Ministers

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?

Related Posts:

22 July 2008

Integrity Law

Just passing a law does not achieve much. We need integrity legislation in Anguilla. No thinking person in Anguilla doubts that proposition. An Integrity in Public Life Act is the law that would, among other things, require members of the House of Assembly, members of Executive Council, and other senior public officers, to state on oath their assets and liabilities. They would have to make regular filings and declare gifts given to them while in office. There would be severe penalties if they lie or fail to make the declaration. The Anguilla Constitution 1982 has set up a Register of Interests. By itself, the Constitution does not achieve anything to ensure integrity in public office. There needs to be a law to give effect to the constitutional provision, to set out the details of the mechanism.

The official explanation of the advantage of such a law is that it forces public officers to declare their interests when they meet to discuss policy, make decisions, and pass laws. That is, it makes people think of conflicts of interest. That is polite mumbo jumbo. The real reason for the law is that the assets of the public officer in question becomes public knowledge. If he acquires sudden wealth while approving licences and permits, questions are likely to be asked. The risk of public exposure and even prosecution will give the conscience a boost. Such a law is an aid to the personal integrity impulse, so to say. It is like the Vitamin B12 injection doctors give to the elderly. It boosts our resistance and inoculates us against infection.

So, it should be no surprise that Anguillians were nearly unanimous in 2006 when the Constitutional and Electoral Reform Commission sought their views on the subject of the need for integrity legislation. Paragraph 135 of the final Report contained the recommendation of the Commission. There must be strengthened anti-corruption provisions in our proposed new Constitution. An appropriate law, including severe penalties for any evasiveness or falsehood, must be put in place without delay.

With any luck, we will get the new law in due course. When we do so, that will not be the end of the matter. There is the little matter of how the Act is drafted, and how it is amended in the House of Assembly. It can be watered down to meaninglessness. Turks and Caicos Islands has such an Act. It has been a complete waste of time. The politicians have ensured that it is no use at all. I was reading all about it in a recent article in Caribbean Net News. This is the gist of the TCI integrity legislation story:

2006 September – The Leader of the Opposition presents in the House of Assembly an anti-corruption Bill. It is based on legislation that had been effective in Trinidad. This Bill is never debated. It is killed in the House by the incumbent party.

2008 January – The FCO provides a draft Integrity in Office Bill to the A-G’s Chambers. He is told to prepare it for passage through the House of Assembly. The draft duly goes to Cabinet and then to the House. It will provide that officials must periodically declare their assets. They must declare gifts of $5,000.00 and up. The Commission will consist of five members. It is empowered to investigate and adjudicate complaints leveled against government office holders. The Commission will have the power to enforce sanctions against an offending official. He can be fined, assessed jail time, and even be forced to step down from office. There will be a judge from a Commonwealth country on the Commission to ensure independence and impartiality.

2008 May – In Committee Stage, members of the governing party make amendments. These are designed to water down the Bill. The fines and jail terms are reduced. The value of the gifts that have to be declared are raised to $10,000.00. The requirement for a Commonwealth judge is replaced by a one for a TCI judge. The TCI House of Assembly passes the Bill. The Governor assents to it. The Commission is never put in place. Apparently, no TCI judge willing to serve has ever been found.

2009 April – The Auld Commission comes out with its scathing interim report on corruption in TCI. An amendment to the law is proposed at a sitting of the House of Assembly. It would revert to a Commonwealth judge. It would return to the $5,000.00 standard. The former Ministers who have now resigned oppose the amendments. But, with the support of the Opposition, the amending Bill is passed.

The same thing could happen in Anguilla. Without vigilance, an ineffective piece of integrity legislation could be drawn like wool over our eyes. It is only if there is a genuine and heart-felt demand by the public for integrity legislation that the politicians will be reluctant to sabotage it.

Are we up to the challenge?

Register of Interests

The BVI Missed the Boat with their Register of Interests Legislation. The Register of Interests Act 2006 came into effect in the BVI on 18 February 2008. It requires all members of the House of Assembly to declare their financial interests. This includes directorships, employment, clients, sponsorships, gifts received, overseas visits, land and shareholdings. They will have to file a declaration of their interests each year. There is a Registrar of Interests, Victoreen Romney-Varlack.

