31 July, 2010

Codes of Ethics

Codes of Ethics:  The fifth and final instrument that we would look for, to determine whether a British Overseas Territory respected the notion of integrity in the public service, is a Code of Ethics for Ministers. 
I have no doubt that no one in public life in Anguilla sets out to be corrupt.  We get that way in the end, usually because of the pressures and strains put on us, and the lack of any coaching or training in performing our duties according to recognised codes of ethics. 
When, at the request of one of our constituents, we telephone the Sergeant at the Police Station to give a chance to a young person who has been arrested, no doubt we think we are responding to the needs of our community.  When we give work permits to one contractor, but not to another, we say we are “leveling the playing field”.  When we overrule a Chief Immigration Officer or a Planning Committee order, we say we are “showing a good heart” and softening the harsh decisions of unfeeling bureaucrats.  But, it is quite the opposite.  We are showing partiality and preference for one person above another, and corrupting the system set up by law.
Our problem is that we have never seriously studied what is the meaning of nepotism, croneyism, and conflicts of interest.  We need to debate, discuss, and adopt Codes of Ethics at all levels of government.  The Judges and Lawyers have codes of ethics.  Why not public servants and politicians?
In a democratic, transparent, and accountable system of government, it is for politicians to lay down the national policy.  Then, the politicians must learn to leave it up to an independent, professional public service to carry out their policy. 
It is the duty of the public officer to apply government's policies fairly and impartially.  In appropriate cases there will be the power of appeal to an independent tribunal, but never to a politician.  There is no integrity in a system that permits a personal appeal to a Minister to overrule the decision of a Board or public officers which is carrying out the national policy.  To have it otherwise means that the law and policies of our countries are not applied evenly and fairly to all citizens.  If a politician intervenes to overrule the action taken by a public officer, such intervention is almost invariably a corruption of the system.  The result is a loss of public faith in our public institutions, and a breakdown of law and order.  Victimisation and discrimination is the inevitable result of ministerial intervention on behalf of one individual.  And, indeed, that is the system of government that most of us labour under.
I do not accept that our islands are too small for us to expect the standards that exist in the outside world to survive and work here.  No matter how small we are, we are entitled to expect that our governments will be of laws and not of men.
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30 July, 2010


Appointments Commission:  Following on from the last few posts, the fourth feature we would expect to find in a system of government that boasts integrity in the public service is an Appointments’ Commission.  Such a Commission would vet political appointments to boards and committees.  It would be protected by the Constitution and by legislation and would be independent of political interference.
At present in our territories we have a “winner takes all” system of appointments to boards, committees and commissions.  Immediately a new government is elected, their first order of business is to share out the various directorships among the principal supporters of the new ministers.  We watch them, at every change of administration, as they dismantle the Social Security Board, the Public Utilities Board, the Public Health Board, the Tourist Board, the Carnival Committee, even the Poor Law Board.  We say they are “enjoying the fruits of office”.  This makes a mockery of the whole notion of good governance.  The public generally accepts this process as a normal state of affairs, but they sneer under their breath at all politicians. 
This unregulated system has got to be stopped.  Why can we not take a leaf out of the British book and have all appointments vetted by an independent, constitutionally protected body, to ensure that Ministers appoint only qualified persons to these positions?  If the objection is cost, we can combine these duties with those of the Ombudsman or someone similar.
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29 July, 2010

Crown Lands

Crown Lands:  Following on from the last couple of posts, the third point in our check list that we would search for in determining whether there is likely to be integrity in the public service, is a transparent procedure for dealing in public lands. 
In Anguilla, as in many of the British Overseas Territories in the West Indies, Crown Lands are dealt with in the Governor's sole discretion.  In practice, this means that the Governor relies on the advice of Cabinet or the Executive Council, and there is no accountability to the Legislative Assembly.  The integrity of dealings in public lands ought to be enforced by having any resolution to deal in any significant area of public land, which in a small territory may be as little as a half acre, brought to the House of Assembly for public debate.
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28 July, 2010

Tenders Board

Tenders Boards and Procurement: We continue to examine the question of what tests there are for us to conclude that there is accountability and transparency in any particular government.  The second institution that we would look for is a properly functioning Tenders Board and a well regulated procurement procedure. That means it must be governed by a law and supported by legal sanctions.
A significant portion of Anguilla's national budget is spent on developing infrastructure, repairs and maintenance.  Procurement of goods and services, relating to contracts for roads and schools and offices and hospitals, offers the most attractive opportunities for those who wish to corrupt the process and illegally enrich themselves.  Corruption damages not only governments, but also companies and individuals.  It is in the interests of our countries and our people to do what is necessary to minimize the opportunities.
In Anguilla we have been very astute to do nothing that will discourage corruption in the procurement process. Our procurement systems in Anguilla are essentially lawless and unregulated.  Our presently unregulated system is an invitation to sharp practices. 
Transparency and accountability are the main antidotes for this type of corruption. We need to insist on recognised standards and procedures in relation to procurement and tendering. Tenders Boards ought to have the independence and security of tenure of their members protected by the Constitution. We need appropriate laws and regulations to set out how public contracts are to be awarded. The Integrity Pacts recommended by Transparency International will carry the process forward and upwards to an entirely new level. 

