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.

Referenda

I am not in favour of a referendum to approve a new Constitution. While we are dealing with constituencies and elections, I should return to the question of a referendum. I have previously explained why it will not, in my opinion, be a good idea to hold a referendum to approve any new Constitution.

One, history shows that, in the West Indies, people vote according to how they feel about the government. If they approve of how the government is functioning, they vote yes. If they disapprove of government’s conduct, they vote no.

Secondly, a Constitution is too complicated for a referendum. You may approve of most of the provisions, but object to one or two. How do you show your concerns in a referendum? It is not sensible to hold a referendum on a Constitution.

It is preferable to hold a series of educational and public events to inform the public about the issues, and to get their feedback. The challenge is to reflect the opinions of the people in the subsequent draft Constitution. That is what the Constitutional and Electoral Reform Commission has already done in its 2006 Report to the government following its consultations with the people of Anguilla.

However, if we want a referendum we will need a law to govern the holding of the referendum. Such a law is not complicated. British Columbia has a simple seven section Act that we can copy. The British have long had Referendum Acts. The Bahamas has an even simpler six section Referendum Act. None of this is rocket science.

We could easily do it. If we really want to hold a referendum, there is no one who can stop us from enacting the necessary law. For the reasons given, I just don’t think it is a good idea.

Leadership

Likeability Is not a Necessary Qualification for Leadership. A New Year is about to begin. Anguilla looks forward to progress on constitutional reform. The British Government demands we consider the issues and tell them what we want. Anguillians demand constitutional advance. Government cannot keep putting off taking a decision. Anguilla is already one of the laggards in this Overseas Territory’s endeavour. General elections in Anguilla are only a couple of years away at most. We must have our new Constitution by then. It would be a disaster to put it off until after the elections. The Chief Minister has promised that once the New Year begins we will go back to considering constitutional reform. We have dithered away all of last year. We cannot sensibly continue in this way.

The Chief Minister is in a quandary. He established a committee to advise him and to assist government in negotiating constitutional advance with the British. The committee has presented him with a problem. He cannot get all the members to agree with each other on the way forward. He has two different streams of advice coming out of the committee. They are irreconcilable.

There has been public discussion on the various constitutional issues for the past several years. Some members of the committee contend that a consensus has emerged. They say that that consensus is embodied in the Report of the Constitutional and Electoral Reform Commission delivered to government in August 2006. They believe that this Report contains the true voice of the Anguillians. However, not every Anguillian contributed to the discussions and to the eventual Report. There were some who “boycotted” the process. They form the second group in the Chief Minister’s committee. They argued at the time the Commission did its work to the effect that it was the responsibility of the British under various United Nations resolutions to educate the people of the Overseas Territory on the options open to them for Constitutional advance. This group argued that until the British had discharged this “duty”, Anguillians would be incapable of knowing what they really wanted in terms of Constitutional advance. They insisted that we must first go through a process of being educated by the British before we could sensibly make up our minds. No one would have a problem with the proposition that we should educate ourselves. The problem most of us had was that it was said that it was the responsibility of someone else, the British government, to do the educating for us! This group claims that the Report does not represent the true vision of the Anguillians for Constitutional reform. They insist that any reform process based on the Report is flawed. They demand that the reform process begin all over again. They waited until the process of consultation and drafting of the Report was completed. Then, they put the spanner in the works. They refused to accept the Report as the basis for going forward with reform. They have gone further. They insist that the only way that we will know if Anguillians are in favour of any proposed constitutional advance is if there is a referendum.

The two groups will never agree. They are not capable of coming to a consensus. Someone has to cut the proverbial knot. It will be a demonstration of leadership when those who must lead finish listening to the two contending streams of advice, and then come to a decision on how best to proceed. The decision when taken will not please everyone. Some will be happy with it. There will be others who will be upset. That is one of the responsibilities of leadership!

Should a leader want to be liked? Yes, of course. We all want to be liked. None of us wants to be disliked. But, should a leader abdicate leadership because he is not sure whether what he decides on will be appreciated? Does one show leadership when one puts off taking a decision because one does not have consensus? Does a real leader duck the responsibility of leading the way until he has everyone agreeing on the same direction? Does the helmsman seek consensus and approval from the rowers?

