Archive for November, 2008
Operation Tempura
The perception communicated to the public (and clearly not just the Caymanian public when one considers how Henderson’s arrest and related matters were published all over the Canadian press) regarding a judiciary in disrepute, the basis on which the various investigations were conducted and the resultant costs to these islands.
Without some clear and unambiguous statement from Cabinet (ie one statement from Governor Jack, the elected members of Cabinet and our attorneygeneral) to the contrary, it is difficult when critically scrutinized to not to consider that Cayman may be experiencing some form of systematic destabilization.
In his pre-budget speech the UK Chancellor Alistair Darling said:
“The British taxpayer cannot be expected to be the guarantor of last resort. The Government will shortly commission am independent review of British offshore financial centres; their role in the global economy; and their long term business strategies in the pre-budget report”.
I found his comments unnerving and reason for pause. Our constitution provides:
Section 1(1). There shall be a Governor of the Cayman Islands who shall be appointed by Her Majesty by Commission…and shall hold office during Her Majesty’s pleasure.
Section 1(2). The Governor shall, for the purpose of administering the government of the Islands, have such powers and duties as are conferred or imposed on him by the Constitution or any other law and such other powers as Her Majesty may from time to time be pleased to assign him…and shall do and execute all things that belong to his office according to such Instructions…
Under Section 7(1) of the Constitution the Governor is required to consult with the Cabinet in the formulation of policy and in the exercise of all powers conferred upon the Governor by the Constitution and by any other law for the being in force in the Islands.
However under the same section the Governor is not required to consult with Cabinet where for example (1) when the Governor is carrying out instructions handed down by Her Majesty and (2) when the Governor carries out his special responsibilities.
The Governor’s special responsibilities include matters in his opinion relating to internal security, the police and the appointment, suspension of any person to any public office. Although the Governor is not required to consult with Cabinet in exercising these powers the Governor is required to keep the Cabinet informed of any matter that he believes may involve economic or financial interests of the Cayman Islands. Under section 8 of the constitution the Governor may act contrary to any advice that provided by Cabinet if he considers it to be conflicting with public order, public faith and good government.
Whilst I have no intention to bore anyone with the specifics of our constitution I thought that it was very important to spell out the precise nature of the Governor’s powers and that of Cabinet and bear to in mind when considering what follows.
We the members of the public have been led to believe that our elected members of Cabinet were unaware of/had no input into the recent heatedly debated and in some instances, contested investigations relating to Operation Tempura commenced by Governor Jack. To this day we have not been afforded the courtesy of knowing whether our attorney general, Mr. Sam Bulgin advised the Governor on the one hand and not the elected members of Cabinet on the other or vice versa. And we should know to be in a position to evaluate his judgment. We may also end up having to foot the bill at a time when there is the perception that the country is simply broke; not aided by the unaudited accounts going as far back as 2003 which involve “every statutory authority, every government owned business and every Cabinet ministry and portfolio” totaling at least $1.5 billion and over in inadequately accounted for expenditures.
If it is true that the Governor exercised his reserve powers under section 7(1) of the constitution where he is not required to consult with Cabinet when carrying out instructions handed down by Her Majesty or carrying out Her special responsibilities, this presupposes that (a) Governor Jack had reason to believe that his decision to commence the investigation was in the interest of good governance (in spite of what we are now aware of courtesy of the decision of the Chief Justice regarding Operation Tempura) and (b) he explained his reasons to the government of the United Kingdom who agreed and therefore approved and authorized his decision to commence and continue the investigations.
If this is accurate we the public must ask the question whether Governor Jack distrusted our elected members of Cabinet to consult with and or inform them or whether they too were/are under any investigation? Whatever the position, we should be told the truth.
It is quite a grave and serious situation when (i) a country’s judiciary is shamed and ironically there is an almost immediate appointment of three new court of appeal judges and (ii) the police force is brought into question due to alleged corruption charges, especially having read Chief Justice Smellie’s recent ruling on Operation Tempura. But when coincided by what may be construed as an assault on the economy this raises additional concerns.
