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That is an antiquated, outdated provision.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.
Mitch you said:
ReplyDelete“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.”
What makes you believed that it would change on a commission level?
History has also leave behind the scars and open wounds of victimization, with an inert fear and an everlasting bitter taste. We know of the skepticism and the cynicism that plague us for years… and still.
We yet painfully reminisced from whence we came; the reversed good intentions of the ‘Anguillian Uprising’- the so-called ‘Anguilla Revolution, to the actual dictatorial ruled, the greed and deceitfulness - the reasoned we matured to Section 28(2) of the Anguilla Constitution of 1982.
Those wounds are still alive and there remained that deep reservoir of distrust and fear among Anguillians in leaving any balance of power or pertinent decision making to any tribal commission. Honestly speaking, if we can trust an island with an incapable distrusted Chief Minister (one man), why can’t we trusted a well balance, capable, educated, competent attorney at law, as Deputy Governor - with a few civil servants?
The United Kingdom took hundreds of years from Tribalism, to a modern so-called democracy. I personally don’t think that we can change over night. The arrangement as is in the present Anguilla Constitution, extinguished that fear, creates that level of fairness and balance we expected from any commission but yet cannot trust.
On the other hand, NICA’s snubbed on you and your NICA’s Share Holders Old-Man-Clique is equivalent to your peak-cocking attitude over your Blog, by not debating your diatribes. Instead, shamed facedly you joined the English Teaching profession. Responses are marked as an assignment, on grammar rather than content, discouraging potential responders.
Instead of encouraging discourse or debate, you are ideological and self-opinionated. Rather, throughout your submissions over this Blog, you continued to contradict yourself.
I will remain the people’s watchdog that you envisaged.
Mitch you said:
ReplyDelete“…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.”
Or better known as Constitutional Plagiarism.
This Crab-hole Mentality never ceased amusing me. It’s equivalent to riding over the crab next to you to reach the top - the wait and see and catch you game. Our aim should be to ride beyond our fellow crabs.
The Virgin Islands values, experiences and history are different to ours. You don’t adopt a constitution - it’s a living instrument, pure, a special testament or the single unified voice of a people.
You don’t get ahead while getting even my learned friend.
I am not sure if I ought to respond to Realist. From his recent postings, I have begun to develop certain concerns. But, for what it is worth, here goes . . .
ReplyDeleteFirst, copying a section of another British Overseas Territory's Constitution dealing with a technical subject such as the establishment of a Public Service Commission is not the same thing as copying an entire Constitution wholesale. Parts of a Constitution, such as the recitals in a Preamble might be based on values, experiences and history. We would not want to copy such from anyone else. The section in question is not something that is unique to each territory. It is a standard provision. We do not have to re-invent the wheel to establish a Public Service Commission. We most categorically do not want a section establishing a Public Service Commission that has unique wording. We want one that is standard and well understood.
Second, there is nothing unique about a Constitution such as ours. We are part of a wide Commonwealth of nations with a shared history and experience. There will be some provisions that may be peculiar to one territory. Gibraltar will have special concerns about Spain. The Falklands will have special provisions because of Argentinian threats. Anguilla may want to include provisions related to the nearness of St Maarten, or to our relationships with Caricom and the OECS. Mostly, we are part of a tradition of written constitutions that began over 200 years ago with the US Constitution. The Indian Constitution of over 60 years ago is the basis of all modern Commonwealth constitutions. Our lawyers and judges have been working the Commonwealth models for generations. We would not want to come up with a unique Constitution. We want our Constitution to fit us in the wider tradition. That way we enjoy the benefit of the jurisprudence that has developed around our model.
IDM
Mr.Mitchell - Again you contradict yourself. In which of the territories is the deputy governor responsible for the civil service under the constitution?
ReplyDeleteWe must be careful not to create new constitutional monsters over which we have no control. We know who the Deputy Governor is today, a young excellent Anguillian. We do not know who the Deputy Governor will be tomorrow. Probably one of the developers!
The point is that responsibility for the civil service should remain with the governor, delegated to the deputy governor who must act onn the advice of the Public Service Commission.
