14 October, 2010
Three times unlucky. That is what they said in the trenches during World War I. If you were a soldier taking cover in a trench and lit one cigarette at night, the sniper might miss. By the time you lit the second one, he had you spotted. If that shot did not get you, the third one was bound to splatter your head. Hence, third time unlucky.
I have now received my third “letter before action”. A subject of several posts on my blog has sent me a letter threatening a law suit if I do not apologise to him for what he claims are defamatory articles I have posted of him going back to 2007. I have sought legal advice, and am awaiting word from my attorney on how I should respond.
It may be worth remembering the recent history of this blog. It started in December 2006. By 2006, the lone Anguillian radio call-in programme, Talk Your Mind, had degenerated into social chatter about carnival and culture. There were no other radio stations engaging the public in any kind of serious discourse. By 2010 that has all changed. Each of the several radio stations in Anguilla now hosts one or more radio call-in programmes per week. At each of them the citizen is invited to express his opinion and to criticise government action and inaction. Even Talk Your Mind now once again occasionally deals with controversial issues.
When the blog started, our two local newspapers The Anguillian and The Light published only press releases and society stuff. No more. Since the blog started, they have begun to print critical and analytical stuff about the goings on in government. Last week’s Anguillian alone boasted over 6 pages of serious social and political commentary.
Back in December 2006 gang violence had never been as pervasive as it was in that year. There were more murders in Anguilla in that year than in a normal decade. The Royal Anguilla Police Force was secretive and defensive about its actions. Its members were held in very low public esteem. They complained that the public was not cooperating with their investigations. They had not yet started holding their weekly press conferences. They do so now. They now keep us up to date with what is going on in the criminal court, and on the criminal front. This welcome public relations effort began immediately after I met with the Commissioner of Police and his senior officials and pointed out how useful and necessary such an activity would be. Police relations with the public of Anguilla has since gone through a ground sea swell.
Back in 2006, the then Chief Minister Osborne Fleming had long stopped the tradition of weekly press conferences that Hubert Hughes had engaged in when he was in office. This blog complained frequently about the negative impact that this secrecy and lack of information had on the society. You will recall that many of us were then suspicious of government. There was a sullen acceptance that things were going on that none of us was being told about. The blog posted several pieces pointing out the need for more openness in government, particularly for press conferences after the weekly Executive Council meeting, so that we could be informed what government was doing for us. Shortly after the blog began to make these complaints, the Chief Minister started his weekly press conferences. It is true that they were not informative, about government, but mainly political propaganda, about the Chief Minister’s take on his enemies and their motives. There is still to this day no weekly press conference on the activities and decisions of ExCo, and that is a shame. Hubert Hughes has continued the tradition of political press conferences. Never mind, at least it is something. For what little it is worth, this blog can claim some credit.
There are plenty of other forums out there performing the function for which this blog was started. There is axareality.com. That forum does occasionally tend to be juvenile and bad tempered, but it posts interesting documents. There is some political discussion on Anguilla Talk though lately it has mainly died down, reportedly in response to threats of legal action.
I no longer feel like a lone voice crying in the wilderness for some openness, transparency and accountability. Closing this blog down will not be a serious loss. Several others have taken up the mantle and are carrying on demanding the high standards of public life that we all expect.
The bottom line is that whether the gentleman who is threatening action against me is right or wrong, I am not prepared to expose Maggie Mitchell’s retirement fund to more risk of depletion. Since I evidently lack the necessary skills of dissimulation, it would seem that the only way to ensure this objective is to cease publishing. This will therefore probably be my last post on this blog.
A pity, really, as the site was nearly at the 250,000 visitor mark.
10 October, 2010
The airwaves and the local newspapers this past week have been filled with talk of the need for Anguilla to seek independence from the United Kingdom. Anguillians have always been the most independent-minded West Indians, so the discussion is a healthy one. From the earliest days of colonialism we have had to make do on our own. Why not now?
No metropolitan power ever ruled us directly, until after the British Invasion of 1969. Alone among the seventeenth and eighteenth century colonies of the Leeward Islands, Anguilla elected its own Governor who was then approved by the Governor in Chief in Antigua. In the other islands, the Lieutenant or Deputy Governor received a patent from the Monarch. Not the Anguillian Deputy Governor.
No expatriate colonial elite, unlike our richer neighbours, lorded it over us. Our flocks of goats and fishing boats during the colonial period were at our own disposal. We were, the truth be told, throughout most of our history, too beggarly-poor. It took a long time before we had our own formally appointed Executive Council. Our first ExCo was established after the 1976 Constitution. Not even after we acceeded to rule by St Kitts in 1825 was there any real interference in the activities of the local Vestry that had always run Anguilla's public affairs.
No British Governor sat in any government house in Anguilla until Charles Godden was appointed Anguilla's first Governor in the early 1980s. Whatever gains we have made socially and economically in recent decades, it has all been done right here in Anguilla.
