As everyone is well aware, Bermuda has a number of large economic, social and criminal justice problems that are unlikely to be successfully tackled unless everyone works together to develop viable solutions. Unfortunately, unresolved political corruption scandals at the highest level of Government, including numerous large Government contracts involving hundreds of millions of dollars, continue to undermine the trust and goodwill needed for that to occur. For the sake of this small island, someone must bring these scandals to an end.Premier Paula Cox, as leader of Bermuda, has the power to clean up this mess. Unfortunately, to date, she has refused to take action, perhaps believing that if she ignores the problem, it will simply go away. But that is unlikely to happen.It now appears that the ramifications of the latest corruption scandal, ‘Defamationgate’, may be much broader than first believed. Although this is both sad and embarrassing news for the country, it may be the catalyst needed to force the Premier’s hand because, unlike prior corruption scandals of the last ten years, this one provides a means for others to take action if the Premier fails to do so.Here’s a brief summary of what has happened along with an explanation of how things have worsened.In January, the Auditor General announced her finding that that the Government unlawfully paid $30,000 for the personal legal fees of the Deputy Premier and former Premier for a defamation action they personally brought in Canada.The Deputy Premier’s first response was to claim that it was really the Government’s defamation action and therefore the Government’s $30,000 payment of legal fees was not an unlawful use of public funds. But as explained in my February 7, 2012 Royal Gazette article, ‘Government and defamation’ that’s a legal impossibility. A Government suing for defamation makes about as much sense as a Government suing for someone driving 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 and therefore can’t sue for personal defamation. In other words, the Deputy Premier’s first explanation made no sense.The Deputy Premier next explained that he and the former Premier had an agreement with Government whereby, in return for the Government’s payment of their legal fees, they would give the Government any money awarded from their defamation action and then the Government would decide how much to pay back to the Deputy Premier and former Premier for the damages they suffered.When asked to confirm the existence of such agreement, Attorney General Kim Wilson said: “There is no record of an agreement for damages to be paid back to Government by any party. This notwithstanding, I am advised that discussions relative to the matter were ongoing.”Clearly the Deputy Premier can’t have it both ways. If there was no such agreement, then the Government improperly paid $30,000 for the personal legal fees of the Deputy Premier and the former Premier’s defamation action, and those payments must be repaid in full. Further, any Government official who knowingly participated in such an improper arrangement must be held accountable for his actions. In our democratic system of government, that generally means he must resign.If the agreement did exist, then the Deputy Premier and Bermuda have an even bigger problem.Section 31(1)(f) of the Bermuda Constitution deems an MP to have vacated his seat if he failed, within seven days of acquiring an interest in any Government contract, to publish a notice of such interest in the Official Gazette. That begs the question: Would the agreement between the Deputy Premier, the former Premier and the Government be the type of contract caught by Section 31(1)(f)?The answer appears to be yes. The purpose of the section is to prevent abuse of power by an elected Government official. This type of anti-corruption safeguard is generally given wide interpretation by the Courts because, if left unchecked, political corruption can undermine the very foundation upon which our democratic system is based we agree to give our leaders the power to govern over us on the condition that they never put their personal interests ahead of our collective interests.In his own defence, the Deputy Premier may try to argue that his agreement with the Government was not a legally enforceable contract and therefore doesn’t fall within Section 31(1)(f). That argument would likely fail.For instance, the Deputy Premier might argue that the agreement was void for uncertainty because one of the principle terms was uncertain (e.g., it’s unclear how much of the damage award the Government is to give back to the Deputy Premier and former Premier). He also might argue that the agreement was unenforceable because it was not in writing. (Indeed, the Attorney General stated that there was no agreement in writing on the file.)But such legal technicalities are unlikely to prevent the agreement from being caught by Section 31(1)(f) because contracts involving political corruption are by their very nature void courts don’t enforce