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27 July, 2010


The Interests Commissioner:  Following on from the previous post, the first institution we would look for in a country’s system of government, to give us some indication that integrity in public service is taken seriously, is a functioning and strictly enforced Integrity Act.  This is the law that in well-regulated countries requires public officers, that is, civil servants, politicians and directors of statutory boards, to publicly declare their assets and liabilities.  In Anguilla, as in most of the British Overseas Territories, there is no such law. 
We need to have laws and regulations, backed with sharp teeth, put in place.  In the absence of such a law, members of the public are entitled to suspect that politicians and civil servants retire much richer than when they went into the service.  And, we are entitled to believe that they have come by those riches in an unethical and criminal way.
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26 July, 2010


Integrity.  Our politicians are not persons who are naturally without integrity.  In my submission, the system that the British have given to us seems almost designed to encourage us to surrender our natural integrity.  Let us look at some examples.  Tenders Boards are not protected by our Constitutions, and in many territories they are not even governed by legislation.  When there is a Tenders Board, it is an informal, unregulated committee, more for show than for substance.  Public contracts are routinely awarded on the basis of family and friendly relationships.  Land Development Planning Committees and Building Boards have their decisions subject to review by politicians.  Immigration Department orders and Work Permit issues are overturned by politicians.  I could go on, but you see the point, I am sure.
The obvious way to improve the integrity of our public administration is for our legislatures to put in place institutions, checks and balances, that have been proven to work in various systems of government.  What are some of the most obvious ones?  We shall look in turn at (a) the Interests Commissioner; (b) Tenders Boards and Procurement; (c) Crown Lands; (d) Appointments Commission; and (e) Codes of Ethics.
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25 July, 2010

Checks & balances

Neither Checks nor Balances:  In my submission, the Westminster Model Constitution, which we in this region have all inherited, is intrinsically corrupting.  It almost seems designed to promote bad government in our countries and territories.  One of its distinguishing features is a complete lack of any mechanism to control abuses of power. 
Other than the opportunity afforded us every five years to change the faces of our representatives through general elections, there is no publicly enforceable restraint on their abuse of power.  There are no provisions for the recall of an errant politician.  There is no procedure for impeaching a Minister caught with his hands in the cookie jar.  When major decisions or changes in the law have to be made, there is no question of a referendum or other mechanism for ensuring that the wishes of the people are made known and followed.  In most of our territories there is nothing to ensure that misspent public funds will be questioned in a forum that can impose accountability. 
Yet, effective measures for ensuring accountability and transparency in the government of small countries such as ours have been known for years.  Members of our Executive Councils and legislatures have been lectured on the issues for decades.  We have previously discussed them in earlier posts.  The only thing holding us back from putting checks and balances in place is a lack of political will.
We are going to spend a few days revisiting the problem of the lack of accountability and transparency in our government. We shall do so under the three general headings of (1) Integrity; (2) Accountability; and (3) Transparency.  These are not mere slogans.  There are certain outputs that we look for, certain features of a system of government, that permit us to say that a government is accountable and transparent. When these features are not present in the structure of government, we are usually justified in stating that the government lacks accountability and transparency.
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22 July, 2010


