Bethel v Douglas et Al
| Jurisdiction | UK Non-devolved |
| Judge | Lord Jauncey of Tullichettle |
| Judgment Date | 03 April 1995 |
| Docket Number | PCA 34 of 1994 |
| Court | Privy Council |
| Date | 03 April 1995 |
Lord Jauncey of Tullichettle
PCA 34 of 1994
Privy Council
Constitutional law - Commission of inquiry — Validity
On 30th December 1992 the Governor-General of the Bahamas appointed a Commission of three members to inquire into certain specified matters relating to three companies namely Bahamasair Holdings Limited, the Hotel Corporation of The Bahamas, and The Bahamas Telecommunications Corporation. The first three respondents were at all material times the members of the Commission. In early August 1993 the appellant was summoned to appear and give evidence before the Commission and on 16th August he issued an originating summons of some twenty paragraphs in effect challenging the validity of the appointment of the Commission and of its power to summon him to give evidence and seeking appropriate declarations and injunctive relief. That in brief is the background to this appeal.
The originating summons was first heard by the chief justice (Gonsalves-Sabola) sitting alone in the Supreme Court. In a carefully reasoned and detailed judgment the chief justice rejected each of the several points argued by the appellant and dismissed the summons. All three judges of the court of appeal delivered judgments equally reasoned and detailed dismissing the appellant's appeal. He now appeals to Her Majesty in council.
In order to understand the arguments presented by the appellant it will be necessary to set out a number of constitutional and statutory provisions relevant thereto. The office of what was then Governor and is now Governor-General was reconstituted by Letters Patent of 8th September 1909, of which Article XIII was., in the following terms:–
“The Governor may constitute and appoint all such judges, commissioners, justices of the peace, and other necessary Officers in the Islands, as may be lawfully constituted and appointed by us, all of whom, unless otherwise provided by law, shall hold their offices during our pleasure.”
Article XXI of the instructions to the Governor of the same date was in inter alia the following terms:–
“The Governor shall not (except in the cases hereunder mentioned) assent in our name to any bill of any of the following classes:–
…9. Any Bill of an extraordinary nature and importance, whereby our prerogative, or the rights and property of our subjects not residing in the Islands, or the trade and shipping of the United Kingdom and its dependencies, may be prejudiced.”
Section 2 of the Commissions of Inquiry Act 1911 (“the Act of 1911”) as amended provides:–
“Whenever it shall appear to the Governor-General that it will be for the public benefit so to do, the Governor-General may issue a commission in the form of the First Schedule to this Act appointing persons, not less than three in number, to inquire into and report upon any matter stated in such commission as the subject of inquiry.”
Section 10 thereof provides inter alia:–
- -(1) Subject to the provisions of this Act, any commissioner shall have the powers of a justice of the Supreme Court to – (a) summon and compel the attendance of witnesses; (b) call for the production of documents or things including the power to retain and examine the same; (c) examine persons appearing before them on oath; (d) …
and a summons in the form set out in the third schedule signed by one or more of the commissioners …shall be equivalent to, and for the purposes of any law have the same effect as, in any formal proceedings in the Supreme Court for summoning or enforcing the attendance of witnesses and compelling the production of documents or things.”
Mr. Glinton, for the appellant, first of all argued that the appointment of the commission bore to be under the Royal Prerogative because of the opening words thereof namely:–
“ELIZABETH THE SECOND by the Grace of God, Queen of the commonwealth of the Bahamas and of Her other realms and territories, Head of the commonwealth.
[signed]
Governor-General”
The power to appoint commissions in Article XIII of the letters patent of 8th September 1909 had been revoked by section 2 of the Bahamas Islands (constitution) order in council 1963 with the result that there was no prerogative power in the Governor to appoint a Commission. Section 2 of the Act of 1911 did not empower the Governor (now the Governor-General) to appoint a commission, it merely entitled him to clothe with certain powers a commission otherwise validly appointed. There being no valid appointment there was no room for the application of section 2. This argument overlooks Article 24 of the constitution annexed to the order in council which appears to authorise the Governor to constitute offices for the Bahamas Islands and make appointments thereto. In any event that is all past history since the office of Governor-General is established by Article 32 of the 1973 constitution which superseded that of 1963 and it was not suggested that the 1973 constitution had deprived the Governor-General of any prerogative right which he might otherwise have to appoint a commission. Mr. Glinton also argued, presumably upon the alternative basis that the Governor-General did have prerogative power to appoint a commission that section 2 must be construed in such a way as not to cut down the prerogative having regard to the provisions of Article XXI of the instructions to the Governor. These were instructions to a Governor appointed under letters patent which have been revoked and it seems almost certain that they no longer have force and effect. Their lordships were referred to no comparable provision in either the 1963 or 1973 constitutions. A commission appointed under the prerogative and at common law would, it was said, have no power to summon witnesses and could only have purposes far more limited than would be possible under a liberal construction of section 2, which section should not be allowed to derogate from such limited powers. A number of New Zealand and Australian cases were also referred to in this context but their lordships do not find them to be of assistance. No authority was cited for the proposition that a commission appointed under the prerogative can only have limited purposes and the conflicting arguments addressed in support of the attack on the validity of the appointment were not entirely easy to reconcile.
Although the appointment of the first respondent on 11th February 1993 in room of an original grantee who had resigned proceeded upon the narrative that the commission had issued under section 2 of the Act of 1911 their lordships do not find it necessary to determine whether the commission was appointed by the Governor-General in exercise of the prerogative or in exercise of his powers under section 2. If the former were the case section 10 of the Act of 1911 supplemented such powers as he possessed under the prerogative. If the latter were the case the terms of the appointment of the commission and the subsequent appointment thereto of the first respondent satisfied the requirements of section 2 and the commission was vested with the powers contained in section 10. Their lordships therefore have no doubt that under whichever authority the commission was appointed such appointment was valid and that it possessed all the powers and was subject to all the duties provided in the Act of 1911.
Mr. Glinton's second submission was to the effect that paragraph (h) of the terms of reference of the commission was contrary to the provisions of section 2. This paragraph was in the following terms:–
“(h) any and all allegations of fraud, corruption, breach of trust, conflict of interest or any wrongdoing whatsoever made by anyone against any person whatsoever arising out of and in connection with any or all of the affairs of Bahamasair Holdings Ltd., the Hotel Corporation of The Bahamas and The Bahamas Telecommunications Corporation;”
In support of this submission Mr. Glinton accepted that if the commission was appointed under the Act of 1911 and section 2 was given a liberal construction that paragraph was unobjectionable. However he maintained that there was no authority to inquire into matters involving crime at common law under the prerogative and that section 2 should be construed to produce a like result. He referred to Cock v. The Attorney General (1909) XXVIII N.Z.L.R. 405 which concerned section 2 of the ...
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