Governor Legislating

The Power of the Governor to Unilaterally Make Laws for Anguilla. There are four different ways that the British Foreign and Commonwealth Office can legislate for Anguilla. Not that I am suggesting that we in Anguilla want any such thing to be done to us. Nor am I suggesting that the FCO has any desire of its own to legislate for a British Overseas Territory such as Anguilla! Life is a lot easier for everybody when the Territory legislates properly for itself.

From the date of the 1999 Partnership for Progress and Prosperity Report, the UK government has expressed a desire for more participation, transparency and openness in its government of the BOTs. Not to forget that, ever since the 1948 Universal Declaration of Human Rights, we in Anguilla have enjoyed a right to self-determination. The FCO legislating for Anguilla without our consent could be, theoretically at least, a denial of this right of self-determination. It also diminishes our right to our own internal self-government. Legislation for Anguilla created otherwise than through the Anguilla House of Assembly is a process generally to be condemned when it occurs. However, in our Constitution, there remain several questionable provisions that appear to enable the FCO to legislate for us, even without our consent and against our will.

Let us remind ourselves, first, that the general proposition is that it is for the elected representatives of Anguilla to pass laws for Anguilla. Section 47 of the Anguilla Constitution 1982 says,

“Subject to the provisions of this Constitution, the Governor, with the advice and consent of the Assembly, may make laws for the peace, order and good government of Anguilla.”

That is the section of the Constitution that empowers the House of Assembly to pass a law for Anguilla. Such a law when passed is then signed or “assented” to by the Governor. In the same way, in the UK, Parliament passes a law and the Queen then gives her “assent” to it. We may describe this as the “normal” way that laws are made. However, it is not the only way. The FCO has reserved four other ways to make laws for us. They may be shortly described as, (1) the section 56 power; (2) the section 59 power; (3) an Act of Parliament; and (4) an Order in Council. Let us look at each of them in turn.

The first power that enables the FCO to legislate for us is found in section 56 of the Constitution. This says that,

“If the Governor considers that it is expedient in the interests of public order or public faith (which expressions shall, without prejudice to their generality, include the responsibility of Anguilla as a territory within the Commonwealth . . . that any Bill introduced . . . in the Assembly should have effect, then, if the Assembly fail to pass the Bill . . . the Governor, acting in his discretion, may, at any time that he thinks fit, . . . declare that the Bill . . shall have effect as if it had been passed . . . by the Assembly . . .”

This means that the Governor, i.e., the FCO of which he is an official, may sign into law any provision that the FCO considers is necessary in the interests of public order in Anguilla. First, the provision must have been introduced into the Assembly as a Bill. Of course, the Speaker of the Assembly has the final say on what is or is not included on the Order Paper. The Speaker may, on the advice of the Chief Minister, refuse to allow the introduction by, say, the Deputy Governor or the Attorney-General, of a politically sensitive or objectionable Bill into the Assembly. If that were to happen, the Governor would not be able to impose the proposed law on Anguilla, as it had not first been introduced into the Assembly. The section 56 power would be ineffective. Not that it has proven to be a problem. This section 56 power has never in the history of Anguilla been used.

Persons addressing the Constitutional and Electoral Reform Commission during the 2006 constitutional review went so far as to suggest that the section is a dead letter. The general view was that it was inconceivable that, in the 21^st Century, the people of Anguilla would willingly accept an enactment made into law by the Governor using this provision contrary to their wishes. The outrage such a use of the section 56 power would engender would inevitably give rise to civil strife. Every Anguillian who had an opinion on the subject urged the Commission to recommend that the section be repealed. The Commission did so at paragraph 130 of its 2006 Report in these words,

“The Commission recommends that the section be repealed in its entirety”.

Most Anguillians would be appalled to discover that there are persons in authority who do not believe that we are already a fully internally self-governing country. We are not dependent on anyone. Full internal self-government is a state of mind. It is not something that you beg someone to give you. It is something you take when you are ready for it. Once we accept that we are already fully internally self-governing, this section 56 provision can never again be used without our consent. It is clearly inappropriate for this constitutional provision to continue in the Constitution of a fully internally self-governing territory. Even today, whether or not it continues as a matter of form to be written in the Constitution, Anguillians cannot concieve of it being used against our wishes.