Today, it is arguable that Anguillians are better off and more economically and socially independent than some of the so-called independent States in the region. Though we are a British Overseas Territory, once we follow the law and the regulations, the British leave us alone to conduct our affairs.
Why then the loud boasts that we raise all our own revenue, and that he who pays the piper should call the tune, and, in recent days, the call that British supervision should be ended? Why all the hysterical talk now from certain quarters of the need to seek political independence from Britain?
The answer is: smoke screens and camouflage. According to what we have been reading in the press and hearing on the radio, the British Foreign and Commonwealth Office seems to take the view that our governmental leaders have not been following any of the Constitution, the law, or the conventions of government in relation to borrowing. Their view appears to be that the new administration has ignored the rules, and gone off on a frolic of its own. The result has been an unfortunate division that has in recent days arisen between Government House and the local administration.
The British Minister for the Overseas Territories has been in Anguilla. He has asked for an explanation of the Chief Minister's signing a letter, apparently not authorised by the Executive Council or by the House of Assembly. This 9 July letter authorised our Social Security Board to negotiate a US$200 million loan. The government of Anguilla by law guarantees all Social Security borrowing. Such a guarantee of a loan requires conformity with the Borrowing Guidelines agreed years ago between Anguilla and the Foreign and Commonwealth Office. Anguilla has exceeded its borrowing limits and is presently in breach of the Guidelines. The Minister is supposedly quite miffed at our irresponsible actions. It is this incident that appears to have caused the UK Minister to question the actions of our government, and that has caused the resulting reaction by our leaders.
Whenever a country's leadership acts outside the law, when it has been shown to be self-destructing, when it becomes desperate to stir up a misguided following in its support, then the cry arises, “Let us join together against the foreigner in our midst. They are all traitors and will betray the nation! Out with the British!” A call for nationalism against “the other” is then seen as a unfiying force. The madness of it is that such ploys, obvious as they are, are so often successful. Then, confusion and chaos prevails over reason and common sense. Every sensible Anguillian hopes that is not what is happening here.
The call to patriotism, to standing united against the brutal British, has all the ring of the revolutionary catch-phrase, “Liberté, egalité, fraternité!” And of Hitler's insane tirades against the Jews. Few thinking persons in Anguilla really believe that we are fighting against some reactionary evil foreign regime. Anguillians will forget Dr Johnson's warning, “Patriotism is the last refuge of a scoundrel” at our peril. Have no fear. Most of us realise that the call for independence is no more than false patriotism, a smoke-screen designed to hide defects in governance.
So, let me answer boldly, and with no concern for the inevitable labelling of being a neo-colonial lackey, and a running-dog of the imperial British. No, Anguilla is not ready for political independence. Yes, the people of Anguilla are independent-minded and normally we can run our own affairs. No, this is not a normal time. No, the call for independence being made now is not being made to advance our interests. Yes, it is more likely being made to hide the incompetence and wrong-doing of our politicians. And, I mean the politicians of all parties, past and present.
Anguilla will be ready for full internal self-government, and subsequently for independence, only after we have put in place the essential building blocks of democracy. We will be ready to hand our fates over to our local politicians, of whatever stripe or colour, when the British at last permit us to place in the Constitution the checks and balances and the watchdog institutions that will permit the people to hold those political leaders to account when they go astray. It isn't enough that the Constitution be amended in some hurried “reform”, and some legislation be cobbled up and passed without real discussion. These institutions must be working and functional. In my view, they must be proven to work for at least one full generation before we go independent if we are to be sure of our civil rights.
Until that has happened, we would prefer not to bare our necks to the sword of vindictiveness held above our heads by small-minded politicians who derive pleasure from lording it over us the ordinary people, knowing that we have little or no redress under our present system of government.
If we want to learn what victimisation really is, let us go independent like Antigua and Barbuda or St Kitts and Nevis did without a Constitution designed to protect the citizen against political and administrative abuse.
Until that time, when we have the institutions of democracy in place in our Constitution and in our law, we surrender what little protection being a British Overseas Territory affords us at our peril.
No, we are not receiving any grant in aid from the British government and taxpayer, and, yes, we raise all our own revenue ourselves. Yes, the piper calls the tune. But, no, we do not have to join the chorus when the song is out of key.
No, we are not yet at that much-to-be-desired point of being ready for political independence from the United Kingdom.
09 October, 2010
One last quote from the TCI Journal is called for. There is an article from a foreign investor published by the Journal. It is so applicable to Anguilla, that I thought it was wasted on TCI. So, I reproduce it here for Anguillians to read. The scenario described is exactly what the investor faces when he visits Anguilla, that you may well ask yourself how he could have confused Anguilla with TCI. This is what he wrote [replace TCI with Anguilla everywhere]:
“Through your Journal I would like to state the case for our investment group, and for the local population to understand the difficult situation any investor currently faces when doing business in the TCI. This is in the sincere hope that our stance may assist future inward investment and the resultant development of your country. Although I write as an individual from within the group, our feelings are fairly universal.
