Open Mic

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National Youth Ambassador Corps. On Friday, I had the privilege of addressing the young people of the Corps on the need for checks and balances in any future Anguilla Constitution. On Wednesday 28 May coming, the Corps has organised a panel discussion. It is designed to educate young people about the process of Constitutional reform. The event will be broadcast live on Kool FM. Questions can be emailed to the Kool FM Chat Room on the night of the event. It has been widely publicised on the island.

At the Friday meeting, we discussed the need to ensure that any future Constitution of Anguilla does not set in place a dictatorship of the Executive Council. Executive Council has the power to do permanent and irreversible damage to Anguilla and its society. At present, the only check on ExCo is the overriding power of the Governor and the Secretary of State. None of us has ever heard of either of them intervening to put a brake on the mismanagement of our leaders.

We can't blame the British. They have bigger fish to fry. The Governor is not put in Anguilla to guide and advise Ministers, far less to lead them. He has traditionally got one instruction from the Secretary of State before he sets out to take up his appointment, “Just make sure that we do not hear of any scandal in the press!” Once the Governor succeeds in keeping his assigned country quiet and peaceful, he is considered to have done a good job. If the locals allow their government to create havoc, that is their business. The Foreign Secretary is busy arranging to help the US bomb Iraq, while trying to restrain them from doing the same to Iran. How could we expect him to even be aware of Anguilla's existence, far less be concerned about the state of our government?

So, we are going to have to take the issue of good governance into our own hands. No one is going to look after our interests if we do not do it for ourselves. The new Constitution is our opportunity. We have to persuade the Legislature and the Executive and the British government to insert a full raft of checks and balances in our Constitution. Then, we shall be able to sail into future waters of increased self-government with confidence. If we do not, then it will be a case of the same old, same old. Only, with worse consequences.

Most of the different oversight bodies that I have previously written about come out of the Recommendations of the Constitutional and Electoral Reform Commission. Some have emerged from the subsequent discussions that have taken place under the aegis of the Chief Minister's Negotiating Team. So, what are some of these essential checks and balances? The list, with a link to any relevant earlier post, includes:

National Security Council

Boundaries Commission: 3 April 2008

Public Service Commission: 7 April 2008

Teaching Service Commission: 7 April 2008

Police Service Commission: 16 April 2008

Financial Service Commission: 20 April 2008

Judicial Service Commission: 24 April 2008

Anguillian Status Commission: 22 April 2008

Mercy Committee: 28 April 2008

Human Rights Commissioner: 27 April 2008

Complaints Commissioner/Ombudsman: 15 January 2008

Police Complaints Authority: 16 April 2008

Interests Commissioner: 19 February, 11 March, and 15 March

Crown land: 30 August 2007

Public Accounts Committee: 9 August 2007

Freedom of Information Act: 14 February 2007

Procurement: 26 February 2008

Integrity Pacts: 28 February 2008

This list is not exhaustive. The list is not necessarily the best. It may be too short for some. It may be too long for others. It may need compacting and collapsing. The functions are all important ones. It is not essential that there be a separate Commission or Commissioner to carry out each separate function. Given what a small island we are, one Complaints Commissioner may be able to handle the functions of the Ombudsman, the Police Complaints Authority, and the Human Rights Commissioner. It is not difficult for a legal draftsman to provide one body that will perform several quite different oversight functions.

Just let us not lose track of each of these functions.

I hope they come up on “Open Mic”.

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Government

Seldom has there been a more searing indictment published. Some of us are afraid. We are young, and there are mortgages to pay. Some of us are employees of the State, and our lips are sealed. Most of us are young, and terrified of victimization. Only the older persons among us can publish the truth and be unafraid.

Harry Wiggin is an English Solicitor. He is married to Attorney Pam Webster and lives at Island Harbour. He has earned all his laurels, and is unafraid. He did it for the FAC

Read it and weep!

Culture

Does Anguilla Have a Culture? Several of the papers read at the recent Association of Caribbean Historians Conference in Paramaribo dealt with the importance of culture in the evolution and development of a post-colonial society. Reading them was an eye-opening experience. They caused me to ask questions about where we in Anguilla are going.

Anguilla is a British Overseas Territory. But, we live in the Twenty-first Century. The Colonial Era is long past. The history is inexorable. We have a colonial Constitution. But, our people are a post-colonial people.

