29 May, 2008

Big Chief

Government by Laws Rather than by Men. Last Monday, on the Webster Park, during the public meeting to discuss the constitutional reform programme, I thought Brent Davis asked a perfectly reasonable question. I cannot remember his exact words, but it went something like this. He said, “We all know that, at present, if a contractor needs a work permit, and the Immigration Department is refusing it, all he has to do is to go and speak to the Minister personally. If he is a friend and supporter of the Minister, he will get the permit. If he begs hard enough. If he is not a friend, he will not get it. If any Anguillian wants to develop his land in a way the Land Development and Control Committee will not approve, all he has to do is to go to see the Minister. The Minister will tell his Permanent Secretary, who is the Chairman of the Committee, to approve it.

Then, he asked, “How do you expect Anguillians to give you more power over us when you do not have a system in place that is transparent and applies equally to all?

The Chief Minister responded instantly, and, it seemed, from the heart. He was obviously being honest and earnest. He said, “Brent, you know we are all politicians. Civil servants can sometimes be very hard and uncompromising. They do not show flexibility in appropriate cases. We politicians have a softer heart. We listen to our people. We sometimes have to step in and soften the decisions taken by our civil servants.”

My heart sank. The Chief had no idea how bad he sounded. He did not know that his response was the definition of one of the most corrupting systems of government in the world. It is government by big chief, instead of government by law. By defending the system that Brent had just described, he was showing that he was a supporter of it. At the very least, he did not recognise how dangerous and unacceptable it is to a modern, educated people such as the Anguillians of today.

In a democratic, transparent, accountable system of government, it is the duty of Ministers to lay down the national policy. Then, they have to leave it to the civil service to carry out their policy. For appropriate cases, they put in place a system of appeals to an independent board. There can never be allowed a personal appeal to the Minister to reverse an official's decision. The official has a duty to apply government's policy fairly and evenly across the board. To have it otherwise, means that the law and policy are not applied evenly and fairly to all citizens. Victimisation is the inevitable result.

If there is something wrong with the law or policy, change the law or policy. That is what the Ministers can do. That is their role and power. When society becomes accustomed to permitting Ministers to overturn official decisions for their friends and supporters, we begin the long downward slope to arbitrary and dictatorial rule.

The Chief Minister was not alone in not understanding this fundamental rule of fair government. Besides Brent, I doubt there were more than five persons in the crowd on the park that evening listening to that exchange who thought there was something strange about the Chief Minister's response. Most of them seemed to think his response was perfectly normal and correct. In their defence, it is the only system they have known in Anguilla all their lives. They have no knowledge of how government by law is done in other parts of the world.

In defence of our Ministers, it is also true that it is the people who corrupt their system of government. It is not the leaders who start off corrupt. Leaders sometimes come into power with honest and sincere intentions to do good for their people. We then go to visit them, and beg them for special favours. We offer them all sorts of inducements to grant our wish. Sometimes it is our vote, sometimes an envelope of money, sometimes sexual favours. Our leaders know that is how government works in other islands of the West Indies. The risk is that they may come to think it is normal. We live in fear that one day they may give in to the temptation.

We have been fortunate in Anguilla to have had, over the years, men and women in power who were decent and honest. They have stood up to and resisted the temptations. We have not suffered from the type of corruption that has affected so many of our neighbours. We really have been lucky!

Some will say that the island is too small to expect that the standards that exist in the outside world will survive and work here. They shrug their shoulders and say that only in a big country will there be newspaper journalists and radio talk-show hosts who will make it their mission to demand more integrity, transparency and honesty from our leaders. I say that is not true!

No matter how small our community, we are entitled to expect that government will be of law and not of men.

28 May, 2008

Checks & Balances

Checks and Balances. The United States Constitution is often touted as that which best demonstrates checks and balances on the power of the Executive. We have all seen the Senate Committees in action. The President nominates someone to be the next Chief Justice. That is the Executive influencing the Judiciary. There has to be a check and balance. The Senate Judiciary Committee must approve the President's nomination, or the person selected by the President cannot be appointed. That is the Legislature acting as a check on the power of the Executive. This is recognised and appreciated as one of the finest aspects of the US Constitution.