Our group of mainly European based investors has had a presence in the TCI on and off over a number of years, primarily to gauge development potential, and to get a "real feel" for the islands; we have also secured private property there. We have been considering a major development within the islands for some time, and in fact presented our plans and ideas to the previous administration. However, we were far from impressed with the way in which they expected us to do business, so quickly lost interest (most investors/developers are honest hard working people who risk very much and will not be compromised as a matter of principal).
In the meantime we visited three other Caribbean Islands and one central South American country, and presented our proposal to their respective governments, but more about that later.
When the British partially suspended the constitution and took over the administration of the islands, it renewed our interest and we felt that the TCI could once again be a safe bet.
Our planned development would have created many new jobs, new services, business opportunities, brought many new high net worth individuals to your shores and would have assisted greatly with economic diversification; all of which the islands desperately need at this time. However, after recent events we have decided that the TCI is "not for us" and the USD100M+ project we had planned, and which was fully capitalised with our own in house funding, will now be executed elsewhere. I know for a fact that we are not alone in this regard and generally for the same reasons stated below.
This was NOT as a result of the British, who we strongly believe will eventually turn the economy around and develop a more sustainable economic base for the TCI’s long term future. It is because of the attitude of very many locals, who believe that the rest of the world owes them a living. Most of whom want our money and developments, but DO NOT want us and will do all in their power to prevent us from gaining a fair path to citizenship, regardless of the amount of pure financial input or socio economic benefit we bring.
The simply appalling and vastly over staffed TCI Civil Service was another reason for not wanting to do business here. Compared to other Caribbean destinations, the TCI civil service is light years behind, and is the single most inefficient organisation we have ever come across in thirty years of doing business on three continents.
Over the last few years we have had literally dozens of TCI people offer to be our "belonger partners", but the very same people brought absolutely nothing to the table. No skills, no experience, no cash or assets even, just the promise of getting our development rubber stamped through the back door by friends and relatives; the very scenario we were trying to avoid.
Incidentally, the term "belonger" appears to not even be an actual word, and is certainly not listed in the Oxford English Dictionary, and to the uninitiated it seems to be a derogatory term; maybe you should consider moving into the 21st century and changing this?
The way in which many locals propose to do business, have monopolies on business licenses, certain trades etc. is also discriminatory. Ironically however, I have heard in recent weeks certain locals bleating about making representation to the European Union court of human rights etc.. However, the EU would certainly view much of what goes on in the TCI as discriminatory. As one social group is favored politically and otherwise over others; so good luck with that, you cannot have your "cake and eat it’!
The talk of independence is also of great concern to our group. How can we be sure our USD100M+ investment would have been safe in five years time? In our opinion the TCI is far from ready for independence and such talk is complete folly by one of two types of people. Either, completely uneducated people who know no better and who usually follow everyone else, or people who will do anything to avoid the long arm of the law for previous wrong doing. Sadly, Mugabe and Zimbabwe spring to mind.
The honesty, integrity and skills of your politicians is also of great concern. The current leaders of the two major political parties, would never inspire confidence in any savvy investor group. One seems to make completely irrational and arbitrary statements that lack any real thought or intelligence. The other has a large cloud hanging over his head from the previous administration, which may rain rather heavily on him in the very near future! Neither could be considered true statesmen and appear to be nothing more than pure "chancers" from the exact same mould as all the other previous non-entities.
The TCI really needs a fresh approach when it comes to politics and politicians, because the dead horse you have been flogging for years has completely had it! It would be nice to see some TCI youngsters getting into politics for all the right reasons, taking a fresh look at the problems the country faces and not being tainted by the dishonest practices of old.
The TCI has missed out on an excellent development opportunity because of the blinkered attitude of a good portion of locals, an awful civil service, an appalling TC Invest and a general apathy we find hard to fathom in the current climate.
The other countries we have visited in the region worked hard to build our confidence in an efficient, professional and transparent manner; reassured us where necessary and generally welcomed us for the long haul. We have never expected "something for nothing", in fact quite the opposite is true. However, you cannot have it both ways, and need to learn to compromise. This is the first step to flourishing and eventually prospering as a nation.
As long as the current attitude towards foreign investors prevails, you will never achieve this goal, but Good Luck and God bless anyway!”
08 October, 2010
There is an interesting editorial on TCI Journal about our right to information. It is so applicable to us that I invite you to read it, changing the names Turks and Caicos to Anguilla and Mark Capes to Stanley Reid wherever they occur. This is what they wrote:
One of the most remarkable and awe-inspiring things we have come to note here at the Journal is the depth of passion present and the significant size of the normally quiet population that yearns to make the Turks and Caicos a better place.
As more and more of our citizens and residents engage in thinking through the various issues confronting our society, we are certain that the inevitable triumph of sanity over insanity is assured.
However, the civil service and the interim administration must engage the public in a better way if we are to quicken the pace of positive progress.
At the moment, seeking information from statutory bodies or government agencies is a hit and miss proposition. “Trust Us” is often the refrain from entrenched management. Getting information beyond shallow press releases is most difficult. MONTHS pass sometimes and tremendous physical and emotional energy must be consistently expended in order to access information that should be readily and easily available. When facts are so hard to access, is it any wonder that rumours and propaganda have such free reign in the TCI?
