Constitution

Hon Victor Banks announces that the Anguillian delegation that went to London discussed the “draft” constitution. Tonight is Thursday night. I was just flicking through the TV channels, as idle men are wont to do. There is no TV programming in Anguilla. You must go ‘click’, ‘click’, ‘click’ just to find out what is happening. As a typical man, that is not a problem. That is what we all do from 8:00 to 10:00 every night anyway.

There was Victor, looking very exhausted, I may say, on Channel 12, announcing with all the insousiance that he could muster, that the Anguillian team had discussed the ‘draft constitution’ with the British legal advisors. The British, he casually admitted, had presented some ‘concerns’ to the Anguillian team. It was the middle of the Chief Minister's weekly press conference. I did not even know they were back from London.

Will we ever learn what was presented to the British by our team?

Will we ever learn what the British team’s comment was?

All the rest was rubbish, IMHO.

PS: I hope Victor was truly embarrased at whatever the British told him about their views on Lolita's draft Constitution.

PPS: Who authorised them to discuss the Anguilla Constitution with the British?

Marketing

I would have thought that the artist’s renditions on the early promotional material would have been preferable to the barren scenes depicted by these photographs. I have just been looking at the latest promotional material produced by Viceroy. The above is the conclusion I came to as a result. The architect’s elevations and drawings in circulation some years ago were quite attractive. By comparison, the real thing as depicted by these latest photographs is about as close a resemblance to Alcatraz prison as you can get. Have a look for yourself and tell me whether you are attracted.

View of the Point from the water

Entrance

Walkway

Seafront apartments

Hotel

Shearwater and Royal Tern Villas

View of the Specialty Restaurant from the water

Shearwater villas

Residences

What seems to be their spanking new website can be seen at Viceroy Anguilla.

Their ownership opportunities page gives you lots of pictures of sea fans and exotic marine life.

But, I can’t find out what I get for my million dollars if I purchase a residence there. Will I be acquiring the Anguilla equivalent of freehold, called under our law ‘title absolute’? Or, am I perhaps acquiring a 99 year ‘lease’? Or, perhaps, it will be a ‘strata lot’ registered under the Condominium Act? That would be as good as real property. Anything else would be, in my opinion, mere vapour, gas, a mirage of real property.

Purchasers, I am told by one who has been in communication with me, are not encouraged to retain their own local lawyer to advise them on what exactly it is they are acquiring. Purchasers are under the impression that they can use the professional services provided by the seller! Can it be that even today there are buyers who are so naïve? I am certain they would not be so innocent in their own home country if they were acquiring a multi-million dollar home. They would have the best lawyer around advising them on their investment.

Some real estate speculators and developers in various parts of the world are selling ownership of imaginary real estate under the name of ‘club residences’ and the like. In Anguilla at least, such a purchase does not result in the ownership of real estate. What is acquired is nothing more than a contractual interest. The problem with contracts, as compared to an interest in real estate, is that a contract can fail or come to an end for one reason or another. When that happens, the purchaser has nothing more than a hope of suing for breach of contract. A contractual interest is most certainly not the same thing as an interest in land. Most people investing their hard-earned savings in a multi-million dollar piece of real estate are under the natural impression that they are acquiring an interest in the real estate.

It can’t be that Viceroy would be selling ‘timeshare’ as real estate in Anguilla. Timeshare, like condominium, can be a valid interest in land. But, it takes a statute to make it possible. There is no timeshare law in Anguilla. In Anguilla it is impossible to acquire as real estate a timeshare interest in a villa or apartment. It is possible to create a contract that claims to offer a ‘timeshare’ interest, but such a contract has the defect that all such contracts have: it is not an interest in realty in Anguilla. Anyway, Viceroy’s representative has assured me that Viceroy is not selling timeshares.

A pretend interest in land can also take the form of an equity interest in a company that holds the title to the real property. In such a scenario, a company owns the title to the real estate, and the individual purchasers actually acquire no more than shares in the company. But, again, this is not an interest in real estate. It is only an interest in personal property, shares in a company. If, for any reason, the company should go under, the shareholders are left with worthless equity. Well-advised investors will only purchase real estate in a country where the law recognizes and protects interests in real property.

On Sunday I sent an email inquiry to Viceroy's Phillip Day, inquiring what real estate interest does the purchaser of an apartment, or residence as they call it, acquire. He replied:

In response to your e-mail, Viceroy Anguilla does not sell "apartments." Viceroy Anguilla is selling one, two and three bedroom condominium residences along with four and five bedroom free-standing villas. As I mentioned before, Viceroy Anguilla does not sell "time-shares" or any other partial type of ownership commonly referred to as "fractional."

