Blogging

A Refugee from Carnival. I feel out of touch. London this August has been wet and cold, and far away from home. News from Anguilla is hard to come by. Heartbeat Radio’s 6:30 newscast is broadcast at 11:30 London time. Radio Anguilla is just as bad, with its 7:00 o’clock newscasts. I am not in front of my computer at those times. In the morning, I am in the Public Records Office at Kew photographing Anguilla’s old colonial documents. In the evening, by that time I am asleep.

The gossip columns on AnguillaTalk keep me partially informed. The level of discussion there is too juvenile to keep my attention for long. I usually read one or two threads and give up. The Anguillian Newspaper is published only once a week. By Friday, I have read whatever the latest news is on the website. It will be another week before anything new goes up. The Anguilla Guide Forum has little to interest a resident. It is mainly for tourists. I fall back on the traditional means of keeping in touch in the islands: the drum. It’s modern form is email. So, please keep your messages coming. Or, you can correspond on the Blog itself. I publish every comment, no matter how uncomplimentary. The only ones that are deleted are uncalled-for attacks on other persons.

Personal attacks on me are OK. I do not understand why there have been so few of those!

Public Accounts

To read any post together with all comments posted to it by readers, just click on its headline in the right-hand panel under “Archives”.

Constitutional Discussions 19: The Public Accounts Committee. One of the most important safeguards against waste of public funds is transparent accounting and reporting of government expenditure. The Auditor General in an Overseas Territory such as Anguilla is an external auditor. The word “external” suggests that he is free of influence from our politicians. He is appointed by the Governor without control from any local body such as Cabinet. This ensures that he is independent of our politicians. He reports only to the Governor. The Governor ensures that his Report is laid before the House of Assembly. The committee of the House that works with the Auditor General’s Report is called the Public Accounts Committee, or the PAC. What happens to the Auditor General’s Report after that varies from Territory to Territory. In the case of Bermuda, it is used by the PAC to examine how public funds were spent. Questions are asked. Inefficiencies can be highlighted. By this means, civil servants are encouraged to resist pressure from the Minister to spend funds in a manner that was not authorised by the House when the Budget was passed. For this oversight system to work, there has to be a vigilant and active PAC. It is a notorious matter that the PAC has never functioned in Anguilla. A similar complaint is heard about the PAC even in independent Commonwealth Caribbean countries. That it works well in Bermuda is a credit to the sophistication of that community.

In Anguilla, the PAC is not mentioned in the Constitution. It is referred to only in the Rules of Procedure of the House of Assembly. The Rules provide that the Leader of the Opposition is to be the Chairperson of the PAC. At paragraph 126 of its Report, the Constitutional and Elections Reform Commission made recommendations for the PAC to be strengthened and for it to function more efficiently. One of these recommendations was that the Leader of the Opposition should no longer be the Chair of the PAC. It should be the Speaker of the House or someone appointed by the Speaker. We in Anguilla well know the reason why this should be. There are two principal objections to having the Leader of the Opposition chair the PAC. The first is that the PAC is not meant to be a political weapon. It is meant to be a tool for ensuring transparency and good government. In a highly politicized society such as ours, it is frequently not thought a good political strategy to point out to the government of the day that they are wasting public funds. It may be more politically expedient to permit them to waste funds, and then to use the waste, when elections are next due, as a political weapon in the election campaign. There might as well have been no audit for all the good that does. The second problem is that, with such a small Assembly as we are likely to have for the foreseeable future, we may continue to have a situation where the members of the Opposition are unable to agree on who is to be the Leader of the Opposition. That is the reason why this office has remained unfilled for the past two years. The result is that the PAC cannot be constituted. It ceases to exist.

It is a matter for regret, therefore, that, at its recent caucus at the Limestone Bay Café, the members of the House of Assembly disagreed with the recommendation that the Leader of the Opposition cease to be the chair of the PAC. They agreed that the powers of the PAC should be strengthened. They want to retain this office as one of the perks of the Leader of the Opposition. This even though they know they have never had a PAC that has functioned!