Not without a great deal of risk to the persons who might be so misguided as to do so!

Falklands

Almost There: Falklands Should Have a Constitution by Mid-year. That was the headline that caught my attention. As I read the story by Juanita Brock in SARTMA.com, I realised again how much we in the British Overseas Territories have in common. Our expectations regarding self-determination; integrity, transparency, and good government; and who and who is and who is not a “belonger”; are deeply shared. Billy Adams and his colleagues in the Cayman Islands’ People for Referendum movement struggle over these issues in their own territory. Montserrat is understandably not very organised at the moment. But, generally, our struggles are shared.

So, I was interested to read the issues that consume the Falkland Islands representatives in their present negotiations with the British over their new Constitution. There are some sticking points that they have yet to resolve. The Falkland Islanders refer to them as “anomalies”. What is the definition of who is eligible to Falkland Islands Status? What is to be the relationship between the Governor and ExCo and LegCo? Under what circumstances can the Governor go contrary to their decisions? How can we improve the functioning of our parliament? What role will locals play in the appointment of senior British officials to the Falkland Islands? Can we preserve the integrity and independence of the civil service while at the same time localizing decisions on their appointment and terms of service? Will we permit non-government persons to look into public accounts? Will we introduce muscular integrity legislation and a properly funded complaints commission? We share these concerns with the Falkland Islands and the Cayman Islands.

We in Anguilla have yet to hammer out our own stance. We need to satisfy ourselves that we are all singing from the same hymn sheet. The 2006 Report of the Constitutional and Electoral Reform Commission provides an indigenous hymn sheet. It is a summation or distillation of the views of those Anguillians who expressed an interest in the subject. No doubt, there are some points that were missed during the island-wide discussions that led up to it. There are, undoubtedly, some points in the Report that are even misguided. But, all in all, it represents a major achievement in formulating an advanced, locally produced, bundle of constitutional proposals. That entire process is now at risk.

There are influential nay-sayers who seek to undermine the Report. They have agendas of their own. They have no interest in promoting the proposals of the people of Anguilla as advanced by the Commission. The fear must be that they may succeed in the long run in sabotaging the Report.

But, what they cannot take away is the integrity of the process that produced the Report. It was formulated out in the open, in a transparent process, where everyone who was interested could see for themselves how the proposals were being developed and were being transformed by public discussion and intervention into the final Report. Each discussion paper was put up on the Commission’s website. Thousands of copies were printed and circulated throughout the island for the benefit of those who did not want to go on-line. Each revised edition of every discussion paper went through the same process. The Commission met with each and every organ of civil society to discuss the issues that concern the members of those bodies. The public was saturated with the discussion on constitutional issues over a six-month period.

Then, the politicians took over. Discussions now go on in secret, one year and six months after the final Report was delivered to the government. There is justifiable public suspicion over the present discussions on “full internal self-government” that are going on behind closed doors. These discussions are private, almost conspiratorial, creating heaven knows what new proposals in the “smoke-filled back-rooms” that we all despise so much.

Will these new proposals be dropped on a stunned and unsuspecting Anguillian public some day in the future?

Will any new proposals be rushed past the noses of an uncomprehending and unresponsive Anguillian public, with an announcement that we are all in agreement?

Will Anguillians who are genuinely concerned about transparency and good government be able to tell the substance from the froth and rise up in protest?

Or will it be the usual smoke screens and optical illusions that lull us into acquiescence?

Will all our efforts to secure a better system of government for Anguilla prove to have been wasted?

If we are not vigilant, then there is every chance that this is just what will happen.

Integrity Pacts

Anti-Corruption Tools. In looking at the question of preventing future corruption in public contracting, we in Anguilla would do well to look at the Integrity Pact. This is a tool that has been developed by Transparency International. More can be learned about it on the TI website.

