Bermuda Post

Thursday, Mar 04, 2021

Investigation must protect the anonymity of any witness who wants to give evidence anonymously. Nothing wrong about that.

Investigation must protect the anonymity of any witness who wants to give evidence anonymously. Nothing wrong about that.

Re: BVI Commission of Inquiry. Every proper legal process has two parts: Investigation and the legal concluding ("verdict"."conclusion"). The Investigation part doesn’t have to be public. For the Investigation to be effective, it must motivate the witnesses’ willingness to provide information that will help the Investigation establish the truth. So there is nothing wrong in the standpoint of Governor Augustus Jaspert and his appointed investigator, Mr. Gary Hickinbottom, as long as it is only for the first part of the procedure.

However, it is a well-known and common democratic-world-standard that only a corrupt investigator will open an investigation against anybody, without having a legitimate reason to believe that there is a real suspicion of wrong doing by the interrogated, and this is exactly the case now in BVI, and only a corrupt judge would deliver judgment before a fully transparent process has exposed all the evidence to the public and given those accused the chance to cross examine the witnesses, question the evidence, and run their own counter-investigation to prove their innocence.

That's how the dictatorships in Iran, North Korea and Belarus do things, and no overseas territory should accept this practice. Not anymore.

The common ethical standard among the entire legal community of the modern world is the premise that only a corrupt judge would give a verdict before a procedure with full public transparency, during which all the evidence is exposed in public. A non-corrupt judicial judgment must have first given the suspects an opportunity to interrogate the witnesses, examine the evidence and conduct their cross-examination to prove their innocence, in a fully public and transparent process.

“Sunlight is said to be the best of disinfectants; electric light the most efficient policeman”(Supreme Court Justice Louise Brandeis).

If this transparent process does not happen, then the judge is obviously corrupt and is pretending to preside over a fair trial, when in fact the legal procedure is neither fair nor professional, but will of course produce exactly the false verdict it was designed to deliver. This transparency is the essential condition for the validity of any legal proceeding. A trial that is not fully transparent must be corrupt.

But at this stage, there is nothing wrong with granting confidentiality to witnesses and evidence for investigative purposes, as suggested by Governor Augustus Jaspert and Investigator Mr. Gary Hickinbottom. Therefore, there is no reason to question Mr. Hickinbottom's credibility, just because of his wish to allow the free flow of information that should help him find the truth.

Side Note: sorry for calling him exactly what he is: "Mr. Hickinbottom" and not Sir, Lord or Lord Justice, etc., etc.. In England he can be Sir, or Judge, or Lord God of the Moon and the Sun, or even Lord of the Rings, if this is what the people there want to call him. That's absolutely OK, for them. I am sure he deserves those titles and the respect they engender - in England, for England. But in the Virgin Islands? He is simply a Mister, at most a Mr. Guest Investigator, and more accurately a Mr. Uninvited Guest Investigator, one who is not welcomed by any of the island's citizens. (I am sorry that I am not subscribing to the ancient British culture of colonial titles, but that is just the way it is.)

No one on the Islands need to be worried about the Commission of Inquiry (COI) taking place. Every democracy should welcome inquiries about and fights against corruption. The more the better. Not because BVI is a corrupt place more than any other democracy include Britain (in fact is much more clean and proper than most democracies that i know), and not because the BVI government or any official is corrupt "by design" (and here and there things happens, everywhere), but because... why not? Anyone who can find evidence of government's wrong-doing anywhere, anytime, should be welcomed as this citizen’s intervention is great mechanism to make things better. As long as the checks are balanced, of course.

The good reason behind the investigation - and the real reason.

("When someone says, 'It's not about money, it's the principle' - it's the money.")

In every fair judiciary process, one thing is clear and common to all legal practice: arriving at a just outcome requires a judge who is not corrupt, who is not biased, who does not act on behalf of foreign interests and who does serve improper motives. No judge should be allowed to preside over a fraudulent legal proceeding while pretending it is fair and professional.

There is no need for any of us to play games. We all know that the real motive driving the Colonial Governor in initiating this Investigation is not difficult to discern. It has nothing to do with "fighting corruption" or "good governance".

The simple facts that put this issue in the right context are that this legal investigation was triggered by the colonial ruler as a direct response to the demand of the democratically-elected Government and the Islanders to receive an official apology and compensation from the British government for crimes against humanity committed by Britain against the Islanders' families.

The hypocrisy becomes even more bizarre, when we all know that this Governor is caught covering up a well proven 7 million dollar bribe case involving his friends, in what is known as the BVI Airways bribery case. By covering up and hiding from the public and the authorities the crimes that were investigated and well proven by external experts in this case, he put himself on the wrong side of good governance, and far removed from the paragon of a clean and innocent civil servant. Corruption is clearly not what really bothers him. Suddenly pretending to be the voice of clean governance and anti-corruption is nothing but a (Déjà vu) classic demonstration of double standards and hypocrisy.

It would not be surprising or absurd to suspect that Britain’s ultimate goal is to pretend that a seemingly legal proceeding will retrospectively determine conclusions dictated to the judge in advance, those conclusions of course being favourable to the British position. In essence, this means that the COI will culminate in a verdict of fake blame that will cause the removal of this Government, which is demanding justice from power, and replace it with a British loyalist puppet government.

So the pretty picture presents the issue as an admirable move by the Governor in the pleasant-sounding “fight against corruption”, whereas in the real picture the intention more likely looks like is to use a fake verdict to bring about the fall of a Government that is not regarded as corrupt and obviously has nothing to do with the drugs case that the Governor has selected to be the trigger for this COI.

