Corruption-free Anguilla

The End

2010-10-14T22:17:00.001-04:00

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.

Independence!

2010-10-10T11:48:00.005-04:00

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.

Related posts:

Due diligence

Integrity

Self-government

Investors

2010-10-09T11:32:00.000-04:00

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!”

Transparency

2010-10-08T22:28:00.001-04:00

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.

Respectfully,

Editors@TCIJournal.com

Due diligence

2010-10-06T11:35:00.001-04:00

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 74.208.2.7

> nserver:                         ns48.1and1.com 74.208.3.6

> 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:                info@dallasfestival.com

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”.

Related posts:

Fevered

Secured loans

Abuse of Office

2010-10-02T08:30:00.035-04:00

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?

Related Posts:

Long Bay

Ministers

Protests

2010-09-28T09:44:00.000-04:00

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?

What thuggery!

Smoke Screens

2010-09-25T20:13:00.000-04:00

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?

Governor's Press Release

2010-09-24T05:24:00.001-04:00

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.

British Minister's Visit

2010-09-23T12:45:00.000-04:00

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?

Montserrat 13

2010-09-20T16:15:00.002-04:00

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

United Kingdom

. A Constitution that is imposed on a people by a foreign power lacks validity and respect.

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 Overseas Territory have expressed their support for any amendment to a Constitution.

There is no reason why Montserrat should be given a second-class Constitution.

Montserrat 12

2010-09-18T16:10:00.002-04:00

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 Overseas Territories with modern colonial Constitutions, they should have no vote in either the Cabinet or the Legislative Assembly;

(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 Britain itself; and

(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.

Montserrat 11

2010-09-16T16:01:00.002-04:00

Having the Constitution give absolute and dictatorial powers to one man is the opposite of providing for good governance. A read of the draft Constitution reveals an intention to give the Governor almost total power over the administration. He is controlled only by secret and unaccountable instructions from the FCO. This secrecy and lack of accountability are then multiplied by giving him associated discretionary powers.

The result is an anti-democratic Constitution. The system it sets up is not conducive to good governance. It is the polar opposite of integrity, accountability and transparency. In particular,

(a) The section 21 use of his discretionary and reserve powers is not subject to democratic accountability. The draft Constitution should be amended to provide that, except where otherwise instructed by the Secretary of State, he ought first to consult the Cabinet and be subject to review by the High Court in the exercise of his discretionary and reserve powers;

(b) Integrity, accountability and transparency require that the section 26 power to dispose of Crown Land should be subject to a resolution of the Legislature;

(d) The section 87 power to grant or withhold pensions, gratuities and allowances ought to be exercised on the advice of the Public Service Commission;

(e) The section 100 power to appoint the Auditor General is exercised after consultation with the Public Accounts Committee. Greater accountability and transparency would be achieved if this were to be done after consultation with the Public Service Commission and the Integrity Commission;

(f) Extraordinarily for the twenty-first century, the Governor will retain the power to amend or to disallow a law passed by the Legislature without any reference back to the Legislature.

Montserrat 10

2010-09-14T15:57:00.002-04:00

The draft Montserrat Constitution does not entrench an Interests Commissioner. Section 106 provides at best a hope that there will be a continuing Interests Commissioner and an effective Integrity in Public Life Act, after it comes into effect. This is not satisfactory.

The Constitution should entrench the office and make it clear that the provisions are to apply to all members of the Legislature, the Cabinet, Statutory Boards and Committees, and their immediate families. The disclosures to be made by public officers should not be secret. They should be public, and failures to obey the law should be subject to serious penalties.

Integrity, accountability and transparency require this.

Montserrat 9

2010-09-12T15:54:00.002-04:00

There is no intention to entrench the Ombudsman in the new Montserrat Constitution. The section 104-105 provisions relating to the Ombudsman are most unsatisfactory. The office is not to be constituted by the Constitution but is left for a law, which may or may not be passed, to do so.

This supervisory officer of the Legislature is one of the most important watchdog institutions that a free people can ever have. The people of the British Overseas Territories in the West Indies have been exposed to arbitrary and despotic decisions by government departments for decades. Without the resources to fund a High Court action, the victims have been without remedy.

This office is generally recognized as one of the most liberating that a Constitution can provide. The Constitution should establish the office and set out his functions, tenure and immunities in the usual way, as exemplified by the Constitution of Antigua and Barbuda.

If the Ombudsman has so low a priority in the collective mind of the legal advisers to the FCO, what hope can we in Anguilla have that it will have a higher priority when the FCO gets around to putting pressure on the Anguilla Government to move forward on constitutional reform?

Montserrat 8

2010-09-10T15:51:00.001-04:00

There are other objectionable provisions in the draft Constitution that are familiar to us in Anguilla. The section 51 restriction on Montserratians who have travelled, and been so lucky and enterprising as to have acquired a second passport, from being able to be nominated and elected to the Legislature is most objectionable. It repeats the provision in the old Constitution. One would have thought that preparing a brand new Constitution would have been the opportunity to remove such an anachronism. It should form no part of a modern Overseas Territory Constitution.

Section 81 and the following sections set up a Public Service Commission, but it is a powerless institution. It has the right to consult only on public service appointments and on matters of discipline.

No FCO-appointed Governor or his deputy should have total power over the appointment and discipline of public servants in a British Overseas Territory. He should be obliged to follow the advice of a PSC, except, perhaps, for the highest ranks, where consultation with the Chief Minister might be appropriate. Similarly for teachers and the police force.

I note that section 84 expresses a hope that one day a Public Service Act might one day be passed that will oblige the Governor to act on the advice of the PSC. Such a hope is not good enough. The Constitution should require it to be done.