A freedom of information policy is a must and should be mandated by the interim government and not left to individual managers, board members, ministries or statutory bodies.
This task we put at the feet of Mark Capes, the current CEO of the TCI. In a positive spirit of co-operation, we challenge him to work with the public and shepherd through the bureaucracy a first iteration of a freedom of information policy that has real meaning and not one that is simply aspirational.
It would be tragic if the interim government should happen to underestimate the value of having an informed public that possess facts and that can readily put to bed the rumours and propaganda spread by those that constantly seek to destabilize daily life in the TCI.
Reassigning one person in each ministry and each statutory body to provide the public with requested information would be an invaluable aspect and a key step in the restructuring and the “re-sizing” of the civil service, and would be nothing less than a life-saving breath of fresh ocean air for civil society here in the TCI.
An abstract right to information is totally meaningless if not exercisable.
06 October, 2010
The Social Security Board is responsible for the safe-keeping of the Social Security Fund. That is one of the reasons why the recent story about the Government of Anguilla consenting to the Social Security Board taking a particular loan is so disturbing.
Below is a letter from the Government of Anguilla to the Social Security Board. It is in the public domain. I found it posted on the website axareality.com. It cries out for comment and for explanation. It is dated 9 July 2010. It was signed by the Hon Hubert Hughes, Chief Minister and Minister of Finance. The Minister of Finance of Anguilla is the Minister for the Social Security Board. The Board and its Investment Committee make their own investments, but the Minister has statutory power to oversee the Board’s activities.
The letter authorises Social Security to borrow up to US$200 million from United Investment Limited of Austin, Texas. The letter authorises the use of the Social Security Fund to be the security for the loan. I need not remind you that that Fund is the contributors’ money. It is not the money of the government of Anguilla or of the members of the Social Security Board. The Board has strictly limited powers to invest the Fund. They are charged with what I consider a sacred duty to invest the monies in the Fund for the advantage of the owners, the contributors to the Fund. Before they begin negotiating with a supposed lender about putting the Fund up as security, we would expect that they would do their due diligence to ensure they are dealing with a reputable institution.
For such a supposedly major financier, United Investment Limited's website is remarkable for the many grammatical and punctuation errors on its various pages. Whoever the owners are, and despite the numbers they quote, they seem not to be big enough to employ someone to proof-read their website content. You might almost think that their promotional materials on the website were written by a semi-literate schoolchild, rather than by the marketing department of a major financier. It is also remarkably lacking in any solid information about the company or its work.
If you do a little detective work and investigate United Investment Limited further, this is what you find:
> domain: ui-ltd.com
> created: 06-Apr-2006
> last-changed: 07-Apr-2010
> registration-expiration: 06-Apr-2011
> nserver: ns47.1and1.com 220.127.116.11
> nserver: ns48.1and1.com 18.104.22.168
> status: CLIENT-TRANSFER-PROHIBITED
> registrant-firstname: Kirby
> registrant-lastname: Gonzales
> registrant-street1: 660 Preston Forest center
> registrant-pcode: 75002
> registrant-state: TX
> registrant-city: Dallas
> registrant-ccode: US
> registrant-phone: +214.6329531
> registrant-email: firstname.lastname@example.org
This tells us that the United Investment Limited website was created by one Kirby Gonzales in 2006. In 2006, Kirby advertised the company as "an OEM manufacturer and Distributor of building electrical supplies and tools for constuction of housing, commercial, medical and educational institutes. We also sell Petroleum and Gas profucts." Yet, in the space of four short years, the company now claims the ability to lend or to arrange a loan of upwards of US$200 million. That is quite an extraordinary accomplishment.
If you go to the corporationwiki.com website, you will find a list of other companies formed by Kirby and Stacy Gonzales. From the addresses of their various companies, it seems that they operate out of Trinidad and Tobago. It would appear to me that Kirby and Stacy are in the business, among others, of creating shell companies in Texas. A shell company is one that is barely worth the paper its certificate is printed on.
Of course, the matter may just have been an advance-fee fraud. This is a lucrative but dishonest business. It involves a person calling himself an investment adviser pretending to desperate borrowers that he can find easy, cheap money for them to borrow. All the borrower has to do is to pay in advance a fee of a few thousand dollars to be introduced to the lender. It is usually demanded towards the end of the transaction when the desperate borrower feels the deal is about to close. Once the fee is paid you never hear from the investment adviser again, and the lender mysteriously disappears. In which case, we may have risked losing only a few thousand US dollars. I am not suggesting that is what happened here. Indeed, there is no evidence that any advance fee was asked for or paid.
For the loan to have been authorised by government it would need to have been approved by the Executive Council. Heaven alone knows how ExCo could have authorised the Chief Minister to sign such a thing as that letter. The whole transaction should have been suspicious from the start. It appears to have been a proposition that almost suckered in our Chief Minister. Fortunately, the transaction seems to have been stopped by someone who did his due diligence. In my opinion, the due diligence should have been done before the Chief Minister was asked to sign the letter.
