Law

Op-Ed: Cayman Islands Attorney General Samuel Bulgin on Ethics in Public Life

By: Caribbean Journal Staff - December 1, 2011

Ethics, Integrity and Accountability in Public Life

By Hon. Samuel Bulgin, QC, JP

Caribbean island nations are no longer solely laid back retreats for those seeking sun, sand and sea. We are world-ranked financial centres, and our tourism industries demand millions be spent on cruise ship ports, airports, and other infrastructure.

In both finance and development, we play on an international stage, sitting at bargaining tables with governments and wealthy individuals from all over the globe.

More and more, the world and our island constituents demand that we discharge our functions with due regard for the principles of integrity, fairness, accountability, and always in pursuit of the wider public interest.

Internationally some of these expectations are codified in documents such as the United Nations Convention Against Corruption (UNCAC) and the Organization for Economic Co-operation and Development (OECD) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.

The standards required of government ministers, members of parliament, senior civil servants, managers of government statutory businesses, and appointees to government boards and commissions reflect the fact that, as holders of public office, we are entrusted with considerable privileges and wide discretionary powers.

Accordingly, in carrying out our duties we are expected to:
•Ensure that we act with integrity – that is, through the lawful and disinterested exercise of the powers conferred on our offices and the proper use of available resources for public purposes;

•Observe fairness in making official decisions – that is, we must act honestly and reasonably, in consultation where necessary, taking proper account of the merits of the matter, and giving due consideration to the rights and interests of the parties involved, as well as the wider interests of the country;

•Accept accountability for the exercise of our powers and functions – that is, we must ensure that our conduct, representations and decisions, and the conduct, representations and decisions of those who act as our designates and/or agents, are open to and can withstand public scrutiny; and

•Accept the full implications of the principle of responsibility. We will be required to answer for the good or bad consequences of our decisions and actions and as such, must ensure that our conduct in office is in accordance with accepted ethics and principles and that we promote the observance of these ideals by leadership and example.

In the Cayman Islands the Register of Interests, Freedom of Information, and Anti-Corruption laws help inform those who serve the public of their legal obligations.

Ministers, all elected and official members of the Legislative Assembly, the Speaker, and any person appointed to assume the functions of those offices during the absence of the holder, are required to register personal interests, including but not limited to pecuniary interests.

This requirement is set out in the Register of Interests Law 1996. The Law’s purpose is to identify anything “which might reasonably be thought by others to influence his or her actions, speeches or votes in the Legislative Assembly or, any actions taken in his or her capacity as a Member”.

False declarations are punishable on conviction to a fine not exceeding $5,000.

With the passage of the Freedom of Information Law, 2007 (FOI), the public has been invited to help ensure that public officials are aware of the importance of openness and transparency in fulfilling their job requirements and doing government business.

Accountability and responsibility have been highlighted since information is more easily accessible. People have a legal right to inspect, copy or hear official records held by public authorities. Any person can make an open records request, regardless of whether they are living in the Cayman Islands or not.

Most Government entities have responded by making information available proactively on websites.

Currently the Information Commissioner makes rulings and uses ‘name and shame’ to encourage Government entities to meet the Law’s requirements. However, the Law does make provisions for fines and/or imprisonment for destroying, defacing, or concealing a record.

There are certain exemptions from disclosure, including some (but not all) records pertaining to security, defence and international relations; law enforcement; legal and parliamentary privilege; personal information; and health and safety.

The Anti-Corruption Law 2008 established the Anti-Corruption Commission. Its remit includes the power to both receive and consider a report of a corruption offence or detect and investigate a suspected offence. In addition, the Commission may assist overseas anti-corruption authorities.

The Law deals with a range of anti-corruption offences, including bribery of members of the Legislative Assembly, public officers or members of their family; accepting of bribes by a public officer or by a member of the Legislative Assembly; frauds on the government; breach of trust by a public officer; false claims by public officers; abuse of office; issuing of false certificates by public officers; paying of secret commissions; and bribing a foreign public officer

A duty to report corruption offences is imposed on public officers, and the Law provides for the protection of informers.

Punishments meted out on conviction are imprisonments ranging from two to 14 years.

All public officials must bear in mind that our private interests could give rise to conflicts of interest, that is, a conflict between our public duties and private interests which could improperly influence or be seen to be influencing the performance of one’s official duties and responsibilities.

There are provisions in the Anti-Corruption Law relating to conflicts of interest. Where a government entity proposes to deal with a company, partnership or undertaking in which the public officer, the member of the Legislative Assembly or a member of his family holds a certain amount of interest in that company or other body, the public officer or the member of the Legislative Assembly will be expected to disclose such interest.

An interest must also be disclosed if the public officer, member of the Legislative Assembly or his family member has a personal interest in a decision which a government entity is to make and the member or the public officer is a director, member or employee of that government entity. The definition of member of a family is quite wide and includes a spouse, brother, sister of the person or his spouse, child, parent, grandparent, aunt or uncle.

What should public officers do to avoid a potential or apparent conflict of interest situation? They should:
•abstain from involvement in the matter;
•relinquish the personal or private interests that conflict with the performance of their public duty;
•refrain from taking part in debate about a specific issue; and/or
•abstain from voting on decisions.

The acceptance of ministerial and indeed public office carries with it a serious responsibility and duty to the nation. Public officials are urged to know their local legal expectations and to seek guidance wherever necessary to ensure that we all maintain the high standards that have been set for us.

Hon. Samuel Bulgin, QC, JP is the Attorney General of the Cayman Islands.

Note: the opinions expressed in Caribbean Journal op-eds are those of the author and do not necessarily reflect the views of the Caribbean Journal.

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