The boast is frequently heard that there are few West Indians so independent-minded as the average Anguillian is. We lack no material want. There is a refrigerator in every room in our house. Each child has its own TV in the bedroom. National Bank and CCB ensured that every home had at least one computer before the year 2000 arrived. Children set off to school with a hundred dollar bill instead of a packed lunch. But, what does it all really mean?

Anguillians, like our brother and sister West Indians, are emerging from a heritage of shattered identities. We have survived the dehumanizing effects of slavery, colonialism and imperialism. Rapid economic development has occurred over the past five or six years. We have begun to stand on our own feet. An invasion of tourists and immigrants from all corners of the earth besets us. Large numbers of persons of other cultures arrive daily on our shores. Non-Anguillian residents, in all likelihood, now outnumber native-born Anguillians. Will Anguillans survive as a people?

All that holds an island people together is a set of symbols, a tiny territory, and an idea that we could be a nation. It takes cultural rootedness to develop a nation. Cultural identity is as equally important as political independence and economic self-sufficiency in the process of nation-building. Cultural development is the bedrock of the creation of a national identity. Do we own what Rex Nettleford has called, “a sense of belonging, a psychic ease, the valuing of our contributions, a space in which to grow and the natural acknowledgment of our worth and dignity as human beings”? Where is the Anguillian dance company? Who are our folklorists? Where is our pantomime? Where have all the actors, singers, dancers, directors and playwrights gone? How many Anguillians are involved in the plastic and fine arts? Other than Carnival once a year, do we honour our popular and traditional arts? Who drives Anguilla’s cultural policy?

Some of us are old enough to remember Trinidad, Barbados, Jamaica and Guyana at the time of independence. What an upsurge of popular creativity we saw then. Are we experiencing the same? Is there any Anguillian working at the preservation and promotion of the arts? What infrastructural framework have we put in place for the management and future development of culture? Who is studying the double impacts of tourism and immigration, the influence of popular US culture, the drug trade, and crime, on our cultural identity? Is there anyone in Anguilla who cares deeply and is dedicated to creating a “civilized” society?

Is it sufficient for our people to have a job, with good money coming in? Is anything permitted, once we can make a good living? Is material satisfaction a complete substitute for intellectual stimulation?

Does Anguilla have a culture? Does any Anguillian even care whether we do or not?

History

Education. We all know that working at broadening one's perspective pays intellectual dividends. I advise my students that a youngster from a small Caribbean Island cannot expect to possess a well-rounded education without having spent quality time away studying. Being physically present in another culture, even another climate, is a whole education in itself. Staying at home and absorbing the same degree of cultural exposure takes unusual focus and determination. A good education calls for wide-ranging reading and study so that the mind is opened and can flourish.

Well-stocked libraries hold the total sum of human knowledge. Some libraries that I have known store millenia of human research and learning. Successfully accessing the sum total of human knowledge from home, when one's homeland is a tiny island, is problematic. The only effective way is to spend time as a student on campus in another land.

Anguilla's public library is no focus or centre of world-wide learning. I recently asked for a copy of a Greek classic to discuss with a student. It was nowhere to be found. When I enquired, I was told it was too old for the shelves of our library! My students laugh when I ask their views of the school library. I have not pressed them on the topic any further.

Last week I've been in Paramaribo, Surinam. There I listened to the offerings of the best of our West Indian scholars speaking on our history, sociology, economy and politics. They were a mixture of professors, students and researchers. As a result, I return home refreshed both mentally and intellectually.

The field-trip this year was to the historic recreation centre of Kolacreek. We swam in its bauxite-red waters.

The past week brings home to me the crass materialism and shallowness of Anguilla's elite. I become aware of the narrow-mindedness and spite of our not-yet-elite. Both impressions are nearly washed away by the week's immersion. Surviving another year of incompetence, corruption, bigotry, spite and malice seems just possible.

We can go away to live among other civilisations and still come back home unimproved. I have known students who have spent several years at distant Universities and return home qualified, but as unimproved as if they had never left.

It remains true that one can lead a horse to water, but one cannot force it to drink. I still urge my students to spend a few years in New York, London, or Vancouver. Drink deeply at the waters before you come home. An education is not a means of earning a living. It is an essential attribute for enjoying a quality life.

