Protests

The vast majority of the people of the TCI welcome the temporary suspension of their Constitution. The evidence is plain to be seen in the following video:

         The demonstration appears to have been mounted to protest Minister Bellingham's announcement of the delay of the general elections and the restoration of a revised Constitution until after the investigation and prosecution process has advanced further.

         The small number of the followers of the discredited politicians present at this “spontaneous” demonstration shows how few TC Islanders support the avaricious political aspirants of that unfortunate country.

         The pre-printed signs and posters that the demonstrators are holding, put a lie to any suggestion that this was a spontaneous "human rights demonstration".

         And, what is Michael Misick doing wearing a Cap Juluca hat from Anguilla?

        What thuggery!

Smoke Screens

Is the diplomatic spat between the Governor and the Chief Minister all a smokescreen? And, if so, who is it designed to protect?

Just to recap. The Governor and the Chief Minister of Anguilla have been publishing press releases accusing each other of misbehaviour. The Governor went off first. He claimed on Thursday that the Chief Minister had instructed him to remove the portfolios of Health and Social Development from the Hon Edison Baird and transfer them to the Hon Jerome Roberts. He says that he refused to carry out the Chief Minister's instructions because in his view they amounted to a negation of democracy. He says he considers that would amount to two people, the Governor and Chief Minister, effectively overturning the will of the people as expressed just seven months previously. The Governor's view is that the people had elected four members of the AUM to form a Government, and three other members to form the Opposition. This is so obviously nonsense that we in Anguilla have all been casting about for another explanation.

The Chief Minister followed on Friday by issuing his own press release. He accused the Governor of not telling the truth. He said that the Governor had asked him to dismiss two of his Ministers, or to resign and call new elections. This is so obviously impossible for the Governor to have said that no right thinking person could believe it. There are only 5 members of the government in the Assembly and 4 of them are already ministers. There is no one else that the Chief Minister could have appointed to replace the dismissed Ministers. The likelihood is that in the midst of a quarrel the Governor had said to the Chief Minister that he could always resign, or words to that effect, and the Chief Minister had interpreted these words as a demand that he resign.

Someone pointed out that on Thursday and Friday the House of Assembly had passed a raft of new financial laws. These laws had not been previously gazetted, which is very unusual. They had not been previously shared with the members of the Opposition. No member of the public had been aware that these laws were about to be passed. They had been kept secret. One of these laws set up a new Department of Inland Revenue under a new Comptroller of Inland Revenue with drastic, even draconian, powers to penalise anyone who did not pay his taxes. The suspicion was raised that this spat with the Governor was designed to throw a smoke screen over the hurried passage of the Acts in the hope the public would be distracted.

Another person pointed out that JB Turbidy had in the previous few days been circulating a series of letters and emails. These emails accused the Chief Minister's administration of having agreed to the Starwood purchase of Viceroy on terms that were much to the disadvantage of Anguilla's revenue. This correspondence appeared in the Thursday issue of The Anguillian Newspaper. You can read it for yourself. Included in these emails were tables and graphs. They demonstrated how much more revenue Anguilla would have got from a sale to Mr Turbidy's group of investors as compared to the sale to Starwood. Mr Turbidy claimed that the Chief Minister had invited him to put in his bid, but had then refused to consider his application. He questioned the motives of those in the administration with whom he had been dealing. The suspicion was that the spat with the Governor was designed to distract the public from reading this correspondence and coming to a negative conclusion.

A more far-fetched explanation for the spat was that it was an FCO conspiracy. According to this theory, the conspiracy had been designed to sabotage the warm relationship that had been growing between the Chief Minister and the Minister for the Overseas Territories, Mr Henry Bellingham. They had met repeatedly both in private and in public on the Tuesday and the Wednesday before Mr Bellingham left to attend the General Assembly of the United Nations. The suggestion was that the FCO repressives and their legal advisers were worried. The more open minded Minister might be getting too friendly with the natives. It was necessary to set off a hand grenade to bring any more fraternising to an end.

A final and contradictory theory is that the spat was designed to throw a smoke screen over the rumoured censureship that the Social Security Board and the Ministers had come into from Minister Bellingham for the alleged misuse of Social Security funds. You will recall that the local administration had been borrowing monies from the trust funds of the Social Security Board to pay civil service salaries. This borrowing had been in breach of the agreed borrowing guidelines. The suggestion is that the spat served to block anyone from asking the obvious question: what was the reason for Mr Bellingham's surprise visit to Anguilla?

Who knows what the truth is?

Governor's Press Release

The Governor's press release says that the Chief Minister instructed him to remove the portfolios of Health and Social Development from the Hon Edison Baird and transfer them to the Hon Jerome Roberts. He says that he refused to carry out the Chief Minister's instructions because in his view they amounted to a negation of democracy. He says he considers that would amount to two people, the Governor and Chief Minister, effectively overturning the will of the people as expressed just seven months previously. The Governor's view is that the people had elected four members of the AUM to form a Government, and three other members to form the Opposition.