. . . At closing, each purchaser receives a title insurance policy from Stewart Title guaranteeing fee simple ownership of the residence free of any liens, encumbrances or other title exceptions, excepting, the following: (i) applicable laws, regulations and ordinances; (ii) the condominium documents that establish and govern Viceroy's condominium homeowners association; (iii) easements, rights-of-way, covenants, restrictions and other encumbrances that affect the condominiums; (iv) all easements, rights-of-way and notes shown on the recorded development plan; (v) easements, claims of easements, not shown by public record (vi) discrepancies or conflicts in boundaries, easements, encroachments, rights-of-way, encroachments or area content that a satisfactory current land title survey would disclose; (vi) possible additional tax assessment by reason of new construction of improvements, not yet due and payable; and (viii) the statutory rights and easements granted to the Seller as Declaring under the condominium documents by the Government of Anguilla, British West Indies.

Every Viceroy Anguilla purchaser is provided with copies of all condominium documents for their examination and approval many months prior to closing. All Viceroy Anguilla purchasers are advised verbally and in writing to consult their own attorney about the purchase.

The Stuart Title referred to is a US title insurance company that usually guarantees title to deeded property held by fee simple ownership. It is useful to have title insurance in the case of deeded property. There is no deeded realty in Anguilla. A person purchasing real estate in Anguilla will expect to get 'absolute title', which is a land title already guaranteed by law.

All real property in Anguilla is registered title under the Registered Land Act. A guarantee by a private company of my absolute title to my property is about as meaningfull as my guaranteeing to you that the sun will rise in the east tomorrow. The laws of the planets and the stars already guarantee that the sun will rise in the east tomorrow. Registered title means that the Act imposes an obligation on the government of Anguilla to guarantee title. Title once registered is guaranteed by law. No private company can give a better or stronger title guarantee that the Act and the Constitution of Anguilla.

Given that there is no fee simple title to land in Anguilla [it was abolished by law in 1974], I have difficulty understanding how Stuart Title will guarantee that that is just what a purchaser will receive. This must be a mistaken understanding by Mr Day about the law of Anguilla. I have previously pointed this out to him, but he does not seem to understand the point.

Do make sure to get your own lawyer to advise you on any purchase of a 'residence'. I am certainly no expert, never having seen any of the contractual or title documents.

Flag Luxury

I think I have shown conclusively that I am not knowledgeable enough about the real estate business. So says Robert FX Sillerman of himself. Judging from an article in this weekend's Guardian Newspaper, it appears that he is walking away from the real estate business in both the USA and in Anguilla.

Graceland's Heartbreak Hotel swimming pool

According to the author of the Guardian article, journalist James Doran in New York, Sillerman is quoted as saying,

"I think I have shown conclusively that I am not knowledgeable enough about the real estate business," he said. "I think I should leave it to other people to pursue."

His decision comes amid a flurry of lawsuits surrounding the construction of a luxury golf resort on the Caribbean island of Anguilla. The project has failed and is in default on loans and guarantees. "That project has stopped," he said, "I'm not in the real estate business."

The Swiss banking group Credit Suisse last week filed a lawsuit seeking repayment of more than $21m (£12.8m) in guarantees; another company, Anguilla Equity Partners, is seeking more than $25m in relation to the same project.

Sillerman said he has spent so much of his fortune on the Anguilla project that he should not have to pay Credit Suisse. "I was originally asked to invest somewhere around $15m," he said. "But since then I have put in about $200m of my own money just to keep it going."

Court papers filed in Manhattan last week show that he has indeed spent a further $180m on the hotel complex. One schedule of costs shows he has been spending more than $200,000 a month just to water the $12m championship golf course designed by Greg Norman.

Note that he appears to be walking away from the Anguilla project. There is no suggestion that he hopes to rescue it in due course, as some of us have been half hoping. Nor is there is any hint that he expects that anyone else is going to buy it from him.

It will be up to Credit Suisse to try to recover its lost loan investment in whatever way it can. Other investors and creditors and plaintiffs in the law suits will have to see what they can seize and sell.