The IP consists of a process that includes an agreement (entered into before bids are invited) between a government agency and all pre-qualified bidders for a public contract. It contains rights and obligations to the effect that neither will pay, offer, demand or accept bribes, collude with competitors to obtain the contract, or engage in such abuses while carrying out the contract. The IP also introduces a monitoring system that provides for independent oversight and accountability.

Bidders should disclose all commissions and similar expenses paid by them to anybody in connection with the contract. Sanctions apply in case of violation. These sanctions range from loss of contract, forfeiture of the bid or performance bond and liability for damages, to debarment of bidders from future contracts. Criminal or disciplinary action against employees of government are assured. IPs encourage companies to refrain from bribing by providing assurance that their competitors will also do so. Governments and government officials also have the assurance of a clear framework that protects them from dubious offers.

Governments are able to reduce the high cost of corruption in procurement. Successful implementation on a major project can go a long way to restoring public confidence in a country’s procurement process.

The Integrity Pact has shown itself adaptable to many legal settings. It is flexible in its application. No new legislation is required for its introduction. So far, the IP process has been successfully implemented in about 20 countries around the world. Victor Hart reports in his speech of 15 February 2008 to the Institute of Structural Engineers that regrettably, despite lobbying by T&T’s Transparency Institute, the government of Trinidad & Tobago is yet to use the IP on any of its projects.

In Anguilla, no contractor or engineer has yet begun to lobby for Integrity Pacts. No one is even thinking about the issue. We would not be surprised to learn that the government of Anguilla is not contemplating using the Integrity Pact on any of its major, upcoming projects.

Procurement

Master Plan for New Government of Anguilla Building. Like most of us in Anguilla I read with interest in this week’s Anguillian Newspaper of the consultative meeting that was held on 19 February. It discussed the planned new state-of-the-art government building. The meeting was led by architect Mark Raymond of Trinidad. The report is that the meeting involved six consultants and many heads of department and other senior public servants. Mr Raymond advised that there are four planned stages. The first is the consultation, which was the meeting in question. The second was an appraisal of the project and collection of information. The third will be a schematic presentation of options. The fourth will be the actual design work. You will notice that there was no mention of procurement of goods and services or of the construction itself. Yet, that is where most of our concerns lie. We are going to be spending a lot of money in the coming years on infrastructure development. This new building is not the biggest of government’s planned projects. The others include the new terminal and multi-purpose building at Blowing Point Harbour, the new road for the Valley, and the deep water harbour at Corito.

I was reading a speech of 15 February given by another Trinidadian. He is Victor Hart. Mr Hart is the Chairman of T&T’s Transparency International. His speech was to the Institute of Structural Engineers.

Mr Hart reminded the assembled engineers that procurement means the acquisition of goods and services. On construction projects it covers the entire process from needs assessment through the project preparation, design, budgeting, tender invitation, award of contracts, and execution of the contracts. We live in a time when coping with corruption is high on the agenda of all countries. It is therefore important that we take the opportunity to discuss transparency and accountability in procurement.

Much of Anguilla’s annual budget is spent through the construction industry. Our money goes on developing infrastructure, repairs and maintenance, in schools and hospitals, clinics and offices. Procurement offers the most attractive opportunities to those who wish to corrupt the process and illegally enrich themselves.

He reminded us that corruption damages our country by causing the undertaking of projects which are unnecessary, unreliable, dangerous and over-priced. This can lead to loss of life, misuse of funds, and resultant poverty, economic damage, and underdevelopment.

Corruption damages companies. It results in uncertainty and wasted tendering expenses. It increases project costs. It reduces project opportunities. It causes extortion and blackmail. It contributes to money laundering. It can result in criminal prosecutions, fines, blacklisting, reputation risk, and resultant job losses.

It damages individuals. It causes reduced morale, induces a sense of hopelessness in industry professionals. These face criminal prosecution, fines and imprisonment.