This is all very disturbing. If you were unkind and wanted to be sarcastic you might say that this incident clearly indicates that Anguilla needs to declare immediate independence so that our leaders can work for the people without the interference of the “meddling British”.
02 October, 2010
The power of public office must never be used to promote private interests. Though no money changes hands, the misuse of public office to promote private interests is one of the most insidious forms of corruption in public office that exists.
It has been said that most men enter national politics for only three reasons: love of money, hope for increased sexual opportunities, and the enjoyment of power. These three primal forces are not necessarily evil in themselves. They may even work on occasion for the public good. They may also be misused, and be corrupting influences. What I have to write today involves an alleged case of the use of public power to promote a private interest. You will decide if it is corrupt.
As I am presently in St Lucia for the funeral of the late Chief Justice of the Eastern Caribbean Supreme Court, Sir Vincent Floissac PC CMG QC LLM, I have not been in Anguilla to hear for myself. However, I have received an email describing a recent development that affects the rule of law and a possible attack on it by the head of the Executive branch of government in Anguilla.
Many years ago, I had a professional involvement in the matter in question and have some personal knowledge about it. There are some serious issues of principle that arise in these recent developments. Assuming what I have heard to be essentially correct, I am forced to write about it.
In about the year 1982, the late Dr William V Herbert and I represented two contending families in a land dispute in the High Court. I represented one family and Dr Herbert represented the others. The land in question was situated in Long Bay Village in Anguilla.
Before the trial began Dr Herbert was appointed by the government of Dr Kennedy Simmonds to represent the newly independent Federation of St Kitts and Nevis at the UN and the OAS. He was no longer able to appear in the High Court to represent parties in litigation. The members of the family that had retained him were instructed to find another attorney to appear for them in court.
On the day set for the trial in the High Court, Mr Hubert Hughes, then out of the Assembly and out of government, appeared in court. He told the trial Judge that he had been requested to speak for the family. He asked the Judge to permit him to speak and to put questions to the witnesses. The Judge told him and the family that it would be safer for them to retain an attorney. She adjourned the case for a few days to give them a chance to find a new lawyer.
When the trial of the matter resumed, the family appeared again with Mr Hubert Hughes. They insisted that they wanted him to represent them at the trial. The Judge sought my view. I said I had no objection to his cross-examining my witnesses, but that the family would clearly be better off with an attorney especially as this was a complicated land dispute. The family persisted in requesting that Mr Hughes represent them in the matter.
The trial proceeded, and the result was that the judge declared that the family represented by Mr Hughes was not the owner of the land, but the opposing family was.
The losing family appealed to the Court of Appeal and subsequently to the Privy Council, in both of which they lost. Both they and my clients were by this time represented by other attorneys. The losing family subsequently had an attorney file one or more new cases attempting to re-litigate the issues. These cases were all dismissed. The family that succeeded are registered in the Land Registry with title absolute to the lands in dispute.
The family represented by Mr Hughes has never accepted the finality of the judgment of the court. They have continued to file case after case in the High Court. They have done everything in their power to obstruct the successful family from enjoying the fruits of their judgment. There have been violent demonstrations at Long Bay Village. Cutlasses have been waved in the air. Threats of death have been issued. Road construction and land development have been physically blocked. Tens of thousands of dollars in legal costs have been wasted.
Mr Hughes is now, as of early this year, back in office as Chief Minister of Anguilla. His Minister of Lands is from the West End and Long Bay area. The Minister has reportedly admitted in a news broadcast that he is “an interested party”.
I now hear from my correspondent that the Registrar of Lands of Anguilla has recently been the object of abuse by both the losing family and the Hon Chief Minister. The Chief Minister is said to have been on the radio yesterday chastising the Registrar of Lands for her conduct in relation to the performance of her duties in the Land Registry. Those duties may be related to the registered title to the land in question. It is not clear, but she would appear to have been trying to act in conformity with the Order of the Court. The losing family may have been attempting to coerce her to act contrary to the Order of the Court. She may have been refusing to do so. According to my informant, the Hon Chief Minister has now told the Registrar that she must recuse herself from further dealing with the matter as she is not competent.
I am also told that the Chief Minister has made a public statement, broadcast on radio yesterday and today, describing the original court decision as a “tapestry of justice”, and that the Supreme Court itself must be investigated.
As any one of my A-Level law students can tell you, there are three branches of government: the legislature which makes laws, the executive which makes and administers government policy, and the judiciary which adjudicates on disputes between citizen and the state and citizen and citizen. None of these branches is permitted to infringe on the jurisdiction of the other. This is called the doctrine of the separation of powers. In modern political thinking this doctrine is considered a cornerstone of democracy and essential for the protection of our civil rights.