contracts for illegal purposes. In other words, the Courts aren’t going to care whether the contract was legally void or unenforceable; they are simply going to look at the wording and spirit of the legislation to see what type of arrangement the Constitutional section was aiming to prevent (i.e., undisclosed agreements between elected officials and the Government) and then decide whether the Deputy Premier and former Premier were a party to such an agreement or had an interest in such an agreement.Given that the Deputy Premier has publicly described key terms of his agreement with the Government, there is a substantial possibility the Court will declare that, pursuant to Section 31(1)(f) of the Bermuda Constitution, the Deputy Premier and former Premier had an undisclosed agreement with Government and therefore they have vacated their seats in the House of Assembly.That would suggest that sometime between 2009 and the summer of 2011 both Derrick Burgess and possibly Dr Ewart Brown ceased to be MPs. While Dr Brown’s seat has since been filled through a by-election, Derrick Burgess’ seat would have remained vacant to this day and therefore his appointment as Deputy Premier would have been void. (You have to be a sitting MP to be Deputy Premier.)In other words, there would be no present need for Deputy Premier Burgess to resign because he already would have ceased being an MP, a Cabinet Minister and the Deputy Minister, and he would be required to pay back any salary and benefits he has wrongly received since the date he was deemed to vacate his seat. Further, if the date of the agreement preceded the effective date of former Premier Brown’s resignation, then Dr Brown also would be required to repay any salary and benefits he received during that period.Clearly this whole mess can’t remain unaddressed. For the sake of everyone in Bermuda, Premier Cox needs to finally say, “Enough is enough,” and clean shop. Fortunate for Bermuda, she will now have a much stronger incentive to take corrective action because, unlike the numerous other scandals of the last ten years, Defamationgate involves constitutional issues that provide direct legal remedies to ordinary citizens.Section 33(2) of the Constitution gives any Member of the House of Assembly, any person registered as an elector in the Deputy Premier’s constituency and the Attorney General the right to apply to the Supreme Court to settle the question of vacancy of the Deputy Premier’s seat.Further, the Auditor General may decide to get involved again because the amount of money that must be repaid to the Government may include much more than just the $30,000 unlawfully paid for the personal legal bills of the Deputy Premier and former Premier; it may also include the salaries and benefits that they wrongfully received for the period that their seats were deemed vacated.The Auditor General might commence the reopening of this matter by obtaining a court order against the Premier and her colleagues who have, in violation of the Audit Act, refused to comply with the Auditor General’s demand for Defamationgate documents by claiming a legal privilege that doesn’t exist (see my January 31, 2012 Royal Gazette article, ‘What legal privilege means’ for a full explanation).Finally, Section 32C of the Public Treasury (Administration and Payments) Act states that, “notwithstanding and other Act or any privilege under the law of evidence, the Director [of Project Management and Public Procurement] may obtain any documents or information relating to procurement and capital projects from a public officer, and no such documents or information may be withheld from the Director on any grounds”.Identical power is given to the Director of Internal Audit under the Internal Audit Act 2010. The Premier herself spearheaded the enactment of the Good Governance legislation that set out these new powers. If these two Directors do not make demand of the ‘Defamationgate’ documents that the Premier and her colleagues are now wrongfully withholding from Auditor General, does it not then make a complete mockery of the Premier’s own Good Governance legislation and undermine any claim that she is cleaning up corruption in government?While it is imperative that someone take action to clean up this mess, it is best for the country that that person be the Premier. That’s because the real problem is not merely ‘Defamationgate’; it is the series of unresolved political scandals involving hundreds of millions of dollars that has further ballooned the national debt and undermined the public’s faith in its leaders and Government.That faith can only begin to be restored if the Premier herself brings Defamationgate to an end by demanding the resignation of those who have not only broken the rules of ethics and good governance but also breached the foundational agreement upon which we agree to be governed.With that first step by the Premier, Government can begin rebuilding the trust and goodwill that is so desperately needed to bring this tiny island back together again.