30 April, 2008

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.

28 April, 2008

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.

27 April, 2008

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.

24 April, 2008

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.

Because there are so few judicial and legal appointments made in Anguilla, the present JSC functions, we can suppose, only very intermittently. Additionally, the appointments are made by the Governor only after “consulting” the JSC. He is not obliged to follow their advice. The result, we can surmise, is that the JSC is only a rubber stamp committee. It has no real decision-making power. The Governor and his advisers, probably the Attorney-General and the legal advisers to the FCO, make the final decision. This has had most unfortunate consequences in the past.

The Constitutional and Electoral Reform Commission recommended that this situation be changed. It urged that the type of Commission found elsewhere among the BOTs of the Eastern Caribbean Supreme Court system be adopted. We do not have very far to look. The new VI Constitution 2007 sets out the modern role of a JSC in a BOT. Section 94 is the relevant provision. We would do well to adopt it without much alteration. If we did, it would look something like this:

94. (1) There shall be for Anguilla a Judicial and Legal Services Commission which shall consist of—

(a) the Chief Justice, who shall be Chairman;

(b) another judge of the Court of Appeal or the High Court nominated by the Chief Justice after consultation with the Governor;

(c) the Chairman of the Public Service Commission; and

(d) two other members appointed by the Governor, acting in accordance with the advice of the Premier and the Leader of the Opposition who will each nominate one member, at least one of whom shall be a legal practitioner.

  1. For the purpose of subsection (1)(d), the Premier and the Leader of the Opposition shall alternate in nominating a legal practitioner, with the Premier making the first such nomination upon the commencement of this Constitution, provided that such nomination shall not be construed as precluding the nomination of two legal practitioners under subsection (1)(d).

  2. If the office of a member of the Judicial and Legal Services Commission appointed under subsection (1)(d) becomes vacant or if such a member is for any reason unable to perform the functions of that office, the Governor acting in accordance with the advice of the Premier or the Leader of the Opposition, as the case may be, may appoint another suitably qualified person to that office for the unexpired term of the previous holder of the office or until the holder of the office is able to resume his or her functions.

  3. Any decision of he Judicial and Legal Services Commission shall require the concurrence of not less than three members of the Commission, and the Commission shall take its decisions in such form and manner as it may determine.

  4. In the exercise of its functions, the Judicial and Legal Services Commission –

  • shall not be subject to the direction or control of any other person or authority; and
  • may regulate its own procedure.”

Note the major changes from the present arrangements. One, the Commission is enhanced by the addition of two persons from within the community. Two, it is democratised by having these two members appointed on the advice of the Premier and the Leader of the Opposition. Three, it is professionalised by having at least one representative of the Bar Association. Four, its decision-making power is guaranteed by having its independence from the Governor and the Ministers entrenched in the Constitution.

There is no reason why we should not get such a Commission, if we ask for it. One, a majority of Anguillians who think about this subject want it so. Two, it is not in Britain's interest to retain a one-man power to appoint the Commission. Three, a modern JSC has previously been approved for other BOTs, so we are not asking for anything unusual. It is clear that if the Chief Minister's negotiating team insists on this type of modern Commission, the Foreign and Commonwealth Office will not put up much more than token resistance.

This goes a long way to what most thinking people mean by “full internal self-government”. That phrase does not mean, as some would have it, giving the elected representatives more power. If it meant just that, it would be better titled “fully guaranteed self-destruction of our liberties”.

An independent local JSC can be a guarantee of independent and professional judicial and legal services for the community. Such independence is one of the bulwarks of liberty under a modern written Constitution.

22 April, 2008

Anguillian Status

Anguillian Status Commission. We continue our examination of the Commissions and Commissions that are required to oversee our administrators if we are to invest them with increased political powers, amounting to "full internal self-government".

This Commission is the one which decides who is and who is not an Anguillian under the relevant constitutional provision. There is in existance just such a Commission. It was appointed under the Anguilla Constitution 1982. The provision is short. It reads:

80. (1) There shall be an Anguilla Belonger Commission . . ., the composition and functions of which shall, subject to the provisions of this section, be prescribed by law.”