The only branch of government which is regularly investigated is the judiciary. Every decision of a judge is subject to investigation. This is called an appeal. Even the appeal is subject to further investigation. In this instant case the judge's decision was investigated by the Court of Appeal. After investigation, the decision of the High Court in favour of the winning family was approved by the Court of Appeal. The decision of the Court of Appeal was further investigated by the Privy Council. The decision of the Court of Appeal was approved by the Privy Council. There have already been repeated investigations of this decision of the High Court. It is an impertinence to suggest that some other investigation is called for. The same cannot be said for most decisions of the executive branch of government.
Under our system of government public servants are supposed to be insulated from political pressure. This rule of non-political interference in the administration exists for the protection of the average citizen, who may otherwise be subject to victimisation. I cannot understand how a Minister of Government could put pressure on a Registrar of Lands in Anguilla to recuse herself from performing her administrative duties. Such a development would signify a low point in the government of our island. I sincerely hope that our Chief Minister would never act unconstitutionally to instruct some other public servant to intervene and to change the registered titles to these areas of land.
It would be worrying if the Governor and Deputy Governor were to be seen to permit a Minister of Government to harass a senior public servant in the performance of her duties. This is particularly so if she had been refusing to countenance the flouting of a longstanding and repeatedly upheld Order of the Court. Will they rise publicly and vociferously to the defence of the Registrar of Lands in this matter? We are not holding our breath, only bating it.
I can only hope that I have been misinformed. It would be bad enough if a Chief Minister were to be seen to be encouraging citizens to act in an illegal manner. It would be a vicious blow against the principle of the Separation of Powers if a Chief Minister were to be thought to be encouraging a flouting of an Order of a Court. It would be destructive of the Rule of Law for any Chief Minister or Prime Minister to be known to be disparaging the integrity of the Supreme Court itself. More damaging, we in Anguilla would be demonstrating unfitness for any extension of the powers of internal self-government, as we have been demanding.
Who would be obliged to pay the substantial damages and costs that may eventually be awarded against the government if this fiasco is not brought to an immediate end? We the people, of course.
A final question that we the members of the public might ask is, if these fears are justified, what, if anything, would the Anguilla Bar Association be prepared to do to defend the integrity and independence of our judicial branch of government, and to uphold the finality of an Order of the Court from an attack by a Minister of Government?
28 September, 2010
The vast majority of the people of the TCI welcome the temporary suspension of their Constitution. The evidence is plain to be seen in the following video:
The demonstration appears to have been mounted to protest Minister Bellingham's announcement of the delay of the general elections and the restoration of a revised Constitution until after the investigation and prosecution process has advanced further.
The small number of the followers of the discredited politicians present at this “spontaneous” demonstration shows how few TC Islanders support the avaricious political aspirants of that unfortunate country.
The pre-printed signs and posters that the demonstrators are holding, put a lie to any suggestion that this was a spontaneous "human rights demonstration".
And, what is Michael Misick doing wearing a Cap Juluca hat from Anguilla?
25 September, 2010
Is the diplomatic spat between the Governor and the Chief Minister all a smokescreen? And, if so, who is it designed to protect?
Just to recap. The Governor and the Chief Minister of Anguilla have been publishing press releases accusing each other of misbehaviour. The Governor went off first. He claimed on Thursday that the Chief Minister had instructed him to remove the portfolios of Health and Social Development from the Hon Edison Baird and transfer them to the Hon Jerome Roberts. He says that he refused to carry out the Chief Minister's instructions because in his view they amounted to a negation of democracy. He says he considers that would amount to two people, the Governor and Chief Minister, effectively overturning the will of the people as expressed just seven months previously. The Governor's view is that the people had elected four members of the AUM to form a Government, and three other members to form the Opposition. This is so obviously nonsense that we in Anguilla have all been casting about for another explanation.
The Chief Minister followed on Friday by issuing his own press release. He accused the Governor of not telling the truth. He said that the Governor had asked him to dismiss two of his Ministers, or to resign and call new elections. This is so obviously impossible for the Governor to have said that no right thinking person could believe it. There are only 5 members of the government in the Assembly and 4 of them are already ministers. There is no one else that the Chief Minister could have appointed to replace the dismissed Ministers. The likelihood is that in the midst of a quarrel the Governor had said to the Chief Minister that he could always resign, or words to that effect, and the Chief Minister had interpreted these words as a demand that he resign.
Someone pointed out that on Thursday and Friday the House of Assembly had passed a raft of new financial laws. These laws had not been previously gazetted, which is very unusual. They had not been previously shared with the members of the Opposition. No member of the public had been aware that these laws were about to be passed. They had been kept secret. One of these laws set up a new Department of Inland Revenue under a new Comptroller of Inland Revenue with drastic, even draconian, powers to penalise anyone who did not pay his taxes. The suspicion was raised that this spat with the Governor was designed to throw a smoke screen over the hurried passage of the Acts in the hope the public would be distracted.