Transparency and accountability are the main antidotes for corruption. It takes our architects, engineers, quantity surveyors, building, plumbing and electrical contractors, and related professionals becoming conscious of the problem. We need them to come together to join the fight against corruption. As Mr Hart points out, the advantage for them is that they will not spend time dealing with the consequences of a playing field that is not level because of corruption in the procurement process. The result will be increased peace of mind, job satisfaction, and levels of productivity and profitability.

The building sector in Anguilla is essentially lawless and unregulated. The Building Code is a long-standing joke. It exists only in the minds of shameless members of the Building Board. There are no published standards or regulations. As with Barbados, the Code is applied depending on the whim of whichever functionary you are dealing with. My fear is that it might come to be so, also, with public procurement.

I trust that we are going to hear next of steps being taken to ensure that the procurement process for the new government building will be more transparent than it was in the airport extension project two years ago. From all reports, there are still unanswered questions connected with that project.

Colombians

Colombian Exposition at LA Cafe. Rumza, otherwise known as LA Cafe, is in tatters. It has lain more or less abandoned the past couple of years. The fanfare surrounding the big “disco” openings have all turned out to be just noise and no substance. The structure itself is dilapidated, a shell of what it once was. The armed men patrolling the premises at all hours of the night are no more.

Someone has organised a “Colombian Exposition” on the premises. It is to last for 11 days until 3^rd March. I went to visit it on Sunday. It cost me EC$5.00 just to get in. The items on sale are not cheap. But, the product at LA Café always was expensive! I saw containers in the yard, and about 30 sales people who might have been Colombians. The premises are divided up into at least 40 tiny counters selling product of one kind or another.

Every chintzy gadget you can imagine is on display. Imitation gold, flashy jewelry. Battery-operated gadgets. Pseudo-medical cures that would not be allowed into any country with proper regulation. A guy with a computer and a machine that looks at your retina. It can tell you whether you have any disease. It can detect everything from liver disease to “stress”. Devices guaranteed to enlarge various body parts. The most exciting find was the “Colombian snail slime”. It is being sold in cream and lotions. It is guaranteed to cure wrinkles and arthritis. I am so excited about the news that I hasten to share it with you!

There are unanswered questions. Are the containers of stuff in the yard also from Colombia? Does anyone know what came in them? Did the visitors pay duties on everything? Did they get special work permits, or were they exempted?

One has to ask who in government let these people in, and what is it all about?

Do you suppose the Colombians are giving money to the Ruthwill Auditorium?

FCPA

Foreign Corrupt Practices Act. In most of our islands, our Attorneys-General are political. Many of our countries have no Director of Public Prosecutions. The Attorney-General then decides who should be prosecuted and who should be excused. He is not supposed to show any favouritism. He is supposed to not maliciously prosecute those who oppose the government. The Constitution says he is to act independently of political influence. So is the DPP, where one exists. But, what is written and what happens in the real world have ever been two different things. It is not that our officials are necessarily biased. The real problem is lack of initiative and zest for the job. Most of us in the West Indies have given up on any expectation that our prosecutors will bring the full force of the law down on any public figure who breaks the law. We understand their problem, and shrug our shoulders. Our A-Gs sit in Cabinet and socialize with Ministers and Members of Parliament. They deal on a daily basis with, and develop ties to, other high officials in government. From Barbados to the Bahamas, the story is the same. Our officials just keep getting richer and richer, despite their limited salaries. And, our prosecutors sit on their hands and say it is nothing to do with them.

Relief may yet come from an unusual angle. Corrupt as much of the public administration in the USA is, they do have some good laws. And, they have some prosecutors who are not afraid of anyone in the West Indies. One of the US laws that we pin our hopes on is the Foreign Corrupt Practices Act. This Act is enforced by the Department of Justice, which boasts some notoriously courageous prosecutors.

The Act is not new. It was originally enacted thirty years ago. It prohibits the bribery of foreign government officials by US persons and companies. The term “foreign official” includes people we do not normally think of as being an official, such as a foreign political party or a candidate for political office.