The law in question is the Anguilla Belonger Commission Act c A60. This may fairly be described as a most unsatisfactory law. The complaints made against it include: (a) it is a stooge of the Chief Minister from time to time, implementing his policy moods as they change, depending on the side of the bed he wakes up on; (b) its members have no security of tenure, so they had better follow the Chief Minister's instructions, or they might all be fired; (c) even the Governor can remove the members without cause; (d) it is difficult to find out how to apply to the Commission for your rights to be determined, as it has no website or other publicly published information about it; (e) it seldom meets to do its work, and if it does meet, this is a state secret. It does not release any information about its decisions. How much of this is true is hard to determine. In theory, the function of the Commission is simply to apply the definition of belonger status under the Constitution.

Needless to say, this type of amateur arrangement does not find approval with most Anguillians. The Constitutional and Electoral Reform Commission did not make any specific recommendations for upgrading the Commission when it presented its Report of August 2006. However, the entire tenor of the Commission's recommendations was directed to improving independence, transparency and integrity in the work of all Commissions, including this one.

Commissions exist to apply government policy, while ensuring that the guarantees of the Constitution are not infringed.

Commissions remove important decisions affecting the rights and property of persons from the political decision-making process.

Commissions ensure that the Constitution and the law are followed by the administration. Such a dichotomy is a necessary guarantee of our liberties. Anguillians recognise this. The British Government recognise this.

It will not be impossible for us to frame a new constitutional provision that will ensure that this objective is achieved.

One, the new Commission must not be subject to the direction or control of any other person or authority in the exercise of its functions.

Two, the Governor should appoint the Chairman after consulting with the Premier, not acting on his advice.

Three, no person who has been a candidate for election to the Assembly should be qualified to be appointed.

Four, security of tenure should be enhanced by making their term of appointment five years instead of the present three. Also, the Governor must not be able to remove a member without cause. And, the emoluments of the members must not be subject to government approval.

Five, the Commission should report annually to the Assembly, not to any Minister or the Governor. The Report must be widely published within a specified time. This will not be expensive. It can be done by a novice IT person free of charge on the government website.

The Constitution sets out who is to be an Anguillian and who is not. It is not appropriate for persons close to the Chief Minister or the Governor to have a final say in such an important matter.

It is fine to say that an aggrieved person can always sue.

Have you checked out the cost of litigation in Anguilla recently?

20 April, 2008

Financial Services

Financial Services Commission. International financial services is one of the areas that are in the Governor's reserved powers. This is found in section 28(2)(a) of the Anguilla Constitution 1982. This area of governance used to be purely local. The Minister of Finance issued offshore banking licences. Then came the BCCI Financial Scandal in 1990.

Some Pakistani bankers operating out of England defrauded thousands of depositors. The Bank of England was accused by the international press of negligence. It had allowed the Overseas Territories to form subsidiary companies used by BCCI in the frauds. The Bank of England pointed out it had no jurisdiction in the Overseas Territories. The FCO asked the local Ministries of Finance to clean up their acts. They did not move quickly enough. They made mistakes. One was to take away Allen Stanford's Montserrat offshore banking licence. He relocated to Antigua. He sued the Montserrat government. The case took years to complete. The court decided that the Montserrat authorities had acted unconstitutionally. Damages were awarded. Meanwhile, the British Government had taken away international financial services from all the BOT Ministries of Finance. They gave it to the Governors to handle. In Anguilla, they did this by The Anguilla Constitution (Amendment) Order 1990, Statutory Instrument 1990/587.

Since those days we have come a long way. Most Governors have placed the administration of financial services in the hands of the Ministers of Finance. It was the regulation of financial services that the Governors retained.