The proposed commission of enquiry as expressed by Mr. Darling is to be commenced by the UK government prompted by the alleged growing international pressure to line up standards of financial regulations and meet the standards of international norms relating to taxation (aka: full exchange of information). This strongly suggests that our offshore industry is about to come under further attack.
Whilst we are undoubtedly one of the most regulated jurisdictions we appear to have dropped the ball by failing to focus on maintaining tax treaty networks to continue the promotion of transparency and assistance with the exchange of information (as for example our competitor the BVI has done through double tax treaties with Japan, the UK, Australia and Switzerland). Note that Mr. Darling also made it clear that the
There will be no Bailouts in Cayman by the UK government with respect to the $1.5 billion.
Finally in the midst of this conundrum there is the ongoing constitutional modernization debates in the face of the devastation brought to bear by Paloma, citizens with no health insurance, no homes and or insurance on their homes, increasing local unemployment (whether the elderly, graduates and professionals) and the rise of violence and robberies.
This cocktail is the recipe for changing attitudes from sensible, passive and conservative to outright aggression and intolerance. It will be interesting to observe how any government now or in the future with limited funds at its disposal address these issues.
Governor Jack’s term in office has been extended until the constitutional modernization debates have concluded. This may be unusual in the Cayman context as attempts were made by previous administration to extend the term for Governors Peter Smith and Michael Gore to no avail. But times are changing.
I have asked the question and will ask again, who has this community’s best interest at heart? Who will be responsible for the cost incurred due to any breach of good governance? And this is no time for division in our islands; we are all in this together.
The increasing intensity and interest expressed by Caymanians (and non Caymanians alike) regarding the intent and content of what is occurring shouldbe astutely observed by all leadership and not be confused with creative tension. I am reminded of the late Haig Bodden’s observation on the meaning of democracy: democracy is all about whether people are hungry or not.
Berry appeals over quarry
(CNS): Despite that fact that the original application was turned down in accordance with a specific regulation of the Development and Planning Law, Lorenzo Berry has submitted an appeal to the Planning Department regarding the decision by the CPA in October over his application to quarry 250,000 cubic yards of aggregate from land in a residential area of the Lower Valley Forest in Beach Bay.
On 27 October the Central Planning Authority said they had turned down Berry’s application to quarry in the area in accordance with Regulation 9 (4) which states that, “no use of land in a residential zone shall be dangerous, obnoxious toxic or cause offensive odours or conditions or otherwise create a nuisance or annoyance to others.”
As residents of Mahogany Estates, the community backing on to Berry’s land have experienced his persistent quarry over the years without permission, they can testify that his operation certainly contravenes that regulation. The residents group which has continually objected to Berry’s activities had thought after permission was denied on a clear point of law they could perhaps regain some kind of stability in their lives. However, the receipt in yesterday’s post of Berry’s application to appeal has unsettled the community yet again.
“While we are not entirely surprised that Mr Berry would attempt to persist with this quarrying operation, it is still very unsettling for us to have to face this all again especially when the application was turned down a clear point of law,” said Jean Ebanks one of the driving forces behind the Mahogany Residents group that has been dealing with the quarrying activities of Berry for many years. “There was nothing ambiguous about this decision there are no grey areas. The law clearly states that you can’t undertake toxic and dangerous activities in a residential area. And as excavating includes blasting there is no getting around this law.”
Ebanks said that she and the other key members of the residents group at Mahogany Estates including the Reverend Nicholas Sykes would continue the fight to protect their homes and they would this time face Berry with legal representation of their own. Despite the expense Ebanks noted that fighting the original application was very stressful for all of them and she felt that legal assistance was important to ensure that the decision was not overturned.
The application to the Planning Appeals Tribunal against the decisions of the CPA was submitted by Berry’s attorney’s Samuel Jackson and is persistent with Berry’s original application to Planning to effectively continue his quarryingon land between the Mahogany Estate residents and the sea in the area of Beach Bay.
Apart from the obvious danger and nuisance element on which the original application was turned down there were a number of other objections to the project including an environmental one which was supported by evidence from the Department of Environment that demonstrated a number of red list species in the area which Lorenzo wishes to quarry including the endangered white shouldered bat.