Montserrat 7

2010-09-08T15:48:00.002-04:00

It is accepted that Montserratians live in a country under threat by volcanic eruptions as well as hurricanes. States of emergency may have to be declared from time to time. The traditional constitutional provisions are well known, and have been tested in the courts. There is no need to weaken the rights of the average Montserratian only because there is a risk of more natural disasters striking.

The draft Constitution would have the section 18 provision for protection of persons detained under emergency laws significantly curtail the rights of the detained person.

There is no good reason why the family and the public should wait 10 days to be notified of the identities of persons detained. It should be no more than 3 days.

Nor is there any reason why persons should be able to be detained for up to 30 days without an appearance before the court. This should be no more than 5 days.

Nor is there any need for any other tribunal but the established courts of the island. Except in a police state, the courts are the most reliable protector of the rights and freedoms of the citizen.

The evil does not stop there. The draft states that if an independent tribunal recommends that a detainee be released, the authority that locked them up in the first place can ignore the Tribunal’s recommendation. This provision would mean that the authority could ignore a decision of someone such as a judge appointed by the Chief Justice to preside over the tribunal. This should be a frightening prospect.

This new provision vests draconian and dictatorial powers in the hands of the Governor and the police. It is completely unacceptable in a modern Constitution of a British Overseas Territory in the West Indies.

Montserrat 6

2010-09-06T15:44:00.002-04:00

The section 17 provision in the draft Constitution for declaring periods of public emergency is anti-democratic in that the Governor alone decides. The section should provide as in the British Virgin Islands that he acts in declaring a state of emergency on the advice of Cabinet unless otherwise instructed by the Secretary of State.

That is not all. There is a further whittling away of the rights of Montserratians in the section. The traditional test for restricting the rights and freedoms of the individual is generally expressed as having to be “reasonably justifiable in a democratic society”. However, in relation to the Governor’s emergency powers, the standard would be set considerably lower in the draft Constitution. The new test would be “reasonably justifiable for dealing with the situation that exists.”

The alteration of the test for justifying a declaration of a state of emergency is undesirable, particularly as that provision has been judicially reviewed in Montserrat. One may infer that the reason for the watering down of the test is that it is designed to enable the Governor to act in a heavy-handed way in the future without his being accountable to the Courts.

Such a deplorable development in a proposed Constitution for a British Overseas Territory is much to be regretted.

Montserrat 5

2010-09-04T15:40:00.002-04:00

The FCO legal advisers propose to take away the right of public servants to express a political opinion. This fundamental right is found in section 12 of the draft Constitution. It is the provision for the protection of freedom of expression: In colonial constitutions the fundamental right was traditionally constrained in relation to public servants. The thinking was that if you are working for Government, you should not be permitted to come out and express views opposed to the Government of the day.

The way that the right has traditionally been curtailed is by placing in General Orders, the contractual document binding all public servants, a term prohibiting the public or private expression of any political opinion by any public servant. This was so draconian and absolute a restriction of a fundamental right that it has long been the subject of interpretation by the courts.

Restrictions on permanent secretaries and other confidential advisers of government ministers of their public expression of political views may be justifiable. Ministers need to be confident that their highest advisers will not appear suddenly on a political platform betraying the confidences previously shared. The same does not apply to the lower ranks of the public service. It is generally understood in the West Indies today that a blanket ban on public expression of political views by the general mass of public servants is highly objectionable.

The earlier provision in the Constitution of Montserrat was that the prohibition on expressing a political opinion must be “reasonably justifiable in a democratic society”. Such a wording has been held by the courts of the West Indies to make it illegal to restrict the lower ranks of the public service from expressing their political opinions.

The draft Constitution proposes to remove the need for the prohibition to be reasonably justifiable in a democratic society. It is to be replaced by a need for Government to show only that the restriction “is reasonably required for the purpose of ensuring the proper performance of their functions.” This is clearly a lower threshold than previously. And, the higher test has been removed without any explanation.

The intention appears to be to water down the previously enjoyed right, with a view to making it easier to gag teachers and public servants through General Orders. There is absolutely no justification for this proposed curtailment of this fundamental right of all Montserratians to freedom of expression.

Montserrat 4

2010-09-02T15:33:00.002-04:00

The FCO proposes to have the Constitution of Montserrat permit the removal of trial by jury: The wording of section 6 of the draft Constitution makes possible the removal of the right to trial by jury. There is no suggestion that the people of Montserrat consider this new development either advisable or desirable. This proposal may have been stimulated by recent failures in prosecution mainly of sexual cases. Such failures, from what I have been told, spring from patent weaknesses in the prosecution’s cases, and not to any perversity of the jury.

This is not the only assault on the fundamental right of the people of Montserrat to the protection of law. The same section 6 contains a provision contemplating abolition of the right to appeal from some or all convictions in the Magistrate’s Court. Such a drastic curtailment of this fundamental right is inappropriate without thorough consultation with and support from the people of Montserrat, of which there is no evidence.

Such a proposal is so offensive as to be incredible in a draft Constitution proposed by an FCO legal team.

Montserrat 3

2010-08-30T15:30:00.002-04:00

The FCO proposes to weaken many of the fundamental rights of the Montserratian people. We see this first in the section 5 fundamental right to protection from arbitrary arrest or detention. This provision in the draft Constitution is very weak. It does not provide for informing arrested persons promptly of their rights. They need be told of the reason for their arrest only after they have been brought to the station.

A person needs to know immediately he is arrested of the reason for his arrest. This is so not least because he has a right to know whether he is being illegally arrested so that he can exercise his right to resist the arrest.

The version of the right in the draft is weakened by the provision that he is to be brought “promptly” before a judicial officer. This provision is capable of abuse, particularly in view of the penchant of the police for arresting persons on a Friday afternoon, and then not bringing them before the Magistrate until the next sitting of the court. They ought to be obliged to bring an arrested person before a judicial officer within 24 hours of the arrest. They should bring him to the home of the Magistrate if necessary.