The ACH Executive Committee

Professor Pedro Welch with Joel and Joyce Toney

President Verene Shepherd and Gail Saunders

Professors Bridget Brereton and Richard Blackett enjoy Koalcreek

Verene Shepherd, Richard Blackett and company

Yes, that is a Surinamese ant walking across a half-inch board

Bahamas

I Feel Out of Touch. Last week I was in the Bahamas. This week I am in Surinam. So, I am a bit out of touch with events in Anguilla, to say the least. Reading the story in the internet edition of The Anguillian Newspaper of the lawsuit brought against government for its delivery of the national park at Blowing Point Harbour to the dolphin prison-keepers was like a stifling man breathing a draft of fresh air. Ijahnya's comments were a devastating indictment of those who would betray us. Nat's editorial was one of those political markers that cause you to say, “Things must be changing!” Thank God, that not all Anguillians are prepared to bury their heads in the sands of opportunism and crass materialism. Some of us still want things to be properly done in government. Only a few, it seems, judging by the negative comments I have read on some of the social network forums involving Anguilla. A crucial litmus test would be to count how many Black and Brown Anguillians came out to the Court House to observe the legal proceedings? I cannot imagine it was many of us. Most Anguillians, of whatever hue, judging by the posts on Anguilla Talk, deny that anything wrong ever happens in Anguilla.

The Anguilla Rotary Club had a big turn out in the Bahamas. We were there to witness President Seymour Hodge receive the accolades he deserves. Seymour has almost single handledly taken the Rotary Club out of the doldrums of the past into the Summer Trade Winds of the future. Our projects last year were comparatively modest. Contributions to schools. Cleaning pathways of garbage. Producing benches for public places. Nothing earth-shattering. But, good community contributions nevertheless. Anguilla Rotary Club won as many citations and awards as others in the District.

Congratulations, Seymour!

Next week, Surinam.

A-G's Chambers

The Power of the Attorney-General's Chambers. The way I heard it said, the A-G's Chambers have power. When the Queen says, "Stop", you can ignore her. When the Governor says it, you can pretend you did not hear. When the Court says it, you can keep right on going. But, when the A-G's Chambers say it, you better comply. Or else!

On Tuesday 6 May 2008, the High Court instructed the Dolphin Discovery people to obey the following order:

“That all construction of all piers or structures or any encroachment on the foreshore or floor of the sea in whatever manner at the Sandy Point Beach or in the waters forming the Port at Blowing Point by any persons whether by themselves, their servants or agents, in violation of the requisite licensing provisions of the Beach Control Act and the Ports, Harbours and Piers Act cease forthwith until further order.”

What happened the following day, Wednesday 7 May? Did the Dolphin Discovery people comply? No, they carried on working at full speed. The following photograph was taken on Wednesday. It appears to show the Mexican workers placing a new pole in place at the dolphin pen at Sandy Point:

And what was photographed the following day, Thursday 8 May? Did they obey the court order and stop work? No, construction work continued at full speed. According to my correspondent, at about 11:00 am there were five or six workmen carrying telephone poles, cutting steel rebar and drilling on the piers. Illegal work appears to have continued at night by the use of powerful lights. The work that was done at night must have been phenomenal. The aerial photographs presented in court showed the walkways unfinished. By today, Thursday, the walkways were all covered in boards making it easy to walk around the dolphin pens. My photographer was only able to shoot a couple of photographs during daylight hours. They show the following:

But, today, Friday 9 May, Mr Ivor Green, Senior Crown Counsel of the A-G's Chambers, attended at Dolphin Discovery at Blowing Point. The Mexicans were still hard at work on the illegal construction. Some tough talking must have taken place. All construction work appears now to have stopped. Here we see a couple of photographs of Mr Green first arriving at the work site and then meeting with the workmen and then apparently demanding that all work cease:

Thank God the A-G's Chambers carry so much weight. I guess the Order of the Court does not matter so much in Anguilla. It seems that the Court's Order can be safely ignored until the A-G's Chambers go into action in support of it!

I guess we are all now safe, basking in the rule of law? Do we not feel safe and comforted?

Have we not earned the right to “full internal self-government”?

Dolphin Park

Dolphin Discovery Relocation at Sandy Point to be Investigated. This case is not over. A final decision still has to be given. We have to be careful what we write. It is important not to pollute justice by writing things that can be read as intended to wrongfully influence the court.

However, we cannot let the making of the recent order in the High Court pass without any notice at all.

The court had been asked to permit the neighbours of the Dolphin Discovery to bring the government to court. The alllegation is that government did not follow its own procedures and laws for permitting an activity such as this to begin at the Sandy Spit at Blowing Point Harbour. I have written about this previously, most recently here, and here, and here.