There were also objections from members of Berry’s own family who are in dispute with him over the ownership of the land. Murali Ram from attorneys Mourant, who was acting for the members of the Berry family at the time, noted that Berry’s right to excavate the property was in question and that planning would be wise to take legal advice before granting Berry official planning permission to quarry and level land that was not solely owned by him, CNS understands that this claim has not yet been settled and that at present under another complaint Berry was supposed to fill in the land he has already excavated.
The dispute has caused controversy because Berry under his company White Rock Investments has been removing aggregate form the land for many years contrary to the original planning permission he was granted which was merely to clear land for a sub-division. Further controversy was also raised when it was revealed that the illegal fill quarried from the area had actually been bought by government and used by the National Roads Authority in the development of the east-west arterial bypass.
Berry’s quarrying activities have not only disturbed wildlife but have caused enormous anxiety tot he residents of Mahogany Estates, a sub-division originally sold by Berry himself. The residents have persistently accused Berry of bullying and harassing them over the years when they have made complaints to the police or the Planning Department about the excavation and blasting. There are also concerns that Berry’s activity will in the event of a major storm in the area cause extensive flooding to properties even beyond the Mahogany Estates boundaries.
Another interested party with property in the area who has suggested that the CPA should have quashed Berry’s application for excavation from the very beginning because of the law has also raised very serious concerns about the potential flooding risk to surrounding property caused by excavation. He believes that the Planning Department as well as Berry could be liable for any future damage caused to property because of the excavation that has already taken place.
Adventists help the Brac
(CNS): Local Relief Agency Provides Essential Supportany residents on Cayman Brac and Little Cayman have received emergency supplies and assistance from the local chapter of the Adventist Development and Relief Agency (ADRA), following the devastating effects of Hurricane Paloma. (Left: ADRA members Tara Walton and Eric McFarlane)
According to a release from the Hazard Management Cayman Islands’ Joint Communications Service, the relief agency, in conjunction with the public and private sector, has provided more than 24,000 food and perishable items to all residents, including bread, water, toothpaste, toothbrushes, tarps, lanterns, female hygiene supplies, pampers, baby food, assorted clothing, mops, brooms, bleach, soap and children’s toys. They are now distributing items such as tarps and cleaning supplies, in order to assist residents with recovery efforts.
ADRA’s Associate Director Dean Evans noted that as of last week, there were 30 members from the Seventh-day Adventist Church assisting in the Brac, the majority being locals. “Our support capabilities range from distribution of supplies, to home repairs; cleaning; grief counselling; and chainsaw teams. We are here to assist anyone who requires assistance during this difficult time,” he said. (Right ADRA in Spot Bay)
On 10 November, two days after Paloma passed, the agency set up three distribution points – at Aston Rutty Centre, and Spot Bay and in Little Cayman. With the demand for relief supplies largely met,ADRA is now focusing on the recovery phase, which consists of building repairs and cleanup. However, they are still offering food supplies to those who need them.
Evans also noted that the agency donated 500 Thanksgiving dinners on Thursday, 27 November, in Cayman Brac. “We welcome this opportunity to help people feel that someone remembers them. There is a lot we should be thankful for,” he said.
The Cayman Brac and Little Cayman communities have acknowledged ADRA’s willingness and enthusiasm to assist, and have expressed their thanks towards the members who continue to work tirelessly to provide much-needed aid to both islands.
Evans, who is spearheading this relief effort in Cayman Brac with support from local ADRA Director Benny Moore, added, “We are pleased with the progress to date, and happy to work with government’s Hazard Management Cayman Islands to provide what relief was needed. For me personally, the best part of each day in the Brac is knowing that what we’ve achieved is contributing to residents’ recovery.”
Constitutional talks delayed
(CNS): The Leader of Government Business announced this morning that the second round of constitutional talks has been postponed over fears that the Opposition team may not have shown up followingcomments made by two of its members to radio talks shows. Kurt Tibbetts said that although the opposition had not told government they wanted to postpone Juliana O’Connor Connolly had stated she could not come because she was still needed on Cayman Brac.
