Anti-corruption law limited
(CNS): The recent successful prosecution of the former deputy chair of the National Housing and Development Trust has demonstrated that the anti-corruption law is considerably more limited that legislators had originally envisioned. Although Edlin Myles was found guilty on seven counts of deception in relation to fraudulently selling insurance policies to applicants of the Trust, the 62-year-old former board director was not prosecuted under the law that was designed to cover people in government positions. Although Myles was able to access his victims because of his position on the board the crown could not define him as a public official under the current law.
Although Myles was originally arrested under sections 13 and 17 of the Anti-Corruption Law 2010 for breach of trust and abuse of public as well as the common law deception offences, the charges under the anti-corruption law were all dropped. During his direction to the jury last week, Justice Alex Henderson pointed out to the jury that while they make have felt Myles misused his position on the board to fraudulently sell the policies, the judge impressed upon them that they could not find him guilty because of that as no conflict or abuse of office charges had been laid against Myles.
The now demonstrable limitations of the legislation have raised considerable concerns and some government officials, who do not wish to be name,d have has stated that the legislation must be revised as it is not fit for purpose.
The legislation is based on a number of anti-corruption laws used in other jurisdictions but was never localized to fit the Cayman context and in particular the use of private sector and volunteer directors on government company and statutory authority boards
When the law was implemented in 2010, the attorney general released a statement warning all board directors and others working with government that they would be subject to the new legislation. Samuel Bulgin had pointed specifically to people serving on government and statutory boards and said it would have a significant impact on them from potential conflicts of interest to abuse of office.
However, it appears that the government’s top lawyer was wrong.
The Myles case has highlighted the limitations of the law. It appears that board directors who are not directly employed by government and paid only expenses or a stipend are not covered by the legislation, leaving all of government’s companies and authorities, from Cayman Airways and the Turtle Farm to the Airport and the Health Services Authority, vulnerable to corrupt officials. While the civil servants sitting on boards and the employees of the government companies and authoritiesappear to be covered, anyone from the private sector who is appointed to a board need have no concern about the law applying to them until it is revised.
CNS has contacted the Cabinet for comment on the situation, which appears to boil down to problems with the definition of a public official. However, as yet there has been no comment on its position regarding the law, which was originally touted as a success for good governance but which in practice is proving to be unfit for purpose.
See related stories on CNS:
Top lawyer warns boards about anti-corruption law
Civil servants need anti-corruption training
Category: Uncategorised
Without effective whistleblowing legislation, the Anti-Corruption Law will continue to be weaker than it should – or the expectations of that Law will not be fully realized.
This reflects negatively on the AG. Add this incident to the OperationTempura scandal. Maybe it’s time for Cayman to hire a new AG.
Seems to me, this law is about as useful as an ashtray on a motorcycle
Well the last thing they want is an anti-corruption law that works! How would they get anything done? The only way we'll get a proper law with some teeth is if the UK passes one for us.
I used to see this in Eastern Europe when it first became free-one rule for the rulers, another for the masses…however most of the crooks came unstuck in the end (or are coming unstuck now) however the public needs to push this through
While the ACL does require some amendment to ensure that it covers board members of government companies (and the National Housing Development Trust is a government company) contrary to what this article suggests it does in fact cover board members of statutory authorities, boards and tribunals whether or not they are in receipt of a mere stipend. The assumption appears to be that "public officer" is limited by the definition of "public office" which is defined to mean an office of "emolument" in the public service, and so would exclude those on stipends. However, "public officer" is defined far more extensively than a person holding a public office and includes "a member of any statutory body" and does not exclude those who are on stipends. Technically, the AG's statement that it would cover "public offices from Justices of the Peace, to the Legislative Assembly and Cabinet. It also covers persons serving on all Statutory Board/Authorities, Tribunals and Commissions of Enquiry, as well as Jurors" was correct.
Unfit for purpose…that describes this country so well.
There needs to be Law, to give the impression that something is being done, but the important thing is that the law can't stop things happening as they have always happened. It really is quite tricky to achieve but by jove they managed it.
And no better place than Cayman to look to for numerous precedents in the art!
Must have happened by accident then!