Another person pointed out that JB Turbidy had in the previous few days been circulating a series of letters and emails. These emails accused the Chief Minister's administration of having agreed to the Starwood purchase of Viceroy on terms that were much to the disadvantage of Anguilla's revenue. This correspondence appeared in the Thursday issue of The Anguillian Newspaper. You can read it for yourself. Included in these emails were tables and graphs. They demonstrated how much more revenue Anguilla would have got from a sale to Mr Turbidy's group of investors as compared to the sale to Starwood. Mr Turbidy claimed that the Chief Minister had invited him to put in his bid, but had then refused to consider his application. He questioned the motives of those in the administration with whom he had been dealing. The suspicion was that the spat with the Governor was designed to distract the public from reading this correspondence and coming to a negative conclusion.
A more far-fetched explanation for the spat was that it was an FCO conspiracy. According to this theory, the conspiracy had been designed to sabotage the warm relationship that had been growing between the Chief Minister and the Minister for the Overseas Territories, Mr Henry Bellingham. They had met repeatedly both in private and in public on the Tuesday and the Wednesday before Mr Bellingham left to attend the General Assembly of the United Nations. The suggestion was that the FCO repressives and their legal advisers were worried. The more open minded Minister might be getting too friendly with the natives. It was necessary to set off a hand grenade to bring any more fraternising to an end.
A final and contradictory theory is that the spat was designed to throw a smoke screen over the rumoured censureship that the Social Security Board and the Ministers had come into from Minister Bellingham for the alleged misuse of Social Security funds. You will recall that the local administration had been borrowing monies from the trust funds of the Social Security Board to pay civil service salaries. This borrowing had been in breach of the agreed borrowing guidelines. The suggestion is that the spat served to block anyone from asking the obvious question: what was the reason for Mr Bellingham's surprise visit to Anguilla?
Who knows what the truth is?
24 September, 2010
The Governor's press release says that the Chief Minister instructed him to remove the portfolios of Health and Social Development from the Hon Edison Baird and transfer them to the Hon Jerome Roberts. He says that he refused to carry out the Chief Minister's instructions because in his view they amounted to a negation of democracy. He says he considers that would amount to two people, the Governor and Chief Minister, effectively overturning the will of the people as expressed just seven months previously. The Governor's view is that the people had elected four members of the AUM to form a Government, and three other members to form the Opposition.
I have to admit that I have difficulty understanding this. My understanding of the Constitution is that the Chief Minister can tell the Governor which elected member of the House should be a Minister, and which one should not. No other Minister, nor the public, has any say in who is to be appointed a Minister. The people do not elect either a government or an opposition. The people elect only their representatives. Every representative is free either to join the government or to join the opposition. He is also free to change his mind and to cross the floor of the House.
The Governor is normally obliged to appoint as Minister whomsoever the Chief Minister tells him to appoint. The Governor has no say in who is or is not to be appointed a Minister.
Contrary to what the Governor wrote, it is not a negation of democracy for the Chief Minister to tell the Governor to appoint a coalition member of the government to be a Minister. If it were so, then the coalition Conservative Lib/Lab government in Britain must similarly be a negation of democracy, which is not correct.
If the Governor's recollection of what the Chief Minister told him is accurate, then what was improper about it was for the Chief Minister to have instructed the Governor to appoint a fifth minister. The Constitution is clear. The Governor, instructed by the Chief Minister, is only permitted to appoint four Ministers, plus a Parliamentary Secretary. There are already four Ministers and a Parliamentary Secretary appointed. It can be described as illegal under the Constitution for the Chief Minister to have requested him to appoint a fifth minister.
In any event, my understanding is that the Chief Minister did not instruct the Governor to appoint the Hon Jerome Roberts as a Minister. What the Chief Minister did was to instruct the Governor to transfer the portfolios in question to him, the Chief Minister. He seems to have indicated to the Governor that he would be asking the Hon Jerome Roberts to help him to manage those portfolios. This may have been irregular, but it would not have been in breach of the Constitution.
I cannot see anything in the law to fault the Chief Minister.
I don't understand the Governor's reaction.
23 September, 2010
Henry Bellingham visits. The word I am hearing is that the British Minister stopped off in Turks and Caicos Islands and Anguilla for specific reasons.
We know why he visited TCI. It has been published. The elections set for July 2011 will be delayed to allow time for anti-corruption and good-government reforms to take effect in the islands. You can read about it by clicking here: http://tcijournal.com/index.php?idsub=3249&id=8
No reason for his visit to Anguilla has yet been suggested by any British or Anguillian official. However, I am informed that one of the first meetings that Mr Bellingham had was with the Social Security Board and the Executive Council.
We know that since the election in February of this year the Government of Anguilla has borrowed some $60 million from the Board to pay civil service salaries. We know that was contrary to the “borrowing guidelines” that are by agreement binding on the Anguilla Government.
We can expect that the FCO is not happy at this breach of the Guidelines.
Could this be the reason for Mr Bellingham's visit to Anguilla?
20 September, 2010
There are some other obvious gaps and deficiencies in the new draft Constitution proposed for Montserrat. It is to be regretted that no thought has been given in this draft Constitution to providing for a Freedom of Information Act. Without such a law, no one in
Montserrat would have the right to obtain information that should be available to the public. Secret government, which is an enabler of corruption and bad government, is in this way encouraged.
