The PSC

Anguillians Want an Independent Public Service Commission to Assist the Governor in Exercising his Powers over the Public Service.

Under our system in Anguilla, the public service is independent and non-political. This applies at all levels, from the permanent secretary down to the newest clerical officer. No Minister of Government has a say in their appointment or dismissal. This is reserved for a non-political body, the Governor. At present, the Anguilla Constitution 1982 provides that the public service come under the Governor. Section 28(2) says that

“(2) The Governor shall not be obliged to consult with nor act upon the advice of the Executive Council with respect to the following—

(a) . . .

(b) the appointment (including the appointment on promotion or transfer, appointment on contract and appointment to act in an office) of any person to any public office, the suspension, termination of employment, dismissal, or retirement of any public officer or taking of disciplinary action in respect of such an officer, the application to any public officer of the terms or conditions of employment of the public service (including salary scales, allowances, leave, passages or pensions) for which financial provision has been made; . . .”

The Governor is responsible for the public service. The Constitution says he must consult with the Public Service Commission. The PSC is made up of local, knowledgeable Anguillians. They know who is who and what is what. Knowledgeable and independent as the Governor may be, he is one person. He can and does delegate his power over the public service to the Deputy Governor. The Deputy Governor is at present an Anguillian. But, he also is only one person. The PSC, by contrast, consists of several persons. Several heads are better, etc. They are expected to be independent, prominent, knowledgeable persons. But, the Deputy Governor does not have to listen to the advice of the PSC. He can completely ignore them, and do as he sees fit. The PSC can only give its advice and hope for the best. At that point its responsibility ceases. It has no real powers. The Deputy Governor is solely responsible for all hiring and firing in the public service.

That is an antiquated, outdated provision. That arrangement is not repeated in modern constitutional arrangements.

Our constitutional fore-fathers chose the Governor in order to make it clear that the public service was to remain non-political. It is a basic constitutional tenet that the Governor is not placed over the public service to show how important he is. He is not put in that position because there is something special about a Governor. He serves the public interest. He is put there in order to guarantee that the political leadership will not interfere in the appointment, terms of service, or discipline of public servants.

During the Constitutional and Electoral Reform Commission’s work in early 2006, all Anguillians who made submissions on the topic wanted the political independence of the public service to continue. Not a single person, including Ministers and other politicians, wanted the public service to be headed by a Minister. Most want the head of the service to continue to be an Anguillian Deputy Governor. Most were of the view that he should be obliged to act on the advice of an independent PSC.

The new Constitution should provide for the PSC to be the body that ensures the independence of the public service, not the Governor or the Deputy Governor.

Similarly, the teaching service should be under the supervision of an independent, expert body known as the Teaching Service Commission.

This will not be difficult to do. The new Virgin Islands Constitution provides for both Commissions. The BVI Govrnor has to take their advice. That is a precedent we could easily follow. It does not take a drafting expert to change Virgin Islands to Anguilla. Anguillians want it. The British have no objection to it.

We all hope that when the draft of the new Constitution comes out, it will show that the Deputy Governor is obliged to take the advice of the Public Service Commission and of the Teaching Service Commission.

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.

Electoral Boundaries

We Must Entrench an Electoral Boundaries Commission in the Constitution. The difficult decisions surrounding an election are not all made by voters. One of these decisions is how to divide the island into voting districts or constituencies. Each constituency sends one representative to the House of Assembly. Each representative should, ideally, represent an approximately equal number of voters. This ensures balanced representation of all the people in the law-making body.

Constituency boundary lines in Commonwealth Caribbean countries are normally determined by a special, independent body. It is usually called the Electoral Boundaries Commission. Its powers usually, but not always, emerge from the country’s political constitution.