This is, not least, so that the Magistrate can observe the arrested person for signs of physical abuse and to be able to give the necessary directions for a medical examination, and to consider bail.

Montserrat 2

2010-08-28T15:25:00.002-04:00

In my view it is shameful what the FCO are doing to the Montserratian people: We are going to spend the next couple of posts looking at the new draft Constitution 2010 that the FCO is proposing to implement for Montserrat.

I have come to the conclusion that the draft is bereft of any sign of an interest in good governance on the part of the FCO. It is devoid of any of the principles of integrity, accountability or transparency, as I shall attempt to show. These principles are routinely touted by the same FCO as the three pillars of good governance. The draft Constitution of Montserrat has missed the opportunity to contribute to this movement.

The concentrating of power in the Governor’s hands, as proposed by this draft Constitution, tends towards arbitrary, one-man rule. It may be true that a good governor is better than a bad local Cabinet. We cannot be confident that our Governors will always be good. Experience, especially in the case of Montserrat, teaches otherwise.

A new Constitution should rather be trying to develop local democratic institutions that will involve the people in their own governance. It is preferable that the Constitution should encourage responsible government in the Overseas Territory, rather than destroying it. Responsible government is a better guarantee of democracy, justice, and fairness in government than one-man rule. The draft Constitution provides for absolute power to be concentrated in one person, subject only to the oversight of the Secretary of State far away in London.

In this respect the draft Constitution increases the deficit of democracy in Montserrat.

Montserrat 1

2010-08-26T15:19:00.003-04:00

Montserrat is being offered a new, ante-deluvian Constitution. Last week I visited Montserrat at the invitation of the Hon Donaldson Romeo MLC to consult with him and members of the public on the new draft Constitution 2010. This has been drafted by a team of Foreign and Commonwealth Office (FCO) lawyers, and agreed to by the government of the island. They propose that the Legislative Council should pass a Resolution approving the draft with or without amendment. The present Constitution dates to the year 1989. My conclusion is that the new draft Constitution does not advance government in Montserrat. Rather, it sets Montserratians back decades, particularly in the area of human rights.

During the three days that I was in Montserrat, I met with one youth group, two service clubs, the Rastafarian organization, one church group, and various individuals, including a number of the island’s barristers and solicitors. I also took part in a television interview, a radio call-in programme, and interviews by various members of the press. I am especially grateful to Jean Kelsick Esq, barrister and solicitor of the Eastern Caribbean Supreme Court, for some of his observations on weaknesses in the draft Constitution, some of which I have been happy to adopt.

Montserrat is one of the few British Overseas Territories still receiving financial support from the British Government. The receipt of grant-in-aid, I was told by several Montserratians, makes it difficult for them to believe that their views on the draft constitution will be welcomed. Many believe that the draft Constitution is being offered to them on a “take it or leave” basis. This unfortunate, and wrong, view of theirs is reinforced by recent actions of the local Government.

Government has made a concerted effort to rush the draft Constitution through the Legislature without any public consultation. Only reluctantly did the government suspend its efforts to have an approving resolution passed. The public has been given three months to ‘consult’. The resulting consultation process has been deeply flawed. It would appear that no effort is being made to gather any input from the people of Montserrat regarding the draft Constitution.

The government has established a Constitution Implementation and Advice Committee whose main function appears to be to sell the draft to the public, rather than to get suggestions for improvement of the draft. This is no way to secure the approval and support of the majority of the people to the proposed new Constitution.

The process chosen for the introduction of a new Constitution shows an attitude of pure contempt on the part of the administration towards the people of Montserrat.

TCI 8

2010-08-24T10:03:00.000-04:00

In this post we conclude my preliminary thoughts on Kate Sullivan's Initial Recommendations for Changes to the Constitutional and Electoral Arrangements in the Turks and Caicos Islands? If you have not read her paper I urge you to do so by clicking on the link above. I have dealt with the earlier portions of her Recommendations over the past seven posts. I end with these final but preliminary thoughts:

[16] Recommendations 36 and 37 retain the power of the Governor to deal in Crown Lands. We know what that has meant in the past when there have been weak Governors and Attorneys-General. The Governor has allowed ministers of government secretly to misuse Crown Lands for their own and their families' profit.

The proper reform is to have the Constitution require any dealing in Crown Land to be approved by the House of Assembly. Let the government answer to the public for any proposed dealing in Crown Land. This is not a proper province for either the mandarins in Whitehall or for the Governor in Government House.

We need the disinfecting influences of openness, transparency and fresh air. We do not need to maintain a system that has shown itself to be a failure in the past.

[17] There are many other Recommendations in this Report that we can all appreciate and approve of, particularly the provisions for Watchdog Institutions. One complaint would be that they are not complete and others are missing.

For example, the Constitution makes no provision for a Tenders Board, with security of tenure and guarantees for its independence.

Similarly, the Constitution makes no provision for a Public Accounts Committee.

For democratic principles to begin to flourish in what has clearly become a failed kleptomanic state, institutions such as these are essential. No dictatorship by a foreign Governor can be an acceptable substitute for the nurturing and encouragement of local democratic institutions.

[18] There are several other recommendations that one might legitimately have strong views on. There are other obvious and timely recommendations that could and should have been made but that are missing. We in the Overseas Territories need to act swiftly to discuss them on a variety of forums.

Our concern should be transparent and obvious. It is that if these recommendations are permitted to find their way into the TCI Constitution, it will not be long before there is pressure for them to be introduced into ours, for consistency and administrative convenience. However, this paper is long enough for all but the very patient to be able to read, and I propose to stop writing here.

