Amongst all the various crazy things going on in Bermuda right now, from ferry strikes, bizarre attempts to intimidate the media, allegations left right and center, and the OBA’s refusal to address even factual issues, we also seem to have a Governing Party with an acute case of collective amnesia.
I want to make clear that it’s evident that not all members or supporters of the OBA are suffering from this amnesia; however, the top leadership of the OBA certainly is, including the Premier and his Cabinet.
This amnesia has manifested itself most recently in the form of the Premier and two of his Ministers launching defamation suits against the Opposition Leader and the Shadow Finance Minister in relation to allegations made by the latter.
That alone isn’t necessarily a problem – personally I feel the two PLP MPs in question may have overplayed their hand here, even if I personally believe they are more likely to be speaking the truth or not. I am just not sure it was wise for them to court these lawsuits by repeating their allegations outside of parliament, even though I also believe their having the courage of their convictions lends greater credibility to their allegations.
What is a problem, and what is a manifestation of this amnesia, is the announcement that “as the accusations were made to the Premier in his official capacity, it will be a government lawsuit”.
Not so long ago, under a previous administration, a Premier and a Minister (Dr Brown and Derrick Burgess, respectively) launched a defamation suit of their own, and argued that this should be paid for with public monies, as they were defamed in their official capacities.
This subsequently led to a good deal of criticism from the then Opposition and Opposition supporters, and was found to be a ‘misuse of public funds’ by the then Auditor General, and a legal absurdity by learned members of the legal profession.
Indeed, I believe the two individuals in question subsequently were made to pay back some of the costs which public monies were spent on this for.
For the benefit of the OBA, in the hope that it helps them recover their memories, here are some excerpts from various articles relating to when the PLP were in power:
From the Special Report of the Auditor General on the Misuse of Public Funds, December 2011 (available on Bernews here):
*Just a side note, this document deals, in detail, with this issue over pages 13-24. I’m only going to quote some of this!*
The most relevant part of the document, however, is found on p.15.
“The key issue here is that public funds were used to initiate a private legal action which is inappropriate and a direct violation of Financial Instructions. Financial Instructions 3.5 provides that ‘Government funds or property should only be used for Government purposes and must not be used for personal reasons.’ Further Financial Instructions 10.4 places the onus and the responsibility on the Accounting Officer to ‘ensure that Government funds are not used for personal gain or profit’.
“We sought legal advice to determine if there were any statutory provision which imposes on Government a duty to pay the legal expenses of the Premier or any Minister whilst in or out of office. We were advised by our legal adviser that although Government may provide insurance coverage for ‘legal costs associated with any legal action taken against a Minister or a public servant in respect of any act performed in the normal course of duty or employment’, there is no statutory provision for the underwriting by Government of the legal cost of a Minister, servant or agent suing in a private civil action.”
“We, therefore, considered any such expenditure to be improper and unjustified.”
What legal privilege means – RG OpEd by lawyer Kevin Comeau, January 21st, 2012
“Clearly the former Premier and the present Deputy Premier are clients of the Canadian lawyer. The defamation suit was launched in their names, so they are the clients of the Canadian lawyer who is acting on their behalf. They cannot be, in their individual capacity, the clients of the Attorney General because the AG can only act on behalf of the Government.”
Government and defamation – RG OpEd by lawyer Kevin Comeau, February 7th, 2012
“The Deputy Premier appears to be saying that the defamation action was not being brought by him and the former Premier personally but rather it was the Bermuda Government’s defamation action, and he and the former Premier were only bringing the action under their names because of some legal technicality.”
“Legally speaking, that explanation makes no sense. Here’s why. In law, when we say someone cannot sue in their own name, we are talking about Legal Capacity, which means the ability to sue or be sued. For instance, a minor cannot sue in his own name because a person under 18 years of age does not have the Legal Capacity to sue of be sued.”
“A second example is an unincorporated association such as a local football club. It is not a recognised legal entity and therefore lacks the capacity to sue or be sued. So if someone steals money from the Barbarian Football Club, the lawsuit will be brought in the name of Joe Blow ‘on behalf of himself and the other members of the Barbarian Football Club’.”
“In each case the lawsuit has legal merit and is being brought in the name of someone else because of a legal technicality.”
“[However] the Bermuda Government, as a recognised legal entity […] has the legal capacity to sue and be sued…”
“Further, any suggestion that the Government’s lawsuit had legal merit is incorrect. A government bringing an action for defamation makes about as much sense as a government bringing an action for someone running over its foot.”
“Defamation is a personal action for harm to one’s personal reputation. A Government, as a non-human, has no personal reputation.”