I have to admit that I have difficulty understanding this. My understanding of the Constitution is that the Chief Minister can tell the Governor which elected member of the House should be a Minister, and which one should not. No other Minister, nor the public, has any say in who is to be appointed a Minister. The people do not elect either a government or an opposition. The people elect only their representatives. Every representative is free either to join the government or to join the opposition. He is also free to change his mind and to cross the floor of the House.

The Governor is normally obliged to appoint as Minister whomsoever the Chief Minister tells him to appoint. The Governor has no say in who is or is not to be appointed a Minister.

Contrary to what the Governor wrote, it is not a negation of democracy for the Chief Minister to tell the Governor to appoint a coalition member of the government to be a Minister. If it were so, then the coalition Conservative Lib/Lab government in Britain must similarly be a negation of democracy, which is not correct.

If the Governor's recollection of what the Chief Minister told him is accurate, then what was improper about it was for the Chief Minister to have instructed the Governor to appoint a fifth minister. The Constitution is clear. The Governor, instructed by the Chief Minister, is only permitted to appoint four Ministers, plus a Parliamentary Secretary. There are already four Ministers and a Parliamentary Secretary appointed. It can be described as illegal under the Constitution for the Chief Minister to have requested him to appoint a fifth minister.

In any event, my understanding is that the Chief Minister did not instruct the Governor to appoint the Hon Jerome Roberts as a Minister. What the Chief Minister did was to instruct the Governor to transfer the portfolios in question to him, the Chief Minister. He seems to have indicated to the Governor that he would be asking the Hon Jerome Roberts to help him to manage those portfolios. This may have been irregular, but it would not have been in breach of the Constitution.

I cannot see anything in the law to fault the Chief Minister.

I don't understand the Governor's reaction.

British Minister's Visit

Henry Bellingham visits. The word I am hearing is that the British Minister stopped off in Turks and Caicos Islands and Anguilla for specific reasons.

        We know why he visited TCI. It has been published. The elections set for July 2011 will be delayed to allow time for anti-corruption and good-government reforms to take effect in the islands. You can read about it by clicking here: http://tcijournal.com/index.php?idsub=3249&id=8

        No reason for his visit to Anguilla has yet been suggested by any British or Anguillian official. However, I am informed that one of the first meetings that Mr Bellingham had was with the Social Security Board and the Executive Council.

        We know that since the election in February of this year the Government of Anguilla has borrowed some $60 million from the Board to pay civil service salaries. We know that was contrary to the “borrowing guidelines” that are by agreement binding on the Anguilla Government.

        We can expect that the FCO is not happy at this breach of the Guidelines.

        Could this be the reason for Mr Bellingham's visit to Anguilla?

Montserrat 13

There are some other obvious gaps and deficiencies in the new draft Constitution proposed for Montserrat.  It is to be regretted that no thought has been given in this draft Constitution to providing for a Freedom of Information Act. Without such a law, no one in Montserrat would have the right to obtain information that should be available to the public.  Secret government, which is an enabler of corruption and bad government, is in this way encouraged.

It is to be regretted that an opportunity was not taken to entrench the Tenders Board in the Constitution.  The greater part of the budget is spent on developing infrastructure, repairs and maintenance. Procurement of goods and services offers attractive opportunities for those who would corrupt the process and illegally enrich themselves.  The Tenders Board ought to have the independence and security of tenure of its members protected by the Constitution and by appropriate laws and regulations, backed up by appropriate training for members of the Board.

Amendment of the Constitution.  Section 114 of the draft provides that only the Premier, in very limited circumstances, may request an amendment of the Constitution.  The FCO reserves unlimited right itself to amend the Constitution without any reference to the people or government of Montserrat.  This is clearly highly undesirable.  The Cayman Islands recently completed their constitutional negotiations and accepted a new Constitution.  In the case of the Cayman Islands, the FCO accepted that it would never again amend their Constitution without first putting it to a referendum of the people.  No person can suggest that there is a good reason why some lower standard of democracy should be enjoyed by Montserratians.

A Constitution is the supreme law of any people, subject, in the case of a British Overseas Territory, to the Parliament of the United Kingdom.  A Constitution that is imposed on a people by a foreign power lacks validity and respect. 

In my view, it is the duty of every patriotic Montserratian to insist in the strongest possible terms for a right to comment on and criticise any terms in this draft Constitution that appear unacceptable to them. 

Montserratians have a right to demand that the draft Constitution be put to them for their approval either by a referendum or by some other mechanism calculated to demonstrate their real approval and acceptance of the new Constitution.  Only after this has been done would it be proper for the Governor to pass the draft to the Privy Council for enactment by an Order in Council. 