Related Posts:

Crown Lands

TCI 7

2010-08-22T09:43:00.000-04:00

We are proceeding to examine Kate Sullivan's Initial recommendations for Changes to Constitutional and Electoral Arrangements in the Turks and Caicos Islands. We have in previous posts dealt in fourteen numbered paragraphs with some of my concerns at earlier portions of her Recommendations. We now continue:

[15] Recommendation 31 proposes to completely emasculate the Public Service Commission and give it a completely vacuous and useless role. The TCI has at present one of the most advanced and democratic provisions in its Constitution for the governance of the public service. A Commission of locals appointed by the Governor on the recommendation of various stake-holders makes the decisions about appointments and conditions of service of public servants. The Governor is required to implement their recommendations. That is as it should be.

If the system in TCI is not working, of which there is no suggestion, then the members of the Commission need to be trained in their proper functioning, not have the country deprived of the institution.

It is essential that the FCO recognise that its mandate is to develop and to improve the local institutions of self-government so as to help the people of the Overseas Territories to learn the proper rules of government and how to avoid cronyism, conflicts of interest, and nepotism.

Putting appointments in the hands of an FCO functionary, advised behind the scenes by those cronies that he and his superiors select, is not an acceptable alternative.

To be continued …

Related Posts:

The PSC

Public Service Commission

TCI 6

2010-08-20T09:30:00.000-04:00

We continue to look at Kate Sullivan's initial recommendations for Changes to the Constitutional and Electoral Arrangements in the Turks and Caicos Islands. We have previously dealt in thirteen numbered paragraphs with some of the first 25 Recommendations.

[14] Recommendation 26 is headed in the wrong direction. It proposes keeping the Governor's old colonial powers unilaterally to make a law for the TCI without that law having been passed by the House of Assembly. It goes further and widens his power unilaterally to legislate for the islands “to ensure compliance with the Governance Principles.” A more objectionable provision it would be difficult to imagine.

There is no question of either the Governor or the FCO needing such a draconian provision in TCI or in any other of the BOTs. In this day of instant communication the FCO is well informed about all proposals to introduce legislation in good time to make interventions to ensure that Britain's contingent liabilities are not put at risk.

In the event that a Government should introduce a new legislative provision that has not passed through Cabinet and had the benefit of the Attorney-General's and the Governor's advice, there are ample powers to pressure the Government to revise the measure. This was proved recently in Montserrat when the Assembly passed a legislator's pensions provision that was wildly in excess of the provision that had been approved by the Cabinet. The government of the day was embarrassed into passing through the House of Assembly an amendment immediately thereafter to go back to the original approved provision.

To remove the power of the legislators to legislate is to destroy democracy itself. A constitutional framework such as the one proposed here has nothing of either democracy or good governance in it.

To be continued …

Related Posts:

Governor Legislating

TCI 5

2010-08-18T09:16:00.000-04:00

We continue to look at Kate Sullivan's initial recommendations for Changes to Constitutional and Electoral Arrangements in the Turks and Caicos Islands. You can download and read them by clicking on the link above. I continue at paragraph thirteen of the paper I originally sent to the Editors of the TCI Journal:

[13] Recommendation 9 would have the Constitution provide that the Governor may act contrary to the advice of Cabinet in an area of ministerial responsibility if to act in accordance with the Cabinet's advice would be contrary to the Statement of Governance Principles. At first blush this may seem acceptable on the basis that the ministers have negotiated the Principles, and should not be permitted to act in breach of their contract to abide by them.

The objection to the Recommendation is that it is an anti-democratic provision. It does nothing to promote and develop good governance in the Territory. Besides, there is no reason to suppose that a Governor will be seized of a greater sense of good governance than anyone else, as we have seen recently in Anguilla with the appointment by the Governor of the Commissioner of Police for Anguilla to be one of the two Magistrates for Anguilla on the day after the Commissioner surrendered his long-time previous appointment.

It is to be remembered that we are talking about the Governor rejecting the advice of a Cabinet in which the Governor, his Deputy, and the Attorney-General have sat and participated in formulating. If, in the presence of these worthy individuals, the Cabinet comes to a decision that some action is needed in the interests of the country, it is simply not acceptable for the Governor to be empowered unilaterally to act contrary to the advice.

There are other preferable mechanisms that will introduce transparency and good governance into Cabinet decision-making than by making the democratic institution of the Cabinet subservient to the non-democratic one of the office of the Governor.

Opening up uncontroversial Cabinet discussions to the press and public is one such mechanism.

Making it mandatory for there to be a press conference immediately after Cabinet meetings, at which the press was not present, to brief the press on major decisions is another.

Removing secrecy from Cabinet decisions is the best guarantee there is for ventilating and cleaning up those Cabinet processes that do not require secrecy.

To be continued …

Related Posts:

TCI 4

2010-08-16T08:48:00.000-04:00

We continue to look at Kate Sullivan's initial recommendations for Changes to Constitutional and Electoral Arrangements in the Turks and Caicos Islands. You can download and read them by clicking on the link above. I continue at paragraph [12] of the paper I originally sent to the Editors of the TCI Journal:

[12] Recommendation 8 was like a breath of fresh air. It provides for local supervision of the political directorate, and is entirely commendable. She is proposing that a minister can be removed from the ministry if the Integrity Commission finds that he or she has breached the Code of Conduct for persons in public life or that the minister has failed to comply with the registration of interests requirements on two separate occasions.

This is exactly the sort of development that we should be looking for if we are to see local institutions taking control of good governance issues.