The court listened to the argument by the neighbours and by the government. The court agreed that the matter needed to be fully ventilated. While the matter is being made ready for argument, the court ordered the dolphin people to stop their construction.

The story of the court's decision has been published in the newspapers. You may like to read the actual words of the judge. This is what she said:

“THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

TERRITORY OF ANGUILLA

(CIVIL)

AD 2008

CLAIM NO. AXAHCV/2008/0015

BETWEEN:

PAUL WEBSTER
MAJORIE MACCLEAN
MAJORIE CONNOR
PHILIPPE CHAMPAULT
CHRISTINE CHAMPAULT
ANNE KELLER
LLOYD SINCLAIR
NEIL FREEMAN
WENDY FREEMAN
Applicants/Intended Claimants

And

THE ATTORNEY GENERAL
(FOR THE GOVERNMENT OF ANGUILLA)
Respondent/Intended Defendant

TRANSCRIPT OF DECISION

6th May, 2008 at 9:10 a.m.

BY: HON JUSTICE JANICE GEORGE-CREQUE, Judge.

APPEARANCES: Ms. Palmavon Webster, Ms. Tameka Davis and Mr. Gerhard Wallbank for the Applicants;

Mr. Ivor Greene for the Respondent;

Mrs. Josephine Gumbs-Connor: (watching brief on behalf of Dolphin Fantaseas Anguilla).

PROCEEDINGS

THE COURT: Now yesterday, I granted leave to the Applicants to make a claim for judicial review of the various decisions of the governmental bodies or persons giving rise to the construction of a dolphin pier and/or a dolphinarium at Sandy Point Beach in Anguilla, and I reserved until today the question as to whether interim relief ought also to be granted pursuant to CPR 56.4(9), which in essence states that the Court, on hearing an application for leave for judicial review, may, if it considers that it is just to do so, grant such interim relief. Now, counsel for the Applicants made this application in light of certain information given by counsel for the Respondent in connection with this matter.

From the evidence adduced the following matters appear to be clear and uncontroverted.

(1) On the 12th of June, 2007, Dolphin Fantaseas Anguilla, applied for permission to construct a dolphin pier in the water at Sandy Point, Blowing Point, Anguilla and in respect of Block 28309, Parcel 169. (See exhibit "VP3" to the first affidavit of Vincent Proctor)

(2) This parcel is properly described as Registration West, Block 28309 B, Parcel 169 and is owned by the Crown having been acquired by compulsory acquisition for public purposes, namely: The development of a public park and a sports complex. (See Statutory Rules and Orders 1997 No.8).

(3) Planning approval was given by the Land Development Control Committee, LDCC, on 12th December, 2007. (This is exhibited at "VP3" to the first affidavit of Vincent Proctor).

(4) Apart from the LDCC's planning approval, the only other written approval granted by any other governmental body or person appears to be for a building to be located at Sandy Point, Blowing Point, in respect of an application dated either 14th or 19th February, 2008, bearing application No. 0017/07 in respect of parcel 169, shown as having been approved on December 14th 2007 by the Anguilla Building Board.

(5) Sandy Bay Point Beach is a protected beach pursuant to the Beach Protection Orders, Revised Regulations of Anguilla, B25-1 made under section 2 of the Beach Protection Act (Revised Statutes of Anguilla Chapter B25)

(6) The Port of Blowing Point as per the Prescribed Ports Regulations, Revised Regulations of Anguilla P55-4, made in accordance with the provisions of the Ports Harbours and Piers Act (the Revised Statutes of Anguilla Chapter P55), encompasses an area of sea and land extending on both sides to the extremities of the Blowing Point Beach and seawards to the edge of the farthest reef or to a distance of 1,000 yards from the mean shore line where no reef exists and includes the harbour and piers situated therein.

(7) Construction of a Dolphinarium or Dolphin pier commenced in the water in an area falling within the prescribed limits of the port of Blowing Point at Sandy Point Beach. Photographs and plans are exhibited depicting the site and the physical location of the structure being constructed.

(8) The Beach Control Act (Revised Statutes of Anguilla Chapter B20) vests all rights in and over the foreshore of Anguilla and the floor of the sea in the Crown. (This is set out in section 2 of that Act.). Section 3 prohibits the use of the foreshore and the floor of the sea without a licence. The Act also provides for a licence to be granted by the Minister and that Minister is the Minister charged with the administration of Crown Lands upon application being made. The application must be published in the Gazette and members of the public must be afforded an opportunity of making representations to the Minister in respect thereof. Encroachment on or use of the foreshore by any person without a licence attracts a penal sanct ion.