As an article in the BVI Beacon of 9 July 2008 makes clear, this register is not open to public inspection. That is a disgrace. It is in the public interest to know what enterprises our representatives hold interests in. We need to measure those interests against the public interest, when we see them voting and behaving in a certain way. It is hard to imagine that there is another reason for having such a register. What use is it if it is secret?

In the United Kingdom, a similar register of members’ interests is updated annually and is open to public inspection.

In the United States, you can inspect the tax returns of members of the House and Senate, and their declarations of interests.

Chalk up another victory for secret and corrupt government in the British Overseas Territories.

Will we in Anguilla do any better when we come to introduce our long-overdue Bill?

Parliamentarians

Register of Interests Act. Our Attorney-General’s Chambers has finally produced a draft Register of Interests Act. Regular readers will know how long we have been asking for this to be done. The most recent was on 19 February. It all goes back to the Constitution. In particular, section 60A. This provides:

60A. (1) The Speaker shall maintain a Register of Interests in accordance with this section.

What is a register of interests, and why is it so important? When we are looking at parliamentarians and, especially, those who are appointed to public office, and speaking of a register of interests we are referring to a report made by the members of their financial interests. These include interests held in the name of a spouse or child or company. Requiring such a report is a completely useless exercise if the report is not made under penalty of perjury and required to be published for all who are interested to see. The official reason why this publication is important is said to be so we can see if a member has an interest which causes a conflict of interest with his public office. The unofficial reason is for us the members of the public to see if our representative is getting suspiciously rich as a result of his holding public office. This is usually a sign of corruption. We can take steps to have him prosecuted at best, or at the least ensure he is not re-elected to the House.

It is no use at all if the register of interests is not published. In England, members of the House of Commons are under an obligation to declare their financial interests, and these are published for all the public to check on. The House of Lords publishes its own Register of its members' interests.

When we get our Register of Interests legislation, will we take the same precautions as the UK did?

Will we demand strong and muscular legislation?

Or, will we be happy with keeping a guard dog with all its teeth pulled?

Financial Services

Appendix 3: Territory Issues. We are looking at the recently published National Audit Office Report titled “Managing Risk in the Overseas Territories”. Appendix 3 contains what John Bourn, the Comptroller and Auditor General, considers the most significant issues relating to Anguilla. It is always revealing to learn what others think about your performance. The revelations can either make you very angry, or they can encourage you to improve your performance. This is what he writes:

Anguilla’s financial services industry contributes some 15 per cent of GDP, making it the second, albeit minor sector in Anguilla’s economy, after tourism. Regulation of the industry remains the direct responsibility of the Governor under the Constitution, and so any failure could have direct implications as well as wider reputational impact on the UK. The financial services sector is small compared to that in Bermuda, Cayman Islands and the British Virgin Islands; it employs some 200 people and its licence fees are insufficient to finance substantial regulatory capacity. Currently, Anguilla has only four professional regulatory staff, which limits its ability to keep up to date with fast moving international standards and implementing recommendations from previous Reviews of the Sector. For example:

- Recommendations made by UK-appointed consultants in 2000 in respect of companies and credit union legislation have not been implemented.

- Anguilla has not created a separate agency to market its financial services overseas, freeing the regulator from involvement in this potentially conflicting activity.

- An International Monetary Fund Report in 2003 referred to the need to broaden the professional and managerial capacity of the Anguilla Commission, and to the absence of sufficient skilled persons to analyse and investigate suspicious transaction reports.

- There are doubts over the extent of compliance with “know your customer” requirements. The International Monetary Fund’s 2003 review of Anguilla identified difficulties obtaining customer information from overseas sub agents and recommended a tightening of procedures. When the Anguillan Regulator conducted on-site checks in 2004 most agents did not have copies of the code of practice issued by the professional association, and there were numerous instances of deficient or incomplete documentation.

- The Anguillan regulator’s policy towards non-compliance in anti-money-laundering practice has been to encourage raised standards through education, rather than to apply sanctions on the most deficient agents. It is not evident that this has been a successful strategy. Police and Industry sources in Anguilla expressed the view to us that there are still a minority of financial service providers in the Territory which they believed would accept “any business”.