To be continued …

Related Posts:

TCI 3

2010-08-14T08:44:00.001-04:00

We are looking at my preliminary views on Kate Sullivan's Initial Recommendations for Changes to the Constitutional and Electoral Arrangements in the Turks and Caicos Islands. I urge you to read the discussion paper if you have not done so. It can be downloaded by clicking on the link above. We have in the first two posts on the topic dealt with the background papers and with Ms Sullivan’s statement of what constitutional issues are not open for discussion. I have expressed my concern there. I continue:

[8] So, it is with trepidation that one continues to read Ms Sullivan's initial recommendations. Recommendations 1, 2 and 3 have their good points. Recommendation 4 gives should give us a problem. She is proposing that the Constitution provide that the FCO will issue a Statement of Governance Principles and the Constitution will require the Governor, Premier and Ministers to work within these principles. The Governor will then have clear power to reject any advice and to refuse to act on any advice from the Premier, the Assembly or the Cabinet if he or she believed that such action would be in contravention of the governance principles.

The idea of there being in place in any Overseas Territory a Statement of Governance Principles is commendable. We must assume that it will be negotiated, that it will be a contract made by the FCO acting on behalf of and in the name of the people of the Overseas Territory. We are expecting that there will be nothing contained in the Statement that will be offensive to or contrary to the wishes and expectations of the people of the Overseas Territory. We won't know until we see it.

[9] What is objectionable in this recommendation is that it is made with a view of introducing an essentially undemocratic form of government under the guise of improving good governance. There will be no mechanism for ensuring that the FCO determines the wishes and expectations of the people. The risk is that they may from time to time impose their own notions of good governance.

While such a power to impose could be viewed as a healthy counterbalance to the power of the Premier and his Cabinet, there is the risk that it will introduce an undemocratic counterweight to the elected government. The proposal does not provide any hope for local development of good governance mechanisms. It should be repugnant to all right-thinking persons.

[10] Particularly objectionable is the proposal to empower the Governor to reject a measure coming to him from the local legislature for his assent. Colonial legislatures are by their nature inferior legislatures. Only the UK Parliament is supreme under the Constitution. Parliament in the UK can at any time rescind or amend a colonial law. This situation only changes with independence.

To go this much further, to provide that the colonial legislature can be overruled at the whim of a foreign official, is not acceptable in the twenty-first century. The situation may be bad in the Turks and Caicos Islands, but nothing justifies the abrogation of democratic government in an Overseas Territory to the extent that is proposed.

An acceptable alternative would be to have the Constitution introduce mechanisms for the people of the Turks and Caicos Islands themselves to exercise increased democratic control over errant ministers. These mechanisms are well understood. They include provisions for recall and for referendum, as well as a whole range of local, democracy-enabling measures which I summarise below.

[11] Much-needed, democracy-enabling mechanisms include, without being exhaustive,

ü strengthening the Integrity Commissioner law to give teeth to ensure that public officers publicly disclose their assets and liabilities at regular intervals;

ü entrenching the Tenders Board and reinforcing the procurement procedure to make them fair and transparent;

ü giving the legislature power to oversee dealing in Crown Lands;

ü introducing an Appointments Commission to monitor the suitability of ministerial nominations to government boards and committees;

ü enforcing adherence to public service and ministerial Codes of Ethics;

ü entrenching a Complaints Commissioner to oversee the public service and police service response to complaints from citizens;

ü supporting and ensuring the effectiveness of the Public Accounts Committee in overseeing the administration's spending of public monies;

ü introducing and administering Freedom of Information Acts;

ü obliging the Governor to accept the advice of independent Service Commissions;

ü introducing an independent Boundaries Commission to minimise the chance of gerrymandering;

ü and improving the transparency of Cabinet meetings by opening them up to the press and public.

These are all locally-managed mechanisms for improving democracy and good governance. They promote self-government and self-determination. They do not rely on a deus ex machina in the person of the Governor and the FCO to achieve these effects, which is what, I would submit, the proposal attempts to do.

TCI 2

2010-08-12T08:41:00.000-04:00

We are looking at my preliminary views on Kate Sullivan’s Initial Recommendations for constitutional and electoral reform for the Turks & Caicos Islands. I urge you to read them if you have not already done so. It may not be long before they are being proposed for Anguilla. That should concern all of us.

Yesterday we looked in 5 numbered paragraphs at the historical documents that established the interest of the British Government and the governments and people of the British Overseas Territories in establishing the three principles of transparency, accountability and the rule of law in all of our Overseas Territories. We now continue at paragraph six.

[6] It is in the light of these three underlying principles that one reads what Ms Sullivan sets out as some of the features of the TCI Constitution that are not to be the subject of the current review. She lists them as:

· That the executive authority – that is, the power to govern – is held by The Queen;

· That the Governor is appointed by The Queen on the advice of UK Ministers and that the Governor exercises the executive authority on behalf of The Queen;

· That the Queen retains the power to legislate for all matters of government in the Islands, including those that are the responsibility of elected ministers; and

· That certain responsibilities – defined in the current Constitution as the ‘special responsibilities’ – are retained by the Governor and are not subject to the control of elected TCI ministers, but are subject to Constitutional limitation in their exercise, including through the fundamental rights provisions;

· That the Governor will retain the power to legislate for some matters of government in the Islands, as long as these matters are specified in the Constitution.

[7] One reads the above words with a mounting sense of concern and dismay. Points 3 and 5 are particularly disturbing. The Queen will retain the power to legislate for matters that are the responsibility of elected ministers? And, the Governor will retain the power to legislate for some matters of government?

One would have thought that by now the FCO legal advisers were aware that an undemocratic form of government is the opposite of good governance. Bad governance has flourished in the Overseas Territories under the supervision and tutelage of the FCO. When unelected officials have the power to legislate in place of elected members of a House of Assembly, that is no assurance of an improvement. Local politicians may not have the highest integrity, morals or standards. But, at least they are accountable to the electorate.