Speaking at the live cabinet press briefing on Thursday 27 November Tibbetts said that the position taken by the acting leader of the opposition, (Rolston Anglin)and O’Connor Connolly put the opposition’s presence in doubt.
“Unfortunately, instead of raising its concerns directly with the Government, the Opposition chose to make a public statement. The Opposition knew well in advance of the timing of the negotiations and could have had the courtesy of contacting the Government directly,” Tibbetts added. “The Opposition’s main concern relates to the availability of the first MLA for Cayman Brac and Little Cayman, Mrs. Juliana O’Connor-Connolly. It is contending that her priority right now should be supporting the hurricane relief effort on Cayman Brac which I can tell you, as the Minister responsible for the Sister Islands, is proceeding at a satisfactory pace. ”
Tibbetts said the government recognises that O’Connor’s absence would disadvantage the opposition which was compounded by the Leader of the Opposition’s very recent return to the island following surgery.
“With the clear likelihood of the Opposition not turning up next week and in the absence of direct communication from them, I have spoken to the Head of the UK delegation, Mr. Ian Hendry, and told him thatwe have concluded that it would not be appropriate to proceed with the talks in the present circumstances,” LoGB said.
Rolston Anglin who has been acting as Leader of the Opposition since McKeeva Bush was undergoing surgery spoke with CNS after the briefing and said that the opposition had never said they would not attend the talks, but that O’Connor would not be able to be there and as a lawyer she is a key member of the team. Anglin said that if the government had not moved to cancel at the eleventh hour the opposition would still have attended
“We thought it was shameful that following the impact of Hurricane Paloma the government didn’t move for a postponement immediately as it was obvious that two of the fifteen members would be otherwise occupied,” Anglin added. “Yet again the opposition has had to take the lead and tell government what needs to be done, this is incredible. The government’s captain is asleep at the wheel and just does not seem to be aware of what’s going on around him.”
LoGB said that the government was disappointed that the situation had forced a postponement and there was concern that the postponement would make it difficult to get through the talks before the dissolution of parliament. “Unfortunately, the situation now is that we are really running against the clock. Government is gravely concerned that this postponement has implications for our ability to complete the process on time, given the reality that the Legislative Assembly will be dissolved in March of next year,” he added. Despite this, however, we shall do all we can to get the process back on track as soon as possible and as soon as the Opposition returns to full strength and the diaries of all parties, particularly the UK delegation, permits.”
Tibbetts claimed to have no choice but to cancel as the risk of the opposition not taking part would, he said, have defeated the purpose of talks as the next phase will be to negotiate areas of difference between government and opposition.
“We have repeatedly made it clear that the new Constitution is not just about the Government. It is about the people of the Cayman Islands and, therefore, must reflect a national consensus. Despite fundamental disagreements with Government on the issue of a new constitution, we believe the Opposition must be allowed to fully make its case,” Tibbetts added.
Cayman ready for review
(CNS): The anticipated review of its Overseas Territories and Crown Dependencies by the UK government has been welcomed by the local body representing the sector here in the Cayman Islands. “This is hardly the first such review that Cayman has gone through” said CIFSA Director Jeremy Smith. “And each time the conclusions reached are the same – that Cayman is a very professional and well regulated jurisdiction that adheres to international standards as well or better than the most respected financial centres.”
The UK Chancellor Alistair Darling announced on 24 November in his pre-budget speach that he would be looking at financial service sectors in territories and dependencies. The Cayman Islands Financial Services Association (CIFSA) says Cayman stands ready to fully participate in the process and once again demonstrate to the world that compliance with international regulations and standards in Cayman remains stronger than most financial centres worldwide.
“As long as this review is conducted in good faith, without a politically pre-determined outcome, we are extremely confident that this review will reach similar conclusions,” Smith added.
In terms of transparency and cooperativeness the US GAO report said “"U.S. officials from multiple agencies said that the Cayman Islands government has been cooperative in responding to U.S. requests and shared useful information at their initiative related to questionable financial activities that involve U.S. connections." Rankings from the FATF show that the Cayman Islands significantly outperform jurisdictions like the U.S., Canada, Australia, Singapore, and Switzerland in adherence to internationally agreed anti-money laundering standards. Yet these facts rarely get much coverage.
