FCO Response

The Foreign and Commonwealth Office has published its response to the Report of the Foreign Affairs Committee.

The part dealing with Anguilla starts at paragraph 63. It reads:

63. The Governor of Anguilla continually monitors governance issues in Anguilla, including possible cases of corruption. In the first instance it is for the Territory Government and competent authorities to investigate allegations of bribery. No substantive evidence has come to the Governor’s attention that Anguillian Ministers have accepted bribes from developers. The Chief Minister of Anguilla has publicly rejected the allegations. Nevertheless, the Governor will ask the Government of Anguilla to explain how they plan to deal with the allegations made to the Committee. The Government will inform the Committee of the response.

64. The Government agrees that the constitutional review process is an opportunity to introduce improved good government measures in Anguilla. That is why the Government encourages Territories to move the process forward, while respecting the position that it is for the Territories to bring forward proposals for reform.

It is more than I expected.

It will be interesting to see what the final report of the FAC will look like.

It will be even more interesting to see what the response of our government will be to the Governor’s question.

Birthdays

Not many people can boast that their birth certificate is the country’s constitution. Billy Herbert was one. But, he has now passed on. James Woodley was another. But, he has passed on too. I wonder how many of us are left.

I am a Kittitian by birth. St Kitts is my native island. I had grown up in Trinidad and Jamaica. My Dad worked in those islands while I was a youngster. It never occurred to me to spend the rest of my life in either of those islands. I did not belong to them. I have inherited from my late father citizenships in both Grenada and St Vincent and the Grenadines. We never visited either of them when I was growing up. I knew no one there. To this day, I do not know if I have a single cousin living in either of those countries.

The Anguilla Revolution took place in 1967. At that time, I was a student in London. I closely followed events leading up to and after the Revolution. Members of my family lived in both St Kitts and Anguilla. In St Kitts, I had an uncle, Frank Henville QC. He was a well known lawyer of his time. He invited me to come and join him to do my law pupilage. So, when I had completed my law studies in the summer of 1971, I chose to return to Basseterre. There, I did my pupilage, and eventually hung out my shingle and started up my law practice.

Five years later, in August 1976, the Executive Council of Anguilla consisted of Ronald Webster, Emile Gumbs, Idalia Gumbs, and Albena Lake-Hodge. They invited me to come to Anguilla to serve as the Magistrate. That job lasted for four years. Then, I hung up my shingle in The Valley and went back into private practice, this time in Anguilla.

In 1980, the Peoples’ Action Movement of St Kitts and Nevis won the general election. Dr Kennedy Simmonds became the Prime Minister. Billy Herbert was one of his advisers. Billy was also the constitutional adviser to the Anguilla government. St Kitts-Nevis began to prepare for independence from Britain. Anguilla was about to become legally and constitutionally separated from St Kitts for the first time since 1825. The major objective of the Anguilla Revolution was in sight.

One problem was what to do with the many Anguillians who had chosen to work and to spend the rest of their lives in St Kitts. Would they suddenly become foreigners? And, the Kittitians such as Billy and myself who lived and worked in Anguilla? Were we to be made foreigners? The three governments of St Kitts-Nevis, Anguilla and the UK worked out a solution. All Kittitians living in Anguilla on the day of the legal separation of Anguilla would for the purposes of the Anguilla Constitution be deemed to have been born in Anguilla. All Anguillians living in St Kitts or Nevis on that day would be deemed to have been born in St Kitts-Nevis.

And, so we got section 4(3) of the Anguilla Constitution Order 1982:

“If a person who was born in St. Christopher or in Nevis before 19th December 1980 is ordinarily resident in Anguilla, having been so resident since that date, he shall be treated for the purposes of section 80(2) of the Constitution as if he had been born in Anguilla.”

Section 80(2) of the Constitution is the section that provides who is an Anguillian belonger. It reads:

“(2) For the purposes of this Constitution a person shall be regarded as belonging to Anguilla if that person—

(a) is a British Dependent Territories citizen—

(i) who was born in Anguilla, whether before or after the commencement of the British Nationality Act 1981 . . .”

So it is that I can claim with pride that the Anguilla Constitution Order is my Anguillian birth certificate. My birthday is the 19th December 1980. As I recall, twenty-eight is a good age to be!

