The so far unsuccessful maneuverings by the elected members of the current Turks and Caicos Islands (TCI) government to try to escape the full force of the recently appointed Commission of Enquiry there should be instructive for the other British Overseas Territories, in particular the Cayman Islands, where a constitutional review process is currently underway.
The attempt by two backbench members of parliament to persuade the TCI court to allow judicial review of the terms of reference of the enquiry was, as expected, dismissed on Monday by the territory’s chief justice, with the exception of a minor amendment.
The application for such judicial review was reminiscent of Cayman’s elected Cabinet ministers’ threats of the same when Governor Stuart Jack appointed a Commission of Enquiry there to investigate the removal of files from the Ministry of Tourism by then Permanent Secretary, now Minister for Tourism, Charles Clifford.
Presumably, at some point, wiser counsel prevailed over the ministerial bluster, because no such application was ever made.
The Commission of Enquiry in the TCI has been appointed to look into allegations of systemic corruption within the government there and it is entirely possible that the investigations may eventually implicate certain political and commercial interests in the Cayman Islands and elsewhere.
If, as a hypothetical example, a Cayman Islands company is being used as a front to skim money from the TCI Treasury for the benefit of government ministers or other officials, those arrangements will be investigated by the Commission and/or law enforcement in the TCI or Britain.
Indeed, anyone acting as a director or trustee of a Cayman Islands entity that is being used to enable foreign public officials to derive a financial advantage from their official capacity may now be at risk of prosecution there under new anti-corruption legislation.
As a result, some rapid reassessment of existing relationships by some local financial service providers there may currently be ongoing.
In the meantime, there is much speculation in the TCI that the Premier, Michael Misick, may try to force an early election, in order to lay the groundwork for immediate independence, again as a means to frustrate the Commission of Enquiry into the alleged misdeeds of his own government.
However, it is thought that such efforts will prove to be as ineffectual as the application for judicial review.
First, although the TCI constitution, which was adopted in 2006 and thus a much more modern one than that of the Cayman Islands, provides that the Governor “may” dissolve parliament on the “advice” of the Premier, in reality, the governor will only do what the British Secretary of State instructs him to do.
In other words, although there is a certain amount of window dressing in relation to the perceived devolution of power to the elected government, ultimate authority and power nevertheless rests with Britain, which is a point that is very relevant to the constitutional debate on these issues in the Cayman Islands.
Furthermore, it is likely that Britain would not tolerate any such ploy on the part of the local government in the TCI to defeat or pervert the very course of justice that the Commission of Enquiry was appointed to deliver and, if the worse comes to the worst, the UK would no doubt suspend the constitution and impose direct rule, as they have done before in relation to the TCI.
One other point of controversy in the TCI that also has relevance to the Cayman Islands is the fact that the TCI attorney general was granted Belongership while in office. There appears to be some strong sentiment in the TCI that this was highly inappropriate and may therefore also be investigated by the Commission of Enquiry.
However, exactly the same thing happened in the Cayman Islands in 2003, when their current attorney general, Sam Bulgin, was granted Caymanian Status (Belongership) by the Cabinet.
Not only did Mr Bulgin sit in Cabinet at the time and, therefore, participate in granting himself Belongership, his presence during those meetings was used by then Leader of Government Business, now Leader of the Opposition, McKeeva Bush, as evidence of the legality of such grants when they were subsequently challenged by the Caymanian Bar Association.
In the words of former Cayman Islands Chief Justice, Mr George Harre, “Surely that situation should be professionally intolerable to any legal adviser as well as to the other parties involved. Conflicts of interest abound.”
No doubt many in the Cayman Islands and elsewhere will be watching events in the TCI as they unfold with more than usual interest. |