The Governors could not by themselves regulate banking, insurance, trust companies, mutual funds, and the like. They had laws passed setting up Financial Services Commissions. The law in Anguilla is The Financial Services Commission Act, Chapter F28 of the Revised Statutes of Anguilla. The Commission gives out licences, and penalise those companies that do not follow the rules. The Commission carries out the responsibilities of the Governor in the regulation of international financial services. He does not do it personally.

Most persons in the industry consider this system works well. It is preferable to going hat in hand to a Governor to beg for a licence. That is almost as bad as the previous system. In some islands it meant going cash in hand to the Minister to obtain a licence. A Commission of professionally trained persons charged with the responsibility of carrying out the policies of government is far preferable. In theory, the Governor could still resume direct control of the industry. The Constitution has vested him with that power.

It is now time to step up the system to reflect our growning political maturity and ability to govern ourselves. Accordingly, in August 2006, the Constitutional and Electoral Reform Commission presented its Recommendations to Government. The relevant ones read:

56. Administration of International Financial Services. . . . It was generally agreed by all persons consulted by the Commission, except the Governor’s Office, that there was no longer any justification for this area to remain one of the Governor’s responsibilities. The Commission recommends that responsibility for the administration of international financial services be removed from the Governor’s portfolio.

57. Supervision of International Financial Services. It is generally agreed that Anguilla benefits internationally from the Governor’s power of supervision of the industry. It is to our advantage to be able to claim that the industry is subject to a higher supervision than can be provided locally. The Governor’s power to supervise is in practice carried out by the Financial Services Commission.

58. Constitutional Recognition of the Financial Services Commission. By the Financial Services Commission Act16 the House of Assembly of Anguilla established the Financial Services Commission (FSC) to supervise the financial services industry. The members of the FSC are appointed by the Governor and they report to the Governor. It generally agreed that it is desirable that the Governor’s office continue to be seen to be responsible for this aspect of the industry. The FSC is however not presently recognised under the Constitution. It was generally agreed that the FSC ought to be given constitutional recognition. The Commission recommends that the Constitution be amended to make provision for the FSC and for its governing law.”

We are not speaking about rocket science. This is a relatively simple matter to accomplish constitutionally. There could be a section which reads something like:

There shall be for Anguilla a Financial Services Commission which shall be established as a body corporate with perpetual succession and a corporate seal and which shall be responsible for the regulation of the international financial services industry and having such specific functions and powers and a board to be appointed by the Governor all as may be set out in a law.”

There are other general provisions that should apply to all Commissions. These would be set out in a section of general applicability in the Constitution It would cover such matters as:

  1. protecting Commissions in the exercise of their functions from the direction or control of any other person or authority;

  2. enabling a Commission to confer powers and impose duties on any public officer or on any authority of the Government for the purpose of the discharge of its functions;

  1. disqualifying from membership any person if he has been a member of, or a candidate for election to, the Assembly;

  2. publishing of reports periodically; and

  3. security of tenure of members.

The advantages that would accrue to Anguilla from this type of constitutional advance are several and varied. They should also be obvious. Placing the administration of international financial services directly in the hands of our Ministry of Finance will assist in developing tools of good governance in that regulatory authority. Placing the regulation of the industry in the hands of an independent Commission will help to develop professionalism in our institutions.

The crisis has now passed. There is no need for such a draconian solution as that previously selected. The British authorities would do better concentrating on cleaning up the financial frauds, such as BCCI, that are centered in the City of London, not in the BOTs.

16 April, 2008

Police Reform

Police Complaints Authority and Police Service Commission. Readers of this blog will remember the fiasco of January 2007. The government decided to amend our Constitution without telling us. They thought it was so unimportant an issue, that it was not necessary to consult with the people. The idea was to change the name of the police force to the police service. They also wanted to set up a Police Service Commission to advise the Governor in exercising his powers of appointment over the police force.

This proposed PSC was to be completely toothless. It could advise the Governor about appointments and discipline, but he could completely ignore the advice and do whatever he wanted. More likely, what the Commissioner wanted. If, as is not unknown in other countries, not Anguilla I hasten to say, a Governor depended on a good relationship with a Commissioner to keep quiet about a girlfriend, or whatever, he would do what the Commissioner told him to do. It is not unusual, in my experience, for one-man rule to be exercised on the basis of no greater principle than this.