(9) The Ports, Harbours and Piers Act section 36 states, in effect, that no person shall construct any pier on any part of the foreshore without the written permission of the Minister (and in this case it is the Minister responsible for Ports, Harbours and Piers). Section 37 of the said Act provides for owners of piers or constructions on the foreshore to apply for a licence, renewable annually. It further fixes the responsibility for the management of Ports with the Supervisor of Ports and also charges the Supervisor with the responsibility for the management and protection of the foreshore with power to order the removal of any obstruction or construction thereon. The Supervisor is also empowered to operate the ports as appears best calculated to serve the public interest.

Counsel for the Respondent stated that:

(1) There has been no decision to lease Parcel 169;

(2) That no licence has been issued by the Minister responsible for Crown Lands pursuant to the Beach Control Act. He refers, however, to the first affidavit of Vincent Proctor, paragraph 25, where Mr. Proctor alludes to information passed on to him by the Permanent Secretary, Ministry of Lands, to the effect that "the Ministry of Lands gave the Developer permission to commence building the pier" and that "the licence to use the beach is a new concept, the details of which is still being developed". From this it is readily inferred as accepted by counsel for the Respondent, that no licence has been granted for the use of the foreshore or of the floor of the sea as required by the Beach Control Act.

(3) There is no written permission given by the Minister of Ports pursuant to the Ports, Harbours and Piers Act. Indeed, there is no evidence of any permission in any manner given by the Minister of Ports for the construction of a pier on that part of the foreshore falling within the domain of the port of Blowing Point, or that any licence for such has been applied for or granted by the Superintendent of Ports as required under the Ports, Harbours and Piers Act. Breach of any provisions of the Ports, Harbours and Piers Act also attracts a penal sanction. (See section 44 of that Act.)

Despite the lack of such licences and permissions under the Beach Control Act and the Ports, Harbours and Piers Act, it is not challenged that construction of a Dolphinarium or a Dolphin Pier has been proceeding apace in the water forming part of the port and harbour of Blowing Point and encroaching on the foreshore and floor of the sea at Sandy Point Beach. It is because of the Dolphinarium's peculiar location which brings it within the ambit of the provisions of these Acts quite apart from any other law which may be applicable thereto. Admittedly, the construction as being carried out runs afoul of the provisions of these Acts. This then begs the question: "How could such activities which attract criminal sanctions, in the absence of the requisite licences and permissions, simply be allowed to occur and proceed unabated without the necessary intervention by the relevant servants or agents of the Crown?" Yet no steps have been taken to bring such activities which are being carried out in plain sight to a halt. Can such a dereliction or abdication of responsibility be permitted to the detriment of the public interest? I think not. It is after all in the public interest that the laws of the land be applied and obeyed. Such is essential for the good governance in a democratic society. Accordingly, in such an instance, the Court must step in with a view to safeguarding the interest of the ordinary citizen.

Based on all the circumstances as I have set out, I am satisfied that the granting of interim relief is warranted to halt the activities being undertaken in admitted violation of the provisions of the Beach Control Act and the Ports, Harbours and Piers Act.

Accordingly, it is ordered as follows:

(1) That all construction of all piers or structures or any encroachment on the foreshore or floor of the sea in whatever manner at the Sandy Point Beach or in the waters forming the Port at Blowing Point by any persons whether by themselves, their servants or agents, in violation of the requisite licensing provisions of the Beach Control Act and the Ports, Harbours and Piers Act cease forthwith until further order.

(2) The Respondent shall perform all acts and do all things as may be necessary to ensure compliance with the terms of this order.

(3) It is further ordered and directed that this order be served upon Dolphin Fantaseas Anguilla, being a person appearing to the Court to be directly affected by the making of this order.”

What is the significance of this decision? It is that when an Anguillian resident has a good reason to believe that government has not been following its own laws and procedures, that resident can ask the court to review the decision of government. Government is under the Constitution and the law. The court has power under our Constitution and our law, if it finds that government came to a decision that adversely affects some or all of us by following an incorrect procedure, to cancel that government decision. It can call up the government's decision into the court and set it aside, declaring it to have been an illegal decision. Damages can follow. That is why government ministers always get the opinion of the Attorney-General before making any important decision. They need to be sure their decision is legal.