How about something innovative like an elected deputy governor?
Mitch you said:
ReplyDelete“Anguilla may want to include provisions related to the nearness of St Maarten, or to our relationships with Caricom and the OECS.”
This suggestion is meaningless in light of all three nations being tentacles of the European Union. The fact is that no United Kingdom Committee assigned to Anguilla for constitutional discussion will accept any adverse conditions affecting the European Union Treaty or its Directives in our future Constitution.
Again, where is the commonsense to the arrogance, to our being an Overseas Territory of the United Kingdom? This exercise is all but a test of wisdoms.
We just have to accept that the dream of a United States of the Caribbean remained antiquated.
Move on!
Ok… I will try to summarise my diatribe.
ReplyDeleteFirstly, any constitutional change required at least two-thirds (2/3) or 33% of its population’s and Parliament’s positive vote to be meaningfully effective.
In Anguilla, the past Constitutional Reform Commission realised this impossibility and members abundant ship.
The present Constitutional Reform Commission can only account for less than 10% population participation however, insisted on forced recommendations.
The Government of Anguilla assigned a sub-commission to ratify such recommendations with possibility of adding new changes to the envisage new constitution.
I recommend that this lack of population participation for change exemplified a total rejection by the Anguilla population therefore, forced recommendations will be unconstitutional and as such, the government’s ratifying commission should see this as it worth and deemed those recommendations null and void.
Secondly, we seek precedents in the House of Commons actions of their Parliament Acts of 1911 and 1949, respectfully (which is one of the most important Acts in the British Unwritten Constitution) – curtailing and limiting the powers of the House of Lord, the then upper house, to scrutinizing powers.
Likewise, I recommend that Anguilla Parliament move to legislate a Law Commission Act, which will establish a Law Commission for Anguilla. This is the only competent way forward.
I have also recommended that such persons to be on such a commission should be:
The High Court judge, The Hon Attorney General, The Hon. Deputy Governor, the Government’s Legal Draftsman, the president of the Anguilla’s Legal Bar Association and a representative at large (preferably a non-practicing lawyer and a past member of the legal bar association e.g. Mr. Ian Mitchell, Ms. Lolitta Davis-Ifil, Dame Bernice Lake or Mr. Homer Richardson). Under no circumstances should any one on the commission be a practicing lawyer save the bar’s president.
There is no time for ideology nor self-opinionating ‘peak-cocking’.
Some of us have ‘learnt’ and some of us are ‘learned’.
That should be 66% rather than 33%
ReplyDeleteMR.MITCHELL-
ReplyDeleteThe Mitchell Commission has recommended that " the majority of the membership of the Public Service Commission should continue to be filled by the Deputy Governor acting in his discretion and not after consultatation or on the advice of either of the Chief Minister or the Leader of the Opposition, and the Commission so recommends. "
At present the majority of the the membership of the Public Service Commission is filled by the Governor acting in his discretion. The Governor is an Englishman,a Foreign and Commonwealth Office appointee,and he appoints the Deputy Governor.
So then we will have a three- headed hydra instead of a one headed one. We want democratic institutions, not foreign or local Oligarchies.
The point which I am making is that the recommendation as to how the Public Service Commission should be selected is undemocratic and mischievous.
“THE MORE THINGS CHANGE, THE MORE THEY REMAIN THE SAME.” HOW FAR IS THIS TRUE WITH RESPECT TO CONSTITUTIONAL AND POLITICAL DEVELOPMENT IN ANGUILLA?
ReplyDeleteThe Anguilla Constitution is inundated with discretionary powers of the Governor. As a consequence, too much of our politics – too much of our people’s future – is dependent on the discretion of one man. And I would add that there are too many instances of the exercise of power based on his “judgment” or “after consultation with.” No man is infallible and this situation is unsafe.
Also unsafe is the extensive reserved powers with which the Governor is vested. He therefore continues to have undisputed control over several crucial areas of public policy. It is not democracy when one man exercises so much power and influence over a people. Furthermore, the extent to which our Constitution has reposed power in the Governor suggests that there is really nothing to repose in our elected leaders.
