Police Reform

Police Complaints Authority and Police Service Commission. Readers of this blog will remember the fiasco of January 2007. The government decided to amend our Constitution without telling us. They thought it was so unimportant an issue, that it was not necessary to consult with the people. The idea was to change the name of the police force to the police service. They also wanted to set up a Police Service Commission to advise the Governor in exercising his powers of appointment over the police force.

This proposed PSC was to be completely toothless. It could advise the Governor about appointments and discipline, but he could completely ignore the advice and do whatever he wanted. More likely, what the Commissioner wanted. If, as is not unknown in other countries, not Anguilla I hasten to say, a Governor depended on a good relationship with a Commissioner to keep quiet about a girlfriend, or whatever, he would do what the Commissioner told him to do. It is not unusual, in my experience, for one-man rule to be exercised on the basis of no greater principle than this.

Government decided they needed a constitutional amendment to do these two things. To change the name, and to appoint a toothless PSC. Nonsense, of course! Since nothing of constitutional importance was being done, they could have used an ordinary statute. It was completely unacceptable that they should presume to authorise London to alter the Constitution without telling us a word about it. Modern constitutional thinking and practice require that the government first obtain our consent by consultation and debate in the House of Assembly. Instead, they quietly went ahead and authorised the Secretary of State to put a Statutory Instrument before Her Majesty in Council for approval and execution. You can read all about it in the post of 17 January 2007.

In the end, the attempt to amend the Constitution was withdrawn. The Secretary of State declined to put the proposed Statutory Instrument before the Privy Council. The matter went dead for the time being.

What agitated us in Anguilla was that this was all being done in direct conflict with the recommendation of the Constitutional and Electoral Reform Commission. The constitutional review process had taken place between January and August 2006. Anguillians had made a number of representations to the Commission. The Commission accepted those in relation to the police force. The Commission did not recommend a non-binding, advisory, Police Service Commission. Their recommendations are found at paragraphs 62 and 63 of its 2006 Report. They recommended that the Constitution should be amended to introduce:

1. A Police Complaints Authority; and

2. A Police Service Commission.

The Police Complaints Authority, or Commission, or whatever we choose to call it, is to be an independent body with power to make disciplinary recommendations that are binding on the Governor. No more having to go to the Commissioner and hope that he likes you more than he likes his officer whose behaviour you are complaining about. No more depending on the decision of one person, the Governor, no matter how much he tries to show personal integrity. We need a proper, independent, Commission. Transparency, democracy, and advanced self-government converge to demand that this reform be made. Such a development will require a constitutional amendment. The present Constitution places total control over discipline in the hands of the Governor and the Commissioner. And, we know from bitter experience how much sweeping under the carpet that results in!

The Police Service Commission was recommended to be equally independent and its recommendations binding. The Commissioner and the Governor must be made to act on their recommendations when it comes to appointments and promotions. No more leaving it to one man, no matter how well-intentioned, to decide whether to make a decision based on personal liking or on personal integrity. Such a change will require a constitutional amendment. It means taking away the present one-man power vested by the present Constitution in the Governor and transferring it to a local body.

Neither of these amendments is difficult. Such Commissions exist in other British Overseas Territories. There are no complaints about how they work that I know of. It does not take a drafting expert to adopt the relevant provision, making such minor changes as are necessary.

The Chief Minister's committee is presently vetting the recommendations made by the Constitutional and Electoral Reform Commission. We wait to see if they will honour the wishes of the people of Anguilla in this matter.

The Governor

What Exactly Are the Powers of the Governor in Anguilla. I have had two requests to list the special powers of the Governor as set out in our Constitution. I take another pause in my review of the various Commissions and Commissioners that we can hope to see in our new Constitution to deal shortly with this issue. It is important that it be clear to everyone in Anguilla.

In a BOT such as Anguilla is, the Governor has extensive powers and functions. He exercises these without being obliged to act on the advice of any local person or authority in Anguilla. In many cases, he is not even required to consult with anyone in Anguilla in the exercise of his powers. These powers are greatly in excess of those vested in the Governor-General of an independent country. Some of his powers under the Constitution are:

1. He may by proclamation declare a state of emergency suspending some of our constitutional rights: Section 17.

2. His powers are not limited to those set out in the Constitution. Her Majesty, meaning the Secretary of State, may assign to him any additional powers: Section 19(2).

3. He exercises the executive authority of Her Majesty in Anguilla save only where some law vests those functions in another person: Section 22.

4. He appoints the Chief Minister: Section 24.

5. He formulates policy and exercises power over matters of defence, external affairs, international financial services, and internal security including the police without being obliged to consult with the Executive Council: Section 28(2)(a).

6. He appoints, transfers, suspends, terminates, dismisses, or retires, public servants without being obliged to consult the Executive Council: Section 28(2)(b).

7. He is not obliged to consult the Executive Council on any instructions given to him by Her Majesty: Section 28(2)(c).

8. He is not obliged to consult the Executive Council on any power that a law either expressly or by necessary implication empowers him to exercise without consultation: Section 28(2)(d).

9. He is not obliged to consult the Executive Council on any matter that he considers the service of Her Majesty would sustain material prejudice thereby: Section 28(2)(e).

10. He is not obliged to consult the Executive Council on any matter that he considers is too unimportant to require the advice of Council: Section 28(2)(f).

