Reference point

The Turks and Caicos Islands appeal court has given the green light to an inquiry that is set to probe into the heart of the islands’ government. David Phillips QC and Patrick Patterson report on how the court reached its decision

Reference point On 6 July 2008 the House of Commons’ Foreign Affairs Committee published its ‘Overseas Territories’ report, containing damning criticism of the governance of the luxury Turks and Caicos Islands (TCI).

The report claimed that the islands were in the throes of institutional corruption, aided by a palpable climate of fear among the local population.

Allegations included corruption in regard to the sale of Crown land, the distribution of contracts and ­development agreements, the granting of Belongerships (a status that indicates ­freedom from any immigration restrictions and also confers rights­ ­normally associated with citizenship, including the right to vote) and the misuse of public funds. The report also expressed concerns about freedom of speech on the islands. It concluded by ­recommending that the UK Government launches a commission of inquiry into the allegations. The inquiry would afford full protection for all ­witnesses involved.

The islands’ Governor at the time, Richard Tauwhare MVO, consequently used his ­discretionary powers to appoint Sir Robin Auld as a commission of inquiry to report on whether there was evidence that corruption or other serious dishonesty had taken place in relation to past and present elected members of the TCI House of Assembly.

The appointment contained a number of directions. This included that Auld should submit preliminary findings and recommendations within 16 weeks, and that he should state whether the inquiry’s terms of reference should be extended.

However, although the Governor acted speedily, the process was hampered by the inevitable court challenges that followed, as well as the natural disruptions posed by the tropical hurricane season. The matter came before the Chief Justice Gordon Ward on 21 July by way of an ­originating summons seeking to set aside Auld’s ­appointment.

The principal challenge, brought by TCI members of parliament Royal Robinson ;and Samuel Been, was that the terms of reference were too vague. A subsidiary challenge was made to the ­direction that Auld could recommend an extension of his terms of reference.

The claimants’ case relied heavily on the Privy Council decision in Ratnagopal v Attorney General of Ceylon (1969). In this case, the terms of reference directed the commissioner to inquire into “any matter in respect of which an inquiry will, in his ­opinion, be in the interests of the public safety and welfare”, and included an authority to the commissioner “to hold all such inquiries and make all such investigations into the aforesaid and other like matters as may appear to you to be necessary.” The Privy Council consequently set aside the ­appointment. The claimants argued that Auld’s appointment was flawed for similar reasons.

The Chief Justice considered the central question to be whether, having identified that the matter was of sufficient public importance to merit the appointment of a commission, the Governor had ­“sufficiently circumscribed the scope of the inquiry to allow persons involved to know what is and is not within its terms”.

He continued: “The most carefully ­crafted terms of reference must leave some matters to the discretion of the commission… As any… information comes to light, the ­commission must be able to decide the ­significance and whether further inquiry is within the scope of its terms of reference.”

He later added: “The difficulty is that the very nature of corruption defies precise ­definition. Like a rot that can, unseen, destroy the fabric of a house before ­coming to the surface, corruption grows and spreads out of sight, only occasionally revealing itself. When it does, it reveals only its presence, not its extent or when it ­started. Treatment of the visible part alone is not ­sufficient. The true extent of the ­trouble will only be revealed by further examination. To limit this inquiry to specific allegations already made could risk leaving the real problem, if there is one, unrevealed and untreated.”

Perhaps not surprisingly in view of these passages, the Chief Justice considered the appointment to have been within the wording of the ordinance and ruled the commission to have been validly constituted. He did, however, strike out the direction authorising Auld to state whether the inquiry’s terms of reference should be extended.

The claimants appealed. The hearing of the Court of Appeal was disrupted by ­Hurricanes Ike and Hanna but eventually took place on 12 September in
Miami. The Court of Appeal upheld the Chief Justice’s ruling.

It ruled that “corruption or other serious dishonesty” by elected representatives was capable of constituting a matter of public importance, notwithstanding that it may embrace corruption or serious dishonesty in a private capacity unrelated to government affairs. It further ruled that the terms of reference were sufficiently specific and did not confer an improper discretion on Auld.

The claimants withdrew the application for permission to appeal to the Privy ­Council , which was due to be heard on 4 October in Miami. Auld is, therefore, free to deliver his “preliminary findings and recommendations”.

The 16-week period ended, perhaps appropriately, on 5 November. It seems ­likely that one way or another the courts have not seen the last of the fireworks that were ignited by the Foreign Affairs ­Committee’s report.

David Phillips QC is a barrister at ­Wilberforce Chambers in London and Patrick Patterson is a partner at Caribbean Associated Attorneys in Anguilla