Government decided they needed a constitutional amendment to do these two things. To change the name, and to appoint a toothless PSC. Nonsense, of course! Since nothing of constitutional importance was being done, they could have used an ordinary statute. It was completely unacceptable that they should presume to authorise London to alter the Constitution without telling us a word about it. Modern constitutional thinking and practice require that the government first obtain our consent by consultation and debate in the House of Assembly. Instead, they quietly went ahead and authorised the Secretary of State to put a Statutory Instrument before Her Majesty in Council for approval and execution. You can read all about it in the post of 17 January 2007.

In the end, the attempt to amend the Constitution was withdrawn. The Secretary of State declined to put the proposed Statutory Instrument before the Privy Council. The matter went dead for the time being.

What agitated us in Anguilla was that this was all being done in direct conflict with the recommendation of the Constitutional and Electoral Reform Commission. The constitutional review process had taken place between January and August 2006. Anguillians had made a number of representations to the Commission. The Commission accepted those in relation to the police force. The Commission did not recommend a non-binding, advisory, Police Service Commission. Their recommendations are found at paragraphs 62 and 63 of its 2006 Report. They recommended that the Constitution should be amended to introduce:

  1. A Police Complaints Authority; and

  2. A Police Service Commission.

The Police Complaints Authority, or Commission, or whatever we choose to call it, is to be an independent body with power to make disciplinary recommendations that are binding on the Governor. No more having to go to the Commissioner and hope that he likes you more than he likes his officer whose behaviour you are complaining about. No more depending on the decision of one person, the Governor, no matter how much he tries to show personal integrity. We need a proper, independent, Commission. Transparency, democracy, and advanced self-government converge to demand that this reform be made. Such a development will require a constitutional amendment. The present Constitution places total control over discipline in the hands of the Governor and the Commissioner. And, we know from bitter experience how much sweeping under the carpet that results in!

The Police Service Commission was recommended to be equally independent and its recommendations binding. The Commissioner and the Governor must be made to act on their recommendations when it comes to appointments and promotions. No more leaving it to one man, no matter how well-intentioned, to decide whether to make a decision based on personal liking or on personal integrity. Such a change will require a constitutional amendment. It means taking away the present one-man power vested by the present Constitution in the Governor and transferring it to a local body.

Neither of these amendments is difficult. Such Commissions exist in other British Overseas Territories. There are no complaints about how they work that I know of. It does not take a drafting expert to adopt the relevant provision, making such minor changes as are necessary.

The Chief Minister's committee is presently vetting the recommendations made by the Constitutional and Electoral Reform Commission. We wait to see if they will honour the wishes of the people of Anguilla in this matter.

14 April, 2008

The Governor

What Exactly Are the Powers of the Governor in Anguilla. I have had two requests to list the special powers of the Governor as set out in our Constitution. I take another pause in my review of the various Commissions and Commissioners that we can hope to see in our new Constitution to deal shortly with this issue. It is important that it be clear to everyone in Anguilla.

In a BOT such as Anguilla is, the Governor has extensive powers and functions. He exercises these without being obliged to act on the advice of any local person or authority in Anguilla. In many cases, he is not even required to consult with anyone in Anguilla in the exercise of his powers. These powers are greatly in excess of those vested in the Governor-General of an independent country. Some of his powers under the Constitution are:

  1. He may by proclamation declare a state of emergency suspending some of our constitutional rights: Section 17.

  2. His powers are not limited to those set out in the Constitution. Her Majesty, meaning the Secretary of State, may assign to him any additional powers: Section 19(2).

  3. He exercises the executive authority of Her Majesty in Anguilla save only where some law vests those functions in another person: Section 22.

  4. He appoints the Chief Minister: Section 24.

  5. He formulates policy and exercises power over matters of defence, external affairs, international financial services, and internal security including the police without being obliged to consult with the Executive Council: Section 28(2)(a).