The Anguilla Constitution 1982 does not mention such a Commission. It merely permits the House of Assembly to pass an Act, or law, providing for the division of Anguilla into electoral districts for the purpose of elections. Section 46 reads:

Laws as to elections

46. Subject to the provisions of this Constitution, the Legislature may provide for the election of members of the Assembly, including (without prejudice to the generality of the foregoing power) the following matters, that is to say—

(a) the qualifications and disqualifications of voters;

(b) the registration of voters;

(c) the ascertainment of the qualification of voters and of candidates for election;

(d) the division of Anguilla into electoral districts for the purpose of elections;

(e) the holding of elections; . . .

This section of the Constitution permits the Assembly at paragraph (d) to make a law providing for the division of Anguilla into electoral districts. This means a law establishing a Boundaries Commission. So, you would expect to find the Commission mentioned in the Elections Act. You will search in vain for it. The Act does not mention the Commission. So, there is no Commission for Anguilla. The electoral boundaries of Anguilla are frozen. They cannot, in practice, be redrawn to take account of Anguilla’s shifting population. Why is that objectionable? Of the seven political constituencies, voters are divided in the following proportions:

Island Harbour	1086
Sandy Hill	663
Valley North	1708
Valley South	1405
Road North	970
Road South	1246
West End	503

The implications are clear. We are still using the original seven constituencies that existed at the time of the Anguilla Constitution 1976, if not earlier. The three smallest constituencies of West End, Road North and Sandy Hill, with a voting population of some 2,100, control three out of the seven seats in the House. The 5,500 voters of the other four, Island Harbour, Valley North, Valley South, and Road South, must share the remaining four seats among them. That is clearly undemocratic.

It would take a change of the law to have the boundaries re-drawn. The politicians have fought hard to win their constituencies. They are not going to voluntarily or willingly submit themselves to taking a chance with altering their boundaries. They need a special push.

In most countries, Electoral Boundaries Commissions are established by law to ensure a balance is maintained. The boundaries are re-drawn from time to time, usually after a census, to more fairly reflect the voting population. The best way to provide for a Commission for Anguilla is to entrench it in the Constitution. That will force the authorities to take the necessary steps to ensure fairness.

During the Constitutional and Electoral Reform Commission’s work in early 2006, the people of Anguilla who made submissions on this were unanimously of the view that it was time for such a provision to be in our Constitution. A vast majority thought there should be 9 constituency representatives, and 4 “at large” representatives. As a result, the Commission recommended in its 2006 Report:

77. Boundaries Commission. One consequence of the recommendation for 9 constituencies is that the constituency boundaries will have to be redrawn. This must be overseen by an independent Boundaries Commission, which does not presently exist. The majority of persons making representations to the Commission have urged that there be 9 more or less equally sized constituencies. This is a matter for the Boundaries Commission to decide based on its analysis of the problem and the solution. The Commission recommends that the Constitution should be amended to provide for an independent Boundaries Commission whose duties will be established by a law.

It is not difficult to put this recommendation into a new Constitution. The Virgin Islands and the Turks & Caicos Islands have such a provision. They are BOTs such as we are. We only need to adopt the wording they have. Their Constitutions provide to the following effect:

Electoral District Boundary Commission

85. (1) An Electoral District Boundary Commission (in this section referred to as a “Commission”) shall be appointed from time to time at such time as the Governor, after consultation with the Premier and the Leader of the Opposition, may determine; but a Commission shall be appointed not later than four years after the last Commission submitted its report under section 60.

(2) A Commission shall consist of –

(a) a Chairman, being a person who holds or has held high judicial office or high legal office, appointed by the Governor, acting in his or her discretion.

(b) a member appointed by the Governor, acting in accordance with the advice of the Premier; and

(c) a member appointed by the Governor, acting in accordance with the advice of the Leader of the Opposition.

(3) A person shall not be qualified to be appointed as a member of the Commission if he or she is a member of the House of Assembly or a public officer other than the holder of a judicial office.

(4) The Chairman or other member of a Commission shall vacate his or her office –

(a) on the day following the submission of the report of the Commission under section 60;

(b) if any circumstances arise that, if he or she were not a member, would cause him or her to be disqualified for appointment as such; or

(c) if the Governor, acting in his or her discretion, directs that he or she shall be removed from office for inability to discharge the functions of his or her office (whether arising from infirmity of body or mind or from any other cause) or for misbehaviour.