The history of this Act is well known to those of us of a certain age. The US Securities and Exchange Commission conducted investigations in the late 1970s. Over 400 US companies admitted to making questionable or illegal payments in excess of US$300 million to foreign government officials. The abuses ran the full gamut. They included bribery of high foreign officials to secure some type of favourable action by a foreign government. There were also so-called facilitating payments that were made to ensure that government functionaries discharged certain ministerial or clerical duties. The idea for the Act was to bring a halt to the bribery of foreign officials. This was meant to restore public confidence in the integrity of the US business system.

The FCPA has its own blog which you can access by clicking here. There are several cases discussed. They include payments made by a Westinghouse subsidiary in India, and a Hollywood movie producer in Thailand. Even non-US companies are caught by the Act, where their securities are issued in the USA. Prosecutions have been brought in the USA against Vetco Gray UK Ltd, Akzo Nobel NV, and Statoil ASA. Other targets have included such well-known international companies as Siemens AG, BAE Systems, AstraZeneca PLC, Total SA, Nordsk Hydry ASA, Alcatel SA, and Petro-Canada. One of the most recent targets has been Lucent Technologies Inc. In December 2007, it agreed to settle a case brought against it and to pay fines and penalties of US$2.5 million for having paid for the travel of Chinese officials to the USA. The offence it committed was to improperly record the travel expenses of the officials in question.

Not all corrupt payments are punishable under the Act. It is only an offence to bribe a foreign government official for the purpose of obtaining business. There are limits to its effectiveness. Not included are bribes paid to persons who are not governmental officials. In Anguilla, that might exclude health personnel and the public utilities. More worrying is that payments made to expedite the performance of routine government action also escape. This would include obtaining permits or licences, processing official papers, clearing goods through Customs, or providing police protection. Another available defence is to show that the payment is lawful in accordance with the written laws of the recipient country. You might also escape by showing that the payment is a reasonable expense directly related to promotional activities. So, giving gifts to a school or to a local hospital would not count as a bribe. Gifts of computers to the police force, or of a jeep to the Customs Department for turning the head the other way, would be exempt.

The FCPA is not perfect. But, until we adopt strong and effective anti-corruption laws of our own, and until we appoint courageous and independent prosecutors, we in Anguilla shall have to rely on foreign assistance of this type if we are to have any chance at all of stopping foreign companies attempting to corrupt our own officials.

PAC

Proposed New Public Accounts Committee for the Falkland Islands. We all know by now that we do not have a functioning PAC in Anguilla. There is no one in Anguilla exposing maladministration in the use of public funds. There is no one even looking at the way that the different government departments are spending public funds. Except the internal audit department and the external auditor. The internal auditors are professional civil servants just doing a job. No offence intended, I have no idea who they are and even less what they do. They do not report to us, so how can we know? The external auditor is no doubt very professional, but he would be mainly concerned to ensure that the government spenders look good. He would make suggestions for improvements. His concerns would not include exposing mis-spending when he finds it. Nobody wants to rock the boat!

So, it was with great interest that I read how the Falkland Islanders are planning to set up their PAC in their proposed new Constitution. Their discussions include some of the features that various Anguillians said they wanted to see in any new Anguilla Constitution. In particular, they plan to appoint three members of the public to sit on the committee, with two members of the Assembly, making a PAC of five persons. A majority will be from the public! Additionally, they plan to bring in experts to give advice in their own particular area of skill. They are considering giving this new PAC authority to scrutinize companies with government-sanctioned monopolies.

That would include in Anguilla such entities as ANGLEC, the new Water Authority when it comes on stream, and the Health Authority of Anguilla. These are all desperately in need of supervision of how they spend public monies. We already know we do not have a functioning health service in Anguilla. And, now the rumour is that we are about to lose the initiative to develop a Health Fund. The whole kit and caboodle of the Anguilla health sector appears to be collapsing. A lot of exposing needs to go on. No one in Anguilla is willing to take on the job.

The Falkland Islanders say they are going to look to see how the PAC functions in other overseas territories.

I only hope they do not take their lead from Anguilla.