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?

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TCI 1

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

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

Background to this review

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

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

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

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

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

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

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

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

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

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

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

To be continued …

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