Will the Chief Minister’s drafting committee, which is supposed to be putting the recommendations of the Commission into a draft Constitution for circulation to the public include such a provision? The people are waiting with increasingly mounting anxiety. I receive several emails a week on the subject.

Personally, I am not worried. Anguillians want this reform. The British want it. Members of the House of Assembly have nothing to fear from it.

It is almost guaranteed to happen.

Beach Development

Is it Illegal to Build a Villa on a Beach. I received the following email. I thought of just answering it. Then, I thought, “Why not make it a post?” This is the result. First, the email:

“Dear Mitch:

Sunset Homes is building a large beach front villa next to Bananas by the Sea on Meads Bay. The place is huge. I thought beachfront personal dwellings were against the law in Anguilla. Also, Viceroy has erected a large sales office right on the beach - how can that be allowed? Photo attached.”

First, on the building of beach villas, generally. No, there is no law against building a beachfront villa. For this to be prohibited would mean that there is in Anguilla some sort of enforceable zoning or planning law that is being infringed. Those of you who read this blog regularly, will by now be aware that there is no enforceable Planning Act in Anguilla. Such law as there is, is so antiquated and irrelevant to modern town and country planning concepts as to be laughable. It is a law that we inherited from the old St Kitts Administration, before the Anguilla Revolution of 1967.

Second, Yes, there was a policy at one time of making it difficult for villas to be built on the beachfront. Early in Emile Gumbs’ administration, after people complained about Chuck Norris being given permission to purchase a lot of land on West End Shoal Bay, the government established and published a policy that in future no licences would be given for the building of a villa on a beach. Villas were relatively non-productive, and would be discouraged. Beaches were to be reserved for the development of Anguilla’s tourism plant, ie, hotels.

When a non-Anguillian applies for an Aliens Landholding Licence, as is obligatory, to own property on Anguilla, it is a simple matter to prohibit the acquisition of land on a beach for the purpose of building a villa. Aliens were not allowed to do it. When it came to an Anguillian building on a beach, that tool or leverage never existed. The Anguillian is not required to apply for any licence to build on a beach. There is no law restricting building on the beachfront. Any officer of the Planning Department who contemplated prohibiting an Anguillian from building on a beach would have been slapped down by the Attorney-General’s Department. It is the Attorney-General who would advise on any action by any Department that will have legal consequences, at least, the strong likelihood of having to defend a legal suit. The A-G would know that such a case could not be won. So, even before the policy of using administrative discretion to limit building on beaches was relaxed, Anguillians have been building on the beachfront.

Third, is the question of fronting. Fronting occurs when an Anguillian pretends to own some or all of a business or property in order to assist the real, foreign, owner from having to comply with alien taxes and other burdens. When the property is land or a business, the Anguillian puts his name forward to government as the owner. When the property is a company, the Anguillian holds some or all of the shares and directorships “in trust” for the foreigner. The share ownership is accompanied by pre-signed, undated share transfers to permit a swift and unilateral transfer of the shares out of the hands of the Anguillian. This is generally a crime. That has never stopped it happening. Law firms have been accused of doing it. Politicians have been alleged to do it. Some civil servants are said to supplement their meager income by doing it. Even ordinary Anguillians do it. It is one of the commonest industries in Anguilla today. Many of the fine “locally owned” developments on the island are owned and funded by foreigners. When the development is sold, the Anguillian is supposed to receive his compensation by way of a small but healthy percentage of the proceeds of sale.

What these foreign speculators are only now beginning to learn is that, unless the illegal fronting is organised by an attorney with experience in these matters, they are likely to get ripped off by the Anguillian. What typically happens is that the Anguillian holds out for more than the agreed reward. He pretends that he thought he was really the majority owner. He then threatens to put a spoke in the works unless the demanded payment is made.

I have no idea who owns Sunset Homes. Nor, have I any reason to believe they are doing anything illegal. They probably fall into the category of an Anguillian owner doing what he wants with his own land. That is not against the law.