  6. He appoints, transfers, suspends, terminates, dismisses, or retires, public servants without being obliged to consult the Executive Council: Section 28(2)(b).

  7. He is not obliged to consult the Executive Council on any instructions given to him by Her Majesty: Section 28(2)(c).

  8. He is not obliged to consult the Executive Council on any power that a law either expressly or by necessary implication empowers him to exercise without consultation: Section 28(2)(d).

  9. He is not obliged to consult the Executive Council on any matter that he considers the service of Her Majesty would sustain material prejudice thereby: Section 28(2)(e).

  10. He is not obliged to consult the Executive Council on any matter that he considers is too unimportant to require the advice of Council: Section 28(2)(f).

  11. He is not obliged to consult the Executive Council when he considers that the matter is too urgent to wait for consultation: Section 28(2)(g). Note that section 28(2) sets out the “reserved powers” of the Governor. He is required by the proviso to the section to to keep Council informed of any matter that he considers may involve the economic or financial interests of Anguilla in relation to paragraph (5) above. In matters of urgency referred to at paragrpah (11) above, he must as soon as practicable inform ExCo of the measures he took and his reasons.

  12. Wherever in the constitution the Governor is required to consult with ExCo, he may act other than in accordance with the advice given to him if in his opinion it is inexpedient in the interests of public order, or public faith to do so. He must first obtain the approval of a Secretary of State. He must share with the Secretary of State the minutes of the meeting which sets out the opinion of ExCo: Section 29.

  13. He may summon any public officer to attend a meeting of ExCo when, in his opinion, the business renders that presence desirable: Section 31.

  14. He presides at, ie, chairs, meeting of ExCo: Section 32.

  15. He appoints all five members of the Public Service Commission, two of them after consulting, but not being obliged to follow their advice, the public service staff association: Section 65.

  16. He appoints public servants after consulting the PSC, but he in not obliged to act on their advice. He consults the Chief Minister in the case of permanent secretaries or heads of department. He is not required to consult anyone when appointing the Deputy Governor, the Attorney-General or the Chief Auditor: Section 66.

  17. He appoints the Magistrate, Registrar of the High Court, Crown Counsel, and any other officer required to have a legal qualification, after consulting the Judicial Service Commission, but he is not required to act on their advice: Section 68.

  18. He signs all dispositions of public land in Anguilla: Section 75.

  19. He may grant a pardon to, or reduce the sentence of, any convicted person without consulting anyone: Section 76.

  20. He may create any new office in the public service and fill the appointment to it: Section 77.

  21. He may, in exercise of his power of discipline over the public service, subject to any law in force, for cause shown to his satisfaction, suspend, retire, or dismiss any public servant: Section 78.

It will be interesting to see how many of these powers we shall be able to have transferred to local institutions in the new Constitution. Several of them will have to go if we are to show that we have earned the right to make advances in our constitutional arrangements with the British government.

11 April, 2008

NICA Crisis

NICA Is Going To Get Interesting. On 4 February 2008, the Board of Directors of NICA were served with a requisition. It was delivered to the address of their registered agent. The requisition was a document demanding that the Directors call a general meeting of the shareholders in the company. The stated purpose of the meeting was to discuss and vote on a resolution to appoint Avondale Thomas to be the liquidator of the company. Mr Thomas is a respected certified accountant of Antigua. It was he who did the previous forensic report on the accounts of NICA as instructed by the Court in 2003. The requisition was signed by 79 persons who were the registered shareholders of 451,500 shares.

Section 121 of the Companies Act says that the holders of at least 5% of the shares may requisition the directors to call a meeting for the purposes stated in the requisition. With NICA having a share capital just short of 5,000,000 shares, the signing shareholders represented nearly 10%, more than enough to satisfy the legal requirement.

No response came from the Directors. They never acknowledged receiving the requisition. They never announced they would hold the requested meeting. They never said they would not. They just kept on doing what they do best, abusing the patience of the shareholders.