Simon Cowell

As for Mr Sillerman himself, who said he would not walk away from US$200 million? His media and entertainment empire is not suffering from the recession. A 20 May article in USA Today suggests that American Idol is doing fine. On 13 July in a complex corporate restructuring Simon Cowell and Sillerman announced that their partnership will continue into the future after Cowell’s present contract with American Idol comes to an end in 2010. There is no shortage of money in Mr Sillerman’s coffers. Just don’t ask him to spend any more of it on Anguilla.

Mr and Mrs Robert FX Sillerman

When Credit Suisse and the other creditors come calling, it certainly will not be with any intention of protecting the interests of Anguillians. That had been one of Sillermans motives all along. And, look where it got him!

The abandoned Flag Luxury Resort in Anguilla

Borrowing

Anguilla’s Government visiting London to negotiate increased borrowing power. I heard on Radio Anguilla news that Jamaica is negotiating a huge loan with the IMF. I think I heard something like $1.2 billion.

The Jamaica Observer has an interesting interview with Dr DeLisle Worrell. He deals with the issue of government borrowing. I urge you to read it. The most relevant paragraph, I thought, was:

The nature of our economies is that you have to be very careful on the nature of your fiscal spending - that you don't overspend beyond what your taxes will bring in and what you can borrow from domestic markets. If you go beyond that then you tend to create additional spending over and above what your foreign exchange earnings will support. If you do make that mistake you have to correct it fairly promptly. I think the failure of Jamaica and Guyana in particular, was that they allowed that situation of imbalances on their fiscal accounts which had very adverse and persistent effects on their balance of payments.

What do our leaders want to increase borrowing for? Is it for the big infrastructure projects due to start in 2010? I hear that several election hopes are resting on these projects providing jobs for the boys.

If so, guess who will be paying dearly in the years to come.

Perhaps I would not be so worried if they had told us what it was all about, and what the money was really for.

Agincourt

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Who were the true fighters of the Anguilla Revolution of 1967? I read in History Today News that a searchable database containing 250,000 service records of English soldiers who saw active duty in the latter phases of the Hundred Years War was published online yesterday, July 20^th 2009. The database is part of a research project about soldiers in English royal armies between 1369 and 1453 led by Dr Adrian Bell at the International Capital Market Association, University of Reading, and Professor Anne Curry from the University of Southampton.

Based on the study of historic records, such as the proceedings of the Court of Chivalry, muster rolls records in the National Archives at Kew, and archives at the Bibliothèque Nationale de France, researchers have created complex profiles of individual soldiers in what is now considered England’s first professional army. The database notably includes the names of many archers who served with King Henry V at Agincourt, details of where individual soldiers fought and for how long, which campaigns they fought in, how much they were paid, who was ill and unable to fight, who was knighted and who advanced in rank as a result of military success.

Is it not amazing this kind of detail can be reproduced after over six hundred years?

Can we in Anguilla put together a similar database of the local militia who fought in our Anguilla Revolution forty-two years ago?

In the Anguilla of today there is hardly anyone of the Revolution era who does not claim to have risked their life to defend Anguilla. How many of them are fraudsters who ran off to St Kitts with the Customs records or whatever?

Even if the Peacekeeping Committee of 1967 had had a formal army, with pay and other records, some civil servant would have burned them by now, claiming they were confidential. Or, perhaps the space was needed in the filing cabinets. The truly confidential records, like the day books containing the most detailed records of people’s intimate medical conditions, when they farted, and when they had a bowel movement, were abandoned at the Cottage Hospital when it was vacated. They were rescued and donated to the National Archives. I hope they are still there in the room behind the court house. How much longer will they survive neglect and carelessness?

Who would have known otherwise that Neil Rogers acted as Dr Arjoon Jagan’s surgical assistant as he washed his hands and operated on patients in what we now call the good old days?

TIEA

Tax Information Exchange Arrangements. The Chief Minister and the Minister of Finance, with assorted public servants and hangers-on, have gone off to London to negotiate an increase in Anguilla’s permissible borrowing facility. For some reason the FCO retains a brake on the borrowing ability of the Overseas Territories. Anguilla is now reaching the uppermost limit of its borrowing, and the government ministers need an increase if they are to maintain the high level of government expenditure they had planned in the immediate period before the general elections due early next year. That negotiation is what they told us the trip to London was about.

Someone has just brought to my attention the following article published on the website of HM Revenue in London. The Chief Minister has signed a Tax Information Exchange Arrangement with the British Government. My correspondent asked me whether it had received much publicity in Anguilla. He enquired if I had any reason to believe that the Bar Association and the Anguilla Financial Services Association were consulted on what impact it would have on Anguilla? The answer to both questions is no, I very much doubt that the Chief Minister consulted with any of the relevant stake holders before he signed this Agreement.

