“Commissioner has no authority’

Four of the five elected Cayman Islands government ministers have sent a signed document to the commission of enquiry urging that there be no finding of wrong-doing against Tourism Minister Charles Clifford.

The letter submitted to the commission specifically addresses some of the aspects involved in the enquiry’s review, including an assertion that Mr. Clifford made ‘no disclosures of confidential information or documents except for purposes of blowing the whistle on what he regarded as wrongful conduct’ by the previous government.

But the bulk of the document lists specific instances in which the ministers believe either the governor or the commission itself have erred, setting up the possibility that lawmakers could resort to legal action if they don’t see the desired results.

‘The governor’s not above the constitution,’ Education Minister Alden McLaughlin said Thursday. ‘There are really important issues here, and we wait anxiously to see what the result of the commission is.

‘But you can believe that if we believe that the results of the commission are not in the best interests of these islands that we will do what we believe our constitutional duty is to ensure that the matter is further ventilated; further addressed. We are watching very carefully and not from the sidelines.’

Section B-15 of the submission reads: ‘There should be no critical report against Minister Clifford and no recommendation of any action against him in so far as it appears that his conduct would be protected by section 50 of the Freedom of Information Law. If Minister Clifford is not fully vindicated by this enquiry, there must be a strong chilling effort on others who feel it is their civic duty to blow the whistle.’

Section 50 of the Freedom of Information Law contains a protection for civil servants who report in good faith what they believe to be wrong-doing. The law does not take effect until January 2009.

‘But it is the current policy of the elected government,’ Leader of Government Business Kurt Tibbetts said.

The ministers were concerned that the subjection of Mr. Clifford to the enquiry would have a ‘chilling effect’ on others who have evidence of wrong-doing within government.

‘The risk is even more obvious and frightening given that the Governor is widely perceived to have launched this enquiry at the behest of Mr. McKeeva Bush, the very person against whom Minister Clifford was blowing the whistle,’ the ministers’ submission read.

Several issues were raised about the legality of the commission in the ministers’ letter.

First, the government claimed the governor was required by law to consult with ministers before deciding to order the commission of enquiry. The ministers argued that, if the governor was concerned about a conflict of interest, Mr. Clifford simply could have recused himself from those discussions.

The ministers also claimed that the commission was not properly published in the Cayman Islands gazette, a record that documents government actions, laws, regulations and other matters.

‘If so, according to the Commissions of Enquiry Law, the commission has not yet taken effect, and the commissioner has no authority,’ the submission read.

Records obtained by the Caymanian Compass show there was a proclamation gazetted on 12 December, which announced the issuance of the commission, and specified particular allegations against Mr. Clifford.

Government ministers said the terms of reference of the commission were not specifically included in the 12 December gazette, so its terms remain uncertain.

It was also argued that Mr. Clifford’s case should have been handled under transitional provisions of the Public Service Management Law, formerly the Public Service Commission Law. Those regulations note that the only available sanction for erring civil servants, apart from a reprimand, is a ‘surcharge’ or fine which can be assessed by the public service commission.

That commission was disbanded in 2006.

‘No explanation has yet been given by the Governor for not acting in accordance with the PSC Law and Regulations,’ the ministers’ statement to the commission read.

The letter was received by the commission’s secretary Colin Ross on 18 January, which was the Friday before the commission began its hearings. It was signed by Mr. Tibbetts, Mr. McLaughlin, Health Minister Anthony Eden and Works and Infrastructure Minister Arden McLean.