NAO Conclusion: The Department, supported by other UK Departments, needs an integrated approach to addressing regulatory under-capacity in Anguilla, the Turks and Caicos Islands, and Montserrat. Options that can be considered include developing a shared regulatory resource across the three Territories, use of Governors’ powers to raise regulators’ licence income, and more placements of staff from the UK, focusing on industry compliance with anti-money laundering measures.

I thought it quite extraordinary that recommendations made by consultants since the year 2000 had not yet been implemented. The only conclusion can be that there was something quite objectionable in the recommendations. But, as we do not know what they were, we cannot be sure. I was astonished to learn that Anguilla still depends on the regulator to market our financial services overseas. When I was in practice over ten years ago, we urged the Ministry of Finance to bring this arrangement to an end. There is an intrinsic conflict between the functions of a policeman and those of a salesman. Can you picture this imaginary scenario? The regulator attends an offshore marketing conference in Miami and meets a lot of people. He encourages some of the attendees to visit Anguilla and to make it their home base for their offshore services. When he gets back to his office, he finds some of them have applied. He now has to put on his policeman’s hat and tell them that they do not come up to standard, and he has to refuse them! Either that, or he is so embarrassed by the quandary he is in that he approves their licence while doubting that they will perform creditably. What a joke!

Exploitation

Foreign Exploitation of British Overseas Territories. One of my readers has drawn my attention to a recent article in the Royal Gazette of Bermuda [link here]. It concerns an initiative by Bermuda Premier Dr Ewart Brown and his wife to set up a stem-cell research centre in Bermuda. They have linked up with a US-based Russian medical research company to develop a private research facility. They hope to treat patients using as yet unproven, controversial and highly expensive scientific techniques. What conceivable reason could these Russian-American foreigners have for wanting to be in the West Indian territory of Bermuda? The answer should be obvious to most of us. Bermuda lacks the laws under which such treatment can be monitored. Bermuda has no infrastructure to ensure compliance with internationally agreed standards. The obvious intent is to avoid and circumvent regulatory oversight by regulators such as the FDA or the European Medicines Evaluation Agency. Dr Brown is no stranger to questionable activities in Bermuda while serving in government. His recent investigation by police for his alleged involvement in a fraud concerning public monies has been widely reported [link here].

What disturbs me even more is the risk to the integrity and good name of Bermuda’s public service. The Chief Medical Officer of Bermuda reports to Cabinet. How can he be expected to properly carry out his function when the proposed facility will be partly owned by the Premier and his wife? The potential for conflict of interest is staggering in its extent. The moral of this story is that we are at far more risk of exploitation by our local leaders than by crooks from overseas. The Foreign Office will continue to follow the official policy of not intervening on the basis that the colonies have to learn by making their own mistakes. All I can say is, thank Heavens, such a thing could never happen in Anguilla!

Conflicts of Interest

Duties of Directors. Someone has reported to me an astonishing thing. The two indigenous banks are building branch offices in the West End. A director of one of them has recently allegedly made a large illegal profit. He supposedly purchased a lot of land cheaply. He then sold it to his bank for a large profit. That would be a very wrong thing for a director to do. It reminds me of a story going the rounds a few years ago. A director of one of our public utilities supposedly purchased a lot of land in The Valley. He then sold it on to his utility company at a goodly profit. It is probably, like so many of our scandalous stories, a complete fabrication.

Can such a thing really happen in Anguilla? I would like to think that no board member would behave like that. I would especially like to think that no properly advised Board of Directors would permit such shady practices to happen.

What do you think? Are you in possession of the facts? Would you like to share them? Now is your chance. Make sure to send me evidence that I can check before you get me into trouble. No anonymous gossip please.

Information

Don’t Talk About It. Anguillian authorities are famous for sweeping embarrassing felonies and misdemeanours under the carpet. This is a culture of “don’t talk about it”. The explanation is often, “What happened to the presumption of innocence?”

Well, let me tell you, when I am walking down the street and I see three scruffy men walking towards me with their eyes pinned on the contents of my pocket, I will change to the other side of the road, instantly. Don’t give me any stupidness about waiting for “proof beyond reasonable doubt”. That is a rule for the court. That is not a survival rule. Let us talk openly about evil wherever we see it. Let us ridicule powerful people with their hands in the cookie jar. Let us not wait for the beauty contest every five years. Keep them all honest! How about this as a powerful example?