Being born in Anguilla is one of the conditions or qualifications for election to the House of Assembly. Look out Eddie, here I come!

Lawyers

Why do Anguillians not sue lawyers more often? I have credible stories recently about the activities of a lawyer in Anguilla. Two of the statements involved the lawyer helping his client to steal land from two absentee Santo Domingo Anguillian descendents. The third involved tricking a 90 year old terrified woman into signing documents that she had not requested and knew nothing about.

I asked one of my Santo Domingo informants why the attorney had not been sued. She explained that the owner lived in Santo Domingo. That person would have to be the one bringing the court action. That person is an elderly impoverished labourer and lacks the resources to bring an action in Anguilla. My informant did not have the ability to bring the suit for the client. She does not have the necessary first-hand knowledge of the facts that would be needed for admissible testimony. Nor does she have the money to spend on protecting someone else’s land. So, it looks as if the lawyer and his crooked clients may well succeed in successfully stealing the properties. All this assuming that the story I have been told is true and correct.

As for the family of the old lady, their incident relates to the same lawyer. They are not bringing any legal proceedings either. They do not believe that she could have been persuaded by the lawyer to sign over anything that would affect them. I hope they are right. As I explained to them, if they wait until she is dead to protest, it will not be very credible. They would be expected to have sued immediately they learned of the fraud. They will never be able to answer the question, whey did you not bring this claim while the old lady was still alive? It will be difficult for them to refute the allegation that they waited until the old lady died to make this claim. It will look very bad for them.

It is not that we are like some islands of the West Indies where when you complain about an important lawyer you are likely to be awakened by the police in the middle of the night and subject to a vaginal search. Our police would not have any hesitation in arresting any attorney at law in Anguilla. They would be happy to arrest some.

Is it that Anguillians are so respectful towards lawyers that even when we are robbed in this way we cannot believe that the lawyer was to blame? That does not seem very likely knowing the fiercely independent spirit of most Anguillians.

It could not be because we still believe, "It is impossible to get a lawyer in Anguilla to go against another lawyer." That nonsense cannot still be repeated.

Is it that only foreigners have the resources to pursue the crooked lawyer, and we prefer not to throw good money after bad? Surely, most Anguillians know how to find the money to defend themselves.

Is it that we have so little confidence in our judicial system that we believe the judges are part of the problem? Nonsense, this is the OECS, not Barbados.

Could it be that we simply do not know who to complain to? That is unlikely. We know there is the judge, the governor and the Chief Justice. Any of them would kick up a stink on our behalf if any credible allegation was made against an Anguillian lawyer.

Is it that we are too embarrassed to complain? Perhaps we fear we will be thought stupid by our friends and neighbours for having allowed ourselves to have been tricked? That is always possible.

Is it simply a fear of appearing to rock the boat in a small community where everyone is related to everyone else? That is the explanation of much of the acceptance of wrongdoing among our "Christian" leaders. When the pastor runs off with my wife, or the businessman impregnates two of my daughters in the same year, I learn to grin and bear it.

Is it that our expectations of our lawyers and our leaders have fallen so low that we just shrug our weary shoulders and prefer to move on? Almost certainly.

Or, is it just that we have developed such low standards for ourselves that we shrug our own shoulders and wink at another successful trickster among us? I certainly hope not.

Pontificate

A classical education is much to be missed. There was a time when all students lucky enough to go to secondary school received a classical education. Not, perhaps, classical in the sense of the Academy of Plato. Classical in the sense that twentieth century teachers understood it. Now, with students leaving secondary school barely able to read or write a grammatical sentence, it is unlikely that there are many persons under fifty years of age today who even know what a classical education was all about.

So, when a friend rang me with a statement that she had overheard, I was not surprised by what she related. The conversation had been between two of the ladies who hang out at the entrance to the post office in The Valley. One of them had said, “Don is just a pontifier. All he does is talk. If he really wants to help, why does he not do something about it. He could form a trade union and help the poor workers of Anguilla to get organised.” My friend asked me, “What do you make of that?”

There was only one answer that anyone of my generation could give, “The correct word is ‘pontificate’.

