Brown, who led the country between 2006 and 2010 under the previous Progressive Labour Party (PLP) administration, had been ordered to appear before the four-person commission to answer questions about a number of government projects carried out during his time as Minister of Tourism and Transport and as Premier.
The projects included the Bermuda Emissions Control Ltd (BECL) and the construction of the Transport Control Department (TCD) as well as a golf course, a cruise ship pier at Dockyard and a new police and court building in Hamilton.
Brown, 70, was also to be questioned about controversial contracts with US-based companies GlobalHue and Ambling, as well as on why a delegation of accounting responsibilities was passed from the Ministry of Public Works to the Ministry of Tourism for some contracts.
Brown, who retired from politics after stepping down as Premier, was issued a subpoena requiring him to appear on Wednesday but his lawyer Jerome Lynch, QC, on Tuesday successfully argued his right to claim privilege against self-incrimination, saying Brown was “unique of all the witnesses”.
The Commission also heard on Tuesday that high-profile lawyer Delroy Duncan had been sacked by Brown’s cousin, businessman Donal Smith, as corporate agent for Smith’s company, BECL.
The firing was linked to a subpoena issued by the tribunal for BECL’s financial records. Duncan told the panel he held the documents but was loath to release them as Smith had threatened him with a lawsuit if he did so.
Duncan read out an e-mail sent to him by Smith, a former Deputy Mayor of Hamilton, in which he was told he was fired. Smith told the commission he considered its investigation to be a “farce” or a “witch-hunt” and would not consent to the release of the records.
Smith, the founder of BECL, warned he would expose much information publicly, if pushed, that could prompt another commission. He said the “whole world will know that … this is a farce or a witch-hunt”.
Smith added: “I don’t run from a fight. There is no evidence. I have not been charged for anything. I want to put it to you: I’m not backing up from this.”
Commission chairman Sir Anthony Evans, an 82-year-old British judge, told Smith, who was sitting in the public gallery, it would not report him to the court for refusing to allow the release of the records but would have to complete its inquiry without them.
“You will appreciate that we won’t have had any evidence from you, any assistance from the company. The company won’t be in a strong position to complain.”
This month, BECL lost a legal appeal against a subpoena requesting that it provide documents regarding the development of the TCD emissions centre in Pembroke.
The Auditor-General concluded the cost of that project tripled from US$5.3 million to $15.2 million after control was “relinquished” by the government to two linked private companies, one of which was BECL. She found a disregard for normal financial controls.
BECL was awarded a five-year multimillion-dollar contract to carry out safety and emissions testing in 2009, without the project going out to tender, and the contract was renewed in 2014.
On Tuesday, Lynch made a formal application for the subpoena issued to Brown to be discharged.
He said his client, the subject of a long-running police inquiry which has cost taxpayers more than $2 million, was claiming privilege against self-incrimination, as was his “constitutional, statutory and common-law right”.
“He is unique of all the witnesses,” Lynch said.
“Firstly, because of his former position as Premier but set against that is the fact that he is a man who, it has been declared, is part of an ongoing investigation by the police.”
He added: “He is left in some considerable jeopardy if he was placed in the witness box and asked questions.”
Sir Anthony said the tribunal accepted Brown’s right to claim privilege but noted that, without his assistance, it would have to reach its conclusions based on other evidence.
He said the subpoena would be discharged once Brown swore an affidavit on Wednesday asserting that right.
The commission is exploring the mishandling of public funds from 2010 to 2012, as outlined by the Auditor-General in a damning report which detailed how official financial instructions were regularly disregarded.
The ruling One Bermuda Alliance, which toppled the PLP from power in the December 2012 general election, more than doubled the budget for the Commission from an initial US$480,000 to almost US$1.2 million.
The Commission began hearing testimony from witnesses in September and has until December 31 to report its findings.
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