I doubt even the Ministers of government, including the Minister of Finance, had the faintest clue that it was going to be signed.

Revenue probably presented it to him at a briefing, and he would have said, “Okay, just let me sign it while I am over here.”

That is how we run government in Anguilla.

LIAT

Do Not Under Any Circumstances Use LIAT. Here I am back in Anguilla. No thanks to LIAT. As we took off at least the stewardess did not try to bullshit us with apologies. She just did her normal thing, looking us straight in the face with no hint of a sarcastic smile. The 10:30 am ‘plane eventually departed for St Maarten at 10:00 pm. Too late to get to Anguilla the same day. I had to overnight in SXM. I arrived in Anguilla more than 24 hours after I set out to travel the 100 miles from SKB to AXA. The Schooner Warspite would have done it in less time 90 years ago. All day long, the ground staff in St Kitts promised us news from hour to hour. Sometimes three hours would pass with no word. One said there were six ‘planes in the hangar under repair. Another lied through his teeth and explained that the problem was there was turbulence in the region. A helpful police officer whispered that some unidentified staff were engaged in a sick out.

Anyway, I arrived home to a message from Spyblog. The unredacted final Report of Sir Robin Auld which names and shames various local Turks and Caicos Islands politicians who were involved in selling off Crown lands to overseas property developers, thereby making a mockery of the concept of ‘belonger status’, and of any effective financial or administrative control of public finances, has been published by http://wikileaks.org/.

It is well worth a visit and a read.

Set aside a couple of hours.

Meanwhile, I have sworn never again to fly LIAT. Not if there is a choice. If I want to get to Antigua from Anguilla I can take Winair from St Maarten. Or, I can take American Eagle to San Juan and then to Antigua. Not one dollar more. Not if I can ever avoid it.

They are absolutely useless.

I hope you follow my example. And, tell all your friends.

Belonger

Draft of New Constitution Creates Second-Class Status of “Belonger”. At present, all Anguillians are called “belongers” of Anguilla. There is no such word in the Constitution as an “Anguillian”. Some people find this offensive. The name “belonger” is not an Anguillian word. It is a concept taken from the British Nationality Acts. Anguillians don’t feel sympathy with the term “belonger”. They find it quite offensive. Everyone calls himself an “Anguillian”. Twenty years ago all Anguillians knew everyone on the island. You were either Anguillian or you were not.

As a belonger one has rights. You come to and go from the island without hindrance from the Immigration Department. You can freely acquire interests in land. You can vote. You can stand as a political candidate for election to the House of Assembly. None of these rights are held by “aliens”.

During the past twenty years Anguilla’s economy has boomed. Thousands of Jamaicans, Vincentians, British, Americans, and Santo Domingans have flooded into Anguilla. After a few years they have qualified to be naturalized under the British Nationality Act. Doing this in Anguilla has automatically made them “belongers” of Anguilla. They have all the rights of “native” born Anguillians. The status of being a belonger has become a bit confusing.

There is a process under the Anguilla Constitution for becoming a belonger. It is set out at section 80 of the 1982 Constitution. A “natural born” belonger, so to say, is one born in Anguilla of Anguillian parents. There are other ways of becoming a belonger. One can marry a belonger. Alternatively, one might qualify by living in Anguilla for fifteen years. A short cut is to become naturalized as a British citizen. As soon as the A-G’s Chambers gives an alien the okay, and the Governor swears him in, he immediately qualifys. Today you come across complete strangers in the supermarket talking loudly about how the Governor just made them into Anguillians. Many Anguillians are offended at the numbers of persons taking this short cut. There is general agreement that if this process continues, Anguilla will be swamped by crowds of strangers drowning out the Anguillians.

During the 2006 Constitutional and Electoral Reform Commission hearings there was much discussion on whether or not there should in future be two classes of citizens. Some persons wanted “real” Anguillians to have a special status. The new Anguillians, those who came here lately, could continue to be called “belongers’. In future, they should never have the same status as “real Anguillians”. Only real Anguillians, ie, those with an ancestral connection to the island should in future be called “Anguillians”. This notion of different classes of Anguillian was soundly rejected by the majority of persons making representations to the Commission. There was widespread agreement that the practice of naturalizing foreign persons and automatically qualifying them to belonger status was wrong. The people of Anguilla wanted this practice to end.