That is where we are. The court has given permission for the case to go ahead. The court is now going to hear the argument in June. Until then, the construction at Blowing Point must stop.

All Anguillians wait with baited breath to see if the Mexicans will obey the order of the court. The law is that every order of the court must be obeyed, regardless of how you object to it.

Since the order was made against Government, what will happen if the Mexicans proceed with their construction in defiance of the order of the court? We shall keep our ears to the ground.

Offshore Finance

Treasury Crackdown on International Financial Services. Are the British Overseas Territories being unfairly targeted again? I ask that question because the UK Treasury Department has just announced another investigation into our international financial services industry. You can read all about it for yourself on Parliament's website.

Does this initiative derive from the recent National Audit Office report? If so, we are in for a rough ride. I previously wrote about it here, and here, and here.

I never was able to understand. Why does not parliament similarly investigate British bankers, insurers and money managers? Why investigate us? We are at the bottom of the food chain when it comes to the international financial services industry. I remember Rodney Gallagher once explaining to a meeting of the Anguilla Financial Services Association that the West Indian financial centres could expect, at most, the crumbs that fall from the financial services table. The reason? We are already so well-regulated, so transparent, so small, and far away compared to Jersey, Guernsey, the Isle of Man, Monaco, Lichtenstein and Zürich, that only the smallest share of the business will ever venture out our way.

Now, the jingoistic British press have taken up the cudgel. See the Guardian article here. The headline reads, “Britain's overseas territories open to fraud and money laundering”. Note the suggestion that we are “open”, as in “welcoming”!

This is typical of the English newspapers when the markets are heading down. Blatant protectionism of the City and its outposts in Jersey and the Isle of Man. They don't even consider that it may well be that regulation in Anguilla and the other BOTs is now so tight that no crimes have taken place. Certainly a possibility in a place as small as Anguilla is.

What is the proportion of regulators to employees in the UK? Is it any better than in the BOTs?

Are the regulatory techniques in Anguilla and the other BOTS any different to those employed in the Crown Dependencies of the Channel Islands?

Does any fraudulent scheme, such as the BCCI fraud, that has the smallest link with a BOT in the Caribbean, not have its headquarters in the City or in the Channel Islands?

Does the British banking system not rely on repackaging debt products in offshore centres such as Anguilla and the Isle of Man? Should Anguilla be shut down to ensure that all the City's offshore business goes elsewhere?

They are all in the game, and it is just a question of where it is played. If the principle is that, “We only like offshore if it is our offshore”, then does not Anguilla qualify?

The problem is that these people run the UK, and it appears that we are going to bear the brunt of their own political nervousness over the forthcoming economic downturn. Same as it ever was!

Pit Bulls

Dog Fighting. I heard by email from PETA recently. PETA stands for People for the Ethical Treatment of Animals. I thought I would share this new development with you.

The email was signed by Kristin DeJournett. I Googled her. I found out that she is a well-known and respected animal rights campaigner. This is what she wrote to me:

“I’m a cruelty caseworker with PETA and we were forwarded a news article in which you discuss dog fighting in Anguilla. PETA is always interested in shutting down dog fighting whenever and wherever possible, and we’d like to see if you would work with us to get this investigated. Your anonymity is 100% guaranteed, unless you desire otherwise. We cannot guarantee results, but we will do whatever we can to stop animal fighting.”

With her permission, I forwarded her email to several contacts. I picked the ones who should know about dog fighting in Anguilla. Some I met and spoke to. Some telephoned me and spoke to me. One wrote back,

“Yes, there is a serious dog fighting problem in axa. I would prefer not to write about it. We will talk on Friday. Be careful.”

Another wrote earlier,

“There is some truth in what you heard at the beach. The exact story is that Morlens was fire bombed. This happened while Dr. Vanterpool was involved in writing the legislation for the Government regarding banning the importation of Pitt Bulls. Many Pitt Bull owners were unhappy with him. The ramifications can be deadly for those that intervene and that is why it is a Police matter. If you have any other questions you may want to ask Dr. Vanterpool.”

At the farewell ceremony for the outgoing Chief Justice, I sat in court next to the Commissioner of Police, Keithley Benjamin. I told him what I had learned. I asked him what was the status of the investigations. He replied,

“There is no investigation of dog fighting in Anguilla. I have never heard of a report of organised dog fighting in Anguilla.”