This observation is not based on personal knowledge of hidden facts that are not mentioned here - but just that as far as it looks so far.

When regime change by stealth is the over-arching British goal, the rationale behind the colonial Governor in appointing only one judge - while pretending he brings the credibility of a “council” of several experts - then instructing that same “judge” to conduct the process undercover and without transparency is neither clean nor innocent.

When the decision of the colonial Governor is to appoint only one British judge who has zero loyalty to the local people and 100% loyalty to an external government, then it is hard if not impossible to trust the whole process.

When the personal interest and natural motivation of both protagonists, the so-called judge and the colonial Governor who appointed him one-on-one, is to help the British Government avoid making a public apology to the Islanders for its crimes against humanity, then it is very difficult if not impossible to be accepted as a fair, clean or innocent procedure.

When the British Government's interest is that the judge and Governor move towards an outcome that will result in Britain avoiding paying compensation to the Islanders for the crimes Britain committed against them, then there is a built-in conflict of interest that poisons the whole process, even if the Governor and the appointed investigator are 100% honest and innocent. (Please note: there is no evidence, so far, that they are not. It is important to remember this, despite the criticism that one may perceive is written here “between the lines”.)

When the COI structure at its heart embodies such a personal conflict of interest, then it turns the “judicial” procedure, which is supposed to be professional, independent and honest, into one big fake legal proceeding.

An honourable judge would not agree to be part of a proceeding in which he has such a deep and direct conflict of interest. A decent judge would refuse the job even if he desperately needed the big money this job offers him. A professional judge would not jeopardise his reputation and future by engaging in such a questionable engagement. Unless of course, he was not decent or honourable or professional at all, and that all the fake titles he had been awarded in the past were for services duly rendered in prior questionable engagements.

A defendant coming from one side cannot set himself as the judge against the other side.

Anyway, as for now, there is no indication at all of any serious wrong-doing by Mr. Gary Hickinbottom. He has taken on a serious assignment, for good money, and, as a freelancer with a decent reputation, there is no evidence to suspect that he will get it wrong.

The truth should be welcomed by everybody, every time and from anybody that can help to unearth it, in the spirit of the Chinese leader Deng Xiaoping who famously said "It doesn't matter whether a cat is black or white, as long as it catches mice.".

The Investigation process has already commenced, so anybody who can contribute to establishing what really happened should openly and honestly share all relevant -and only the relevant- information with the COI.

If any of the witnesses discover that the investigation is leveraged for just a fishing anything, whose purpose is to find something -anything- wrong at all costs and not something based on the case that justified the iniciative of this investigation, he must warn everybody as this is the red flag that it is probably a corrupt proceeding.

And as long as no verdict is given before the judge has allowed a fully public and transparent hearing with the full and fair chance for any accused person to defend himself, all citizens’ contributions should be received with a warm welcome.

As long as the investigative part of the process is continuing, there is no reason to criticize Governor Augustus Jaspert nor Mr. Gary Hickinbottom for offering anonymity to anybody on the planet who can help to get to the truth the public deserves. No reason for criticism, regardless of the good intentions or the real motives of Governor Augustus Jaspert in initiating such a dramatic process or the way he manipulated Mr. Ddominic Raab to backup such a controversial initiative.

But if Mr. Gary Hickinbottom dares to announce any verdict before the public and fully transparent hearing as Premier Andrew Fahie demanded, and before any accused person has been allowed to publicly cross-examine the witnesses and their evidence, and before revealing this evidence to the public with full transparency, he should be immediately kicked out from the Islands and any paper he produces about this case deserves to be thrown to the garbage. And if the Governor stands behind him on this, then he likewise should be booted out.

Making such a premature pronouncement would be unfair, wrong, corrupt, against international law, against natural justice, and against the interests of the owners of these islands – which, by the way, are not any English white men, or any English white women.

This contentious issue highlights the real difference between democracy (freedom) and bureaucracy (colonialism). Between independence and slavery. Between a fair judicial proceeding and a corrupt process that impersonates a fair judicial proceeding. It is the red line between fairness and corruption that no one should be allowed to cross.

If the judge and Governor collude to force this unacceptable outcome, they should be removed from the Islands. Not with violence, obviously, but with uncompromising determination, and for good. If this happens (and so far there is no indication that it will), they must not be allowed to remain - as the enemies of democracy and justice - on the Islands even for one more minute after trying to promote a corrupt verdict that is a result of a legal process that is not transparent, not public, not open, and therefore unfair and unjust. In that case they should be kicked out, not just as Personae Non Gratae, but as criminals trying to carry out a coup against democracy and against the public interest of all the islanders.

At this stage, maybe this is just conspiracy theory thinking, with no direct evidence. Maybe it is just fearing the worst, when we should be hoping for the best.

And in these circumstances it is also worth noting that if the commission of inquiry does find evidence of direct or indirect involvement of elected officials in the serious drug smuggling affair that led to the establishment of the commission of inquiry, I will be honored to borrow the governor's nice hat to eat it, and to admit that I failed - again - in the trust I placed in the government of the Virgin Islands.

Let us hope that Mr Hickinbottom and Governor Jaspert are honest and prudent. Let us hope that they will not do anything against the natural justice regardless what the law allows their power to abuse.

* This article is for the public good, is free to copy and republished anywhere else without credit and without asking for permission.


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