11. He is not obliged to consult the Executive Council when he considers that the matter is too urgent to wait for consultation: Section 28(2)(g). Note that section 28(2) sets out the “reserved powers” of the Governor. He is required by the proviso to the section to to keep Council informed of any matter that he considers may involve the economic or financial interests of Anguilla in relation to paragraph (5) above. In matters of urgency referred to at paragrpah (11) above, he must as soon as practicable inform ExCo of the measures he took and his reasons.

12. Wherever in the constitution the Governor is required to consult with ExCo, he may act other than in accordance with the advice given to him if in his opinion it is inexpedient in the interests of public order, or public faith to do so. He must first obtain the approval of a Secretary of State. He must share with the Secretary of State the minutes of the meeting which sets out the opinion of ExCo: Section 29.

13. He may summon any public officer to attend a meeting of ExCo when, in his opinion, the business renders that presence desirable: Section 31.

14. He presides at, ie, chairs, meeting of ExCo: Section 32.

15. He appoints all five members of the Public Service Commission, two of them after consulting, but not being obliged to follow their advice, the public service staff association: Section 65.

16. He appoints public servants after consulting the PSC, but he in not obliged to act on their advice. He consults the Chief Minister in the case of permanent secretaries or heads of department. He is not required to consult anyone when appointing the Deputy Governor, the Attorney-General or the Chief Auditor: Section 66.

17. He appoints the Magistrate, Registrar of the High Court, Crown Counsel, and any other officer required to have a legal qualification, after consulting the Judicial Service Commission, but he is not required to act on their advice: Section 68.

18. He signs all dispositions of public land in Anguilla: Section 75.

19. He may grant a pardon to, or reduce the sentence of, any convicted person without consulting anyone: Section 76.

20. He may create any new office in the public service and fill the appointment to it: Section 77.

21. He may, in exercise of his power of discipline over the public service, subject to any law in force, for cause shown to his satisfaction, suspend, retire, or dismiss any public servant: Section 78.

It will be interesting to see how many of these powers we shall be able to have transferred to local institutions in the new Constitution. Several of them will have to go if we are to show that we have earned the right to make advances in our constitutional arrangements with the British government.

NICA Crisis

NICA Is Going To Get Interesting. On 4 February 2008, the Board of Directors of NICA were served with a requisition. It was delivered to the address of their registered agent. The requisition was a document demanding that the Directors call a general meeting of the shareholders in the company. The stated purpose of the meeting was to discuss and vote on a resolution to appoint Avondale Thomas to be the liquidator of the company. Mr Thomas is a respected certified accountant of Antigua. It was he who did the previous forensic report on the accounts of NICA as instructed by the Court in 2003. The requisition was signed by 79 persons who were the registered shareholders of 451,500 shares.

Section 121 of the Companies Act says that the holders of at least 5% of the shares may requisition the directors to call a meeting for the purposes stated in the requisition. With NICA having a share capital just short of 5,000,000 shares, the signing shareholders represented nearly 10%, more than enough to satisfy the legal requirement.

No response came from the Directors. They never acknowledged receiving the requisition. They never announced they would hold the requested meeting. They never said they would not. They just kept on doing what they do best, abusing the patience of the shareholders.

Meanwhile, shareholders who had not signed the requisition continued to demand that they be joined in the action. More and more of them signed up to the requisition. They knew it was too late for them to be included in the official version. But, they wanted to show their support for the proposal to wind up the company. A total of 97 further shareholders, with 218,800 shares, signed. Together they represented over 10% of the shareholding in the company. Bear in mind that, after twenty years, probably one third of the original shareholders are dead. And, National Bank, the largest shareholder, is bound by the terms of the original prospectus not to vote the shares it repurchased. Those 10% of the shareholders represent a significant proportion of the present living and voting shareholders.

On 5 March, the Directors were sent a reminder by the shareholders. Again, they did not respond. They did not acknowledge receipt of either the original requisition or the reminder.

Section 121 of the Act says that, if the directors do not call the meeting, the shareholders may do so. The shareholders have every intention of calling a general meeting, as a first step. They lack the resources of the directors, but will have to meet the expense out of their own pockets. They will just have to keep the costs as low as possible. If some of the big boys in the company join together to defeat the wishes of the abused shareholders, there is further action to be taken. Any shareholder can petition the court on equitable grounds to bring the company to an end. We are satisfied that an abundance of equitable grounds exist.

Meanwhile, telephone calls of support continue to come in to the homes of Bob Rogers and Collins Richardson, two of the principle organisers.

All shareholders who agree that the time has come to stop the continued abuse by the directors and the waste of their investment in NICA are urged to keep their ears open. Listen for the announcement of the upcoming meeting. All should attend and vote to bring the company to an end. It is time for us to have the land and assets of NICA sold on the open market. We need to get our investment back, with interest. Before we all die of old age.

For fifteen long years, the shareholders have been waiting for their appointed Auditors, KPMG Peat Marwick to produce the audited accounts. They need to be paid their fees and to be given the accounts of the company so that an audit can be done. The directors have refused to carry out the instructions of the shareholders. The directors choose not to tell us what they are doing. For the past four years, no shareholders' meeting has been summoned. A forensic investigation will reveal exactly what is going on with the company.

Why are the directors behaving so badly? We are entitled to suspect the worst. It is time for any director who may be making a secret profit out of the use of NICA's assets to be brought to book.

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.