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Postal Ballots

Constitutional Discussions 18: Postal Ballots. Section 45 of the Anguilla Constitution provides for who has the right to vote at elections. It provides for an Elections Act to be designed to make provision for persons who are unable physically to attend to vote in person on election day still to be able to cast their vote. This constitutional provision legalises overseas voting or postal ballots, if the Elections Act provided for it. The Elections Act that we presently have does not permit overseas voting. You have to come to Anguilla and be physically present to be able to cast your ballot. This rule does not reflect that we have entered the electronic age. We have long been accustomed to posting our cheques in to the bank and depositing money by post. In recent years we have learned to deposit and withdraw money from our accounts over the internet. The elections rule is still in the horse and buggy age. It has not even entered the Post Office era, far less recognise the utility of the internet. The result is that those candidates with deep pockets can influence the outcome of an election by paying to fly in from overseas more of their supporters than their opponents can afford to do.

A majority of persons making representations on this issue before the Commission urged that the Elections Act be updated to provide for overseas balloting. At paragraph 111 of its Recommendations, the Commission recommended that the Act be amended accordingly.

Members of the House of Assembly meeting in caucus at Limestone Bay Café had other ideas. They, in their wisdom, agreed among themselves that they would prefer the situation to remain as is.

Those that are in the House know how they got there! They would prefer to keep it so!

Self-Determination

Full Internal Self-government versus the Right to Self-determination. A few days ago, one of our readers asked a simple, straight-forward question. Could someone please explain what exactly was the difference between “full internal self-government” and the “right to self-determination”? I had been a speaker, with other lawyers, on the radio programme, “Territories Talk”. The other lawyers and I had consistently confused the two expressions. What exactly did they mean? I had hoped that someone more learned than me would have replied to the reader, and relieved him of his torment. Since none of the experts have ventured an explanation, I will have a go.

The right to self-determination is a right that every country enjoys. It is entrenched in United Nations’ conventions. There is no dispute about it. Even so reactionary a body as the British Foreign and Commonwealth Office would not deny us that right. They have repeatedly said to us that they will never stand in our way if we wish to become an independent nation. If we in Anguilla determine that we wish to remain a Colony, that is our right. We will have determined that status for ourselves. If we decide that we wish to become an independent nation, that is our right. We are guaranteed the right to decide that for ourselves. Whichever the administering power, it does not have the legal right or the authority to prevent us from seeking our full independence. So far, so good.

Suppose that we in Anguilla do not at this time want to become an independent nation? Suppose that at the same time we are not happy with the British Foreign Office continuing to micro-manage our local affairs? Suppose that we desire to take on more responsibilities of government than we did before. Are we obliged for ever to continue under a regime whereby the FCO and its delegate, the Governor, decides the smallest detail of government? Or, should we be encouraged increasingly to manage our own affairs? Is there any principle that prevents us from aspiring increasingly to manage our own affairs? That is more problematic than the right to self-determination. Increasing self-government is something that has, traditionally, been the subject of many a battle. This is something that always has to be fought for. It is not a given, not a right. It is an evolutionary state. We grow in self-government. We earn self-government. It does not happen over-night. It happens gradually. You recognise it by its feel and its touch, not by the technicalities of a legal document. Eventually, a colonial territory might earn the right to claim to be able to handle full internal self-government. Even the UN as far back as 1995 has confirmed that we have a right to internal self-government.

Full internal self-government is what our Chief Minister now says is Anguilla’s objective in discussions with the British. Self-government is not a matter of our politicians being in charge of everything. It exists when Anguillian institutions and individuals take responsibility for Anguilla’s affairs. This would include, where appropriate, the political directorate. Ministers do not have to have the final say for there to be full internal self-government. There have to be checks and balances. There are other local institutions, boards, committees, and commissions besides Ministers. The concept is not even about whether it is a British or a local who is officially responsible for an area of government. It is about the reality of government. The British Constitution may say that the Queen can appoint whomsoever she wishes as the British Prime Minister. The reality is that the leader of the party which in a general election wins the most seats is automatically entitled to be appointed. The Constitution can continue to say that the Queen can appoint the Prime Minister. The truth is that the people do so by their vote. She is not free to appoint whomsoever she wishes, regardless of the Constitutional provision. It is the same with the Anguilla Constitution. It can continue to say that the Governor is in charge of an area of government. So long as local institutions and individuals actually implement local policy and principles, then there is full internal self-government.

