Human rights

And now for something quite different.  A few weeks ago, Wycliffe Richardson, the owner and manager of ATV3, suggested that I do a series of 15-30 minute TV presentations on legal issues in Anguilla.  We have now produced over a dozen scripts. 

Some of the first ones dealt with the elections law.  They were broadcast in the weeks before our recently concluded general elections.  

Wycliffe Richardson

When the elections were over, he suggested that I do a review of the Constitution, highlighting some of the major issues.  Constitutional reform should be high on the agenda of the new Government.  Anguilla and Montserrat are the only Overseas Territories in the West Indies that have not completed the process of reviewing and updating our Constitutions. 

So, let us look at some of the constitutional issues that I feel are worth considering.

When discussing the Anguilla Constitution of 1982, it is as well to start at the beginning.  If you should thumb through the Constitution, as one is wont to do in spare moments, the first thing you come to is Chapter 1, Protection of Fundamental Rights and Freedoms.  The Golden Rule that you should treat others as you would have them treat you is of great antiquity, the foundation of some of the great religions.  By contrast, the concept of fundamental human rights and freedoms is not something natural to humanity that has existed since time immemorial, through all cultures and nations.  Many of us do not realise that the concept is a relatively modern one, a product of the Holocaust and World War II. 

It is only recently that it has been generally accepted that we human beings have fundamental rights.  Modern recorded history begins with the invention of writing some 3-4,000 years ago.  During most of the succeeding time, up until the end of the Second World War, we lived under various regimes that cheerfully permitted our governments to hang, draw and quarter any of us whose lives were deemed to be contrary to the public interest.  It was only when the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights that everything changed. 

For this we have to thank a widow, Eleanor Roosevelt.  Eleanor Roosevelt had been the First Lady of the United States while her husband, Franklin D Roosevelt, was the President of the United States from 1933 to 1945.  After his death, President Harry S Truman made her a member of the US delegation to the United Nations.  There, she was elected to chair the committee that drafted and approved the Universal Declaration.  She played an instrumental role in drafting the Declaration, calling it “the international Magna Carta of all mankind”.  The Declaration was adopted by the UN General Assembly on 10 December 1948.  The vote of the General Assembly was unanimous, except for eight abstentions, by Muslim countries which took exception to the implications of the Declaration as to freedom in marriage.  President Truman called her “The First Lady of the World” in tribute to her human rights achievements.

 Eleanor Roosevelt at the United Nations

As the Preamble to the Universal Declaration says:

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, and

Whereas disregard and contempt for human rights have resulted in barbarous acts, which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief, and freedom from fear and want, has been proclaimed as the highest aspiration of the common people, and

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law, and

Whereas it is essential to promote the development of friendly relations between nations, and

Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person, and in the equal rights of men and women, and have determined to promote social progress and better standards of life in larger freedom.

This Preamble is followed by 30 Articles that enumerate the fundamental rights of all persons.  Since 1948, any government offending against the fundamental rights of its people is liable to find itself and its leaders charged before the court with offences of Crimes against Humanity.  It was from this date that all humans were perceived as enjoying universal rights, including the right to life.

Not all of the fundamental rights recognised by the Universal Declaration are repeated in our Constitution.  But, what we can say, is that those rights that are recognised in our Constitution draw their origin and raison d’etre from the Universal Declaration. 

So, Chapter 1 of the Constitution of Anguilla begins with section 1, a recital of the fundamental rights and freedoms of the individual.  It provides that every person in Anguilla is entitled to life, liberty, security of the person, the enjoyment of property, and protection of the law, freedom of conscience, of expression and of peaceful assembly and association, and respect for his private and family life.  There are limits to the protection under the Constitution.  Principally, our enjoyment of our fundamental rights is subject to respect for the rights and freedoms of others, and for the public interest. 

I believe that it is worth remembering that in addition to our rights being enshrined in our Anguilla Constitution, they are also grounded and based in the United Nations Universal Declaration of Human Rights.

Apology

Apology

I have now discovered the quarrel that Stanley has with my last post.  It seems that I have several factual errors in it.  I also drew some unfair inferences in relation to him and the public service.

It appears that the Immigration Officer who, I wrote, had had his case quietly dropped has in fact been committed to trial in the next sitting of the Assizes.  The case has not been “swept under the carpet”.

The old lady whose case, I wrote, had been nolle prossed, had in fact been tried by the Magistrate who had dismissed the charges when the old lady was unable to identify her assailant.

