Deterring abuse of public office
Aristophanes Duckpond writes: The PACT Government has published proposals for a number of very welcome legislative changes in recent weeks. There is however one proposal for legislative change that is not welcome, specifically, the government has published a proposed amendment to s.17 of the Anti-Corruption Act that should not be enacted in its current form.
The proposed amendment will have the effect of making it much more difficult to prosecute corrupt public officials. Consequently, this amendment, if it becomes law, will inevitably tend to deter prosecution and encourage more corruption and more internal and external problems for Cayman.
The current language of s.17 of the Anti-Corruption Act requires proof that a corrupt act of the type described in s.17 was done by a politician or other public official in order for that corrupt politician or public official to be convicted. That is difficult enough.
The proposed amendment will require investigators and prosecutors to prove not only that a corrupt act was done, but also that it was the intent of the corrupt politician or corrupt public official to corruptly abuse that person’s public office before that corrupt person can be convicted.
That additional burden of proving what was on a corrupt person’s mind at the time of the corrupt act will make successful prosecution of corrupt public officials much more difficult and therefore much less likely. So why is this additional difficult hurdle being placed in the path of corruption investigators and prosecutors?
As things stand, no elected official has ever been convicted for committing a s.17 (corruption in public office) offence in Cayman, no matter how egregious their conduct. So what is the incentive for our parliament to make it even more difficult to convict corrupt politicians and other corrupt public servants?
The proposed amendment does provide for a small increase in the maximum penalty in the unlikely event that a corrupt politician or other public official is convicted. However, that means nothing if the probability of conviction goes to near zero. Further, the new maximum penalty proposed in this amendment is far less than the penalty that already exists for theft by people who are not politicians or public servants.
I am also troubled that the published explanatory note for this proposed amendment may be viewed as at best deficient and at worst misleading. Our parliamentary process, including the citizen’s right to make representations to our legislators, requires that every explanatory note ought to clearly set out for legislators and the public precisely what the relevant draft legislation does and why it is being brought before parliament.
In this instance, the explanatory note makes no mention of the fact that this proposed amendment will introduce a requirement for proof of intent and will thus make the prosecution of corrupt politicians and public servants much more difficult. That is not acceptable. If MPs are being asked to vote to make the prosecution of corruption more difficult, they, and we the electorate, should understand exactly what our MPs are being asked to vote on and why.
The proposed amendment to s.17 begs the question, who, if anyone, is intended to benefit as a result of this proposed change?
There is no ‘People Driven’ demand for the reduced ‘Accountability’ this non-‘Transparent’ amendment will produce. The Caymanian public is not urging government to go soft on the prosecution of corruption. If anything, the Caymanian people are demanding that action should be taken to curtail corruption and all of the types of crime that are rapidly increasing in Cayman.
Similarly, there has been no change in the stance of the OECD, FATF or EU regarding corruption. Those organisations continue to demand that we work to deter and successfully prosecute corruption, not make it more likely. Doing anything that is perceived to be soft on corruption is likely to result in Cayman moving from the current grey-listing to outright black-listing, or at least Cayman languishing on the grey list for years to come.
If, as I hope, PACT actually wants to deter corrupt enrichment by corrupt politicians and other public officials and not facilitate it, then it should keep the current version of S.17 for abuse of office for corruption not involving enrichment and establish a separate new s.17A ‘intent based’ abuse of public office offence for cases involving corrupt enrichment.
That new ‘intent-based’ corruption in public office offence should provide for a longer term of imprisonment commensurate with other forms of theft. The maximum penalty for theft by ordinary people as set out in our Penal Code is ten years. Why should thieving politicians and other corrupt public servants face a penalty that is half the penalty set out in our law for theft by ordinary people as the current amendment proposes?
Corruption can put millions of dollars into the pockets of corrupt politicians and other public officials. Why should the penalty for that be only half of the penalty faced by ordinary people for theft of a few thousand dollars?
Similarly, why not prohibit people with previous convictions for corruption in public office from holding elected office or ever serving on a public board again? Who could object to that – other than the corrupt?
Wayne, Andre and the thinking members of PACT, please wake up, smell the coffee, and ensure that this potentially disastrous amendment is withdrawn or fundamentally rewritten. Please do not make corruption even more pervasive on these islands. We have too much corruption as it is, and we certainly do not need to be seen by the OECD, FATF, EU, the global financial services sector and the rest of the world as being soft on corruption.
See the bill in the CNS Library.
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While the Viewpoint raises some good points, it fails the test of logic and law. For an act to be deemed “corruption” there must needs be “intent”.
In a case alleging corruption, the prosecutor must be required to prove both the actus reus (act) and the mens rea (intent). An otherwise corrupt act committed without intent becomes simple malfeasance or misfeasance. The proposed law should incorporate very robust provisions to prosecute malfeasance/misfeasance.
