Archive for September, 2008

Justice Henderson responds

(CNS): In the wake of a CNS report posted Thursday night, Grand Court Justice Alex Henderson has confirmed in a written statement that his arrest was a move by police officers investigating police corruption in the Cayman Islands to force him to be interviewed as to whether he asked or encouraged former Cayman Net News employee John Evans to commit any illegal act.

In the statement, issued 26 September through his media liaison, journalist and publisher David Legge, Justice Henderson said he was under investigation for “Misconduct in Public Office” but had not been charged with anything.

“In 2007, a series of letters to the Editor published in the Cayman Net News made scandalous and untrue (but very general) allegations against the judiciary here. I began to suspect that the names of the authors were false (a suspicion which has been confirmed in at least one instance). I asked John Evans, the Sports Editor of the Cayman Net News about it. He shared my suspicion. I told Mr Evans I would be interested in hearing anything he might learn about the identity of the author(s). He said he would tell me if he learned anything. He has not done so,” the statement said.

It went on to say that, according to police allegations, Evans (right) entered his employer’s newspaper office in the evening of 3 September 2007 to search for a document unrelated to Justice Henderson’s conversations with him.

“It is alleged that he also planned to search for evidence of the identity of the letter writer(s) and that this entry into his own place of employment amounts in law to burglary. I did not ask or encourage Mr Evans to conduct a search of his employer’s offices. I did not ask or encourage him to commit any illegal act,” the judge asserts.

Justice Henderson further said that when asked by police to give a statement on the matter, he provided one in writing months ago andsaid he would answer questions posed in writing but would not submit to an oral cross-examination.

“The Chief Justice, Solicitor General and Special Prosecutor all agreed that was the correct approach in the case of a member of the judiciary being questioned in such circumstances. The police did not. They demanded an oral interview repeatedly. On 24 September the police arrested me. I have been interviewed for about 8 hours over the course of two days. I was arrested simply so they could interview me,” the judge maintains.

In an article in the Vancouver Sun, Henderson told a reporter, "I said to John that if, in the course of his employment, he was to come across any information, I would be interested to know it." He further insisted that he at no point asked or encouraged Evans to conduct any kind of covert search for that information. "He [Evans] had another reason for wanting to go into the offices at night, and he did."

The Sun reported that Henderson was arrested outside the condo he shares with his wife and young daughter early Wednesday morning, and that the investigation team also swept in on Henderson’s home, seizing computers, documents and Henderson’s Canadian passport.
"It was a shock to everyone. Totally," Henderson’s wife, Esther, said of the raid. Interviewed also by the Globe and Mail, she said that her husband was heading to work early Wednesday morning when six police officers arrested him outside his home.

The officers spoke nicely to the judge. They did not put him in handcuffs. They took his keys and phone, and then took him away for questioning, Esther Henderson said.

Justice Henderson and Evans are described by the Globe and Mail as "dive buddies". In an interview with the Vancouver Sun by phone from England, Evans agreed Henderson had informally asked him to investigate the source of the critical letters to the editor, adding that his search of the newspaper office after hours was not related.

Evans remains a witness in the investigation relating to the alleged burglary at Net News, according to Senior Investigating Officer Martin Bridger.

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Tribunal to investigate “Judicial Misbehaviour”

(CNS): Amidst turmoil surrounding the arrest of one Grand Court judge comes the announcement of the date and terms of the Investigating Tribunal, appointed by H.E. the Governor Stuart Jack, which will investigate allegations that Grand Court Justice Priya Levers’s conduct in court amounts to "misbehaviour". The Tribunal will commence in two months’ time.

A release from the Governor’s Office said that the Tribunal, which was announced on 16 September, would convene for the hearing on Monday, 24 November 2008. The Governor has appointed Sir Andrew Leggatt (right) as Chairman, and has also appointed Sir Philip Otton (below left) and Sir David Simmons (below right) to the Tribunal. Sir Andrew Leggatt and Sir Philip Otton are Privy Counsellors and former Lords Justices of Appeal. Sir David Simmons is the Chief Justice of Barbados.

According to the release, the Tribunal is expected to last for up to three weeks, and will conduct its proceedings in accordance with six stated Terms of Reference:

“The Investigating Tribunal is requested to consider allegations that between August 2005 and April 2008 Madam Justice Levers’ conduct, manner and behaviour towards witnesses, attorneys, court staff and judges officiating in the Cayman Islands was such as, when taken together, amount to misbehaviour, as set out in section 49J (2) of the Cayman Islands (Constitution) Amendment Order 1993.