To ask the question is to provide the answer. A good leader will study the issue carefully. The leader will take advice from persons who are pro and from those who are con. A good leader will not demand consensus among his advisers. The real leader asks for a variety of opinions. The real leader does not fail to take a decision because the decision will not be approved by some. That is to abdicate leadership. We know real leadership when we see it. It is shown by the person who goes out in front and says, “Follow me”. It is shown by the person who takes a stand, based on principle, and summonses the followers to the cause.

Who likes it is a question asked by the politician. The statesman does not even consider asking the question.

Or, as my late Dad used to say, “Who vexed, lose!”

Self-Government

Full Internal Self-government: Members of the Concerned Citizens Group on the Chief Minister’s Negotiating Team have raised this issue of “going for full internal self-government”. They have argued that it is fundamental to their involvement with the Team. Members of the Team have shown a willingness to embrace the proposal. I have objected to the proposal as a mere cliché, meaning it is not really helpful to our present exercise for constitutional advance. On further reflection, I realize my objection is more fundamental. I want to set out some of my thoughts here.

Full internal self-government in a British colonial context means having the people be responsible for all aspects of their government, save, traditionally, for security, defence, and diplomatic relations. This was the constitutional relationship that we had when we were part of the Associated State of St Kitts, Nevis and Anguilla in 1967.

Members of the CCG have argued that we cannot go to the British to negotiate unless we have settled the fundamental issue of the type of relationship that we want to have with them. They have suggested that the issue must be spelled out clearly first. Only then can we sensibly begin to design a Constitution that reflects our true needs. They have urged that, short of independence, the only realistic constitutional situation for Anguilla is full internal self-government. Their position, if I can paraphrase, is that the piecemeal approach in the Constitutional Commission's Report is flawed and needs to be abandoned. This can be called for short-hand, the Concerned Citizens' Group's position.

The Hon Chief Minister was motivated to postpone the planned discussions with the British. Not all of us were happy with this development. Some of us have major reservations about the postponement.

Some members of the team have argued that we cannot begin to draft a new Constitution providing for full internal self government unless we first put to the people the choices they have. Do they want to remain a full British Colony? Are they ready for full independence? Or, would they want to advance to an intermediate stage of full internal self government? This, for shorthand, can be described as the Hon Eddie Baird’s position.

Others on the Team have argued that since the government and the opposition are in favour of full internal self-government, and since the people have in the views reflected in the Constitutional Commission’s Report essentially expressed themselves in favour of this advance, it is appropriate that we draft a suitable Constitution and put it to the people in a referendum. This can be described as the Hon Hubert Hughes’ and the Hon Chief Minister’s position.

Others have urged that we cannot proceed further unless we see separate draft Constitutions for Anguilla demonstrating all the features of the various options. Only then will people begin to appreciate what the options are. This can be described as the Rev Dr Niles’ position.

All these different suggestions involve postponing the advances that were recommended by the Constitutional Commission’s Report. This postponement may last for years. This delay is not acceptable to some of us.

There are major problems with this idea of delaying constitutional advance until we have got full internal self-government enshrined in our Constitution. There is no doubt that Anguillians are ready for full internal self-government. That is what the Commission found. That is reflected in the Commission’s Report. What the Commission also found was that this advance will only be acceptable to the people if it is balanced by a complete plank of checks and balances on the powers of the government. This condition or reservation was deep-seated and widespread, and came up in one forum of discussion after another.

Full internal self-government does not just mean more power in the hands of Ministers. It also means that the people and their democratic institutions share power with Ministers in exchange for the British giving up their previous supervisory powers. It means that we will no longer rely on the energy and courage of an individual Governor to restrain Ministers. We have learned to our cost that does not work. We will replace that failed system by an improved one of increased accountability and transparency on the part of Ministers.

Full internal self-government does not only mean excluding the Governor from Cabinet. It also means:

1. Ministers having to expose their workings more to the people;

2. an independent Civil Service Commission, and Police Service Commission taking the place of the Governor’s discretion;

3. having a Freedom of Information Act so people can find out more easily what is going on;

4. putting in place anti-corruption and integrity legislation and institutions;

5. having an Ombudsman to help the people get justice when the administration behaves improperly;

6. making Cabinet meetings generally open to the public;

7. prohibiting sale of government land without a resolution of the House of Assembly;

8. making the Planning Committee independent of Ministerial over-rule, but with provisions for the citizen to appeal unreasonable decisions to an appeal tribunal and to the court;

9. entrenching the grant of work permits and Belonger certificates in professional boards and tribunals, and not subject to political influence.