Administration Building

Guest Editorial. The following piece was recently received from a reader. It raises the interesting question, what has the most senior member of the opposition, Hubert Hughes, done to persuade our Chief Minister, Osborne Fleming, to agree to spend public money on renting Hubert’s building for government office space. Readers will know that the first thing Osborne did when he became Chief Minister in about the year 2000 was to move the Attorney-General’s Chambers from that building. It has laid closed up and unused ever since. The ostensible reason given at the time was to save public funds. Other offices rented out by government are in the old Caribbean Commercial Center and in the Social Security Building. There are probably others. Here is what he writes:

Time for Centralized Administration Building

I continue to be befuddled by the Government of Anguilla’s thinking and action as it relates to the continued rental of office space for government offices. What will it take to bring government to the realization that it cannot, must not, continue to give so much of the people’s money monthly to a select few landlords?

The practice is incomprehensible and is about to get worse with the impending transfer of several government offices into a building owned by opposition politician, Mr Hubert Hughes. It seems a case of one hand washing the other. It is a corrupt practice. Meanwhile, this building does NOT measure up to what is required of modern office space. It is very deficient.

It would be instructive to know just how much money government pays out monthly in office space rental. This must be an astronomical amount. Perhaps you, sir, can use your clout to find out.

The Government of Anguilla must as a matter of urgency move to erect a centralized Administration Building. This would allow for the monies presently being paid in rent to be used to service a loan. A centralized building would result in savings in utility costs, simplify important functions such as printing and IT management. It could serve to enhance punctuality and general human resource management. There are so many potential benefits that can be derived from this move that it is difficult to understand why this is not a priority project presently.

I understand that one of the government departments that will be moving soon to Hubert’s building is the Welfare Department, or Department of Social Development. That is where the Anguilla Legal Aid Clinic operates. Quarters are presently very cramped. Mrs Daphne Hodge kindly shares her office with the Clinic. It provides free legal advice on Mondays, Wednesdays and Fridays to persons who cannot afford the services of an attorney at law. I have the honour to serve in the Clinic at present. So, I have a conflict of interest. I want to assure all readers that I have had absolutely no role in engineering this fortuitous move!

Does any reader have the answer for out guest editor?

Community College

Guest Editorial. I received a letter questioning the manner in which the Community College was set up. It raises a concern that the writer feels ought to be discussed. I am sure that those in the know can answer the writer's questions and clear the matter up. I now publish it as a guest editorial. May we hear soon from those responsible for setting up the college.

Request for Ethical Review

Establishment and Staffing of Community College Development Unit

The manner in which the recently established Community College Development Unit was developed and staffed raises in my estimation certain questions of fairness, equity and indeed transparency.

I am therefore requesting that the Integrity Committee of which you are the chairperson investigate the matter with a view to reporting to the Anguilla Civil Service Association and the Anguilla Teachers’ Union as to the ethical nature of what transpired.

What is known is that Mrs Dawn Reid heads the Unit. This required her moving from her post as Education Planner to the newly created position of Director of the Community College Development Unit. This post (and it is not known if this is a public service position) was to my knowledge never publicly declared, so no one else got an opportunity to bid for it. A similar thing happened with regard to the other positions filled in the Unit.

My understanding is that the arrangements were handled at the level of Executive Council. This bothers me since the Honourable Deputy Governor, Mr Stanley Reid, the husband of Mrs Dawn Reid, would have presided over or would at least have had knowledge of this process. It begs the question, would this have been permitted had someone else been involved? Is there a case of nepotism here? Was anything unethical done? Were the rules of procedure as set out in General Orders and the PSC Regulations followed?

Please investigate and it would be useful if the results of this investigation could be published for all public officers to read. Thank you.

The Public Service Integrity Board, of which I have the honour to serve as chair, can only function as authorized by the House of Assembly in the statute that established the Board. Basically, the statute provides that the Board has to wait until the Governor sends a complaint of conflict of interest to the Board. Only the Governor can ask the Board to investigate a complaint. And, only a complaint of conflict of interest. And, only against a civil servant, not a politician or an officer of a statutory board such as Social Security or the Health Authority. A pity, really.