I have to say, at that point I thought the Commissioner appeared to be a bit out of touch. So, I did not ask him anything further about the reports I had received. I have now spoken to and exchanged emails with several persons who had contact with the police over this issue in past years.

One group associated with AARF was trying to stop organised dog fighting in Anguilla. To his credit, they included the vet, Patrick Vanterpool. I am told the campaign did not get anywhere. Dr Vanterpool had his life threatened. His veterinary surgery was firebombed. One of the principal dog fighting organisers was said to be the son of a Chief Minister. He has strenuously denied any involvement in dog fighting, by the way. Another organiser was said to be the nephew of a different Chief Minister. I do not know his name and have not spoken to him. The police dropped the investigation. They appeared to lose interest. The pressure on the police and the AARF campaigners to cease and desist proved irresistable. The campaigners regressed into looking out for the interests of stray dogs and pets. They took their eyes off the ball. They left it to the police. Now, it seems, even the police are in denial that reports were even made to them.

There are two reasons why dog fighting is illegal in Anguilla. One is because it is an offence of cruelty against section 2 of the Protection of Animals Act. The penalty is a fine of EC$4,800.00 or six months imprisonment.

Dog fighting also involves the offence of gambling contrary to section 337 of the Criminal Code. The whole point of organised dog fighting is the gambling associated with it. The dogs fight in a ring with the gamblers assembled around. They are not there just for the thrill of seeing the dogs kill each other. Each dog owner pays a premium to put his dog in the ring. I am told that it is a minimum of US$5,000.00. Large sums of money change hands as the spectators place their bets on the outcome of each fight. We can expect that large amounts, hundreds of thousands of US dollars, change hands in one night.

You would think that the penalties for this type of gambling would be appropriately significant. I had a look at the laws of Anguilla. The penalty for the organiser of a gambling event is one year's imprisonment and a fine of EC$1,000.00. You may well consider that fine ludicrously low. The penalty for anyone found in the place is imprisonment for 6 months or a fine of EC$500.00. The penalty for the actual gamblers is the less than impressive amount of a sentence of up to 3 months or a fine of EC$250.00.

You have told me the stories. You have shared the rumours with me. I know the names of some of the persons alleged to be the ring-leaders. I know some of the alleged locations of the fighting and gambling. I have heard about all your fears and concerns. Now, I want the evidence. Some of you will have trophy photographs of the dogs in action. Perhaps taken by a long since discarded boyfriend. Some of you might have recordings of conversations between the perpetrators. Some of you may have photographs of the players standing around the pits. Others may have taken lists of the licence numbers of the cars parked at the venues.

I need the names, addresses and dates. I need the photographs and tape recordings. Your anonymity is guaranteed. I would like to send all this to Ms DeJournett. It is likely that only a gutsy organisation like PETA will be able to help us get rid of this vile business in Anguilla.

I accept that there is no point sending any of it to the Royal Anguilla Police Force.

Mercy Committee

Advisory Commission on the Prerogative of Mercy. This is the last commission that falls to be provided for in Anguilla's new Constitution when it comes to be drafted. It is sometimes called the “Mercy Committee”.

Such a Commission does not exist strictly for the enforcement of a fundamental right. Mercy is not a right. However, it is recognised in all civilised societies that sometimes conditions affecting a prisoner change. It is then appropriate, in suitable circumstances, for society to show mercy. There is no reason why mercy should be applicable only in cases of the death penalty. We do not have a death penalty. We have prisoners. Some of them may well, one day, deserve an element of mercy.

Lawyers refer to it as the “Queen's prerogative of mercy”. It is not a personal attribute of the Queen. It is an aspect of society acting, at the highest impersonal level, in the interests of the community. The Queen is merely a convenient legal fiction for this concept.

At present, there is no mercy committee provided for in the Constitution. The Governor represents “the Queen” in Anguilla. He may or may not exercise the prerogative of mercy from time to time. It is not known how or when he does it. There are no published reports or statistics. This is recognised by all Anguillians as a most objectionable state of affairs. It needs to be corrected. Governors must find the personal responsibility oppressive. Everyone wants the situation corrected.

Fortunately, we do not have to re-invent the wheel. The Virgin Islands have a most acceptable provision in their new VI Constitution 2007. It is section section 44. There is no reason I can think of why we should not be able to adopt it wholesale.

We have now looked at several Commissions. Some of them already exist. Others would be new. The big change would be making them independent of the Governor and the Ministers. Giving them real responsibilities and powers.