Without these checks and balances, full internal self-government could result in increased abuse of the people. It has done so nearly everywhere else.

What is required is a trial period of effective internal self-government. The Report of the Constitutional Commissioners recommends a series of reforms that place practical self-government in the hands of Ministers and other Commissions and institutions. If it works for a period of time, then the people will almost certainly have developed sufficient confidence in our politicians. They may then be ready to entrust them with the responsibilities that go with full internal self-government.

It is not that Anguillians are not ready for full internal self-government. On the contrary, Anguillians consider that it is long overdue. It is that the people are not sure that Ministers are ready for the responsibilities that full internal self-government will bring. Anguillians have more reason to fear political abuse from their own Ministers than from British neglect or abuse. That is one of the reasons why neither the people nor the Commissioners advanced the idea of proposing “full internal self-government” in the Report. The Commissioners were satisfied that a majority of Anguillians want a reduction in the powers of the Governor, with more powers and responsibilities given to Ministers, but with checks and balances in place to ensure those powers are not abused.

This last can be called Rev Cecil Weekes’ and Don Mitchell’s position. I believe that is the position of all thinking Anguillians.

Discussions

Thievery and Constitutions. I had wanted to talk to you today about how important it is for the police to lead by good example. When a police officer arranges with a friendly cashier to let him pass without paying for supermarket goods, that is theft. The police officer thieves. The cashier aids and abets. It is the officer who is the main culprit. It is not right that it is the cashier who gets fired, but we do not hear of anything happening to the officer. It is said to have happened since last Saturday. It is now Saturday, a week later. What a thing! What sort of an example is this? What will the officer’s colleagues do about it? Why have we not heard anything official?

Instead, I want to tell you that I went to the Chief Minister’s Constitutional Reform Team’s meeting at Paradise Cove yesterday, Friday. It was a good meeting, I thought. Nothing of substance was discussed or decided. It was more of a strategy meeting. We discussed, for example, whether it was better to go for individual amendments to the Constitution that would have the cumulative effect of Anguillians claiming the right to full internal self-government. That was the way the Commission thought Anguillians want it done. Or, would it be better to come out and demand the right. Some thought one way and others thought another. In the end, it was the consensus that it would be better to establish the principle and let the individual amendments hang from the central column. The Commission was concerned that that would be mere flag-waving, and decided against it. We will see!

What the Chief and Hubert want us to do now is to look at a number of self-governing Constitutions and pick and choose what we think is best. Eddie is strong that regardless of what we think is best, it must be for the people to decide whether they want self-government or colonialism or independence. He wants a referendum on the choice first, and then the picking and choosing can come later.

We are to meet again in two weeks time to continue the discussion.

Referendum

Don Mitchell is Opposed to a Referendum. Have you read this thread on the AnguillaTalk Forum? The author claims to be confused and disturbed. I do not know why. I have repeatedly made the point on radio and in print. I have given my reasons each time. To summarise, there are at least two principle objections to deciding on a new Constitution by holding a referendum in Anguilla. Excuse me if you have heard or read this before, but I want to be pellucidly clear.

One, a referendum can only be held under a law which provides the rules. In the absence of a law, there is no way to hold a referendum. A law is necessary to control how many times people vote, or where they vote. In an unregulated referendum, all the problems our Elections Act was put in place to avoid would be able to raise their heads. We have no tradition of holding referendums. Utter confusion would reign. The Swiss hold a referendum on practically every law they pass. They have been doing this for hundreds of years. It is hardly surprising it works well. You can be sure it is governed by a Swiss law. It is countered that we held a referendum before. We can hardly call the 1968 public meeting in the Webster Park, which resulted in a show of hands to adopt the revolutionary Constitution, a real referendum. The event is called a “referendum” in all the literature. That is just a polite expression. If the proposal is that we hold a meeting in the Park to show our approval of the new Constitution, I would have no objection to that. No new Constitution can be adopted without the consent of the people. It is essential that our people show their approval, in overwhelming numbers, of any proposed new Constitution. I believe this can be achieved by going village to village, house to house, if necessary. The proposers of any new Constitution must convince us that the people approve. The British have told us that is a requirement for them before they consent to any new Constitution. This is not an impossible condition to meet. The whole island is not much bigger than a village. The scandalous way in which the 1976 and 1982 Constitutions were snuck up on us must never be repeated. The great suspicion with which constitutional reform is met in some circles in Anguilla must be laid to the clandestine way in which the British and Anguillian Governments of the day pushed these reforms on us without first ensuring they had the support of the public.