Meanwhile, shareholders who had not signed the requisition continued to demand that they be joined in the action. More and more of them signed up to the requisition. They knew it was too late for them to be included in the official version. But, they wanted to show their support for the proposal to wind up the company. A total of 97 further shareholders, with 218,800 shares, signed. Together they represented over 10% of the shareholding in the company. Bear in mind that, after twenty years, probably one third of the original shareholders are dead. And, National Bank, the largest shareholder, is bound by the terms of the original prospectus not to vote the shares it repurchased. Those 10% of the shareholders represent a significant proportion of the present living and voting shareholders.

On 5 March, the Directors were sent a reminder by the shareholders. Again, they did not respond. They did not acknowledge receipt of either the original requisition or the reminder.

Section 121 of the Act says that, if the directors do not call the meeting, the shareholders may do so. The shareholders have every intention of calling a general meeting, as a first step. They lack the resources of the directors, but will have to meet the expense out of their own pockets. They will just have to keep the costs as low as possible. If some of the big boys in the company join together to defeat the wishes of the abused shareholders, there is further action to be taken. Any shareholder can petition the court on equitable grounds to bring the company to an end. We are satisfied that an abundance of equitable grounds exist.

Meanwhile, telephone calls of support continue to come in to the homes of Bob Rogers and Collins Richardson, two of the principle organisers.

All shareholders who agree that the time has come to stop the continued abuse by the directors and the waste of their investment in NICA are urged to keep their ears open. Listen for the announcement of the upcoming meeting. All should attend and vote to bring the company to an end. It is time for us to have the land and assets of NICA sold on the open market. We need to get our investment back, with interest. Before we all die of old age.

For fifteen long years, the shareholders have been waiting for their appointed Auditors, KPMG Peat Marwick to produce the audited accounts. They need to be paid their fees and to be given the accounts of the company so that an audit can be done. The directors have refused to carry out the instructions of the shareholders. The directors choose not to tell us what they are doing. For the past four years, no shareholders' meeting has been summoned. A forensic investigation will reveal exactly what is going on with the company.

Why are the directors behaving so badly? We are entitled to suspect the worst. It is time for any director who may be making a secret profit out of the use of NICA's assets to be brought to book.

07 April, 2008


Anguillians Want an Independent Public Service Commission to Assist the Governor in Exercising his Powers over the Public Service.

Under our system in Anguilla, the public service is independent and non-political. This applies at all levels, from the permanent secretary down to the newest clerical officer. No Minister of Government has a say in their appointment or dismissal. This is reserved for a non-political body, the Governor. At present, the Anguilla Constitution 1982 provides that the public service come under the Governor. Section 28(2) says that

(2) The Governor shall not be obliged to consult with nor act upon the advice of the Executive Council with respect to the following—

(a) . . .

(b) the appointment (including the appointment on promotion or transfer, appointment on contract and appointment to act in an office) of any person to any public office, the suspension, termination of employment, dismissal, or retirement of any public officer or taking of disciplinary action in respect of such an officer, the application to any public officer of the terms or conditions of employment of the public service (including salary scales, allowances, leave, passages or pensions) for which financial provision has been made; . . .”

The Governor is responsible for the public service. The Constitution says he must consult with the Public Service Commission. The PSC is made up of local, knowledgeable Anguillians. They know who is who and what is what. Knowledgeable and independent as the Governor may be, he is one person. He can and does delegate his power over the public service to the Deputy Governor. The Deputy Governor is at present an Anguillian. But, he also is only one person. The PSC, by contrast, consists of several persons. Several heads are better, etc. They are expected to be independent, prominent, knowledgeable persons. But, the Deputy Governor does not have to listen to the advice of the PSC. He can completely ignore them, and do as he sees fit. The PSC can only give its advice and hope for the best. At that point its responsibility ceases. It has no real powers. The Deputy Governor is solely responsible for all hiring and firing in the public service.

That is an antiquated, outdated provision. That arrangement is not repeated in modern constitutional arrangements.