“The Tribunal should carry out a factual investigation and report to the Governor whether the conduct of Madam Justice Levers taken as a whole has fallen below the standard reasonably to be expected of a holder of the office of Judge of the Grand Court so as to warrant proceedings for her removal.

“The Tribunal should make such inquiries as it deems appropriate and should consider in particular the matters referred to in: The Case Summary dated 12 July 2008 prepared on behalf of the Governor; Madam Justice Levers’ response dated 7 August 2008; and the Amended Case Summary dated 13 August 2008 prepared on behalf of the Governor.

“Subject to section 49J (5) of the Cayman Islands (Constitution) Amendment Order 1993 and the Commissions of Enquiry Law (1997 Revision) it is for the Tribunal to decide how to conduct the investigation and what evidence (including oral evidence) it considers necessary.

“The Governor will make available to the Tribunal and to Madam Justice Levers the documents which he has identified as relevant to the inquiry and in particular to the matters referred to in the documents listed in paragraph 3 above.

“The Tribunal will use its best endeavours to complete its inquiry and report to the Governor within three months of the date when the inquiry opens.”

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Parties face off on constitution

(CNS): Differences between the opposition and the government regarding the proposed constitution were narrowed down yesterday when all parties involved in the discussions faced off in public. And while their disagreements were reduced to a few fundamental points, those areas were still significant and the Minister for Education, Alden McLaughlin, said they “were going nowhere fast.”

Members of the government, Chamber of Commerce, the Cayman Ministers’ Association, the Seventh-Day Adventists, the Human Rights Committee and the opposition came together for the first time in a public forum to hammer out their areas of difference, with the aim of seeking common ground to present to the delegation from the Foreign and Commonwealth Office in the first round of formal constitutional talks scheduled for Monday 29 September.

Of the government’s 25 proposals, there was broad agreement between the politicians and community groups on some 15 points, but as the day-long talks got underway it was apparent that on the major areas of fundamental difference it would be hard to find agreement.

The issue of the Bill of Rights being enshrined in the constitution versus the possibility of its being passed in domestic legislation dominated the entire morning session, and in the afternoon the differences over the balance of power between the governor and the Cayman Islands elected government, the role of the attorney general and other elected officials, increasing the powers of elected officials and subjecting the governor to judicial review all became serious sticking points.

During discussions over the Bill of Rights, McLaughlin persisted with his argument that it would not have the power to protect the citizen from the excesses of government if it was not enshrined and that the rights apply only horizontally, not vertically.

When the group stopped for lunch after long discussions over the Bill of Rights, Pastor Al Ebanks, Chair of the CMA, told CNS that he still had very serious concerns about the implications of an enshrined Bill of Rights and would only agree to that if there could be some guarantee that the courts would not be able to strike down domestic legislation.

“An enshrined Bill of Rights would be superior to local law and we are concerned about the implications,” said Pastor Al. “It’s not just the moral issues, as important as they are, there are many laws which could be subject to discriminatory claims, such as our Immigration Law. I am not sure that that this implication has really been considered and unless we can see a guarantee that the Bill of Rights will not undermine our own legislation I can’t take any comfort from the arguments made.”

The representatives from the Mission of Seventh-Day Adventists were also concerned that the actual Bill of Rights had not been seen and the arguments were academic until they had. Pastor Shian O’Connor said the mission was not prepared to commit to anything until they saw the actual content. The Leader of Government Business, Kurt Tibbetts, who was facilitating the proceedings said it would be based on the draft written in 2003 but henoted there would be differences.

Melanie McLaughlin from the Human Rights Committee argued for enshrinement, and the Chamber delegation led by Wil Pineau also said its members favoured enshrinement. The opposition, however, remained unconvinced, and in accordance with the CMA made the case that unless some protections could be offered for domestic legislation they did not believe the people of Cayman would accept a Bill of Rights enshrined in the constitution.

Leader of the Opposition McKeeva Bush also condemned the government for writing to the UK Overseas Territories Minister, Megg Munn, and undermining the powers of negotiation before talks had started. “If we see the original check list from the FCO regarding the constitutional outline, it says there should be a machinery for enforcement of human rights consistent with international conventions. It doesn’t  say it has to be in the constitution,” said Bush. “By writing to Munn the way the government did, she was bound to say it had to be.”

Bush and the other opposition MLAs all said that during the negotiations they need to establish if the bill could be an act instead, and if not they needed some form of protection to prevent it from undermining local legislation. Clyne Glidden was also worried about the power of the courts.