There is no connection between the two separate concepts of the right to self determination as guaranteed by the UN Convention and the state of full internal self-government. The one is a Convention right, the other is a state of affairs. In a young Constitution such as ours, we are justified in requiring that the details of government are spelled out to a degree not normal for the British. A wink and a nod are not sufficient. We are entitled to demand that our Constitution reflects in its language the peoples’ desire for increased self-determination. That is most appropriate if unnecessary disputes and disagreements are to be avoided in the future.

Do I personally believe we are ready for full internal self-government? I have my reservations. All such reservations can be overcome by inserting a level of checks and balances that will ensure that childish and petulant instincts do not prevail. Vindictive government is not limited to Hubert Hughes’ last regime! It is found in all immature governments. I remind my readers that self-government of any kind in Anguilla goes back only forty years, to the Anguilla Revolution of 1967. We have had no time to construct a system of balances and checks and good governance.

A greater concern is that our Government appears to have chosen this time to seek full internal self-government not because of any matter of principle. It has been rattled by the Concerned Citizens Group. This is but an example of what The Hon Edison Baird so accurately calls “ad-hoc planning”!

An even greater concern is that both “full internal self-government” and our “right to self-determination” can be used as mere empty political slogans. The expressions can amount to little more than smoke and mirrors in the wrong hands. The Constitutional and Electoral Reform Commission in its August 2006 Report managed to come up with a solid and extensive body of recommendations for full internal self-government as proposed by the people themselves and without once using any slogan. Now we are told that we have to go back to the drawing board and start thinking of “full internal self-government”!

Excuse me for being dubious about the whole exercise!

Belongers Voting

Constitutional Discussions 17: Only Anguillians to Vote. Section 43 of the Anguilla Constitution provides for a variety of persons living in a political constituency to be eligible to be a voter. The one constant is that you have to be a Belonger of Anguilla. There are citizenship tests, and Belonger tests, and residence tests, and domicile tests.

In meetings up and down the country, the majority of Anguillians were opposed to the citizenship test. Many Anguillians have had to travel abroad to work and support their family. Some of them have had to give up their citizenship in order to establish themselves in their new homes. When they retire and return to spend their last years in Anguilla, they may not have British Citizenship any longer. They may have given it up for economic purposes. They are not prohibited from voting. It is just that there are different rules for voters are not BOT citizens. Some non-citizens have to have resided in Anguilla for 12 months to be able to qualify. Others have to have resided for 5 years to qualify. It is all very confusing. Only lawyers can understand it!

The Commission, at paragraphs 103-105 of its Report, recommended keeping the Belonger test, getting rid of the citizenship test, and strengthening the residence test. In future, all voters must qualify by being Anguillians who have resided on the island for three years before the election. That was the view that appeared to the Commission to have majority support throughout the country. Members of the House of Assembly meeting in caucus at the Limestone Bay Café agreed with most of the recommendations of the Commission. As regards the recommendation at paragraph 103 that Anguillian status, however acquired, be a qualification for all voters, they disagreed. They preferred to keep the provision as is. That would mean that British Citizenship would continue to play a role in deciding who can vote and who cannot.

The meaning and purpose of this disagreement is not clear to me. It is a qualification for all voters that they must be Anguillian Belongers. The Commission was recommending that BOT citizenship qualification for some voters should go, and the residence qualification be extended to all voters. The Commission was not recommending altering the Belongership qualification. The Commission was recommending, as the vast majority of Anguillians requested, that the Belonger qualification remain intact. It is difficult to see what the members of the House of Assembly wanted to change in the recommendation of the Commission!

Do you have any idea?

