Alterum Partum”, that is critical to administrative law; the area of law with which almost all Commission of Inquiry into government action deals.
First, audi alterum partum (in pig latin) means “hear the other side”. Properly it would be: audiatur et altera pars (just in case His Eminence Bishop Eldon is divining whether my latin has kept), Basically, the principle is in three parts and aims at ensuring that any accused gets to see the case against himself and to see and hear his accusers and to give his side of the story.

The way the Commission of Inquiry is arranged, no witness knows the case against himself, he knows not by whom he is accused and may, I said “may” have the chance to put forth his story in the teeth of a hail of questions from Counsel for the Inquiry. Without defending anyone testifying before the inquiry, a failure of procedure is a cardinal tenet of unfairness in English law. This sated, if not in defense of anyone then why? Because, once a faulty procedure is established, it become easy to repeat it until it wrecks untold havoc, then we are of a tendency to bleat for change.
As such, whether one agrees to the need for an Inquiry, one should be exercised by an Inquiry that shortcuts the rule of law.