Our constitutional fore-fathers chose the Governor in order to make it clear that the public service was to remain non-political. It is a basic constitutional tenet that the Governor is not placed over the public service to show how important he is. He is not put in that position because there is something special about a Governor. He serves the public interest. He is put there in order to guarantee that the political leadership will not interfere in the appointment, terms of service, or discipline of public servants.

During the Constitutional and Electoral Reform Commission’s work in early 2006, all Anguillians who made submissions on the topic wanted the political independence of the public service to continue. Not a single person, including Ministers and other politicians, wanted the public service to be headed by a Minister. Most want the head of the service to continue to be an Anguillian Deputy Governor. Most were of the view that he should be obliged to act on the advice of an independent PSC.

The new Constitution should provide for the PSC to be the body that ensures the independence of the public service, not the Governor or the Deputy Governor.

Similarly, the teaching service should be under the supervision of an independent, expert body known as the Teaching Service Commission.

This will not be difficult to do. The new Virgin Islands Constitution provides for both Commissions. The BVI Govrnor has to take their advice. That is a precedent we could easily follow. It does not take a drafting expert to change Virgin Islands to Anguilla. Anguillians want it. The British have no objection to it.

We all hope that when the draft of the new Constitution comes out, it will show that the Deputy Governor is obliged to take the advice of the Public Service Commission and of the Teaching Service Commission.

05 April, 2008


I am not in favour of a referendum to approve a new Constitution. While we are dealing with constituencies and elections, I should return to the question of a referendum. I have previously explained why it will not, in my opinion, be a good idea to hold a referendum to approve any new Constitution.

One, history shows that, in the West Indies, people vote according to how they feel about the government. If they approve of how the government is functioning, they vote yes. If they disapprove of government’s conduct, they vote no.

Secondly, a Constitution is too complicated for a referendum. You may approve of most of the provisions, but object to one or two. How do you show your concerns in a referendum? It is not sensible to hold a referendum on a Constitution.

It is preferable to hold a series of educational and public events to inform the public about the issues, and to get their feedback. The challenge is to reflect the opinions of the people in the subsequent draft Constitution. That is what the Constitutional and Electoral Reform Commission has already done in its 2006 Report to the government following its consultations with the people of Anguilla.

However, if we want a referendum we will need a law to govern the holding of the referendum. Such a law is not complicated. British Columbia has a simple seven section Act that we can copy. The British have long had Referendum Acts. The Bahamas has an even simpler six section Referendum Act. None of this is rocket science.

We could easily do it. If we really want to hold a referendum, there is no one who can stop us from enacting the necessary law. For the reasons given, I just don’t think it is a good idea.

03 April, 2008

Electoral Boundaries

We Must Entrench an Electoral Boundaries Commission in the Constitution. The difficult decisions surrounding an election are not all made by voters. One of these decisions is how to divide the island into voting districts or constituencies. Each constituency sends one representative to the House of Assembly. Each representative should, ideally, represent an approximately equal number of voters. This ensures balanced representation of all the people in the law-making body.

Constituency boundary lines in Commonwealth Caribbean countries are normally determined by a special, independent body. It is usually called the Electoral Boundaries Commission. Its powers usually, but not always, emerge from the country’s political constitution.

The Anguilla Constitution 1982 does not mention such a Commission. It merely permits the House of Assembly to pass an Act, or law, providing for the division of Anguilla into electoral districts for the purpose of elections. Section 46 reads:

Laws as to elections

46. Subject to the provisions of this Constitution, the Legislature may provide for the election of members of the Assembly, including (without prejudice to the generality of the foregoing power) the following matters, that is to say—

(a) the qualifications and disqualifications of voters;

(b) the registration of voters;

(c) the ascertainment of the qualification of voters and of candidates for election;

(d) the division of Anguilla into electoral districts for the purpose of elections;

(e) the holding of elections; . . .