What is the function of a Minister in the Government of Anguilla?  The proper answer, I suppose, is that it is exactly the same as the function of a Minister in any other West Indian country.
And, what is that? you ask.  The answer is that the main function of a Minister is to oversee the operations of his Ministry, and to ensure that his public service officers carry out the policy decisions of the Executive Council/Cabinet.  The persons charged with making the government work are the public servants.  They carry out the day to day activities of the Ministry under the direction of the Permanent Secretary.  Subsidiary to this role is the important function of giving advice to the Minister on technical aspects of the work of the Ministry.  This permits the Minister to take the advice to Cabinet and get a sensible policy decision made.
What should clearly not be within the remit of a Minister is for him to go out on the road and personally direct operations related to his Ministry.  He should not hire people to carry out work.  He should not order materials and services to be paid for by his Ministry.  He is the policy maker, not the technician.  He is the director of the play, not the actor on the stage. 
And, how does a Minister learn his role? you ask.  The answer is that in bigger countries, such as the United Kingdom, there is a National School of Government.  They hold workshops and conferences for new Ministers.  They go through the Ministers’ Code of Ethics, pointing out each of the duties and responsibilities of Ministers of Government.   They train a politician how to be a responsible Minister.  They teach how corruption comes in many forms.  
It can take the shape of cronyism, when friends are appointed to Boards and given contracts.  That is a form of corruption.
Ministers need to be taught how to look out for conflicts of interest, and how to deal with them.  This is not something that comes naturally to many of us.
The British have long had an independent Appointments’ Board answerable only to Parliament.  When a Minister wants to appoint a new person to a Board, the proposed appointee must be vetted to ensure that person is properly qualified  and able to contribute to the work of the Board.  No one is given an appointment solely as a juicy plumb for political support.
They do not let a Minister go about ordering replacement parts for fire engines. 
They do not tolerate a Minister going down onto a project and participating in an industrial dispute.
They would not contemplate a Cabinet meeting discussing the overturning of a Public Service Board’s decision in carrying out its duties.
But, those things happen every day in Anguilla.  They always have.  We consider it normal.
Isn't it about time the Governor directed the Public Administration Department to come up with a course specifically for new Ministers designed to explain and teach best practices for Ministers?

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21 July, 2010


No comment necessary.


Except, perhaps, when are they going to get the goddamned Bill to the House of Assembly?

19 July, 2010

No authorisation

Well, I have received a reply to my Freedom of Information Act request.  It reveals that there is no letter of authorisation for the Government of Anguilla to borrow funds from the Social Security Board.  All the borrowing from the Social Security Fund has been unauthorised.  Unauthorised borrowings to this date amount to some EC$43 million.  At this rate the Fund will be depleted, I estimate, in two years time.
This is the correspondence I have received:

This is the attachment referred to:

I have to tell you that I am grateful for what I consider to be a prompt and complete response to my request.  
I would like to hear what you make of it all.

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18 July, 2010


Anguilla in the overseas press.  When I first read the article on Anguilla in All Voices I was concerned.  How could a newspaper publish such rubbish about UK "oppression" of Anguilla?  This is an extract:
“Anguilla has been nervously managing United Kingdom's threats to take governance of the country. Anguilla, a self governing and autonomous island country in the Caribbean, is also an UK territory with an installed UK governor overseeing "proper governance".

Just prior to the General Elections in the UK, Chris Bryant, the Foreign Affairs Minister at that time, had not only made threats against Anguilla but decisively and unilaterally rejected Anguilla's proposed budgets and refused to review amended budgets. This had many local government officials worried about UK's agenda there and saw this act as a sign that the UK was not willing to allow the Anguilla government to continue.

When speaking of Anguilla, the UK officials compare Anguilla to the Turks and Caicos. Recall that the UK invaded Turks and Caicos last August 2009 for what the UK called corruption concerns. However, nearly a year later, the UK has been unable to prove any local corruption and has pieced together a circumstantial case by using uncorroborated testimony by a dubious local opposition party …’ etc
I asked around about the paper and the author of the article.  I am not worried any longer.  A correspondent wrote me:
AllVoices is a blog, disguised in the form of an online newspaper,
where anyone can post any lies or rubbish.  Chris Burke is a
fictitious person who is an apologist for the Misick criminal
I then Googled the four words Chris Burke journalist Turks and got enough to satisfy me that the characterisation of both is accurate.  The blog is unmoderated.  The author is reputedly a fanatical supporter of Misick masquerading as an English journalist residing in TCI.  She first started writing under this pseudonym in January of this year.

16 July, 2010


Conservation:  The twelfth, and final, exception to our fundamental right to own and hold property deals with the public interest issues of conservation and improvement.  The Constitution makes it legal for a law to be passed that takes away our property for so long only as may be necessary for the purpose of any examination, investigation, trial or inquiry. 
So, if the police find my gun stolen from my house being used in a crime, they can confiscate it for so long as is necessary for it to be used as an exhibit in the trial of the offender, but they cannot keep it after the trial.  They have to give it back to me after the trial. 
It is this exception that makes it legal for a planning law to provide for private land to be temporarily taken for the purpose of doing soil conservation on it.  If government sees that I am allowing my land to be eroded by water and I am not doing something to prevent the erosion, they can come in and construct a wall or other safety feature to stop the erosion, and I cannot complain, so long as it is done under a law that gives this power.  Of course, water erosion is not such a big problem in Anguilla, but you get the point. 
If the Agricultural Department has a law passed giving it the right to go into people's agricultural land and temporarily to take possession of it for the purpose of eradicating the hibiscus mealy bug if the owner refuses to do so himself, that would be legal under this exception.

