Survivors and relatives of those who died in the MV Barima tragedy may apply to participate in the Commission of Inquiry, while anyone who could face significant criticism in its report must first be warned and given an opportunity to respond, under procedural rules published in the Official Gazette.

The rules also provide for public hearings, access for the media, witness summonses and the publication of transcripts and exhibits. Issued by the five commissioners on September 9, they appeared in the September 19 Gazette and took effect on publication. They do not announce a date for the first public hearing or extend the September 30 deadline initially set for the commission’s report.

According to the rules, the inquiry has already begun its “investigative phase”. The commission is gathering and reviewing documents, inspecting physical evidence, and consulting and interviewing people with relevant information. A principal purpose of that work is to identify witnesses for the evidentiary hearings. Anyone holding original documents or physical evidence relevant to the inquiry must preserve them until the commissioners direct otherwise.

The rules permit the commission to require documents from individuals, agencies, departments and other bodies. It can issue summonses or subpoenas requiring a person to attend an interview, produce material or give evidence at a hearing. Its definition of a document extends beyond paper records to photographs, maps, plans, audio and video recordings, electronic records and other stored information.

Public hearings and access

Hearings will ordinarily be held at the Arthur Chung Conference Centre, Liliendaal, where the commission’s secretariat is also to be based. Unless the commissioners direct otherwise, sittings will be from Monday to Friday, 9 am to 4 pm. The secretary is to give notice of hearing dates, times and places, with as much notice as practicable.

Public hearings are the default. The commission may, however, hear part of the proceedings in private if it considers this necessary to maintain order, protect confidentiality or privilege, ensure fairness, serve the proper administration of justice, or for another sufficient reason consistent with its mandate. A hearing can be conducted in person, virtually or through a combination of both.

The commission is required to take reasonable steps to allow the public and media to attend or see and hear a simultaneous transmission of the proceedings. The press and broadcasters may attend, subject to directions governing the conduct of hearings. Transcripts and exhibits from public sessions are to be made available for viewing as soon as practicable through a commission website or another means it designates. Material from a private session may be released if the commission considers that to be in the public interest. It may redact records before publication to protect fairness, confidentiality, privilege, security or the inquiry itself.

Kiskadee Watch reported on September 2 that the commission was developing a website intended to serve as the public record of its work. 

Participation by families and others

The Gazette rules allow people to apply for ‘standing’, which means permission to participate in the inquiry on terms determined by the commissioners. The grounds include having played a significant role in events under investigation; having a substantial personal or direct interest as a survivor, witness or victim’s relative; being at risk of significant criticism; or being able to assist the commission.

An applicant must write to the secretary, provide contact details and those of any lawyer, explain the request in no more than three pages, and include relevant documents. The commission will decide both whether to grant standing and the extent of that person’s participation. The rules set no fixed closing date for these applications.

A witness does not need standing to have an attorney present while giving evidence. A lawyer may also attend an investigative interview. The rules say counsel for a witness may intervene over inappropriate questioning or where the witness becomes distressed and needs a break.

There is no automatic right for lawyers representing participants to question other witnesses. The commission may permit cross-examination by a person with standing, or that person’s counsel, to the extent of their interest and subject to time limits.

How evidence will be handled

The commissioners can receive evidence they consider useful even if it would not be admissible in a court of law. A witness may testify in person or by video or audio link. Before someone called to testify gives evidence, the commission may prepare a statement, summary or transcript of the expected testimony and give the witness a reasonable opportunity to review it.

A signed statement can, with the commission’s permission, be adopted under oath or affirmation as the witness’s initial evidence. The commissioners may also place a written statement in the inquiry record without calling its author to testify. A witness may be recalled.

Documents received by the commission will initially be treated as confidential while it decides whether to disclose them or admit them into evidence. Relevant documents are to be disclosed to participants within a reasonable time before interviews or hearings, subject to privilege, confidentiality restrictions and commission orders. Disclosure may be staged or accompanied by redactions and other protective conditions. Anyone receiving confidential material must undertake to use it only for the inquiry and preserve its confidentiality unless the commission makes it public.

A person claiming privilege over a requested document must give the grounds for the claim, which the commission will decide. The disputed document is not to be disclosed to another party while that decision is pending.

Warning before adverse findings

The commission may send a warning letter to a person who has faced, or could face, criticism during the proceedings or in a report. It cannot include explicit or significant criticism of that person in an interim or final report without first sending a warning letter and allowing a reasonable opportunity to respond.

Commission counsel will lead much of the legal and procedural work, deal with witnesses and lawyers, question witnesses at oral hearings and assist the commissioners in bringing matters of public interest within the inquiry’s mandate to their attention. The rules describe commission counsel as appointed to assist the commission and retained by the government.

The commissioners may change hearing dates, adjust procedural time limits and amend the rules if they consider that necessary for a fair inquiry. They may also decide how to deal with a failure to comply with a rule or direction; such a failure does not automatically invalidate a step already taken.

The publication follows calls for clearer information about the inquiry’s progress. Kiskadee Watch reported in August that secretary Javed Shadick described the commission as still completing preparatory work. On September 2, the commission said it had established a secretariat, surveyed the area of the sinking, begun obtaining records from state agencies, compiled a list of potential witnesses and started preparing interviews. It invited survivors, families and others with information to contact it. 

The commission is chaired by Godfrey Phillip Smith of Belize. Its other members are Captain Hamada Fouda, attorney Nyree Dawn Alfonso, retired Rear Admiral Hayden Pritchard and forensic naval architect Dr Andrzej Jasionowski. It was appointed on July 30 to investigate the July 18 sinking of the state-operated ferry while travelling from Georgetown to Port Kaituma, including the vessel’s condition and loading, the conduct of its voyage, and the search, rescue and recovery response. Seventy-three deaths have been confirmed, 76 people were rescued and others remain unaccounted for.