That is simply evidence of Anguilla not yet being mature enough to establish clear and fair planning laws.

Back to the Constitution next post.

Commissions and Commissioners

What are the Commissions and Commissioners that Are Recommended for our New Constitution? During the six-month public consultation exercise in early 2006, members of the public recommended a number of Commissions for our new Constitution. People in Anguilla expressed concern about the need to increase public participation in government. Too many matters were being left to the Governor’s or the Ministers’ discretion. A number of Commissions and Commissioners were urged. The Constitutional and Electoral Reform Commission adopted many of these submissions and made them recommendations in their final Report of August 2006. These Commissions were designed to do three things.

The first was to democratize government. A number of matters of internal self-government had to be taken out of the arbitrary control of one person and put into the hands of competent members of the public. Because you are the Minister of Planning, should not mean you have the power to approve planning applications. Because you are the Minister of Immigration should not mean that you or your officers make the decision on work permits.

The second was to increase transparency. Anguilla is still governed like the UK was in the nineteenth century, secretly and arbitrarily. The UK has moved on, and introduced institutions and processes designed to open up government. We in Anguilla have no less right to be treated with respect and fairly. The public have to be given a right to information if they are to be able to make informed choices. Transparency is a process intended to make government fairer and society more just.

The third objective was to increase integrity and accountability in public office. When persons in power do not have to answer to an independent watch-dog, they begin to feel they can get away with anything. The downward spiral begins with small abuses. It grows to major problems. We do not have to give examples. We know bad behaviour when we see it.

I propose to look at some of these recommended Commissions and Commissioners over a series of posts in the coming days. The Chief Minister's Committee is working on a draft of the proposed new Constitution. It is my hope that this Committee will ensure that these recommendations are included in any new Constitution for Anguilla.

No matter how much internal self-government we get, if we do not have the checks and balances in place, no progress will have been made. The more self-government there is without the checks and balances, the more abuse will be heaped on us. The Englishman may not be our preferred leader. But, at least we know that he has no private agenda in Anguilla. The risk of modernization without democratization is that we will turn out like Antigua or St Vincent after they went into independence. The locally-grown leaders will abuse us even more than the colonial ones did.

None of us wants to go down that route!

Amplified Sound

Noise in Sandy Ground. A few weeks ago there was confusion in Sandy Ground. The police were closing down the entertainment spots. That was the rumour. There were some meddlesome visitors who had complained to the police about the music. So it was being said. The police had, in lightning fast style, moved to visit all the entertainment spots and to tell them they were not permitted to play amplified sound without a permit from the Commissioner of Police. That was what I heard. I carried out an investigation. This is what I learned.

Sandy Ground is a village with several hundred residents trying to get a good night’s sleep. There are also several business places that provide entertainment for the late-night crowd. Some of them play amplified music until three or four in the morning. Not all of the entertainment spots are enclosed. The noise level in Sandy Ground and echoing down to South Hill Village was intolerable. The hours of duration were unreasonable.

About forty residents got together and wrote a petition to the Commissioner of Police. The vast majority of petitioners were ordinary Sandy Ground residents. This is what the petition read, in its entirety:

“We, the undersigned, respectfully request that the authorities in Anguilla enact and enforce laws with regard to reasonable and specific levels of noise and reasonable and specific hours of operation in Sandy Ground to enable residents, businesses, and visitors to exist/function/live in harmony.”

From any reading, the petition asked for laws to be enacted. It asked that the laws be enforced. It asked that these laws set reasonable and specific levels of noise and reasonable and specific hours of operation for Sandy Ground. It asked that this be done so that residents, businesses, and visitors could exist and function and live in harmony. Not unreasonable requests, I hope you will agree!

The police Commissioner received the petition. He knew there was already a law on the books. It is called the Sound Amplification (Restriction) Act.