Two, referendums have been tried in the West Indies before, and have a poor success rate. The most famous one was the referendum in Jamaica in 1961 on the future of the West Indies Federation. The government of Norman Manley urged the people to vote Yes on the Federation. That government was sinking in popularity, for different reasons. The Bustamante party saw an opportunity to win power by opposing the Federation. They urged their supporters to vote No, for purely political reasons. The government lost the vote. The Federation came to an end. Not that there was any real reason why the Jamaicans should have voted No. It was just that the people would have voted against whatever the government told them to vote. Ever since that, no government in the West Indies has put an issue to the electorate. If I have missed some minor referendum somewhere in the West Indies, you can be sure that it will turn out to have been proposed by an overwhelmingly popular government. A referendum, under our system, will only be put to the people by a government that has a sense that it has the massive support of the people.

How will we prevent what happened in Jamaica from happening to us in Anguilla?

Can I be blamed for suspecting that the people who propose a formal referendum on Anguilla’s new Constitution have a hidden agenda?

Postponed Talks

Interview with Ken Richards of the BBC. The Chief Minister appointed his negotiating team to meet with the British during the course of the week of Monday 2 July 2007. I first learned who they were when I met with other team members on Tuesday 17 July in our first planning session. Chief Minister Fleming made me sit next to him and act as spokesman for the Commission's recommendations. At this meeting, Dame Bernice Lake QC introduced our Ministers to the concept of “complete internal self-government”. They were quite taken with this phrase. The Chief Minister fell in love with it immediately. When our strategy meeting broke up that afternoon, it was with the determination to meet with the British on the following Monday morning to discuss full internal self-government.

As I drove away from the meeting, Bailiff Michael Fleming stepped forward from where he was lying in wait to serve me with a lawyer's letter threatening a lawsuit for libel if I did not tone down my criticisms of government ministers on this Blog!

By Thursday, two days later, the Chief Minister was announcing on radio that he had decided to hold a meeting of the House of Assembly on Monday morning. They would debate full internal self-government. Presumably, the British team were to be attentive observers and listeners. The first time I heard about this change of plan was when the Chief Minister announced it on radio.

By Friday morning, he had a new plan. I first heard it on radio again. He was announcing that he had decided to ask the Governor to completely postpone the meeting with the British. His new idea was for government to more thoroughly discuss the concept of “full internal self-government” with the Anguillian people. That morning the Concerned Citizens Movement led a demonstration on Government House demanding a referendum on any new Constitution. Over the weekend, I learned that the British team had been told to cancel their flight arrangements.

Thorough Anguillian consultation on measures for constitutional advancement is a good, indeed an essential, thing. The problem is that it should have started one year ago, immediately after the Report of the Constitutional Commission had been presented!

On Monday morning, I am sitting at home minding my business. The phone rings. It is well-known BBC "Caribbean Report" presenter Ken Richards. He is telephoning from London. Am I willing to talk about the circumstances surrounding the postponement of the constitutional talks with the British team? He had learned that this had been announced by the Chief Minister just two or three days before the team was due to arrive in Anguilla. It would have been extremely discourteous if it had been intentional. But, as I explained, it was only to be expected from a government made up of businessman-types, face-to-face talkers, apparent devotees of the ad-hoc system of government, men who appear to refuse to read a planning document, or able to study and adopt a strategy brief. Thank God for the postponement, I said, in effect. It might give government’s new advisers a chance to come up with a publicly acceptable programme for constitutional advancement.

To hear the broadcast, go to the Americas page of the BBC News website. In the right-hand column you will see the audio for “Caribbean Report”. Click on “Listen”. If you have the appropriate speakers, you should hear the interview. Or, if I have done it right, the last link should take you straight to the audio! [Sorry, late readers. By Tuesday evening BBC Caribbean Report had moved on to other stories. You will have to try to access the BBC archives.]