14 July, 2010


Limitation:  I hope that you have not lost track of our concern with section 7 of the Constitution, the fundamental right to own property.  We return to it now.  The eleventh exception to our right to hold our property relates to a law providing for limitation of actions.  As we all know, the Limitation Act says that if we are owed a debt, and we allow 7 years to pass without suing in court for it, the debt is extinguished.  If our neighbour encroaches on our land, and fences it in and claims it as his own, and we do not sue him, then after 12 years we lose the ownership of that land.  The Registered Land Act says so.  It says that in this way our neighbour acquires our land by “prescription”.  It is even worse in the case of a claim for damages for personal injury.  If I am injured by the careless driving of someone, and have to spend $100,000.00 in medical bills, then I have only 3 years from the date of the accident to sue.  If I wait until the 3 years have passed, then I have lost my right to claim compensation.
       There are two reasons advanced by lawyers justifying the concept of limitation of actions and acquisition of the property of another by prescription.  One is that there must be a time when disputes over ownership are brought to an end.  People are entitled to quietly enjoy their possession of property that they have held as their own for a number of years.  If I am claiming that my neighbour has wrongfully trespassed on my land and fenced a part of it off, then I must back up my claim by taking the matter to court promptly, or forever hold my peace.  Otherwise, quarrels might last for generations.  The second reason is that the matter must come to court while the witnesses to the facts are still alive and memories are fresh.  After 3 years have passed, who can accurately remember what exactly happened that day on the road when the car accident took place?
This exception to the constitutional right guaranteed by section 7 of the Constitution preserves the Limitation Act and makes it legal to extinguish our right to our property.  It could otherwise be argued that the whole idea of placing a time limit to our right to claim our property breaches our fundamental right to own property.  

13 July, 2010


A correspondent has sent me the following interesting story on Wikileaks, Julian Assange, IMMI and The TCI Journal:

A real free press for the first time in history

July 12th, 2010 Posted by Joel Gunter
Julian Assange, editor of whistle-blowing website Wikileaks, has criticised mainstream media for not making proper use of “primary resources” and claimed that the site has created “a real free press (…) for the first time in history”.
Speaking at the Centre for Investigative Journalism Summer School at City University London on Friday, Assange accused the media of failing to consult important evidence in its reporting of a 2007 US Air Force strike that killed two Reuters news service employees and several Iraqi civilians
Julian Assange

The attack became infamous after a video of the event was leaked through Wikileaks, entitled Collateral Murder. The footage was recorded by one of two Apache helicopters involved in the attack.
Showing an alleged copy of the US Military’s 2007 rules of engagement hosted on Wikileaks, Assange said: “We had the raw ingredients you needed to decide right there. Why didn’t they use them?
“No one can be bothered to look up the term ‘positive identification’ to see what it actually is.”
Assange argues that it is clear from the document that the Apache pilot broke the rules of engagement. He said journalism needed to work towards making more primary source material such as this available online, arguing that this was the standard process for scientific investigations and that it should be the same for journalism.
You can’t publish a paper on physics without the full experimental data and results, that should be the standard in journalism.
You can’t do it in newspapers because there isn’t enough space, but now with the internet there is.
Last week, Private First Class Bradley E. Manning, who is accused of leaking the video along with tens of thousands of classified State Department cables, was charged by the U.S. Army with mishandling and transferring classified information. Assange will not attempt to enter the US for fear he might be subject to a subpoena.
Citing another of the site’s leaks, concerning Carribean tax haven the Turks and Caicos islands, Assange praised the anti-corruption reporting of online-only, local news outlet the Turks and Caicos Journal, which he said was hounded out of several countries after law firms threatened its internet service providers (ISPs).
Warning of a new “privatised censorship”, he said that the Journal’s Googlemail account had been subpoened under US law and that Google agreed to surrender details of the news outlet’s account, at which point Wikileaks stepped in to provide a defence attorney.
He heavily criticised the search engine company for its behaviour in the TCI Journal case, and challenged the actions of ISPs in India, Japan and the US for allegedly agreeing to cut the Journal’s internet access rather than risk incurring legal costs. According to Assange, Googlemail is a completely insecure way of storing information. He claimed that the Guardian had recently transferred all of its internal email over to the Google service.
Alongside the TCI Journal there was praise reserved for Time magazine for publishing an extensive investigation into the Church of Scientology and defending its investigation at a cost of millions dollars, but with potential costs so high, Assange asked, “what are the incentives for publishers?” Wikileaks were themselves threatened with legal action by the Church after publishing secret documents relating to its “Operating Thetan Level” practices. The whistleblowing site responded by saying “in response to the attempted suppression, Wikileaks will release several thousand additional pages of Scientology material next week.”
Asked about Wikileaks’ funding, he said the site has so far raised $1 million dollars in donations but revealed it had had an application for a $650,000 grant rejected by the 2009 Knight News Foundation, despite being “the highest-rated applicant out of 3,000″, and heavily implied it was a politically-motivated decision.
Earlier this year, Wikileaks put forward a proposal in conjunction with Icelandic MPs to create a safe-haven for publishers – and their servers – in the country. Last month the proposal, known as the Icelandic Modern Media Initiative (IMMI), was passed by parliament and will change Icelandic law, aiming to increase the protection afforded journalists, sources and leakers.
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11 July, 2010