Foreign officials are not accountable. Some of them are incompetent and others do not have a care for the interests of the people they are supposed to help govern. When power is transferred from the elected ministers to the Governor, we depend for good governance on the character of the man, not on an institution designed to guarantee democracy and good governance. A strong and fair Governor may well do no harm and may do some good. A weak and accommodating Governor is unlikely to make good use of his increased powers.

The whole notion of replacing democracy by the arbitrary rule of one individual is offensive.

To be continued …

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Order in Council

TCI 1

2010-08-10T08:33:00.001-04:00

Have you had a look at Kate Sullivan's Initial Recommendations for Changes to the Constitutional and Electoral Arrangements in the Turks & Caicos Islands? I have, and I have sent the Editors of the TCI Journal my preliminary views. It might be as well to re-publish them here, with such amendments as seem appropriate for Anguilla. We do not know when similar proposals will be put forward for us. It appears to me that unless I am very mistaken that will not be long in coming. Constitutional and electoral reform in Anguilla is long overdue. These then are some of my preliminary views:

[1] The FCO has now published Ms Sullivan's initial recommendations for constitutional and electoral reform for TCI as a discussion paper. I have reservations about some of her Recommendations that I would like to express. She starts off her Recommendations by giving the following useful background:

Background to this review

1. In 2008 an independent Commission of Inquiry was set up to look into possible corruption or other serious dishonesty by elected members of the TCI legislature. The final report made over 60 recommendations covering systemic weaknesses; criminal sanctions; civil recovery; integrity in public life and the management of Crown Land. Some of the Commission’s recommendations focused on deterring or preventing corruption and other serious dishonesty while others looked at the broader constitutional and statutory framework of government.

2. In August 2009, United Kingdom (UK) Government Ministers instructed the Governor of TCI to bring into force an Order in Council suspending ministerial government and the House of Assembly. The UK Government also announced that during the period of suspension a review of the 2006 Constitution would be undertaken, as had been suggested in several of the Commission of Inquiry’s recommendations.

[2] The relationship between Britain and the Overseas Territories is governed by a 1999 social contract. This contract is titled Partnership for Progress and Prosperity. It is an FCO Report and it commences with a foreword by Foreign Secretary, Robin Cook. He sets out the three principles that underlie the partnership between Britain and the Overseas Territories. He describes them as follows:

n First, our partnership must be founded on self-determination. Our Overseas Territories are British for as long as they wish to remain British. Britain has willingly granted independence where it has been requested; and we will continue to do so where this is an option. It says a lot about the strength of our partnership that all the Overseas Territories want the constitutional link to continue. And Britain remains committed to those territories which choose to retain the British connection.

n Second, the partnership creates responsibilities on both sides. Britain is pledged to defend the Overseas Territories, to encourage their sustainable development and to look after their interests internationally. In return, Britain has the right to expect the highest standards of probity, law and order, good government and observance of Britain’s international commitments.

n Third, the people of the Overseas Territories must exercise the greatest possible control over their own lives. We are proud that our Overseas Territories are beacons of democracy. We applaud their achievements, and want them to have the autonomy they need to continue to flourish.

[3] The Foreign Secretary gave us to understand that the three underlying principles of our partnership are “self-determination”, “responsibilities”, and “the greatest possible control” over our own lives. It is mutually agreed that we the Overseas Territories have a fundamental right to self-determination and control over our own lives while accepting our responsibilities for good governance.

[4] The next major statement on the constitutional principles that underlie the relationship between Britain and the Overseas Territories occurred in the year 2006. At the annual Overseas Territories and Countries conference the FCO issued a White Paper on Good Governance. The first paragraph of this white paper explained what we mean by good governance:

1. Although it is a phrase that has gained currency in recent years, the concept of governance has been with us as long as there have been systems within societies which determine the process of decision making; and the process by which decisions are, or are not, implemented. Good governance is simply doing this well.

In ten short paragraphs the white paper sought to set out some of the issues we should look for in good governance. It highlighted the need for the rule of law, transparency, accountability, the responsiveness of institutions, and effectiveness and efficiency in securing good governance.

[5] The reader takes away from this white paper the idea that good governance means doing the processes of decision making and implementation well. That notion expressed in 2006 was an underlining and a reinforcement of the need for the rule of law, transparency, accountability and the rest of the principles set out in the 1999 Report.

To be continued …

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OTCC

Fresh Air

2010-08-09T06:18:00.000-04:00

Publicising the work of the Executive Council: The historical lack of transparency in the government of Anguilla is not so much a constitutional flaw, but a public relations disaster. There is no organized and systematic disclosure to the public by any government press officer of the work of government, particularly of the Executive Council.

Sporadically, the Governor discloses some development that is of interest to him. Very occasionally, the Chief Minister drops a hint or remark about the workings of government. All the rest of the workings of the government of Anguilla is left to the rumour mill. Only when there is a crisis or an emergency in government is any effort made to give out information. That information is usually biased in the direction desired by the person delivering it.

We will all remember the recent history of government press conferences. Chief Minister Hubert Hughes started them during his administration in about the year 1988. None had existed previously. They came to an end with the advent of Chief Minister Osborne Fleming’s administration in the year 1990. No doubt Mr Fleming felt that such press conferences had become discredited because of the abrasive and destructive way in which they had been conducted.

Mr Fleming resumed holding Chief Minister’s press conferences in about the year 2007. It did not take long, however, for Mr Fleming’s press conferences to descend into pure politicking. The weekly Chief Minister’s press conferences provided some public entertainment until the end of the administration in early 2010. While they were not as abusive and destructive as they had been under the previous administration, they were widely recognized as being purely political. No useful information on the workings of government or the decisions of Executive Council was ever released at these press conferences. Now that he has taken over the administration, Chief Minister Hubert Hughes has resumed giving his weekly press conference in his own inimitable style.