There is, as every West Indian school boy of the 1950s knows, no such word as ‘pontifier’”. The word ‘pontiff’ comes from the Latin word ‘pontifex’. That word ‘pontifex’ is itself a portmanteau word. It is made up from the two Latin words, ‘puntis’ or propitiatory offering, and ‘facere’ meaning ‘to make’. Literally the word ‘pontifex’ means ‘maker of offerings to the gods’. In Roman antiquity, the title was given to the principal college of the priests of Rome. Its head was the ‘Pontiff Maximus’.

By 1580, the word ‘pontiff’ enters the English language as a title conferred on the Bishop of Rome. He carries this title to this day. More to the point of this little post, by the year 1820 we see the verb ‘pontificate’ being used in its modern sense. It means to act the pontiff, to assume the airs of a pontiff, to issue dogmatic decrees.

'Res ipsa loquitur', as the lawyers of today would say.

Planning

The Department of Physical Planning has a Website. It is dedicated to the work of the Land Development Control Committee.
But, does anyone ever look at this website? It is not very well publicised. If you go to the official website of the Government of Anguilla, it will be difficult for you to find a trace of its existence. It is there, though. It just takes hours of searching to find it. It is in the Government Directory. Look under the Chief Minister’s Office.

When you do locate the Planning Department’s website, a couple of ominous things immediately come to your attention. First, the home page features a link to something called the “Physical Planning Act”.
The only problem is that there is no such Act. The Bill was never passed into law by the House of Assembly. It was withdrawn by government. One has to wonder how many persons have been misled by this publication. Any layman reading the Bill, which is set out in full, will almost inevitably believe that the Bill is law. The words “A Bill for” appear eventually, after you have opened the document. Those words are easy to miss. The whole thing is presented on the home page as a valid Act of the House of Assembly. It is even called the "Physical Planning Act 2001". Government would never publish a lie, would it?

You have to wonder. Have even some lawyers been misled? How many persons have been tricked into believing that this is really the law of Anguilla since the year 2001?

Then, you read with rising anticipation, further down the page, that all applications for planning permission seem to be listed. How modern, you say to yourself. What transparency! You find the applications for 2000, 2001, 2002, 2003, 2004, 2005, and 2006.
Then, everything stops. No more information. What about all the planning applications in 2007 and 2008? How do I find out if my neighbour has applied to put up a plastics factory next door to my home? How do I get this information? The website is silent after the year 2006.

The last time the website was updated is stated to be on July 14 2006. Since then, the website appears to have been abandoned.
The year 2006 is more than two years ago. Why would this be? Did the person who updated the website leave government’s service? Was it just too onerous to continue giving this information? Is it an oversight, or was it a policy decision to hide planning applications made after 2006? Since there is no explanation, we can only speculate.

I am too embarrassed to call anyone in Physical Planning to find out how this misleading website comes to be published.

Annoyed

Response to Annoyed Friend. Annoyed Friend posted a comment recently on the item titled “Promises”. There are a number of things she wrote with which I could take issue. I want to deal with only one of them here. She wrote,

“The alleged "secrecy" is conducted in the Executive Council. The Chairman of the Executive Council is an Englishman appointed from England by the British Government/Foreign Office to represent Her Majesty The Queen. Seated next to the Governor are the British appointed Deputy Governor and the British appointed Attorney-General. The Chief Minister and three other elected representatives from the ruling political party complete the Executive Council. It is therefore obvious, that there are no "secrets" at all. This is the system of Government which the British gave to Anguilla. We did not write the Constitution.”

The premise is false. The argument is faulty. The conclusion is mistaken. Let us look at some of the fallacies as I see them.

One, the secrecy is not limited to the Executive Council. Nor is the fact that Executive Council knows what is going on in government the answer to the criticism. The Executive Council mistakenly conceals from the public the policy decisions that it takes in the name of the people. The problem has not been caused by the present administration. We have always run our government the same way. This must change. What we want is for the Executive Council to open up its discussions to the press and the public. It can do this in a variety of ways. In some similar colonies, it is done by permitting the press to attend all Executive Council sessions, except executive ones that discuss sensitive matters. Or, it could do it, as is done in other equally colonial societies, by giving a post-Executive Council press conference. Its spokesman can then explain to the public the most important decisions taken. Best of all, government could propose a Freedom of Information Act that would permit the public to find out what is going on when something has not been published.