Recovery fund still needs support
(CNS): With so many house s destroyed or badly damaged on Cayman Brac following Hurricane Paloma the generous
The NRF is tasked with helping people who are either uninsured or under insured, and itappears that a number of families that suffered severe losses in the hurricane storm are without insurance. Laskin,
Fight crime for free
(CNS): Residents are being given an opportunity to learn how to ‘design out crime’ as a result of a joint venture by the Royal Cayman Islands Police Service (RCIPS) and the University College of the Cayman Islands (UCCI). The two organisations have joined forces to help spread important safety messages and address issues around fear of crime within the community by offering a free presentation to all members of the public this weekend.
Although mainly targeted towards the business community and home owners, all members of the community would be sure to benefit from the seminar. Devised by RCIPS Inspector Anthony White, who holds a PhD in Criminal Justice, the two hour presentation aims to increase awareness of crime prevention measures, highlight to companies, businesses and home owners what they can do to protect themselves, their customers and their property, and give all Cayman Islands residents some general advice on how to stay safe and protect themselves.
“There is much we can do to help protect ourselves and those around us,” said Dr White. “Some of the steps we can take are relatively simple and low cost but can have a large impact upon how safe people are and how safe they actually feel. It is true that the fear of crime often outweighs the chances of becoming a victim of crime and addressing how safe people feel is key to improving people’s quality of life.”
UCCI came onboard with the projectto offer their facilities and services at no cost, stating that it’s important these messages are disseminated into the community as wide as possible. “We all have a duty to take personal safety seriously,” said UCCI President, Dr. Brian Chapell. “After some of the events that have taken place recently this is an opportune time to get some of these messages out and the UCCI is more than happy to help facilitate this. The more people who attend, the better.”
The presentation covers many aspects of ‘designing out crime’ covering topics from environmental design to situational crime awareness. Members of the community are encouraged to attend one of two sessions taking place on Saturday, November 29 and there will be no cost to those attending. Additional sessions will be added as necessary to meet demands.
Two sessions are available on Saturday, Nov ember 29: 12pm – 2pm or 6pm – 8pm. To ensure that organisers can accommodate all those wishing to attend, people are asked to register in advance by sending an e-mail to fightcrime@ucci.edu.ky with the words “fight crime” in the subject line and indicating a preference for the lunchtime or evening session or they can call Leigh Smellie on 526-5045.
Anyone with information about crime taking place in the Cayman Islands should contact their local police station or Crime Stoppers on 800-8477 (TIPS). All persons calling crime stoppers remain anonymous, and are eligible for a reward of up to $1000, should their information lead to an arrest or recovery of property/drugs.
New appeal court judge takes oath
(CNS): The Cayman Islands Court of Appeal now has a fifth sitting judge following the appointment of Hon. Geoffrey Vos, QC, who took oaths of office and allegiance in the presence of H.E the Governor, Stuart Jack, this week (Monday, 24 November).
He also sits as a deputy high court judge in England and Wales, and was chairman of the Bar Council in 2007, according to a Governor’s Office release. Both the Chief Justice and Acting President Forte congratulated Justice Vos on his appointment and welcomed him to the jurisdiction, with the Chief Justice observing, “Justice Vos is no stranger to the Cayman Islands, having appeared as leading counsel in a number of cases here in the past.”
Justice Vos joins Ian Forte and Elliott Mottley for the court’s November to December session. Of the three new appointees to the Court, he is first to take office. The other two are the new President of the Court, the Rt. Hon. Sir John Chadwick; and Justice of Appeal, Dr the Hon. Abdulai Conteh. The new appointments take the Appeal Court’s strength to five justices.
Also present at the swearing in were the Chief Justice Hon. Anthony Smellie, QC; Acting President of the Court of Appeal,the Hon. Justice Ian Forte; Justice of Appeal, the Hon. Justice Elliott Mottley, QC; and Court of Appeal Registrar Audrey Bodden.
Instability challenges RCIPS
(CNS): Speaking to the people of the East End community, Area Commander of the district Richard Barrow admitted that the Royal Cayman Islands Police Service (RCIPS) was still facing challenging times as a result of the instability at the top leadership level in the service, but that his officers were doing a good job given the circumstances. He said they were all getting through because of the support of the community.