The US has a Presidential-style Constitution. We in Anguilla have what is called a Westminster-style Constitution. It is a written form of the unwritten rules that prevail at Westminster in London. One of the characteristics of a Westminster-style Constitution is that there are no checks and balances. The British traditionally left all that to individual honour and integrity. Parliament was then considered a gentleman's club. No Prime Minister could be thought to be acting improperly in making appointments! Now, even the British have given up on that mistaken theory. Prime Ministers need to raise large sums of money to get re-elected. Money greases the wheels of power everywhere. So, the British have begun to introduce checks and balances into their system. Today, in England, the Minister cannot appoint a crony to a Hospital Board, as used to be done in past years. An Appointments Commission, set up by law, must check credentials and background and approve all appointments to public boards in the UK.

Many of us in Anguilla have not woken up to the weaknesses and deficiencies in this area of our Constitution. We are not surprised when, after every general election, the Ministers divide up the statutory boards and national committees between themselves. One Minister might appoint incompetent but politically important supporters to the Social Security Board. Another Minister, by agreement, would take the Anglec Board. [No, I have no particular appointment in mind. I picked them at random as typical of appointments to all boards and committees over the years in Anguilla]. No one in Anguilla questions these appointments. We laugh, and call it “enjoying the fruits of office”, and think nothing more of it. In fact, it stinks of corruption, and should make us all ashamed of our governments, past and present.

If we are going to ask the people to support a push for increased internal self-government, we must show that it is balanced by checks on abuse of power. If as much thought is not put into checks and balances, then people will not support increased self-government. They will think, better to have arbitrary, one-man, government by the far-away British who seldom get in our face, than the same by an unchecked and unbalanced local politician who can, and will, delight in harming the interests of those of us he perceives as opposing his wishes and interests.

Recent history in the Caribbean has proven it ever to be so. And, they say we cannot learn from history?



26 May, 2008

Garden Path

Full Internal Self-Government. Young people don't beat around the bush. They come straight to the point. They asked, “Are you in favour of the Chief Minister telling the British Government that we demand our full internal self-government?” I told them, “No”. They asked, “So, you don't believe Anguillians are ready for full internal self-government?” I answered, “Yes, Anguillians are ready. On condition that there is a full safety-net of checks and balances. Better we deal with one hand tied behind our backs with the far-away British who do not interfere with our rights than we deal with two hands tied behind our backs with a government we may get one day that is malicious and spiteful.”

The problem is not with Anguillians running the various agencies of government. The question is, will the new Constitution contain all the checks and balances that the 2006 Constitutional and Electoral Reform Commission Report recommended? Until I see that done, I am very concerned that we will give away our present liberties and be taken advantage of by greedy men with no real interest in the welfare of their people.

The second reason why we should not demand full internal self-government at this time is strategic. The British government has no objection to us asking for full internal self-government. We will get it anytime we ask for it. They have told us so repeatedly. What they insist on is that we must come with a timetable for independence when we want to talk about full internal self-government. Nobody in Anguilla, nobody with any sense anyway, is in favour of independence in the foreseeable future.

We all know how fragile Anguilla's democracy is. It is of such a short duration that we have little or no experience in the many mechanisms of democracy. All the Leeward Islands, except Anguilla, had Legislatures since the Seventeenth Century. We in Anguilla debated our first law in the Legislative Assembly as recently as 1976. We do not have a critical press. There is no transparency in government. Everything government does is a state secret. Promises of regular consultation with the people have not been kept. We do not have viable political parties which offer us a choice when we want a change in government. The proof is to check for yourself when last we voted out an incumbent member of the House of Assembly. We have seven elected members of the House. One, Hubert Hughes, has been there since the dawn of constitutional rule in Anguilla in 1976. Others, Kenneth Harrigan, Osborne Fleming, Victor Banks, and Albelto Hughes, have been there since before the 1982 Constitution. The only new ones, Eddie Baird and McNeil Rogers, have come in at the resignation of the incumbents. We have proven ourselves too timid to change our representatives. It is almost a case of, “Better the devil you know than the one you don't know.” We need to see our institutions of democracy grow and mature before we can hope that our leaders will be honest and dependable. Until then, better the devil you know . . .

