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The ball is once again in the hands of Barbadian jurist, Dr. Richard Cheltenham to decide whether to allow Opposition Leader Tillman Thomas to cross examine witnesses in the half-a-million dollar briefcase inquiry involving Prime Minister Dr. Keith Mitchell.

Cheltenham is the sole Commissioner appointed by Governor-General, Sir Daniel Williams to probe into allegations that the Grenadian leader accepted US$500, 000.00 from international fraudster, Eric Resteiner in exchange for a diplomatic posting.

Thomas was forced to approach high court judge, Davidson Baptiste in an atempt to overturn a decision taken by Dr. Cheltenham from limiting his involvement in the inquiry. The Baptiste court ruling, handed down March 31, has sent back the matter to the sole Commissioner for him to take a fresh look at the issue.

Following is the full text of the decision handed down by Justice Baptiste:

This is an application by Tillman Thomas for judicial review. Mr. Thomas is the Leader of Her Majesty¹s Opposition in Grenada. Mr. Thomas seeks an order to quash the decision of the Commissioner, Dr. Richard Cheltenham, in the Commission of Inquiry into allegations of financial impropriety by the Prime Minister of Grenada and related matters.

In his decision dated 14th June, 2005, Dr. Cheltenham refused to grant intervenor status/standing to the said Leader of the Opposition to enable his full participation in the said inquiry, including the opportunity to examine and cross-examine witnesses.

Mr. Thomas also seeks a declaration that he is entitled to intervenor status/standing so as to enable his full participation in the said inquiry, including the opportunity to examine and cross-examine witnesses.

The ground of review pertinent to this application is illegality. Illegality is where the decision-making authority has been guilty of an error of law. The decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.

The law in issue here is the Commissions of Inquiry Act CAP 58 (The Act). It is contended that the Commissioner misapplied and misinterpreted section 18 of the Act.

Section 18 states:

A person whose conduct is the subject of the inquiry or who is in any way implicated or concerned in the matter under inquiry, before the Commissioners under this Act, may be represented by counsel throughout the whole of the inquiry; any other person who considers it desirable that he be so represented may, by leave of the commissioners be represented as aforesaid.

Mr. Elliot Mottley (Counsel for Mr. Thomas) contends that having regard to the Terms of Reference of the Inquiry, the Leader of the Opposition has a peculiar and material interest, hence he is a person who is concerned in the matter under inquiry and therefore has a right to be represented under section 18.
The Terms of Reference are, inter alia:

(1). To inquire into the circumstances surrounding the appointment of Eric Resteiner as a diplomatic representative of the State of Grenada;

(2). The criteria employed and the protocol governing the appointment of non-Grenadians as representatives of the country;

(3). The procedures for the payment or reimbursement of the authorized expenses of Ministers of the Government and other public officials incurred in connection with official travel and other legitimate expenses incidental to or in connection therewith;

(4). To identify deficiencies (if any) in the functioning of the public administration of the country as a result of the inquiry into the matters identified herein and to make such observations and recommendations for the correction of deficiencies (if found necessary) and for the improvement and strengthening of the system of public administration.

(5). It is seen that section 18 of the Act has different limbs. Mr. Thomas conduct is not the subject of the inquiry, neither is he in any way implicated or concerned in the matter under inquiry to attract the operation of the first limb.

Therefore, under the first limb, Mr. Thomas does not have any right to be represented at the inquiry. For Mr. Thomas to be represented, he must fall under the second limb, that is, any other person who considers it desirable that he be represented may, by leave of the Commissioners, be represented as aforesaid.

(6). Mr. Thomas¹ office as Leader of the Opposition and the terms of Reference of the Inquiry are factors which could very well excite the mind of the Commissioner in the exercise of his discretion to allow representation under the limb of any other person.

The Commissioner, however, never applied his mind to that limb. Although the application to allow representation was made to the Commissioner on the entirety of section 18, it is clear that in his ruling the Commissioner only took into account the first limb of section 18.

I, too, hold the view that upon a proper construction of section 18 of the Commissions of Inquiry Act, neither the Leader of the Opposition, nor the Official Opposition, is the subject of inquiry, or in any way concerned or implicated with the matters under inquiry.

The application before me does not find support within the four corners of the Act and is accordingly refused.

Notwithstanding this latter statement, it is evident that the Commissioner was only considering the first limb of section 18 in his ruling.

The Commissioner specifically stated that on a proper construction of section 18, neither the Leader of the Opposition nor the Official Opposition is the subject of inquiry or in any way concerned or implicated with the matter under inquiry.

There is absolutely no reference to the other limb of the section. A proper construction of section 18 would have required the Commissioner to consider the limb of any other person who considers it desirable that he be so represented may, by leave of the Commissioners, be represented as aforesaid. That was not done.

It does not follow that the exclusion of a person under the first limb of section 18 necessarily and inevitably entails an exclusion under the second limb.

The Commissioner was obligated to consider any other person who considers it desirable that he should be so represented. In my judgement, the Commissioner misapplied and misinterpreted the law, thus failed to give effect to the law. The Commissioner erred in law. The ground of illegality has been well established by Mr. Thomas.

The decision of the Commissioner dated 14th June, 2005, is accordingly quashed. Should the Court grant the declaration sought?

The Act has clearly reposed in the Commissioner and not the Court, the discretion as to representation, subject of course, to Wednesbury Review.

Any other person who considers it desirable that he be so represented may be represented by leave of the Commissioner. Whether such person is represented and the nature, extent or parameters of such representation are all matters for the Commissioner to decide.

As indicated, the Commissioner did not address his mind to that limb. It is in the Commissioner and not the Court that the discretion resides.

In the circumstances granting the declaration sought would be tantamount to the Court usurping the power and function of the Commissioner.

In the premises, the matter is remitted to the Commissioner to properly apply section 18 of the Act.

The Commissioner is to make a determination as to whether leave should be granted to Mr. Thomas to be represented at the inquiry under the limb of any other person who considers it desirable that he be so represented.

The nature and parameters of any such representation is for the Commissioner to determine.

In conclusion, an order of certiorari is granted, quashing the decision of the Commissioner dated 14th June, 2005.

The matter is remitted to the Commissioner to decide whether leave should be granted to Mr. Thomas to be represented under the limb of any other person who considers it desirable that he be so represented pursuant to section 18 of the Act.
Mr. Thomas is to have his costs.