ANTIL 8

Legitimate Expectation. There are stomach-churning reasons why we in Anguilla are apprehensive about the involvement of National Bank of Anguilla, its directors and advisers, and government’s advisers and public servants, in the company Anguilla National Tourism Investment, usually abbreviated to ANTIL. These officers, directors, and advisers have been whispering not so quietly in government’s ears that government is entitled to block the sale of Cap Juluca’s remaining leasehold interest to the foreign-owned entity Gencom unless they comply with government’s new policy.

This new policy involves rewriting the lease to force the new purchasers to include a significant number of Anguillians in its ownership. It also involves giving back or surrendering a tract of land and pond to be used allegedly for a “national park”. Needless to say, there is no national park legislation to regulate any public lands in Anguilla. It is not clear how this would work. This new policy has been written for government by the same public officers and government advisers. These public officers and government advisers have formed ANTIL to compete with Gencom. They are lobbying with government to put pressure on the owners of Cap Juluca to sell to them at a lower price rather than for the better price they are being offered by Gencom. They justify this outrageous conduct by arguing that they are doing it in the interest of all Anguillians who want to see more local ownership in the heights of the tourism industry, represented by Cap Juluca.

I am apprehensive for a number of reasons. One of them has to do with “legitimate expectation.” That is a phrase that is pregnant with meaning in law. Dion Friedland used it in his recent open letter to the Anguillian public published in all the newspapers. He did not use the phrase because he likes big words. He used it because his lawyers were sending a message to government. What does the phrase mean? It means, among other things, that Friedland claims a legal right to expect government to act fairly. Government cannot tell Friedland that he must sell, and then, when he has found a purchaser who is willing to pay him his price, turn around and tell him that it does not approve of his purchaser unless the purchaser gives back to government large tracts of land and gives undertakings to do other things that are not in the original lease and licence.

The situation as described above cries out for a law suit to be brought against all those involved. The legal costs and damages will be in the tens of millions of dollars, US dollars. I have not heard anyone offering to compensate the owners of Cap Juluca for the breach of their legitimate expectation to be treated fairly. But, someone will pay. That will more likely than not be us, the tax payers of Anguilla. Keep that phrase in mind in the coming months. My expectation is that you are going to hear more about it. My fear is that not just government, but NBA and ANTIL are going to hear about it. Is it any wonder my stomach churns every time I hear mention of ANTIL?

With that, I am finished with this series of posts on ANTIL, for now . . .

ANTIL 7

Compulsory Acquisition. Government is forcing the present owners of Cap Juluca Hotel to sell. Government’s advisers have written some innovative new policies for government to apply to the forced sale. One such new policy is that the present or future owners must surrender tracts of land and pond to government to be turned into a “national park”. Government is insisting that this must be agreed before the forced sale will be approved.

You do not need to be a lawyer to appreciate that if it is not voluntary and consensual, this sale amounts to an expropriation of property. Enforcing this policy is the same thing as forcibly acquiring the property. Government’s advisers have held public meetings and published press releases saying that if the owners do not comply with government’s new policy for Cap Juluca, then compulsory acquisition is being considered. Of course, government can acquire property against the wishes of the owners. Government is not powerless. The law permits it to forcibly acquire land in Anguilla. Compulsory acquisition from the Randall Estate is how government came to own the freehold at Maundays Bay in the first place. But, compulsory acquisition carries with it an obligation under the Constitution to pay full and adequate compensation to the owner. Otherwise, it is illegal.

I have not heard anyone saying who is going to compensate the owners when the sale they have negotiated with Gencom-Ritz-Carlton is blocked by the lobbyists at ANTIL. It will certainly not be Auberge-Firesky, ANTIL’s foreign backers. Auberge-Firesky have offered to invest, but they would never be willing to hang around while a case is dragged through the courts. They have offered to invest a certain sum, not to pay whatever sum the courts may award by way of damages. ANTIL and government will be on their own as owners of Cap Juluca.

You would have thought that government would have learned from the recent failed attempt to force the sale of airport land from Forest Estate. Unless you are completely fair, and fulsome, and up front, in your offer to pay compensation, the owners can tie you up in court for years.