Each of them performs a vital job. That does not mean that we need to make government top heavy with Commissions. There are several steps we could take to prevent this.

We could double up the personnel on each Commission, and to provide that only one stipend was payable, no matter how many Commissions an individual served on.

Membership of one Commission could be dependent on agreement to serve on other Commissions.

Most Commissions should incur little or no expense to the public.

Independent oversight bodies are vital. they provide an essential function in a democratic society. They constitute checks and balances on the Governor and the Ministers. We must ensure that they are put in place if we are to guarantee the protection of our rights and liberties as we move into the new era of increased self-government.

Human Rights

Human Rights Commissioner. We now turn to look at some independent Commissioners who should exist under our new Constitution. The first would be the Human Rights Commissioner. This is a Constitutional body which exists to protect the human rights of citizens when they are infringed by any member of the executive, or by the Assembly itself. It is not a normal provision in a British style constitution of an Overseas Territory. But, it is not unknown to Commonwealth constitutional law.

I have previously written about the role of such a Commissioner in various Commonwealth countries. In African Commonwealth countries there are many different types of national human rights and administrative justice institutions. There are over 30 Ombudsman institutions in that continent alone. Additionally, there are Human Rights Commissions, Gender Commissions, Racial Equality Commissions, and Anti-discrimination Commissions. Many of them operate in challenging environments of corruption, violation of human rights, military coups, and dictatorships. These Administrative Justice Boards are typically given broader jurisdiction and stronger powers than the classic model of Ombudsman. These are called the ‘hybrid model.’

Ghana’s Commission on Human Rights and Administrative Justice is a model of a hybrid institution which performs the triple mandate of acting as the Ombudsman, a Human Rights Commission, and an autonomous anti-corruption agency. Another feature of the hybrid is that some, like the Ghana Commission, have been given power to have their decisions and recommendations enforced in the courts. The Tanzania Commission of Human Rights and Good Governance also has a similar provision empowering it to go to court to enforce its recommendations and decisions where they have not been complied with in a specified period. This is a departure from the classical Ombudsman, who relies on his moral powers of persuasion.

Given the high cost of litigation in Anguilla, it will not surprise anyone to learn that during the public meetings held in the year 2006, this was one of the most frequently heard requests. The Constitutional and Electoral Reform Commission made the appropriate recommendation when it filed its report with government in August 2006.

Such a provision is not difficult to draft. It could be as simple as:

Human Rights Commissioner

95. (1) There shall be an independent Human Rights Commissioner for Anguilla who shall investigate, resolve and prosecute claims of infringement of any person’s rights under this Constitution.

(2) The Human Rights Commissioner shall have such other specific functions and jurisdiction as may be set out in a law.

The general provisions relating to all Commissioners would apply. Thus, he or she would be appointed by the Governor after consultation with the Premier and the Leader of the Opposition. No person would be appointed who has been a member of the House of Assembly or a candidate for election. He would not be subject to any direction or control of any other person or authority. He should have security of tenure, and not be capable of being dismissed by the Governor or the government. He can only be dismissed for cause such as misbehaviour or ill health. His emolumnts are guaranteed by the Constitution in that they cannot be reduced while he is in office. He must report annually to the Assembly, which must publish his report within a specified time.

Such relief is ernestly sought by the average citizen of Anguilla. It will go a long way to ensuring that the rights of the people can really be said to be guaranteed.

Making it a hybrid, combining the Human Rights Commissioner with the police complaints authority and the Ombudsman, will be an obvious cost-saving measure.

Judicial Services

Judicial Services Commission: One of the most important Commissions under the Constitution is a JSC. One is provided for by section 67 of the Anguilla Constitution 1982. It consists of the Chief Justice, another judge, and the Chairman of the Anguilla Public Service Commission. This JSC is not to be confused with the Judicial and Legal Services Commission, which was established by the Courts Order in 1967 to serve the entire OECS. That appoints the judges of the High Court for the entire sub-region.

At present, the JSC advises the Governor on the appointment of the Magistrate and the Registrar of the Supreme Court for Anguilla. The Attorney-General is supposed, in constitutional theory, to be non-political. But, the JSC plays no role in advising on the A-G's appointment. The Governor appoints as A-G whomsoever he wishes, or more likely, whomsoever the FCO tells him to. The JSC also advises on the appointment of Crown Counsel to the A-G's Chambers.