This section of the Constitution permits the Assembly at paragraph (d) to make a law providing for the division of Anguilla into electoral districts. This means a law establishing a Boundaries Commission. So, you would expect to find the Commission mentioned in the Elections Act. You will search in vain for it. The Act does not mention the Commission. So, there is no Commission for Anguilla. The electoral boundaries of Anguilla are frozen. They cannot, in practice, be redrawn to take account of Anguilla’s shifting population. Why is that objectionable? Of the seven political constituencies, voters are divided in the following proportions:

Island Harbour


Sandy Hill


Valley North


Valley South


Road North


Road South


West End


The implications are clear. We are still using the original seven constituencies that existed at the time of the Anguilla Constitution 1976, if not earlier. The three smallest constituencies of West End, Road North and Sandy Hill, with a voting population of some 2,100, control three out of the seven seats in the House. The 5,500 voters of the other four, Island Harbour, Valley North, Valley South, and Road South, must share the remaining four seats among them. That is clearly undemocratic.

It would take a change of the law to have the boundaries re-drawn. The politicians have fought hard to win their constituencies. They are not going to voluntarily or willingly submit themselves to taking a chance with altering their boundaries. They need a special push.

In most countries, Electoral Boundaries Commissions are established by law to ensure a balance is maintained. The boundaries are re-drawn from time to time, usually after a census, to more fairly reflect the voting population. The best way to provide for a Commission for Anguilla is to entrench it in the Constitution. That will force the authorities to take the necessary steps to ensure fairness.

During the Constitutional and Electoral Reform Commission’s work in early 2006, the people of Anguilla who made submissions on this were unanimously of the view that it was time for such a provision to be in our Constitution. A vast majority thought there should be 9 constituency representatives, and 4 “at large” representatives. As a result, the Commission recommended in its 2006 Report:

77. Boundaries Commission. One consequence of the recommendation for 9 constituencies is that the constituency boundaries will have to be redrawn. This must be overseen by an independent Boundaries Commission, which does not presently exist. The majority of persons making representations to the Commission have urged that there be 9 more or less equally sized constituencies. This is a matter for the Boundaries Commission to decide based on its analysis of the problem and the solution. The Commission recommends that the Constitution should be amended to provide for an independent Boundaries Commission whose duties will be established by a law.

It is not difficult to put this recommendation into a new Constitution. The Virgin Islands and the Turks & Caicos Islands have such a provision. They are BOTs such as we are. We only need to adopt the wording they have. Their Constitutions provide to the following effect:

Electoral District Boundary Commission

85. (1) An Electoral District Boundary Commission (in this section referred to as a “Commission”) shall be appointed from time to time at such time as the Governor, after consultation with the Premier and the Leader of the Opposition, may determine; but a Commission shall be appointed not later than four years after the last Commission submitted its report under section 60.

(2) A Commission shall consist of –

(a) a Chairman, being a person who holds or has held high judicial office or high legal office, appointed by the Governor, acting in his or her discretion.

(b) a member appointed by the Governor, acting in accordance with the advice of the Premier; and

(c) a member appointed by the Governor, acting in accordance with the advice of the Leader of the Opposition.

(3) A person shall not be qualified to be appointed as a member of the Commission if he or she is a member of the House of Assembly or a public officer other than the holder of a judicial office.

(4) The Chairman or other member of a Commission shall vacate his or her office –

(a) on the day following the submission of the report of the Commission under section 60;

(b) if any circumstances arise that, if he or she were not a member, would cause him or her to be disqualified for appointment as such; or

(c) if the Governor, acting in his or her discretion, directs that he or she shall be removed from office for inability to discharge the functions of his or her office (whether arising from infirmity of body or mind or from any other cause) or for misbehaviour.

Will the Chief Minister’s drafting committee, which is supposed to be putting the recommendations of the Commission into a draft Constitution for circulation to the public include such a provision? The people are waiting with increasingly mounting anxiety. I receive several emails a week on the subject.

Personally, I am not worried. Anguillians want this reform. The British want it. Members of the House of Assembly have nothing to fear from it.

It is almost guaranteed to happen.