If government forcibly acquires Cap Juluca, what will become of the hotel and its employees while the case drags through the court? Will government put out the capital to keep the hotel going pending determination of the court case? They will have to find a way to do so, as no purchaser will be able to take a good title from government until the case is settled. Just thinking about it gives me a stomach ache!

I am getting tired with the worry. Tomorrow, I publish the last post in this series on ANTIL.

ANTIL 6

Growing Unease. We have been looking at the risks of ANTIL and NBA being dragged into litigation over Cap Juluca because of their involvement in attempting to persuade government to block the sale of the leasehold interest in Cap Juluca to a foreign group, Gencom, and to somehow try to persuade the present owners of Cap Juluca to sell to ANTIL instead. We have been looking at some of the reasons why many in Anguilla feel a sense of distaste and apprehension when we consider this development. The question is, why do we feel concerned? Is it that we are unpatriotic? Is it that we are disloyal?

The owners of Cap Juluca have bent to government pressure to sell and get out of the Anguilla hotel business. They have been told to find a buyer. They have found Gencom, which has agreed to pay them their asking price. Because Gencom is a foreigner, it needs to get government approval to purchase Cap Juluca. A locally backed group, ANTIL, is lobbying with government to refuse Gencom the necessary permits under the law for a foreigner to own real estate in Anguilla.

Government advisers and local institutions are involved in lobbying government against the foreign group. They say they should be permitted instead to purchase, and not the foreign group. These government advisers are principals in ANTIL which is proposing that it would be the better purchaser of Cap Juluca. As government advisers, they have written government's new policy that Cap Juluca should give large areas of its property back to government to use as a national park. As principals in ANTIL, they have written to government saying that they would give back the large tracts of land and pond to government, showing how loyal they are to government's policies! They are urging government not to grant a licence to Gencom, but to encourage the owners of Cap Juluca to deal with them instead. This situation is a classical example of a conflict of interest. Is it any wonder our stomachs churn every time we think of ANTIL?

ANTIL 5

NBA and ANTIL. Why do all sensible, thinking Anguillians must feel an increasing tide of concern sweep over us when we contemplate the continued pressure being brought by ANTIL on government to reject Gencom’s application to purchase Cap Juluca Hotel? Is it that we are unpatriotic? Is it that we prefer the foreign developer over local investors? Is it that we lack confidence in the ability of indigenous Anguillians to own and run a premier hotel in Anguilla? Or, is it that we are concerned that when the law suits start to fly about, then our interests are likely to be damaged?

One reason for our apprehension is the involvement of National Bank of Anguilla. NBA is the premier bank on Anguilla. It holds nearly one half of all the banking business in Anguilla. NBA is the principal financial sponsor of ANTIL. ANTIL's recent press releases indicate that NBA has invested over US$100,000.00 in ANTIL. NBA’s CEO is Val Banks. Val is the brother of the Hon Minister of Finance, his long-time political adviser, and, one can reasonably assume, has the ear of the minister, and exercises influence over the minister. One of NBA's directors is Marcel Fahie. Marcel is one of the most influential of NBA’s directors. He writes the policy papers for NBA’s Board of Directors. What he proposes, NBA disposes. At the same time, he is government's principle economic adviser, and as such advises government on whether ANTIL's proposal is to be preferred over Gencom's. NBA has not just lent money to ANTIL, as it could to any borrowing customer. NBA is by far the single largest investor in ANTIL. NBA has put its CEO and influential members of its Board of Directors at the forefront of ANTIL. ANTIL is, by all appearances, an extension of NBA. If ANTIL does anything that is alleged to be wrong, then NBA can expect to be joined in the resulting law suit.

NBA has ventured into the risky business of hotel development before. It has previously lent money to Mariners Hotel and to Cinnamon Reef Hotel. It got burned when those ventures went bankrupt. It was left holding bad loans. We had hoped that NBA would be more careful about letting patriotic motives drag the institution into more speculation in the tourist industry. If ANTIL does not succeed in acquiring Cap Juluca, the likelihood is that NBA will not be able to recover its investment in ANTIL. Additionally, it will almost certainly be involved in expensive litigation for having induced a breach of contract between Gencom and the owners of Cap Juluca. Given the type of people that ANTIL is up against at Cap Juluca, I put the odds of ANTIL succeeding no higher than one in ten. It has no more than a ten percent chance of ending up as the owner of Cap Juluca. That makes NBA’s chances of recovering its investment at one in ten.