Second, an objectionable degree of secrecy in government is not limited to the discussions in Executive Council. There is an appalling lack of information coming from every government department. The Education Department should be revealing to the public its thoughts for improving the education of the children of the country. The Immigration Department should be holding public sessions to discuss new immigration policies, as, indeed, it has recently announced. The Labour Department should be publishing statistics and discussion papers on problems in the labour field in Anguilla. The Land Development Control Committee should be publishing planning applications and the results of those applications. One could give a dozen more examples of the offensive system of secret government that we suffer under in Anguilla.

Third, that Anguilla is a colony headed by the Queen and represented by the Governor does not oblige Anguilla to conduct government in secret. There is nothing in our colonial constitution that obliges us to engage in bad government practices. If we do not demand change now, there is no guarantee that the system of government will improve when we take more powers of self-government. The likelihood is that it will only get worse, because there will be no external body capable of suggesting improvements in the system of governance. There are independent Commonwealth Caribbean countries that have equally offensive systems of secret government. So long as our four Ministers of Government remain unaware that secrecy in government is unnecessary and counterproductive, there is nothing that the Governor or the Deputy Governor or the Attorney-General can do to make them open up the government to the scrutiny of the people.

We do not need to wait for the British. We could implement every one of the reforms I have been advocating without FCO permission. We do not need to wait on Constitutional reform. Putting checks and balances in the Constitution merely entrenches them so that a future government cannot shut them down. There is nothing in the present Constitution that prohibits us from opening up our government in the way I have been advocating. Other colonies have done it without changing their Constitutions.

I accept that the Governor et al have no interest in opening up government. Public scrutiny is always a bad thing from any administration’s point of view. Look at what happened to the proposed Planning Bill when the public began to discuss it, they will say. So many errors and faults were found in it that the administration found it easier to simply scrap the whole idea. They did not appreciate the public comments. They were not mature enough to take them on board and publish a revised Bill. That, of course, is what we all expected of them.

The occasional propaganda press release is not the solution. That is all that we have at present, other than the very rare debate in the House of Assembly. We need the policy-making process to be opened up to the public in a more transparent way. We need government decisions and plans to be promptly and efficiently communicated to the public. The benefits to the process of government can be enormous. If the public are more involved in the discussion of national issues and problems, then there is more likelihood that they will buy into the solutions that emerge. Suspicions of wrongdoing are more likely to be allayed. Confidence in the process of government is encouraged. This is one of the meanings of 'good governance'.

The civil service is not going to institute such a change in the way they do business, without leadership from the political directorate. It is ridiculous to think that any of the Governor, the Deputy Governor, or the Attorney-General will stand in the way of a political initiative to open up government and make its processes more transparent. The only persons who can improve the way government in Anguilla does business are the Ministers. They do not need anyone's permission to do this. It takes only political will.

The discussion of this issue has nothing to do with any quarrel with the present Chief Minister. Those who suggest this are mistaken. He is only carrying on with the system he met in place when he was elected. If I have any quarrel, it is that no one seems to be encouraging him to change for the better the system he inherited.

People are always made afraid by any change in the way they do business.

Promises

Questions for the Hon Chief Minister. Elkin has announced that the Hon Chief Minister will be on his radio talk-show, To the Point, on Monday. He may want a few back-up questions for the Chief. Looking again at the last published political manifesto of the ruling United Front political party, which the Chief Minister heads, some possible questions spring to mind. They include:

1. One of the first promises made in the document was to:

“c) Re-establish good governance and excellence in the operations of the various institutions of the Government”.

Can you tell us what your government has done specifically to re-establish good governance and excellence in the various institutions of government?

Is it true that you as Minister of Immigration regularly intervene personally when the Immigration Department has ordered a foreigner who has overstayed to leave the island to change the decision?

Is it true that you as Minister of Lands intervene personally when the Land Development Control Committee and the Planning Department have made a planning decision to overrule the decision?

Does that mean that some people get a break based on their political connections, while others have to follow the rules?