We also know how fragile our economy is. We have one industry, tourism. The livelihood of everyone in Anguilla depends in one way or another in its continued growth and success. The fear is what is going to happen to that industry when Cuba opens up to the American market? Will we be able to fill all the hotel rooms we are presently building? We need to work hard, perhaps for another 40 years, to diversify our economy to the state that we can withstand a shock on any one sector. Even Cayman Islands, so much richer than us, are refusing to look at a timetable for independence at this time.

The destiny of Anguilla has already been determined by our geography and our history. It lies in a future independent West Indian State. None of us wants an independent Anguilla sending representatives to the United Nations, London and Washington. We will turn into a failed-state disaster like Grenada, St Vincent, and Antigua. When Tobago and Barbuda and Nevis are free of their colonial bondage, when the people of our islands are ready to come together as one country, we want Anguilla to be a Province in that country, the Republic of the West Indies. There is safety in numbers. We would be quite mad to expose ourselves to unrestrained rule by our clueless leaders and their crooked cronies.

A third reason for not clamoring about our right to full internal self-government is that we can get almost all the full self-government improvements that we can handle. The British gave it to BVI and TCI without their waving it like a red flag in the face of a bull. The Constitutional and Electoral Reform Commission collected and published the recommendations for change and improvement agreed to by Anguillians. If implemented, they would have amounted to full internal self-government. The Commission did not use the slogan, given the warning that the British Government has given us.

It is a pointless exercise. We are not going to get it, without a time table for independence. We do not have any timetable for independence.

Is the Chief Minister being led down the garden path? Or, does he have a plan?

24 May, 2008

Open Mic

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

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

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

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

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

National Security Council

Boundaries Commission: 3 April 2008

Public Service Commission: 7 April 2008

Teaching Service Commission: 7 April 2008

Police Service Commission: 16 April 2008

Financial Service Commission: 20 April 2008

Judicial Service Commission: 24 April 2008

Anguillian Status Commission: 22 April 2008

Mercy Committee: 28 April 2008

Human Rights Commissioner: 27 April 2008

Complaints Commissioner/Ombudsman: 15 January 2008

Police Complaints Authority: 16 April 2008

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

Crown land: 30 August 2007

Public Accounts Committee: 9 August 2007

Freedom of Information Act: 14 February 2007

Procurement: 26 February 2008

Integrity Pacts: 28 February 2008

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

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

I hope they come up on “Open Mic”.



23 May, 2008

Government


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

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

Read it and weep!


21 May, 2008

Culture


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

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

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

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

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

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

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

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


17 May, 2008

History

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

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

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

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

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

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

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

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

The ACH Executive Committee

Professor Pedro Welch with Joel and Joyce Toney


President Verene Shepherd and Gail Saunders

Professors Bridget Brereton and Richard Blackett enjoy Koalcreek

Verene Shepherd, Richard Blackett and company

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



14 May, 2008

Bahamas

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

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

Congratulations, Seymour!

Next week, Surinam.

09 May, 2008

A-G's Chambers

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

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

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

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

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

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

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

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

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

07 May, 2008

Dolphin Park

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

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

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

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

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

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

TERRITORY OF ANGUILLA

(CIVIL)

AD 2008

CLAIM NO. AXAHCV/2008/0015

BETWEEN:

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

And

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

TRANSCRIPT OF DECISION

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

BY: HON JUSTICE JANICE GEORGE-CREQUE, Judge.

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

Mr. Ivor Greene for the Respondent;

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

PROCEEDINGS

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

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

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

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

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

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

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

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

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

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

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

Counsel for the Respondent stated that:

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

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

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

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

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

Accordingly, it is ordered as follows:

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

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

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

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

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

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

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

02 May, 2008

Offshore Finance


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

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

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

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

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

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

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

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

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

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

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