I want to thank the author for raising our awareness on this matter!
We, the ordinary voters often do not take the time to really know what legislation our elected representatives support because, we are busy fighting our every day battles of survival. We stupidly believe that they will actually do what they promised during the campaign, clearly, we should know better! Thanks again!
All of this worry doesn’t matter, given that the anti corruption unit spend all their time targeting minor government employees caught with their hand in the till. The 10 year old investigation into Watson and Blake being a classic example of what a waste of time and money!. How has this helped the people of Cayman and what crimes have been ignored and allowed to take place while they’ve been investigating theft of footballs?
We going from bad to worse in these Islands. Possibly the worst chief of police, limited policing and poor investigative skills it seems has emboldened criminals to stand up, stand out and rob Peter Paul and their cousin.
Come on PACT tell the Guv that chief chief better buckle up or his salary will be suspended and he will go back to a cold dreary beat somewhere where the sun don’t shine as bright and the Authorities really know what to do with failures.
How on earth could you possibly view Watson and Blake as minor government employees!! These are professionals who were NOT employees of Government. Watson was a chairman of the Government board whilst engaging in corrupt activity. They were at the top of the chain even if they were not Government ministers. It is a disservice to Cayman for people like you to make these false statements to disparage the work of the ACC whilst supporting this sort of corruption.
I for one don’t think that Andre is corrupt but if he allows this to go ahead I will have to re-think my beliefs in that regard.
A literal get out of jail free card for corrupt politicians that they get to create for themselves – “it was not my intent”.
It will be interesting to see if PACT goes ahead and passes this corruption accelerator. My guess is that they will count on enough of the electorate having a short memory and will vote themselves another ‘raise’.
Inserting such a provision in the bill, and then providing a misleading explanation for it, arguably together constitute in themselves a corrupt act, specifically designed to assist bent public officers.
Mr Attorney General, we should be told exactly who commissioned and who drafted them, and why.
And pigs might fly.
No doubt PACT Cabinet sought the learned opinion of Attorney General Sam Bulgin to ensure this would fully insulate their schemes from prosecution. They can rest well knowing he has been installed as head of the CFATF. Can’t make this stuff up.
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The “learned opinion of Attorney General Sam Bulgin”. Hilarious. 🤣😂
PS…”INTENT” is impossible to prove!
Actually, it’s easy when there is access to contemporaneous evidence: Texts, WhatsApps, Emails, call logs, agreement drafts/files, payment records, meetings, staff interviews, all set the “intent” scene quite convincingly for convictions.
@7:29:
Providing compelling evidence of intent sufficient to successfully prosecute is far from impossible.
Completely correct A. Duckpond…in fact, it is meant to PROTECT corrupt officials/politicians…
A perfect flaw for a PACT of liars crooks and Cronies & DumDums.
From a foreseeable future conversation involving a certain politician – “It was not my intent to abuse my public office. I was intending to collect a fat ‘consulting fee’ for assuring the developer that I would speak to people and ‘explain’ why the project should be approved.” “Prove otherwise.”
Perhaps the reason that the Anti-Corruption Law is being weakened is that according to the Code of Conduct Ministers supposed to comply with it at least in theory????
The Code of Conduct only requires Ministers to comply with Laws they consider to be ‘relevant’…. what a joke! In contrast we have to comply with ‘All’ Laws.
I totally agree with the writer about what needs to happen in this case but look at the pattern for this bunch… form government that is totally dependent on Mac… First act is to vote themselves a huge raise… next they appoint a person with a prior criminal conviction in relation to government board activities to another government board …. ‘looses’ topsoil …… should we really count on them deterring corruption?
PACT should be ashamed to have EVER appoint any person with a criminal conviction to a public board.
Not just PACT, but also PACT. This has been the way in Cayman since the 1600s. Voters will need to petition to change the Elections Law and any other institutionalised governance failures baked-into our reality. Parliamentarians, many of them with criminal records, aren’t going to do it.
Why now?? – ‘wandering topsoil’ getting too close? part of resignation package for you know who? new condo development that does not meet conform to planning law has come into view? – so many choices
What is the legal definition of “public official” in this context? Is this the entire civil service from the head to the mail room?
We can’t have this discussion without mentioning the influence of the Lodge on the actions of the elected government AND the civil service. This is an issue that many know is a problem in Cayman.
Tiberius is absolutely correct…and it’s actually getting worse.