Government accounts

Surfing through the pages of the Bermuda Royal Gazette as one is wont to do on a lazy Sunday morning I was struck by news that their Auditor General had reported negatively on their 2008/09 public accounts.  Bermuda’s accounts must be a lot more complicated than Anguilla’s.  Yet, the last time I inquired our Anguilla House of Assembly had not yet had the 2006/07 public accounts tabled.  Given the comparative simplicity or our public accounts compared to Bermuda’s, you may well ask what conceivable reason could there be for Anguilla to be two years behind Bermuda in publishing our public accounts?

Bermuda’s Finance Minister, Paula Cox

      The Royal Gazette expresses concern that for the past two years Bermuda’s Auditor General has given the government’s Consolidated Fund a qualified audit.  The Consolidated Fund is the account which by law the Government is required to conduct its transactions.  The phrase ‘qualified audit’ means that the auditor was not satisfied that the government’s financial statements fairly reflected its financial position. 
In the case of Anguilla, we have received qualified audits, so far as I can remember, not for two years but for the past fifteen years.  Anguilla’s Chief Auditor has been producing qualified audits for Anguilla’s public accounts for as long as any of us can reasonably recall.  He has repeatedly reported that our financial statements are inappropriate to present fairly the financial position of the Government of Anguilla and the results of its operations.  The only reasonable conclusion we can come to is that our government receipts and payments are so badly recorded that we do not accurately know where our money is coming from or where it is going to.  The computerisation exercise of several years ago has not helped to automate anything.
      In the case of Bermuda, their Public Accounts Committee was quick to jump on the back of their Accountant General’s Department.  Their Finance Minister had to come out howling in defence of her incompetent staff and internal auditors.  Compare that response to Anguilla’s.  Here, our Public Accounts Committee has never met.  When our Minister of Finance last tabled the audited accounts some years ago, not a word of negative comment was raised by any of the dummy politicians in the House.  I doubt that any of them even looked at the Accounts, far less having anything useful or substantive to say on them.
      I don’t expect things to change now that we have a new opposition in the House.  After all, the accounts that they would be criticising would be their own government’s accounts from several years ago.
      What a waste of time they all are.

10 July, 2010

Public health

Public health:  We are learning that our right to own property is not an absolute one.  The Constitution of Anguilla sets out a number of exceptions when it is permissible for a law to provide for our property to be taken away from us.  The tenth exception is when the property is in a dangerous state or injurious to health. 
We don't use asbestos in Anguilla in building, but it used to be common in some parts of the world.  If the Anguilla House of Assembly were to pass a planning law which outlawed the use of asbestos and provided that if we were ordered to take down an asbestos polluted house, and that, if we refused to do so, the Government could demolish the house and dispose of the waste, we would not be able to say that law was unconstitutional. 
We can appeal the decision, or we can get judicial review of the decision, if we say that it was not a fair or reasonable decision.  But, we cannot say that the law is unconstitutional, nor that the taking of the property was unconstitutional because it would have been passed for the protection of the health of ourselves and of the public.  The Constitution permits such a law as a public health exception to our fundamental right to own property.

09 July, 2010

Court orders

Court orders:  You may recall we are looking at our section 7 fundamental right to the enjoyment of personal property.  Government is prohibited from taking away our property except under a law which pays us prompt and adequate compensation.  We are now looking at the several exceptions listed in the section.
       Some of them were quite obscure to us.  The ninth exception is more familiar.  It says that it is not an unlawful deprivation of property if it is as a result of an order of the court.  That seems a little obvious.
           The court is there to settle disputes between citizen and citizen, and between citizens and the State.  If the court orders our property to be taken away from us, and we do not agree with that decision, then it is for us to appeal to the higher court, the Court of Appeal.  We cannot be heard to protest that the order of the court is unconstitutional.