“Judges will have the power to strike down legislation enacted by the parliament,” Glidden said. “The public would like to see parliamentary sovereignty remain with the elected officials having control, not judges, and if the people want a separate piece of legislation that’s what should happen.”

McLaughlin argued that in the crafting of the constitutional document they could introduce controls on the organs of government, including the courts, and would be able to restrict the actions of judges.

Glidden asked whether the UK was coming to negotiate or mandate. He wanted to know, if the UK refused to allow the limitation of courts’ powers or the bill as a separate act, what would happen, and the LoGB agreed that the talks would stop. Tibbetts asked if all parties could agree to enshrine the bill if a guarantee could be solicited from the UK that the constitution could limit the powers of the courts to strike down local law.

In the afternoon the wrangling over the fundamental issues of political power began in earnest. Bush told CNS that such things as the role of the attorney general were critically important, not least because if relegated to outside the parliament, the legislator would be deprived of crucial legal advice.

While the other representatives faded from the discussion once the human rights issue was put aside, government and opposition remained philosophically opposed over the changes in the balance of power and the modernisation of the various roles. Bush said there was an irony in the government’s accusing him of scaremongering over independence when the government was using their current differences with the governor to scare the people about his role, and that the opposition had no support for these changes.

“You can’t use your quarrel with the current governor as a reason for the proposals,” said Bush to McLaughlin. “You can’t do what people don’t want you to do and we will not agree to this. We believe too much is hidden about what is intended.”

McLaughlin used the Eurobank incident as an example of why he could not understand the opposition leader’s reluctance in wanting to secure more power for the elected officials versus those appointed by the UK government.

Throughout the day, the number of areas where the parties agreed seemed to increase. However, it was the major points of change which the government is driving forward where little compromise was reached. Bush confirmed to CNS that presenting a united front was still far less important than putting forward the wishes of the people.

Expressing no regrets about how the education campaign had been conducted this year, McLaughlin, who led the government’s position throughout the talks, said that he did not believe having a roundtable discussion before the UDP had offered their position in writing would necessarily have improved matters.

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Henderson refused interview

(CNS): Although the Senior Officer leading the Special Investigation, Martin Bridger (left), has said that Judge Alex Henderson was arrested on Wednesday in connection with his enquiries regarding offences relating to misconduct in a public office, CNS has learned that the arrest could have been based on the judge’s simple refusal to be interviewed voluntarily in connection with the investigation.

Sources have revealed that, as a result of Henderson’s role as a Grand Court judge and the fact that in future he may be asked to preside over cases related to the investigation’s outcome, he had refused requests for a formal interview that may be based on accusations made by one of the investigation’s witnesses.

Sources within the legal community, who spoke on condition of anonymity, have indicated that Henderson’s strong commitment to his judicial role, his outspoken approach, his independence and his refusal to be railroaded are the reasons why he has found himself on the wrong side of Bridger’s investigation, and that the judge’s integrity should not be in question.

Members of the Canadian judiciary have already expressed their disbelief that Henderson’s integrity has been questioned and that he has been arrested. Yesterday, members of the local legal community also began to express their shock over the arrest. One legal expert told CNS that the judge’s arrest had everything to do with Henderson’s outspoken independence. One also noted that the investigation was being poorly handled and the intense secrecy was exceptionally harmful to the jurisdiction as a whole and was leading to ridiculous speculation.

With two of Cayman’s Grand Court judges now "suspended" from judicial duties, concern is mounting that the local legal system is in serious jeopardy for all the wrong reasons. One lawyer also suggested that the complaints against Justice Priya Levers are absolutely unfounded and are related to disgruntled victims of her rulings, and the justice is being persecuted for doing her job properly.

It is, however, clear that the case surrounding Justice Levers is entirely unrelated to the special independent investigation and that the interest in Henderson and his arrest relate directly to accusations made against him that he may have been seeking inside information from Cayman Net News on matters relating to criticisms of the local judiciary.

CNS was still unable to confirm whether the justice had retained legal counsel or was dealing with the matter himself. And with facts still impossible to establish, CNS submitted further questions to Bridger enquiring if other members of the judiciary are likely to be questioned, but he refused to comment.

After refusing to give details of where he derives his authority to engage in electronic and other surveillance when questioned at Wednesday’s press briefing, Bridger refused again to comment on any of his investigation techniques when asked more questions by CNS yesterday.

Bridger did, however, confirm that John Evans remained a witness for the case but ignored questions relating to Henderson’s connection to the former Cayman Net News staff writer.

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