One local Lodge was hosting their Jamaican masters at a conference this past weekend
His Excellency, President for Life, Field Marshal Al Hadji Doctor Idi Amin Dada, VC, DSO, MC, Lord of All the Beasts of the Earth and Fishes of the Seas and Conqueror of the British Empire in Africa in General and Uganda in Particular doffs his cap in admiration and awe at the scale of Caymanian corruption.
You forget he was also Last King of Scotland.
All good. All will be ignored. All is wasted on the Caymanian uneducated, bought-out electorate that holds all cards for who is elected Ministers and will control what is decided. Summary = Cayman is screwed due to corruption. Send your children off-shore for education, and future employment (I say this very sadly, but with logic vs emotions).
Intent has to be proved for lots of crimes. Not sure how you prove an act was corrupt without proving intent at the same time.
21 @ 6:23pm – You don’t get it.
The concerns Duckpond point out allow for corruption to be excused with “I didn’t know”. Not like say, outright theft.
Changing that part of the legislation is a gimme for corrupt types.
There’re lots in the world- class public service.
Perhaps, instead of proving intent, it should be reduced to “suspicion” (just like in the Proceeds of Crime Act).
The point is that we should demand that our elected officials obey ALL the Laws at all times. They should be held to a higher standard as they serve as examples to our young.
Emails, texts, whatsapps, imessage, FB/IG, meeting schedules, files, transfers, staff interviews, bank/crypto records, real estate transactions, conflicts audit. Many of our politicians have been doing this so long that they continue to ask for cash transfers into accounts in their own name, using their government emails. Still don’t get prosecuted though…that’s the bigger problem.
Duckpond, thanks for presenting that valid concern. But like other items of concern with proposed legislation, there is no robust process or system for meaningful public consultation. Hopefully your concerns will reach the right ears.
When input was being solicited on a recent issue, I wrote to the Law Review Commission. After a few prompts to get a response, a senior staffer advised me to take my suggestions to my MP.
My suggestion (pertinent to the issue) was that the mandated minimum penalty for inadvertenly driving without insurance (forgetting to renew) should not be the same as the mandated minimum penalty for intentionally driving while intoxicated – that is, mandatory driving suspension for 1 year.
“My” MP is the one from WBW.
Wonder if LRC were taking the piss?
Of course they were. They’re utterly useless, and yet their members, all prominent senior lawyers, are customarily handed out KCs for next to nothing. Ask how many of their pieces of legislation they’ve had passed compared with the Financial Services Legislative Committee.
I completely agree with this comment. The Law Reform Commission desperately needs new dynamic leadership. Their approach is outdated and consequently none of their propose legislation has ever passed into law. Plus the cronyism in delivering undeserved KC to use members is an insult to those who genuinely deserve recognition.
Ask yourself how long has it been since revelation of misconduct by Speaker, confirmation of investigation by RCIPS, and stated commitment to refer a prosecution evidence file to DPP. There’s your answer on the state of top-down corruption in the Cayman Islands.
You are right. When potentially good arguable cases of criminal wrongdoing is pointed out, it appears that there is long-standing history of doing nothing and looking the other way.
I agree with the content of the above letter.
Now I dare any public official to respond to this letter.
O.k. Mister Duckpond, Im with you. Why DO we let our elected or appointed thieves enrich themselves? Could it be because everybody’s doing it, doing it, doing it? The persons involved in these thefts of OUR money should serve time in one of our nice prisons!!
Even grandfathering or statute limiting of abuses won’t be sufficient when the abuses continue….they are ingrained in the politico psyche of Cayman.
Under your recommendations, any MP in a casino who repeatedly, but quite accidentally, puts his hands on the gluteus maximus of a cocktail waitress could be charged with a crime. Pure bureaucratic herassment I say.
Hear, hear.
Very well said.
I hope your suggestions will be heeded.
what ? making it harder to convict corrupt M P’s and Senior C S’s. more corruption ?
Cayman is a cesspool of institutionalized corruption from the inside out and from the outside in.
As a Caymanian in the only homeland which I know, it has become an unavoidable reality that this place is no longer a tenable place for the future for those who do not want to be and are not a part of that corruption and cannot and will not accept continued subjugation to these systemic injustices and the destruction of quality of life which every facet of existence being a Caymanian in the Cayman Islands has become.
There is no Utopia, but enough is enough.
Not once have I ever been represented by the leadership of my homeland. Not one of them speaks for me, my well being or my interests. The entirety of the system is designed to disallow what is necessary for the well being and the interests of the Cayman Islands and her people to be represented and protected from the inside out and the outside in.
Now THAT’S the way it really is! I have been looking for a less corrupt place to live but haven’t found anything that was much better, and that is NOT a compliment.
The author makes very valid points. Why is it the Parliament is making it more difficult for MPs and public officers to be convicted (under s.17, Anti-Corruption Act) by including an additional requirement to prove intention?