Would good governance not be better provided if the rules were applied by an independent public service equally to all? Should these matters not be removed from political influence? Could you not change the law to create an independent Planning Appeals Board and an Immigration Appeals Tribunal to handle such matters?

2. Another promise was to:

“f) Increase the degree of transparency, openness and accountability to the people of Anguilla’.

Can you show us how there is more transparency now than under the previous Hubert Hughes Administration?

In what way is government more open now?

What steps have you taken to increase accountability to the people of Anguilla?

We who live in Anguilla believe that government continues, as it has always been, to have its foundations in secrecy. Our system of government is based on who is related to whom, and who owes whom a favour. Anguilla is a classic example of having a government of men, not of law. Anguilla falls politically and sociologically into the class of “frontier society”. That is the polite way of saying that we are a typical “third-world" country. No high standards of governance are expected from the leadership of such a country.

So, it would be interesting to hear if the Chief Minister can point to any improvement his administration has made to our long-standing system of poor government.

Or, is it just that I am being naive in expecting better from the United Front government, and that everyone knows that manifestos are designed and published to help win an election, and they are not intended to make any meaningful or serious promises?

Classes

Back to School Again. The new school year began on Monday at the Albena Lake Hodge Comprehensive School in The Valley. My job is to teach CAPE Law. CAPE stands for Caribbean Advanced Proficiency Exams. This is what we knew years ago as “A Levels”. It is a two year course of study in several different subjects that students must complete before they can go to the University of the West Indies. This year we are doing Unit 2. The three subjects are, the law of Tort, Land law and the law of Contract.

I had been preparing to teach Unit 1 as well. The three subjects there are Caribbean Legal Systems, Constitutional and Administrative Law, and Criminal Law. Classes began yesterday, and I have given one lecture. Now, it appears that the students have too many clashes in their timetable. So, they must all do Unit 2. The situation is not clear yet. I may still be teaching both units.

Preparing the lectures and attending class has proven time consuming. In recent weeks I have not had much time to think about the blog. Hopefully, things will settle down soon.

Meanwhile, is there anything anyone would like to talk about?

Unprincipled

Can We Ever Believe Our Government? On 31 July, the Flag/Temenos project began to shut down. It had until then been Anguilla’s highly acclaimed new flagship golf-course project. Perhaps they had run out of money. Perhaps they had some other problem. We were never told. They just notified their contractor, Ashtrom, that the project was closing while they reorganized their finances.

We have touched on Ashtrom on this blog before. They had been permitted to bring in hundreds of Chinese workers to do their construction. Anguilla is a West Indian island of some 12,000 people, men, women and children. We are a mainly Afro-Caribbean, relatively homogenous, society. Hundreds of imported Chinese contract workers made a significant impact on the demographics of the island. Popular discontent with this situation has been brewing for some time.

We were assured that we need not worry. The Chinese were safely locked away on the project. They were not allowed to venture out to compete with the local working population.

Now that Flag had apparently run out of money, the Anguillian workers on the project were laid off first. The Chinese workers continued working.

While we waited and worried, Government came charging over the hill with flags flying. They wrote a letter to Ashtrom. The last paragraphs were the critical ones. They read:

So, the Chinese workers were to cease work immediately.

The question was, what would happen to them now that Ashtrom no longer had any work for them? The Government letter also made that clear. The Chinese must be repatriated until the Anguillian workers were back on the job.

Relief flowed through our arteries like re-oxygenated blood. Government was at last doing the right thing. But, that sentiment was not to last.

By 12 August, more Anguillian workers were being laid off. At least, we knew that Government had told Astrom that the Chinese workers must go unless the project resumed within two weeks.

That was some six weeks ago.

What has happened since?

Most of the Anguillian workers are still laid off. The remainder are expected to go soon.

The Chinese workers are still residing in Anguilla. Many of them are to be seen walking the streets seeking work wherever they can find it. This solicitation, despite published announcements by Government that it is contrary to their work permits and must cease.

There has been no explanation for the apparent change of mind. Has government rescinded its demand that the Chinese go? Has Bob Sillerman, said to be the principal investor at Flag/Temenos, persuaded Government to change its policy? No explanation has been forthcoming.

