fp Turks and Caicos

Having said the above, there are some issues, treated in depth by Mr. Justice Sir Robin Auld which are revealing. In particular, that the public hearings could have been avoided, and with that, the scaring of the reputation of Turks and Caicos, which was its inevitable result. The report shows a routine recalcitrance on the part of many of those who are its subjects to corporate fully. The fp wrote at the original announcement of the Commission of Inquiry (before a decision was taken to hold public hearings), that the Inquiry should be welcomed. It was the absence of that welcome that lead to the dramatic public testimony, which took place here in Turks and Caicos in Spring of this year; which will alter the history and perception of these islands forever.

Additionally, there are some brilliant sections of the report, particularly, that which deals with previous Commissions of Inquiry, such as Blom-Cooper and a variety of Reports on Governance in the Turks and Caicos. Belongers should take note at the litany of longstanding concerns about governability here in Turks and Caicos as a means of gaining a perspective on the obligations of government, institutions and citizens insofar as the peace, order and good governance of Turks and Caicos is concerned. There are excellent sections also on Crown Land and its vexed distribution methods over the years; the success or failure of which is has a direct proportional impact on the prosperity of Belongers themselves. However, most of the public attention will likely focus on the more nebulous and impermanent aspects such as the charges levied at the former Premier, The Hon. Dr. Michael E. Misick MP and his colleagues.

On it face, these charges will require further investigation, forensic analysis and evidence, before they can rise to the level of an indictment. Mr. Justice Sir Robin Auld seemed attuned to this, as everywhere in the report, he himself constantly raised ‘reasonable doubts as to the criminal import of the behavior he described. Moreover, it is not clear what will result from the much mentioned and clear proved failure of Members to have reported their interests. This a generally a “conflict of interest”, which is itself not a crime. However, political donations, as per the Elections Ordinance carry a direct legal prohibition, and may be, if proven beyond reasonable doubt, the Waterloo of the former Misick Administration. As such, regard must be had for the permutations of likelihoods which can be drawn reasonably from the facts, and a determination whether, and if so, how, these facts and the information in which they are contained will be brought before a court of law.

Mr. Justice Sir Robin Auld again, himself shows us to the problems, saying that most of the information was “hearsay”, which we know cannot be admissible in a court of law. As such, the report itself is the forerunner of another prolix process, which is an investigation.

However, much can be revealed in a general consideration of some of the issues raised by Sir Robin.

The question of criminal charges is paramount here: In general, it is hard to see how anything described as a “possibility”, as Auld indicates repeatedly, can also be proved “beyond reasonable doubt”. The very nature of a “possibility” means there is no proof in the hands of the person who describes it as such. This implies that a civil rather than criminal emphasis is the more prudent course of action for the inevitable prosecutor. Time and circumstances suggest that to do otherwise will wear on the momentum of the case, and likely undermine its credibility by means of a vexed process. What this means, is that as Sir Robin himself indicated, corruption is mightily difficult to prove, and in practical terms a civil course might prove more apt at bringing about a result consistent with the evidence in hand and that which is likely to be discovered.

That does not end the matter as the Final Report shows. Mr. Justice Sir Robin Auld has recommended reversing the “burden of proof”. In the English legal system, in criminal matters ordinarily, it is the prosecution that must prove the guilt of an accused, beyond reasonable doubt. Auld proposes to see that altered, by having the accused – The former Premier and his former Ministers, named in the Final Report – prove their innocence according to a judicial standard. This would constitute a radical change, if it is followed.

Let us examine the issues: there are two considerations, primary amongst all others, when there is talk of inverting the burden of proof. Again, the principle that everyone is “innocent until proven guilty”, implies that the burden of proving such guilt lies with the one making the charge, usually the government, represented by the police and a prosecutor. To invert the burden as Sir Robin recommends, is to say that the accused – in this case the former Premier, his colleagues and others – will have to prove their innocence which is not the same as disproving their guilt. The first of the two issues is the burden. If it switches to the accused it means they and not the prosecutor must do the proving. Failure to do so would result in a finding of guilt. The second consideration is the standard. In criminal matters, that standard is ‘beyond reasonable doubt”. When the burden is switched to the accused, then the standard is a “balance of probabilities”. Under this approach you take into consideration all the relevant information, then ask, when I look of all the information before me, is it more or less likely that in balancing all the probable explanations – say for the political donations the Inquiry revealed – that there was or was not corruption? That is the question. If one concludes that in spite of the reasons and explanations given by an accused, when all the information is balanced, it is more likely that a crime has been committed, then, a finding of guilt will result. It follows that the former Premier and his colleagues will have to show that given all the facts, when one considers the permutations of likelihoods, that it appears less likely that corruption was in play. If that is accepted than a not guilty verdict may result.

The Final Report deals somewhat in depth with many of the situations that lead Mr. Justice Sir Robin Auld to recommend criminal proceedings. However, in some instances, misunderstandings persist. The fp has had the advantage of reviewing the Joe Grant Cay deal, and the only issue that makes that deal intriguing is an absolutely bizarre (patently ridiculous) perception of the part of some about the value of Joe Grant Cay in its natural state. When such naïve assumptions are removed, the deal is quite to the advantage of the Turks and Caicos government.

In another important connection, Sir Robin in a variety of places makes note of the size of these islands, and seems to say that the franchise should be enlarged because it is too small.

Sir Auld visits this issue on many occasions, touching on his impression that enlargement of the franchise is required to create fairness in the system. Auld named “empowerment of Belongers” as one of a number of conditions which made the TCI fertile ground for corruption. His calculations seem to be that the country is unbalanced, being made up of 7,000 electorates representing a population of 36,000.  Clearly, this, if it is his contention is a mistake. Whether the electorate is 700 or 7,000, the people of Turks and Caicos are at home. It would be unwise to ‘talk up’ expanding the franchise, merely because the electorate is proportionally small, no matter the impacts of that.

The principle issue at hand regarding foreigners, is that it cannot be acceptable to any reasonable person that foreigners should be invited to come here and find that after they have worked and invested time and energy, that on a mere complaint, they can find themselves removed from the benefits of their labour, or dismissed summarily from the country.

What is needed is a clear legislative process to be laid out and it must give protection and peace of mind to those foreigners who accept our invitation to come and work and live here. Additionally, to the extent that this country wants to include foreigners as citizens, again a clear path must be made and must be free from political interference; and demonstrably so.

Now that the report is out, considerations may be made as to the next steps. In mid-August the matter of The Hon. Michael E. Misick MP will be heard. There was a reference in the Final Report that this matter was twice dismissed. If so, that is not accurate. Should the UK win and not leave to appeal is granted, suspension will follow immediately Should they win and leave is granted, it is likely that they will be prevented by injunction from proceeding with suspension. Should Misick win and the British appeal, we could remain as we are until next year; those prosecutions may commence n matter the situation on the ground. Should Misick win and be granted that Parliament should remain in tact, partial suspension will ensue, with the Premiership and Cabinet abolished from existence. The Final Report is out: It is anti-climatic; it paints a longstanding picture of precarious governance; it is still a waiting game…