“We are still facing troubled waters,” Barrow said, “but with your support and that of our MLA we are dealing with these issues.”
Given the circumstances surrounding the suspension of the RCIPS senior officers and the cloud of suspicion hanging over the entire service as the secret investigation drags on, Barrow admitted that it has been difficult for his officers.
MLA for East End, Arden McLean, was present at the meeting and said he was hoping to see some stability in the force now that Stuart Kernohan, the former Police Commissioner had been sacked.
“I think the RCIPS will get over this and now Kernohan is gone, well I’m happy with that. We can’t be on a temporary leash forever; we need to get back to getting some confidence in the police,” he said. “There needs to be some permanence and I hope we see it.”
Although the Special Police Investigation Team (SPIT) has been in Cayman since September 2007 reportedly investigating the RCIPS, so far aside from two misconduct charges brought against Deputy Commissioner Rudy Dixon (who is still suspended from duty on full pay) for offences allegedly committed in 2003 no other officer has been charged with any offences.
Kernohan was fired by Governor Stuart Jack earlier this month in the wake of the publication of an open letter he had sent to the Governor asking for reinstatement, but he was never formally interviewed regarding the investigation. Meanwhile, Chief Superintendent John Jones remains suspended on full pay but no charges have been brought against him, nor has he been interviewed regarding the enquiry which has been going on since September of 2007.
Besides the instability with regards police management, Barrow said he also faced staffing problems with a relatively new force in the eastern districts and a shortage of bodies due to a number of officers not renewing contracts.
During the meeting, the problems of young people committing crime, the law being too soft and traffic offences were raised, but most of those in attendance at the small meeting were supportive of their local officers.
Barrow confirmed that he and his staff would be back in the district for another meeting soon following the arrival of yet another temporary acting commissioner, James (Jim) Smith, at the beginning of next month.
FCU still faces scam victims
(CNS): Despite persistent warnings a number of people in the Cayman Islands still appear to be falling for frauds and scams generated through email and faxes taking up the valuable time of officers within the Financial Crimes Unit (FCU) which has dealt with some five victims this year alone. While the unitis tasked with dealing with the reports from those defrauded by online, email or fax scams, there is, in virtually all cases, nothing officers can do to recover lost funds.
Detective Constable Adrian Neblett from the FCU gave a special presentation last night, (Wednesday 26 November) as part of the East End District Police meeting hosted by area commander Richard Barrow. Neblett said that too many people were not looking closely at these scams and were just seeing the numbers. “We are all human and we make mistakes but these are scams and people need to know that we cannot help them when they fall prey to these international, internet based frauds. Once you send money to these people it’s gone,” Neblett warned.
The Detective said that the scammers use a variety of tricks and scenarios to con people out of money, selling expensive and rare breeds of puppies which they promise they can ship to Cayman, some pretend to be charities seeking help for disasters or the needy around the world, others use official institutions such as the IRS to hide there scams behind and many tell the email recipient that they are winners of a lottery, prize draw or even an inheritance.
Many originate in West Africa usually involving requests to transfer money to your bank account to get large sums of money out of the hands of a corrupt governments and other such nonsense. Neblett said that people should not send money as a result of solicited invitations on the internet or open emails from anyone they do not know. He said invariable while the deceptions may be dressed up in different guises they all request personal information such as dates of birth or banking details and inevitably money.
The FCU is a relatively small unit and is currently dealing with a number of complex financial cases not least the collapse of the Grand Island Fund earlier this year which has resulted in the arrest of one man so far, as well as the fraud alleged to have been committed by the former president of the UCCI, among others.
However, Neblett did say that despite persistent warnings the unit was having to deal with reports from victims in the community regarding these internet based crimes which they are powerless to address and which could have been avoided if people took more care and exercised caution rather than just seeing the big tempting numbers. “We do have to give some attention to these reports but we can’t do much more than take the details we can’t solve the crime,” he added. Neblett said while the unit was not spending a lot of time on it the unit cold not simply ignore the victims.