Now, Government has announced that they are utilizing forty (40) of the Chinese in completing the Football Field project at the Webster’s Park in The Valley. The announcement in last week's Anguillian Newspaper is that this is supposed to be a generous gesture by Ashtrom to benefit the community.

The bottom line is that the Anguillians at Flag/Temenos are unemployed, and the Chinese are still here.

Is the Government right in adopting a cynical approach to crises? Is it true that everyone in Anguilla forgets promises made within a week?

Is there no one holding Government to the promises they made?

Is no one protesting at the hypocrisy and contempt shown for the people by those in power.

Hey, I have some repairs to do. Can I take ten (10) of them?

Inquiry

When Can Anguilla Expect to See the FAC-Recommended Inquiry? I have been looking again at the Report of the Foreign Affairs Committee of the British Parliament. The FAC has recommended that there be a public inquiry into allegations of corruption in Anguilla. The Hon Eddie Baird pointed out recently on the “To the Point” radio talk-show why a public inquiry is to be desired, even by the Ministers. It is in the interest of the Ministers to put the wild allegations to rest. It is not to their long-term benefit to sweep the matter under the carpet. People will only continue to hurl irresponsible allegations around. But, in my opinion, it is very doubtful that the recommended Inquiry will be held.

The Hon Chief Minister has said repeatedly in the House of Assembly that he is opposed to the holding of such an inquiry. He must be speaking for the government when he says so. The Turks and Caicos government was similarly opposed. The Inquiry was still set up, in spite of their Premier's protests. It was done within days of the FAC recommendation being published. The TCI Commission of Inquiry is pursuing its investigation, despite legal challenges made by government supporters. What makes Anguilla different? To understand, you need to look at the actual words used in the FAC Report.

The Report was published on 6 July 2008. You can download a copy of the entire thing here. Be patient, it is 3.17 MB in .pdf format. Or, you can just look at the two relevant extracts copied in red below for you.

The TCI recommendation is quite different from the one for Anguilla. It begins at page 157 of the Report. The relevant part reads:

“We conclude that the UK Government must find a way to assure people that a formal process with safeguards is underway and therefore recommend that it announces a Commission of Inquiry, with full protection for witnesses”.

The recommendation for Anguilla begins at page 132. The relevant part reads:

“We recommend that the [British] Government should encourage the Anguillan government to establish an independent inquiry into allegations that Anguillan ministers accepted bribes from developers in the Territory”.

These are fundamentally different recommendations. In the case of TCI, the FAC recommended that the British Government should announce a Commission of Inquiry. The British Government did so almost immediately. In the case of Anguilla, the FAC recommends that the British Government should encourage the Anguilla Government to hold an independent inquiry.

So, it is for the FCO to first react, if it chooses. The Mandarins in the FCO have to decide whether they see any advantage for themselves in recommending an Inquiry to the Anguilla Government.

They may reject the recommendation. They may decide that they should continue their history of benevolent abandonment of all principles and policies of good governance in Anguilla. That will be the end of the matter. This is the choice I believe the FCO will make in the end. Why should they accept the FAC recommendation that they shoot themselves in their own foot?

Even if the FCO should comply with the recommendation, that is not sufficient. The FCO may accept the FAC recommendation. They may “encourage” the Anguilla Government to hold an Inquiry. Then, it is up to the Anguilla Government to respond.

The Anguilla Government may decide to hold the Inquiry. Alternatively, they may decide to reject the “encouragement”. The Anguilla Government has a choice. The recommendation was not made in binding and obligatory words, as in the case of the TCI. It is open to the Anguilla Government not to take the encouragement. If they do not call for an Inquiry, they will not be flying in the face of anybody. They will be exercising a choice they were given.

If they decide to hold the Inquiry, that is not the end. They have to decide who they will appoint as the Commissioner. Unlike in the TCI, it will not be the British Government who will decide on who the Commissioner in Anguilla will be. The Anguilla Government could bring in anybody they think suitable.

Meanwhile, the FAC has washed its hands of Anguilla. They are now busy considering what the British Parliament should be doing about the Russian invasion of the Republic of Georgia. It is hardly likely they are going to want to waste their time coming back to consider the problem of Anguilla.

It has been well said that, “There is many a slip twixt cup and lip”.

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