It is to be regretted that an opportunity was not taken to entrench the Tenders Board in the Constitution. The greater part of the budget is spent on developing infrastructure, repairs and maintenance. Procurement of goods and services offers attractive opportunities for those who would corrupt the process and illegally enrich themselves. The Tenders Board ought to have the independence and security of tenure of its members protected by the Constitution and by appropriate laws and regulations, backed up by appropriate training for members of the Board.
Amendment of the Constitution. Section 114 of the draft provides that only the Premier, in very limited circumstances, may request an amendment of the Constitution. The FCO reserves unlimited right itself to amend the Constitution without any reference to the people or government of
Montserrat. This is clearly highly undesirable. The Cayman Islands recently completed their constitutional negotiations and accepted a new Constitution. In the case of the Cayman Islands, the FCO accepted that it would never again amend their Constitution without first putting it to a referendum of the people. No person can suggest that there is a good reason why some lower standard of democracy should be enjoyed by Montserratians.
A Constitution is the supreme law of any people, subject, in the case of a
British Overseas Territory, to the Parliament of the . A Constitution that is imposed on a people by a foreign power lacks validity and respect. United Kingdom
In my view, it is the duty of every patriotic Montserratian to insist in the strongest possible terms for a right to comment on and criticise any terms in this draft Constitution that appear unacceptable to them.
Montserratians have a right to demand that the draft Constitution be put to them for their approval either by a referendum or by some other mechanism calculated to demonstrate their real approval and acceptance of the new Constitution. Only after this has been done would it be proper for the Governor to pass the draft to the Privy Council for enactment by an Order in Council.
The British Government has frequently promised that it expects no less than evidence that the people of an
have expressed their support for any amendment to a Constitution. Overseas Territory
18 September, 2010
The proposed new draft Constitution for
Montserrat is filled with anti-democratic provisions. These include:
(a) The Deputy Governor will be able to act in relation to the public service without being obliged to take the advice of the Public Service Commission. Except in the case of the most senior ranks, this is clearly undesirable;
(b) The Attorney-General, the Financial Secretary and the Deputy-Governor are not elected. As in other
with modern colonial Constitutions, they should have no vote in either the Cabinet or the Legislative Assembly; Overseas Territories
(c) The need for a Director of Public Prosecutions has clearly been recognised by the section 45 provision enabling his appointment. It appears from the wording of the section that the intention is to have the Attorney-General continue to act in that position for an indeterminate period into the future. The draft should be amended to establish the office and to require the appointment to be made;
(d) A Magistrate in
Montserrat has considerable power, and can impose fines of up to $100,000.00 and prison sentences of up to 10 years. As Montserrat does not have a High Court judge, the Magistrate plays an enhanced role. He or she routinely hears cases that would normally be tried by a judge and jury. The section 84 appointment of the island’s Magistrate is by the Governor after consultation with the Chief Justice. This is unacceptable in a modern democracy. It does not insulate the Magistrate from the Executive as should be the case. For a Magistrate to do a proper job in Montserrat he or she needs to be shielded from influence and pressure from both the Ministers and the Governor. Additionally, there is a well-known current regional initiative to integrate the Magistracy into the judiciary. The provision in the draft should be that the appointment and discipline of the Magistrate is by the Governor acting on the advice of the regional Judicial and Legal Services Commission, of which the Chief Justice is the head;
(e) The thought that the Director of Public Prosecutions and the Magistrate can be removed from office by the Governor and the Secretary of State is a frightening one. These are both judicial officers. The rule of law demands that both their appointment and removal be out of the hands of the Executive and be either by, or on the recommendation of, the regional Judicial and Legal Services Commission;
(f) Currently, the police police themselves. Complaints about police misconduct made to the Commisioner of Police and the Governor are notoriously not investigated impartially. Such complaints invariable attract hostile responses from the police. The absence of any provision in the draft for a Police Complaints Board is regrettable. Such a Board is a vital tool for controlling police misconduct. Such a Board will effect greater transparency and justice for all. There is no reason why Montserrat should have a lower standard of governance in this respect than Bermuda or
itself; and Britain
(g) The FCO proposes through this draft Constitution to retain draconian and unrestrained powers to legislate for
Montserrat over the heads of the Legislative Council. The new Constitution will preserve (i) the power to enact laws through the UK Parliament; (ii) the use of the Order in Council without prior consultation; (iii) the section 73 power of the Governor to refuse his assent to a Bill that has passed through the Legislative Council without any limitation; and (iv) the section 75 power of disallowance, though this section does require the Secretary of State to refer the offending law back to the Legislature.
These provisions do not increase democracy in
Montserrat. They reduce what little amounts of justice and democracy Montserratians presently enjoy under threat of renewed volcanic activity. As such, they amount to a step backwards in constitutional advance, and are a shame on the constitutional advisers who dreamed them up.