The Commission recommended that in future the process of naturalization should be disconnected from the process of becoming a belonger. Anyone who wants to become a British Overseas Territories Citizen can go ahead and get naturalized. That will give one British rights, but no automatic rights in Anguilla. The process of naturalization should not automatically result in acquiring Anguillian status. Anguillian status should be reserved for those persons who had a connection by birth and ancestry with Anguilla. [Those from overseas who had in the meantime become Anguillians could not have their rights taken away. They would be grandfathered in as Anguillians.] All persons becoming naturalized in future would not have this benefit. The Chief Minister’s Committee subsequently studied the recommendations. The Committee supported the idea of removing naturalization as a method of acquiring full Anguillian rights.

The new draft Constitution up on the government website brings more confusion to the picture. It revives the status of belonger and adds the new status of Anguillian. Only an Anguillian can be Deputy Governor. Only an Anguillian can run in general elections. The bottom line is that this new draft constitution does exactly what a majority of Anguillians have already rejected. And it does it without the slightest prior consultation with the people.

Section 45(2) says who is an Anguillian. Who is a belonger is dealt with elsewhere. As if to emphasise the importance of the distinction, the draughtsperson has chosen to provide for the status of belonger in two different sections. Sections 20(5) and 105 contain conflicting definitions of who is a belonger. There are some similarities, but there are differences between the two definitions. There is no hint that these are alternatives open for discussion. They are put forward as separate and distinct definitions.

Check it for yourself.

How in the world did a competent draughtsperson make such an elementary mistake.

What confusion!

What embarrassment!

New

The new Constitution, to quote Haydn Hughes, has just popped up on the government website. See: http://www.gov.ai/documents/Anguilla%20Constitution%20Draft%202009.pdf

I am going to be downloading it, printing it, and commenting on it. I expect that the A-G’s Chambers have made alterations and comments. If they have, all interest in Lolita’s draft now pales into insignificance.

Secrecy

Attorney-General denies having a copy of the draft new constitution. All Anguilla has wanted to see the draft new Constitution prepared by Lolita Davis Richardson. We have been waiting patiently to see what is in this draft.

I have been given a copy of what I am told is the final draft. It is filled with errors so I have my doubts. It contains barely one half of the recommendations of the Constitutional and Electoral Reform Commission. It contains some proposals that Anguillians soundly rejected. It is severely defective in many respects. Mrs Richardson should be ashamed if this draft is what the Chief Minister presents to London. It needs to be cleaned up and corrected by a legal draftsman in the A-G’s Chambers.

In the 16 February issue of The Anguillian Newspaper we saw the story of Mrs Richardson officially handing over the final draft to the government of Anguilla. She handed it over to the Chief Minister, the Attorney-General and the Minister of Finance. Those three had been part of the drafting team that spent over six months reviewing and finalizing this draft. They were well aware of what was in it.

All that was left was for the Attorney-General to publish the draft. The comments of the public would be sought. Members of the House of Assembly would debate the draft and come up with their own recommendations. The Chief Minister’s Committee would meet and hold discussions with the British Negotiating Team. Looming high over this process is the need first to publish the draft. Before anything is finalized the public needs to be given an opportunity to comment. Most people will not have anything to contribute. But, they all expect to be asked first.

February passed. March passed. April passed. May passed. June passed. We are now in July. That is nearly a half a year since the draft has been officially presented. Nothing.

On Tuesday 3 July the Chief Minister held his weekly press conference. He spoke about going this weekend to Guyana for the Caricom conference. When he returns he leaves on Monday for London. He is taking a team to discuss economic issues. He is also going to discuss the new constitution. The Anguillian Newspaper of 3 July reports what he said at page 15, column 2:

“He reported that

while in London the

delegation would

meet briefly with the

Constitutional Review

Team to discuss the

new draft constitution,

copies of which would

be circulated shortly.”

That concerns me. What business does the Chief Minister have discussing a new constitution when it has not yet been shown to us the public.

So I wrote to the Attorney-General asking for a copy. I told him I want to comment on it. He has now replied. He writes that he does not have a copy. It is still with the Chief Minister’s office. That means that not even the Attorney-General has been given a copy. Not for the public to see, anyway.

My fear is that, just like the 1982 Constitution, we in Anguilla will see it one week before it comes into effect.

I wonder how the people of Anguilla will accept being treated in that way.

In the coming days, I will make my comments on the draft that was sneaked to me.