Opposition Leader

Constitutional Discussions 16: Leader of the Opposition. Section 40A of the Constitution of Anguilla provides for this office. He or she is formally appointed to this office by the Governor. The Governor takes the instructions of the majority of the Opposition. They tell him who the leader is. The Leader of the Opposition is to be consulted by the Governor on the appointment of the second Nominated Member of the House of Assembly. He chairs the Public Accounts Committee. This is supposed to be the Assembly’s watchdog on how public funds have been spent. He has office space provided in the House of Assembly. He receives a higher salary then an ordinary member of the Opposition. For there to be a leader, there has to be an agreement on who is leader. If the Opposition consists of two persons, and they do not agree on which of them is the leader, then the Governor cannot appoint anyone. That is exactly the position we are in now. The Hon Edison Baird and the Hon Hubert Hughes have not been able to tell the Governor which one of them is to fill the office of Leader of the Opposition. The position remains unfilled.

Members of the Commission grappled with the problem. Various persons made representations on how it was to be solved. Should the Governor appoint whoever in his view was most appropriate to fill the office? Should they be required to toss a coin? Could there be a rule that would make sense? Should it be left as it presently is, so that, if the members of the Opposition do not agree, the post is not filled?

The solution that found favour with a majority of Anguillians who expressed a view on the problem was that it should be the member of the Assembly who had served the longest. If one member has served for 11 years and another has served for 10 years, and they do not agree on who is to be the leader, it will automatically be the one who has served for 11 years. People thought there should be a rule that the Governor can apply. It is not beneficial to our system of government to have the present situation continue. This was the recommendation of the Commission at paragraph 94 of its Report.

The USA adopted one of the shortest and simplest Constitutions on achieving independence. They had had democratic institutions of government since the earliest days of colonial rule. Because of the poverty of the country, this was not so in Anguilla. That is yet another reason for putting such a rule of detail in our Constitution. In such a young democracy as ours, you cannot leave such an important issue to good sense, tradition, or convention. You have to put even the simplest rules in the Constitution or in a law if you want good sense to prevail.

Regretfully, members of the House of Assembly meeting in caucus at the Limestone Bay Café did not agree. They prefer to justify and sanction the present imbroglio by arguing that the rule should not be changed. If this were a Greek tragedy, it might be described as demonstrating an element of hubris!

Convict Candidates

Constitutional Discussions 15: Convicts Disqualified to be Candidates. Section 37 of the Anguilla Constitution provides a limited disqualification for convicts to run in political elections. You are only disqualified if you are under a sentence of imprisonment for a period exceeding twelve months. The disqualification ends once you are released. This is the situation in the UK. Politicians are always getting locked up for one reason or another. You might be arrested and prosecuted for what is really a political offence. You took part in a political demonstration. Someone was injured, or property was damaged. You might be convicted of malicious damage, or inciting a riot. Conviction does not mean that you are necessarily a bad person. The thinking on the limited disqualification is, you will have difficulty conducting a political campaign from prison. You cannot be nominated and run a campaign while you are in prison for a lengthy period. Once you are out, you should be free to resume political life.

There was much discussion and debate between members of the public and members of the Commission. One view found favour with a majority of Anguillians. It was adopted by the Commission. That was that if you are convicted of an offence of immorality or dishonesty you should be disqualified for life. If you are convicted of any other offence, you should not be disqualified once you get out of prison. A few persons took the view that this concern about immorality and dishonesty was anti-democratic. If Anguillians want to elect a convict, they should not be deprived of their right to do so. Some pointed out that we know politicians who have been dishonest and immoral, though never charged or convicted, but we still elect them. For them, it is hypocritical to put such a disqualification in the Constitution. We should leave it to the good sense of the electorate to know who will best represent their interests.

A majority of Anguillians took a different view. This was that no one who had been convicted of an offence involving immorality or dishonesty should be permitted to taint the House of Assembly with his presence. That was the recommendation of the Commission at paragraphs 89 and 90 of its Report. Members of the House of Assembly meeting in caucus at the Limestone Bay Café disagreed with the recommendations of the Commission. They would prefer to keep the disqualification as it presently is.

What is your view?