These press conferences are not what are needed in Anguilla. Besides providing entertainment, they serve a political purpose. But the people are entitled to be informed about the workings of their government. We need to have a regular weekly release of information on the major decisions of the Executive Council and on the steps the administration is taking to implement government policy. It is high time for us to begin insisting that Ministers must expose the workings of their Ministries and Departments to the people.

Frequently, Ministers go for years without reporting to the House of Assembly on the workings of their Ministries and Departments. If no member of the Legislature complains, who can blame the Minister for keeping quiet about what he and his Ministries are doing?

All of us in Anguilla remember the low opinion we held of what was then perceived as a secretive, remote and probably abusive police force up until 2007. That was the year that Police Commissioner Keithley Benjamin introduced the weekly police press conference. The result of this opening up to the press and public has been nothing less than an astounding turn-around in the public’s attitude to the regular requests of the police for cooperation from the public. It is incomprehensible to me that this refreshing transparency has not been transferred to the work of the Executive Council.

We should insist that the Executive Council meetings are opened up to the public whenever possible. Is it only the “white” Overseas Territories of the Falkland Islands and Gibraltar that have the self-confidence to hold a press-conference immediately after every cabinet meeting to inform the public and publicise what decisions have been made in the public interest?

To summarise then, the solution to the perceived lack of integrity, accountability and transparency in our small-island territories of the West Indies is largely due to deficiencies in our Westminster Model Constitutions. These Constitutions typically provide for the forms of government, but do nothing to establish mechanisms that ensure checks and balances on abuse of power. The solution is to insert into our Constitutions, whenever we get the chance, the proven mechanisms that have been developed in other parts of the world that will ensure that best practices are followed.

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Hush-hush

2010-08-07T06:16:00.001-04:00

Other committees and commissions: The 1982 Constitution of Anguilla contains provisions that offend against transparency. In particular it provides for the arbitrary and one-man execution of some of the processes that in a democratic country should be handled by independent local institutions.

Let us take the absence of a Mercy Committee as an example. At present section 76 gives the Secretary of State acting through the Governor the sole power to grant a pardon, either free or subject to conditions, to a convicted person. Anguilla is not unique in this respect. In most of our territories, the Governor has the Constitutional power to function without any local Mercy Committee to advise him on what to do. Whenever the prerogative of mercy is exercised in the fashion prescribed by the Constitution, legitimate doubts will arise as to its propriety. The question will be asked, what does a foreign politician or diplomat know about who in our prisons should have his sentence shortened or commuted? The suspicion will be that he has relied on the advice of some unknown advisers lurking in the darkness around him. The result is that no sensible Governor is likely ever take the risk of exercising the power, even in the clearest of situations. It is either that or be prepared to face personal doubts and attacks over his motives if he ever does exercise it. This is a most unsatisfactory state of affairs.

The absence of a Boundaries Commission to ensure transparency in the placing of electoral boundaries to the various political constituencies is another vexed issue. In some of our islands there has been no Boundaries Commission appointed for centuries. As demographics have shifted, some of our electoral districts have become a small fraction of the size of others. Good government demands that our people have more or less equal representation in the House.

Related posts:

Mercy Committee

Electoral Boundaries

Service Commissions

2010-08-06T12:07:00.000-04:00

Service Commissions: The second guarantee of transparency in the government of a British Overseas Territory (BOT) is the existence of constitutionally guaranteed, independent, Service Commissions. In the smaller BOTs of the West Indies, all appointments to the public service, the teaching service, and the police service, are by our Constitutional provisions in the hands of one person. That is the Governor. He delegates this responsibility to a local Deputy Governor. Both of them carry out their responsibilities with no accountability to anyone. In a properly regulated, democratic BOT the Governor or Deputy Governor would be required to act on the advice of the Service Commissions.

The reason for that constitutional development is obvious. A Governor whose powers of appointment to the public service is unrestrained will of necessity have to rely on his cronies and advisers. He will have no personal knowledge of the individuals and characters whose public service come up before him for a ruling. His local deputy will be related to half the local population and have grown up with most of the others. Under such a system, no matter how well-intentioned, the public will not accept that there is transparency and fairness in public service appointments. This is a classic case of government by man rather than by law. Such appointments and related matters should instead be constitutionally placed in the hands of a local, professional, and independent Public Service Commission, governed by appropriate laws and regulations.

It is unfortunate that the corrupt and perverse regime that has been permitted by the Foreign and Commonwealth Office (FCO) to run our sister BOT of the Turks and Caicos Islands (TCI) has given Kate Sullivan, the FCO legal adviser, the opportunity to recommend, in her recently-released draft recommendations, clawing back from that unfortunate BOT some of the elements of self-government that had only recently been granted, and repositioning them in the hands of either the Governor or the Secretary of State. No doubt, that reactionary step is well-deserved in the TCI. God knows they have blotted their own copy-book often and badly enough.

We can only hope that in the more sensible, better-regulated territories of Bermuda, Cayman Islands, Virgin Islands, Anguilla and Montserrat, no such retrograde step is contemplated. Such an undeserved development would be an outrage of unacceptable proportions.

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Police Reform

The PSC

Public Service Commission

FOI

2010-08-05T12:17:00.000-04:00

Freedom of Information Acts: Over the past several posts we have been considering the ways that our governments can demonstrate transparency. An essential tool in this endeavour is the Freedom of Information Act.

Among the smaller territories of the West Indies, Cayman Islands alone have put in place a law that enables any citizen to demand copies of almost any government document that would previously have remained secret. Every citizen is entitled to know what documents relating to him and his affairs government is collecting and filing.

