Abuse of Office

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

 

Smoke Screens

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

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.

Montserrat 13

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

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

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;

(c) The section 28 power of pardon should be exercised on the advice of a Mercy Committee;

(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

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

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

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

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

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

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

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

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 1

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

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.

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Crown Lands

Crown Lands