The government will not go to court to block a commission of enquiry ordered by Cayman Islands Governor Stuart Jack, Leader of Government Business Kurt Tibbetts said Thursday.
However, Mr. Tibbetts said members of the ruling People’s Progressive Movement party believe the governor has overstepped the law in ordering the commission formed, causing ‘tension’ in the relationship between Mr. Jack and elected Cabinet members.
In fact, Mr. Tibbetts did not rule out further legal action after the commission completed its work ‘depending on how much of a kangaroo court this turns out to be.’ He did not specifically state what options the government would consider.
Mr. Tibbetts further said that Mr. Jack had blamed the press for characterising the commission’s work as an investigation into whether Tourism Minister Charles Clifford had improperly removed files from the Ministry of Tourism in 2004, when he was that ministry’s permanent secretary.
The governor was unable to immediately return Caymanian Compass requests for comment at press time Thursday.
A 9 November press release from Governor Jack’s office detailing the commission’s work said the following in its first paragraph: ‘His Excellency the Governor has decided that the public interest would be best served by facilitating a full enquiry into the circumstances relating to the allegations made regarding the removal of files from the Ministry of Tourism and the disclosure of confidential information by the former permanent secretary and now the Honourable Minister for Tourism, Charles Clifford.’
Allegations that Mr. Clifford improperly removed government files have been made by Opposition Leader McKeeva Bush, and supported by local newspaper publisher Desmond Seales. Mr. Clifford does not deny taking certain files from the ministry upon his resignation, but has maintained those files were his personal documents. The commission, led by former English High Court Justice Sir Richard Tucker, is set to get under way 21 January.
‘We think that the governor’s action (in ordering the commission) was ill advised,’ Mr. Tibbetts said. ‘We have in recent weeks tried to persuade the Governor to reconsider, or at least to clarify his intention, but thus far he has declined to do so.’
‘So that leaves us with a choice between applying to the court to stop the enquiry, or alternatively, letting the enquiry run its course. We have decided to let it run its course, and to participate in the enquiry with a view to obtaining a sensible outcome.’
Mr. Tibbetts said the damage to Mr. Clifford has already been done, and that he does not wish to remain on the ‘public dock’ any longer than necessary.
There are constitutional issues raised by the ordering of a commission of enquiry to look into the matter, according to Mr. Tibbetts.
First, he said the government believes disciplinary proceedings against civil servants should be handled under the Public Service Management Law (2005). He said Mr. Clifford, as a former civil servant, was being subjected to entirely different proceedings based on ‘politically motivated accusations.’
‘Does this mean that all civil servants are now at risk or being treated the same way?’ Mr. Tibbetts asked. ‘Is this really up to the whim and inclination of the governor of the day? Is the governor above the law and the constitution?’
The governor’s office has previously stated the Commission of Enquiry Law (1997 Revision) does not require the governor to consult with Cabinet before appointing such a commission. Officials admit there was no consultation in this case.
‘While the governor always endeavours to consult with Cabinet whenever possible, it would not have been appropriate to do so in this case given that one of the subjects of the enquiry is a Cabinet member,’ read a 16 November statement from Head of the Governor’s Office Simon Tonge.
Mr. Tibbetts disagreed. He said the government’s legal advisors had opined there would be a case for judicial review of the governor’s decision to order the commission without the advice of Cabinet.
‘If this kind of action were ever repeated against a current or former civil servant, we would go to court,’ Mr. Tibbetts said.
The governor’s office has also previously said the commission’s work would entail reviewing the laws of the Cayman Islands with regard to protection of government documents, protection of whistle blowers (those who expose wrong doing), and laws that detail when former civil servants may run for public office.
Mr. Clifford did reveal documents which in part led to findings of maladministration against the previous government. He also ran successfully for elected office within a year of resigning his permanent secretary post.
‘So far as the good governance questions are concerned, an enquiry convened without Cabinet consultation is certainly a strange way of approaching law reform,’ Mr. Tibbetts said.