The British Government has frequently promised that it expects no less than evidence that the people of an Overseas Territory have expressed their support for any amendment to a Constitution. 

There is no reason why Montserrat should be given a second-class Constitution.

Montserrat 12

The proposed new draft Constitution for Montserrat is filled with anti-democratic provisions.  These include:

            (a) The Deputy Governor will be able to act in relation to the public service without being obliged to take the advice of the Public Service Commission.  Except in the case of the most senior ranks, this is clearly undesirable;

            (b) The Attorney-General, the Financial Secretary and the Deputy-Governor are not elected.  As in other Overseas Territories with modern colonial Constitutions, they should have no vote in either the Cabinet or the Legislative Assembly;

            (c) The need for a Director of Public Prosecutions has clearly been recognised by the section 45 provision enabling his appointment.  It appears from the wording of the section that the intention is to have the Attorney-General continue to act in that position for an indeterminate period into the future.  The draft should be amended to establish the office and to require the appointment to be made;

            (d) A Magistrate in Montserrat has considerable power, and can impose fines of up to $100,000.00 and prison sentences of up to 10 years.  As Montserrat does not have a High Court judge, the Magistrate plays an enhanced role.  He or she routinely hears cases that would normally be tried by a judge and jury.  The section 84 appointment of the island’s Magistrate is by the Governor after consultation with the Chief Justice.  This is unacceptable in a modern democracy.  It does not insulate the Magistrate from the Executive as should be the case.  For a Magistrate to do a proper job in Montserrat he or she needs to be shielded from influence and pressure from both the Ministers and the Governor.  Additionally, there is a well-known current regional initiative to integrate the Magistracy into the judiciary.  The provision in the draft should be that the appointment and discipline of the Magistrate is by the Governor acting on the advice of the regional Judicial and Legal Services Commission, of which the Chief Justice is the head;

            (e) The thought that the Director of Public Prosecutions and the Magistrate can be removed from office by the Governor and the Secretary of State is a frightening one.  These are both judicial officers.  The rule of law demands that both their appointment and removal be out of the hands of the Executive and be either by, or on the recommendation of, the regional Judicial and Legal Services Commission;

            (f) Currently, the police police themselves.  Complaints about police misconduct made to the Commisioner of Police and the Governor are notoriously not investigated impartially.  Such complaints invariable attract hostile responses from the police.  The absence of any provision in the draft for a Police Complaints Board is regrettable.  Such a Board is a vital tool for controlling police misconduct.  Such a Board will effect greater transparency and justice for all.  There is no reason why Montserrat should have a lower standard of governance in this respect than Bermuda or Britain itself; and

            (g) The FCO proposes through this draft Constitution to retain draconian and unrestrained powers to legislate for Montserrat over the heads of the Legislative Council.  The new Constitution will preserve (i) the power to enact laws through the UK Parliament; (ii) the use of the Order in Council without prior consultation; (iii) the section 73 power of the Governor to refuse his assent to a Bill that has passed through the Legislative Council without any limitation; and (iv) the section 75 power of disallowance, though this section does require the Secretary of State to refer the offending law back to the Legislature.

            These provisions do not increase democracy in Montserrat.  They reduce what little amounts of justice and democracy Montserratians presently enjoy under threat of renewed volcanic activity.  As such, they amount to a step backwards in constitutional advance, and are a shame on the constitutional advisers who dreamed them up.

Montserrat 11

Having the Constitution give absolute and dictatorial powers to one man is the opposite of providing for good governance.  A read of the draft Constitution reveals an intention to give the Governor almost total power over the administration.  He is controlled only by secret and unaccountable instructions from the FCO.  This secrecy and lack of accountability are then multiplied by giving him associated discretionary powers. 

The result is an anti-democratic Constitution.  The system it sets up is not conducive to good governance.  It is the polar opposite of integrity, accountability and transparency.  In particular,

(a) The section 21 use of his discretionary and reserve powers is not subject to democratic accountability.  The draft Constitution should be amended to provide that, except where otherwise instructed by the Secretary of State, he ought first to consult the Cabinet and be subject to review by the High Court in the exercise of his discretionary and reserve powers;

(b) Integrity, accountability and transparency require that the section 26 power to dispose of Crown Land should be subject to a resolution of the Legislature;

(c) The section 28 power of pardon should be exercised on the advice of a Mercy Committee;

(d) The section 87 power to grant or withhold pensions, gratuities and allowances ought to be exercised on the advice of the Public Service Commission;

(e) The section 100 power to appoint the Auditor General is exercised after consultation with the Public Accounts Committee.  Greater accountability and transparency would be achieved if this were to be done after consultation with the Public Service Commission and the Integrity Commission;

(f) Extraordinarily for the twenty-first century, the Governor will retain the power to amend or to disallow a law passed by the Legislature without any reference back to the Legislature.