For the foregoing reasons our political leaders, like the Vestrymen in the 1800s, continue to be in office but not in power. In the 1800s we voted to put men in office, not in power. Likewise, today, we vote to put men in office, but not in power. We cannot vote them in power because the greatest concentration of political power in Anguilla is in the hands of the non-elected members of our Executive Council"
Copied from Walter G. Hodge Memorial Lecture 2004
Publishing date: 11.06.2004 08:57
By Colville L. Petty
Its amazing that in this day and age ,we Anguillians are still making or allowing the position of Deputy Governor to remain an appointed position.If we are truly democratic why is this so?Why isnt there revisions to our constitution to fix this.The power bestowed on the Governor is supreme and he can pick and choose whom ever he feels.We are headed for a rude awakening when the demographic of local population changes and we encounter the inevitable class clash.Who will prevent him from choosing a candidate of another race?We are still in the era where change can be implemented but we need to act fast and responsibly before that window of opportunity expires.
ReplyDeleteThe issue here is not our constitution imperfections but whether an unconstitutional change process is a safe way forward. We are aware of all the ills surrounding our present constitution. But should we go the unconstitutional way forward to correct it?
ReplyDelete10% of Anguilla is not a true representation and does not speak for the masses – not for me at least. We want change yes – but we are prepared to do it right. Two wrongs don’t make a right.
FOOD FOR THOUGHT
ReplyDeleteThere is really nothing wrong with the Deputy Governor being appointed or if he/she is stripped or polka dotted or what 'class' he/she belong to.
On the issue of "class", we need to insist that ALL children receive a first class education, so that new generations of Anguillians are well educated and so there will be a large pool of persons to choose from.
The important thing is that there should be ground rules, such as that the Deputy Governor should be an Anguilian and should be appointed after consultation with the Chief Minister and the Leader Of The Opposition.
The Governor would then at least be obligated to hear from the elected representatives of the people.
There is also an important issue of a Deputy Governor serving for a fix period of five years.
There is another important issue that the office of Deputy Governor should be reserved for persons who have already served Anguilla with excellence, integrity, knowledge, wisdom and fairness in other areas. That criteria should at least take the office holder up to age 45-50 and give persons serving in the Civil Service something to aspire to, while serving with excellence ect. in what ever jobs they hold. Anguilla would be the all-round winner.
An interesting question is this: Should the Deputy Governor resign or his appointment come to an end each time a new government is elected?
On the issue of the appointment of persons to the Public Service Commission- If there are five members appointed, it would be more democratic if the Governor appointed 2 persons,the Chief Minister l , the Leader Of The Opposition 1 and the Civil Service Association 1.
It is surprising to note that the impartiality of the deputy governor is too easily overlooked. What can really prevent the deputy governor from choosing people that he can identify with? Will and can he overlook the recommendations of the PSC and recommend someone he feels has the 'legal' training for a post? To what extent is his affiliations influence his decisions? These decisions can undermine the system and cause havoc. What do the others think?
ReplyDeleteWhat's wrong with the Deputy Governor choosing people he can identify with? When you have your car repaired do you choose someone you don't like?
ReplyDelete“What's wrong with the Deputy Governor choosing people he can identify with? When you have your car repaired do you choose someone you don't like?”
ReplyDeleteIt is so sad to see an apparently intelligent Anguillian writing the comment above. It shows how unaware some of us, maybe most of us, are about the basic principles of public life. We are venturing into the wide, deep sea of self-government unaware that senior public officers are not permitted to treat the public service the same way as they treat their motor car.
It is totally wrong for the person filling senior posts in the public service to do so on the basis of picking persons he can identify with. His duty is to select the candidate who best fills the criteria necessary to successfully do the job. He is not supposed to care whether he likes the person or not. I am sure that the present Deputy Governor acts in this impersonal, objective manner. For him to act in the manner the commentator suggested would be a disgrace.
Try Googling “seven principles of public life”. Study them carefully.
IDM