The entire Act is one and a half pages long. It consists of three sections. One imposes a fine of $2,000 for breaking the terms of a permit. The other two sections state,

Restriction on amplification of sound

1. Any person who, except under the authority and in accordance with the terms and conditions of a permit issued under section 2—

(a) operates, or causes or allows to be operated, any amplifier, loud speaker or any other device so as to amplify the sound made by the playing of any musical instrument or human voice or so as to amplify any other sound; or

(b) plays or operates, or causes or allows the playing or operation of, any record player, radio, television set, tape cassette player or other device designed or adapted for the transmission of sound;

from any premises in a manner which, by reason of the causing of noise, unreasonably disturbs or annoys any other person dwelling or working in neighbouring premises commits an offence and is liable on summary conviction to a fine of $2,000.

Commissioner’s power to issue permits

2. (1) The Commissioner of Police or any other police officer not below the rank of Deputy Commissioner of Police authorised by the Commissioner of Police may, on application by any person, issue a permit, subject to such terms and conditions as he may think fit.

(2) Every application for a permit shall be in writing addressed to the Commissioner of Police within a reasonable period of time before the commencement of the amplification and transmission of sound and shall specify—

(a) the date of commencement of the amplification and transmission of sound;

(b) the place on which such amplification and transmission are to be carried out;

(c) the name and address of the person who is in charge of such place for the time being; and

(d) the duration of and the necessity for the permit.

(3) Every application for a permit concerning such a place shall be accompanied by a signed statement by the person in charge of the place for the time being giving his consent for the use of the place for such amplification and transmission.

At a first glance, the law appears to be of general application. It seems to prohibit any amplification of sound from any premises which “unreasonably disturbs any other person” without a permit. It does not appear to be a general licensing law. What does this law really say? It does not require every person to obtain a permit before amplified music is played. A permit is only required for you to play amplified sound that unreasonably disturbs or annoys another person. If you are not planning to be unreasonable, no permit is required. So, in my opinion, a permit is not required for playing amplified music in an enclosed space, when the music cannot be easily heard outside. It is only if the amplified noise that you are making is unreasonable that you need to get a permit.

The Act is a mere skeleton of a law. It contains no detailed regulations or specifications of any kind. Nor does it provide for regulations to be made.

It is child’s play to test the level of amplified sound. Decibel counters can be picked up in any electronic shop. If the House of Assembly had intended to restrict business places that provide entertainment by amplified music to a reasonable level of noise and to reasonable hours, it would have provided for detailed regulations to be made.

Section 2(2)(a) and (d) suggest something else. Note that they do not cover existing restaurants and bars that play music every day. You have to submit the date when you will commence the sound, the duration of the amplified sound, and the necessity for the permit. This suggests that the House of Assembly intended it as a police permit for occasions such as political meetings and other sporadic and one-off events. There is nothing in the Act that suggests it is meant to be a general licensing law regulating the playing of amplified music.

So, what did the Commissioner do when he received the petition? He did not call a meeting as requested. He did not ask for regulations to be made, as requested. He did not send down an officer to warn the business premises that there were complaints and that they were being unreasonable. He got tough. He decided to implement the law. On the Friday night he sent a police officer down to Sandy Ground just as the bands were starting up. The officer’s instructions were clear. He told each manager that if amplified music was played that night, or any other night, without a permit, the manager would be prosecuted. The bands were sent home. No music was heard in Sandy Ground for several days.

Over the next several days, the Commissioner held unsatisfactory and ill-tempered meetings with irate residents and even more irate night spot owners.

The politicians washed their hands of it and said it was a police matter.

Eventually, the businesses all applied for and obtained permits setting out the hours when amplified music could be played. An uneasy calm returned to Sandy Ground.

In my opinion, none of this is satisfactory.

What the residents asked for has still not been done. No rules have been laid down establishing “reasonable and specific levels of noise”. No rules have been laid down establishing “reasonable and specific hours of operation in Sandy Ground”. It all lies in the hands of the Commissioner. He may well be a fair man, but who says he is an expert in what is reasonable when it comes to entertainment spots in Sandy Ground? Neither the residents nor the business places are happy with this situation.