Those are not the sort of odds that I would have thought that bankers invested in. NBA is my bank. I hold shares in it. I bank at NBA. I do not bank at any other bank. I do not want to see NBA joined as a party to the law suits that are about to begin. Val and Marcel are friends of mine. I have every respect for them and who they are. I am concerned. I am very concerned.

ANTIL 4

What Will Become of Us? Why do we feel such a degree of unease, distaste, and discomfort when we contemplate the proposal by the locally backed group, ANTIL, to block the sale of Cap Juluca Hotel to its owners’ preferred purchasers, the Gencom Group? We are asking whether such feelings are wrong, or whether they are justified.

Marcel Fahie is a retired Permanent Secretary in the Ministry of Finance. He is on a $12,000.00 a month contract with government to continue to be its “principal economic adviser”. That means he helps Ministers to come up with government policies. He writes the speeches that the Minister of Finance and the Chief Minister give on economic matters. He writes the press releases that government issues on economic matters. He is the long-time brains behind the economic development of Anguilla over the past thirty years. For decades, he has been the Minister of Finance’s right hand man on policy matters. He is a person of immense intelligence, integrity and influence. Nothing I say here is meant to detract from that respect that he is due. When government recently published a press release condemning the present owners of Cap Juluca for publishing an open letter to the public explaining that they have a binding agreement with Gencom, it was Marcel’s handwriting on the government press release. It was transparently Marcel’s voice that one heard in the words of condemnation. And, because of the provisions of the Aliens Landholding Licensing law, government has to approve of the sale of any real estate in Anguilla to a foreigner.

Marcel Fahie is also one of the principals behind ANTIL. He is its main spokesman and lobbyist. It is his voice that we hear speaking in the frequently published press releases for ANTIL. He is ANTIL’s main speaker at the series of town hall meetings now being held throughout the island. When ANTIL lobbies with government that Gencom’s application for permission to purchase Cap Juluca should be turned down, it is Marcel arguing on behalf of ANTIL to government. At the same time, it is Marcel advising government on what to make of ANTIL’s proposals. He is government's principle economic adviser in helping them to decide whether or not to accept Gencom's proposal to purchase the lease of Cap Juluca. There is no suggestion that Marcel is an investor in ANTIL, that he has his private funds at risk . No one believes he is trying to feather his own nest through ANTIL. He says he is continuing his life-long struggle to better the economic lot of Anguillians. No one doubts the sincerity of his good intentions.

The question remains, do the government ministers not see a bit of a conflict of interest here? Are they content to continue to have their principal economic adviser, who helps them to arrive at their policies, lobby on behalf of a commercial entity that is encouraging them to break a contract between two commercial groups? And, these are persons who have previously shown themselves willing to engage in a twenty-year dispute in and out of the courts! What will become of us!

ANTIL 3

Inducing a Breach of Contract. We are discussing ANTIL’s efforts to whip up public support for their bid to stop the proposed sale of Cap Juluca Hotel to the Gencom Group. The present owners of Cap Juluca have said that they have a binding agreement with Gencom, and do not want to discuss with ANTIL. ANTIL continues to lobby in the press and at public meetings throughout Anguilla for public support for its efforts to purchase Cap Juluca from a reluctant owner. We are all in support of increased local ownership in the tourism industry. The question is why do we feel such disquiet at these proceedings?

One reason put forward has been the idea that it is a wrong, or a tort as the lawyers call it, for anyone to stop a legitimate contract from going through. This is a civil wrong called “inducing a breach of contract”. It gives the wronged party the right to sue the persons who are guilty. If the present owners of Cap Juluca have a binding agreement to sell to a qualified and worthy purchaser, and someone else, who wants the benefit of the contract for themselves, intervenes and successfully brings pressure on government to block the sale, then the question arises whether the proposed buyer and seller have been wronged. If they can show that they have, and that they have suffered loss, then they are entitled to sue for damages. And, they will probably succeed in their law suit.

I do not know about you, but I am filled with a sense of foreboding when I contemplate what the supporters of ANTIL are doing to the contract between Gencom and the owners of Cap Juluca.