Do you think Bunton is capable of long-haul planning? Will he stick the course? Or, will he react to the next last person who speaks to him, as usual?

One of my concerns is that I do not know who the Chief Minister is now listening to. What will be his next announced “plan”? I learn he says that he is now a committed member of the Concerned Citizens Movement. No doubt, he will soon claim them as part of his new negotiating team.

No, I did not tell Ken Richards about all this confusion. It was too embarrassing to talk about it on the radio in front of millions of listeners!

Demonstration

Concerned Citizens March.

On Friday 20 July an almost unprecedented incident took place. Anguillians have been dormant for years. No one dares to take part in any demonstration. Jobs are at stake. Fear of victimization is rampant. But, Friday was different. There was a public march. It was called by the Concerned Citizens Movement.

There were two issues at stake. They were both included in one petition. The petition was taken by a crowd of demonstrators from The Valley to the Governor’s residence at Government House at Old Ta. I estimate some 200 person participated. The petition concerned two separate issues. A pity really. I would have marched in support of one, but not the other.

One issue was that of suspicion of corruption at the highest levels of government. Why have our Ministers permitted the US company, Viceroy, to take over so many different areas of land?

The inviolable rule has been that no developer has been permitted to control more than one project. That rule has lasted for decades. All governments obeyed it. No one developer would be permitted to control our government and our economy.

But, we have just woken up to the realization that Viceroy controls three different areas of the island. And, they are negotiating for more. The people were determined to express their displeasure and to say to our government, No more. The petition went further and demanded an enquiry into the relationship that has built up between these developers and our government ministers.

That was one issue that I would have signed with pleasure. With conviction. With earnestness. That is an issue that every Anguillian should feel deeply ashamed towards our government about. If that had been the only issue, I would have been there in the marching crowd.

The second issue was to do with the Constitution. It was a demand for a referendum to approve any new Constitution. I happen to have a deep-seated and irreversible aversion to referendums. They are poisonous plants. They are not, and never have been, anywhere in the world, at any time in history, a way of finding out the people’s attitude to an issue. They have always been used by the people as an indicator as to how they feel about the government. A referendum always ends up being a popularity vote on the government. It is never an expression of opinion on the issue contained in the referendum. That is the only reason I was not in the march.

I am firmly convinced that other methods must be used to educate the people and find out their feelings about the issues involved in the Constitution. A referendum urged by a popular government will always return a yes vote. A referendum urged by an unpopular government will always return a no vote.

If the present government of Anguilla put the issue of whether or not God exists to the vote today, and urged people to vote yes, the result would be that most people would vote that God does not exist. Even though that is the opposite of what they truly believe.

The protest march ended peacefully. The police did a good job of controlling traffic and facilitating the demonstration. It was proof that the system that requires demonstrators to get police permission for a march can work well. Congratulations to all concerned. Even though I do not approve of the main purpose of the petition: the referendum.

Politicians 3

Checks and Balances. “Who put fowl to mind corn?” (BVI proverb)

We are saying there are two main reasons why our most promising politicians eventually betray us. We have looked at community pressure as the first corrupting cause. What is the second corrupting factor? I would submit that it is the lack of adequate checks and balances in our Constitution. It is not lack of moral fibre. It is not lack of education. It is not lack of integrity. It is a lack of enforceable rules.

The Westminster Model constitution which we have inherited is intrinsically corrupting. It almost seems designed to promote corruption. One of its distinguishing characteristics is a complete absence of any mechanism to control abuse of power. Other than the opportunity afforded every five years to change the faces of the exploiters through election, there is no publicly enforceable restraint on abuse of power. There are no provisions for recall of an errant politician. There is no procedure for impeaching a Minister caught with his hands in the cookie jar. No, the Governor does not insist the police prosecute corrupt politicians. They are glad to have a handle on one unlucky enough to get caught. “Better the devil you know, etc, etc” There is no question of a referendum, or other mechanism for ensuring that the wishes of the people are followed when major decisions or changes in the law have to be made. There is nothing to ensure that misspent public funds will be questioned in a forum that can impose accountability. There is no working anti-corruption procedure. Cabinet controls the House of Assembly, so that the Legislature provides no oversight to protect the public interest. Our form of government is generally described as a Cabinet dictatorship.

What to do? We’ll look at that next.