Without regulations, the police will never know whether a complaint of unreasonable noise is justified. They have no authority to test for decibels. Certainly, they have no authority under this law to impose a permit for the playing of a reasonable level of amplified noise.

The conclusion must be that the law that is being enforced is inadequate to achieve what either the legislators or the administrators intend. The law is being implemented in a way that is outside the bounds. The government are inviting a suit for maladministration.

The moral of the story? If there is one it is this. You cannot run a country on inadequate, badly drafted laws. A rough skeleton of a law, which is clearly meant to work through detailed regulations should have the regulations made. A skeleton regulatory law, with no provision for detailed regulations to be made, cannot be made to work fairly on its own.

When you leave the discretion on how to make such a law work up to a single individual, you are inviting accusations of bad government, and worse.

Pit Bulls

It Is not Illegal to Own a Pit Bull. I was told to read the Dogs Act of Anguilla. I learned a number of things I did not know before. I am telling you now, so you cannot say you did not know. First, the good news. It is not illegal to own a pit bull in Anguilla. Now, the bad news. Practically anything else you can do with one involves an offence, if the authorities can get the evidence.

Section 8 reads as follows:

Prohibition on breeding of pit bull terrier

8. (1) It is prohibited to breed or breed from, give, sell, exchange or gift, any dog of the type known as the pit bull terrier or other dog of a type which is bred for fighting or which has the characteristics of a dog so bred.

(2) Any person who contravenes this section shall be guilty of an offence and liable on summary conviction to a fine of $4,500.

(3) Where a person is convicted of an offence under this section, the court may order the destruction of any dog in respect of which the offence was committed.

As I read that section, it means that it is an offence to breed a pit bull. It is illegal to give one away. It is illegal to sell one. If you do any of these things, you commit an offence the fine for which is up to $4,500.00.

Section 17 also applies to pit bulls. It reads as follows:

Ferocious dogs

17. (1) No person shall import any dog of the type known as the pit bull terrier or other ferocious dog and any dog so imported shall be seized and forfeited to the Crown, unless the person who imports the dog proves to the satisfaction of the Chief Veterinary Officer that the dog is not of a type known as the pit bull terrier or is not a ferocious dog.

(2) Every person who keeps a dog of the type known as the pit bull terrier or a ferocious dog shall have the dog spayed or castrated in a prescribed manner by an approved veterinary surgeon and produce the certificate to the Director when applying for a licence in respect of that dog.

(3) The keeper of a dog of the type known as the pit bull terrier or a ferocious dog shall not allow such a dog to be in a public place without being muzzled and kept on a lead or abandon it or allow it to stray.

(4) No person shall suffer to be at large any unmuzzled dog of the type known as the pit bull terrier or ferocious dog.

(5) Any person who contravenes the provisions of this section shall be guilty of an offence and liable on summary conviction to a fine of $10,000.

(6) Where a person is convicted of an offence under subsection (3) or (4), the court may order the destruction of any dog in respect of which the offence was committed.

As I read the above, it is an offence to import a pit bull. The importer commits an offence. It is an offence to allow it to be in a public place without wearing a muzzle. Every pit bull on Anguilla is required to be spayed. If you own a pit bull which is not spayed, you commit an offence. If you allow it to go into a public space without wearing a muzzle, you commit an offence. The penalty for any of these offences is a fine of up to $10,000.00.

This law is now several years old. That means that most pit bulls in Anguilla should be dying out from old age by now. Breeding is illegal. There can be no young pit bull on Anguilla which has not been involved in the commission of a crime.

Not that any of the above matters. The law is a joke when it comes to enforcing compliance. It is not an offence to receive a pit bull as a gift. It is not an offence to purchase a pit bull. It is not an offence to own a pit bull. Without me giving evidence, it is impossible for the authorities to prove who sold it to me, or gave it to me.

The one thing they can prove is that I own it or have it in my possession. That is the one thing that is not an offence.

Talk about a pointless, stupid, badly drafted, law!