There is no surer mechanism for guaranteeing transparency than a Freedom of Information Act and the various regulations that make it work. It is long overdue in Anguilla. Here, it is nearly impossible to obtain any information on the programmes or activities of any department of Anguilla. Most government activity in Anguilla is a state secret.

It is long overdue that we bring that abortion of a system of government to an end.

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Guest Editorial 5

Transparency

2010-08-04T12:58:00.000-04:00

Transparency. The third general heading under which the issue of accountability and transparency in government is usually considered comes under the rubric, or heading, of "Transparency".

Contrary to public opinion, most politicians are not engaged in making back-room deals and accepting under-the-table packages. It is the lack of transparency in our systems of government that causes so many of their actions to be wrongfully categorised as corrupt.

If only the people could be confident that what politicians were doing was in their best interest, there would be less suspicion and accusations. The obvious solution is to institute systems that increase transparency. What are some of them? We shall examine (a) the Freedom of Information Act; (b) the Service Commissions; (c) other Committees and Commissions; and (d) publicising the work of the Executive Council.

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Administration

Malfunction

Public Accounts

2010-08-03T12:47:00.001-04:00

Public Accounts Committee (PAC): We are considering the lack of accountability and transparency in the government of Anguilla. We are looking at the three essential headings of integrity, accountability and transparency. We have finished with integrity, and now we are dealing with accountability. We have in the last post dealt with the first essential instrument for guaranteeing accountability, the Ombudsman. The second essential institution is a functioning Public Accounts Committee (PAC) of the House of Assembly.

The PAC is perhaps the most effective mechanism designed by our Constitutions to enable Members of the Legislature to question and investigate the manner in which public officers have spent the monies voted by the Legislature. Yet, we do not use it. In most of our territories no PAC has ever been appointed, far less functioned as it should.

We all know the reasons for this relaxed state of affairs. Those presently in government have no interest in setting up a tribunal that will expose the wrongdoings that they may have been engaged in. Those who are in opposition now have no desire to erect walls and boundaries that will limit their ability, when their turn comes to take power, to misuse public funds. Similarly, the British Governor wants to keep everyone as quiet and as calm as possible, so that he can go back to London at the end of his term to receive his pats on the back and other accolades. He has no interest in ruining his reputation by having an effective PAC reviewing unauthorised expenditures made by his Executive Council and public service. None of the institutions of government in Anguilla have any interest in making sure that the PAC functions.

It is time for our legislatures to appoint and to work the Public Accounts Committees in the way that they are intended to work.

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PAC

Government Accounts

Public Accounts

Public Accounts Committee

Ombudsman

2010-08-02T12:33:00.004-04:00

Complaints Commissioner: We are now looking at how a public service demonstrates the principle of accountability. There are a number of techniques used by different countries to ensure accountability in the public service. The first one we shall look at is the Complaints Commissioner. This is, of course, the famous Ombudsman, one of the few great human rights inventions of the Europeans. Without an Ombudsman or Complaints Commissioner, John Public must rely for enforcing his rights against an unfair and biased public officer on going to Court. And, we all know how expensive and unsatisfactory that can be.

The Ombudsman, on the other hand, is free, is completely independent of any politician or public servant, and reports only to the Legislature. Many of the larger islands have a Complaints Commissioner, but few if any of the smaller ones do. If the objection to such an appointment is expense, then there is no reason why the function of the Ombudsman should not be combined with other functions, such as a Human Rights Commissioner or a Police Complaints Authority.

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Human Rights

Complaints

Patriotism

Accountability

2010-08-01T12:16:00.001-04:00

Accountability. We are looking at the problem of the lack of accountability and transparency in the government of Anguilla. We have been doing so under the three general headings of (1) Integrity; (2) Accountability; and (3) Transparency. We have dealt in some detail in the past several posts with the issues that arise in looking for the first element, integrity. Next we look at the second general area, the vexed question of the lack of accountability in our public administration in Anguilla.

The insecure and the deceitful among our public servants are equally afraid of accountability. To be accountable means that we must one day explain to someone what we did and why we did it. A weak or corrupt public servant cannot perform that duty comfortably. Secrecy is his preferred environment.

By contrast, the self-confident and the honest among us welcome accountability. For one thing, mechanisms and techniques for guaranteeing accountability give us the tools to demonstrate our honesty, effectiveness and integrity. Systems for demonstrating accountability permit us to show our honesty and efficiency, compared to the run-of-the-mill.

Some of the most effective measures that can exist in this area include: (a) the Complaints Commissioner; and (b) a functioning Public Accounts Committee.

Related posts:

Secrecy

Promises

Codes of Ethics

2010-07-31T12:57:00.002-04:00

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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Ethics and Integrity

Appointments

2010-07-30T12:38:00.001-04:00

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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Inquiry Coming

Checks & Balances

Special Assistants 12

Crown Lands

2010-07-29T09:02:00.001-04:00

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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Crown Land

Tenders Board

2010-07-28T04:56:00.002-04:00

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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Public Works

Construction

Integrity Pacts

Interests

2010-07-27T07:11:00.001-04:00

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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Integrity Law

Members' Interests

Parliamentariansl

Good Governance

Integrity

2010-07-26T13:20:00.004-04:00

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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Conspiracy?

Malfunction

Checks & balances

2010-07-25T12:12:00.003-04:00

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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Malfunction

Politicians 3

Ministers

2010-07-22T15:04:00.000-04:00

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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22 July 2008

Seatbelts

2010-07-21T16:14:00.000-04:00

No comment necessary.

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

No authorisation

2010-07-19T08:58:00.000-04:00

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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Information

AllVoices

2010-07-18T04:59:00.000-04:00

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
conspiracy.

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.

Conservation

2010-07-16T07:10:00.001-04:00

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.

Limitation

2010-07-14T18:47:00.001-04:00

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.