And, the suggestion that Stanley had been quietly made PS Administration in order to get him out of the Magistracy was quite misconceived.  Stanley had in fact continued to serve as acting Magistrate from time to time for some nine years while serving in the Attorney-General’s Chambers until he was appointed PS Administration. 

For these and any other factual errors in my post I apologise unreservedly to Stanley.  I had received and relied on incorrect information about these incidents.  I therefore had no valid reason to have drawn the inferences I did, that Stanley owed a favour to Keithly. 

Stanley has also pointed out, and I accept, that in the circumstances, it was quite unjustified for me to have said that the one sure way to get a promotion in the Anguilla Public Service is to be caught engaged in serious criminal activity.

Magistracy Series

Magistracy series . I am presently in St Kitts. I understand that when I get home, I shall find a letter from the Governor advising that he has given Stanley and Keithley permission to bring actions against me for defamation if I do not apologise to them.

         If Stanley or Keithley will show me where I have written anything false or defamatory about them, I should happily do so. I have reviewed the prior posts, and have not been able to see what it is that they could be complaining about. I shall be consulting with my solicitors next week to see if there is something I have missed.

         I had a last post on the Magistracy to publish. In it I had proposed to set out my solution to the problem that has been created by this proposal to have the Commissioner of Police move from Police Headquarters directly onto the Magistrate's bench. 

        It would not be proper for me to publish any further on this matter in the circumstances. I shall therefore desist, for now.
        Additionally, until I learn more, I'll take down the posts.

MOAs

Not that I am a constitutional expert. Far from it. When I served as a judge, many of my judgements were reversed on appeal.  So, take this my opinion with the grain of salt it undoubtedly deserves.

In my opinion, when the government of Anguilla negotiates a Memorandum of Understanding or a Memorandum of Agreement [they both mean the same thing] with a developer, which agreement requires a change of the law, this agreement is not binding until the House of Assembly changes the law.  The agreement does not bind future governments.  It certainly does not bind the House of Assembly.  No Executive Council represents the House of Assembly or can speak on its behalf.  The House of Assembly is the law making body of the country.  The House of Assembly is free to completely ignore or to repudiate any agreement entered into by the government of the day.  It is the duty of the government to present any agreement they have made and which is subject to approval of the House of Assembly to the House to give it the validity of law.  If government fails to present the agreement to the House for approval, the agreement is worthless.  When the law says that only the House of Assembly can agree to something, any agreement by the government is subject to agreement by the House of Assembly. 

The Customs Act is such a law.  No exemption from customs duty under the Customs Act has effect, except it is passed by the House of Assembly.  Only the House can ratify an exemption from customs duty.  One of our major criticisms of the last government was that they made agreements for exemption from Customs Duty that had not been approved by the House of Assembly.  Executive Council has no authority to approve exemption from customs duty, unless they get it approved by the House of Assembly.  At most, Executive Council can agree to move a Resolution in the House of Assembly to exempt a developer from customs duty.

Our new government is subject to any decision made by the House of Assembly.  If the present House should repudiate any previous government’s MOU with Cap Juluca or with Flag Luxury Resorts, or the with Viceroy, which may have been approved by the last Executive Council, but not approve by the previous House of Assembly, then these MOUs or MOAs are worth nothing. 

If the present House of Assembly votes to repudiate any Memorandum or Agreement or any Memorandum of Understanding, not approved previously by the House of Assembly, then they are dust. 

So sayeth the soothsayer, Don.

Peter Eigen

How to expose corruption. This little video is a speech by one of my heroes. I hope you will look at it and understand what he says.

Everything he speaks about is relevant to Anguilla as to every other country in the West Indies. Our leaders are subject to absolutely no higher supervision. We are prisoners of a post-colonial system which has bequeathed to our region a constitutional regime that vests absolute power in our Prime Ministers, Premiers, and Chief Ministers.

We all need to concentrate on how we introduce checks and balances into our constitutional arrangements.

Crisis

Government is to be commended on sharing this information with us. Our previous experience of government's handling of our money was that they would tell us, “It is none of your business”. Hopefully, they will keep it up.

It paints a stark picture.

“STATEMENT ON FISCAL POSITION

March 12, 2010

As a follow up to the presentation made by the Ministers of Government on the 11 March, 2010 please find following a release of the Fiscal Position as at December 31, 2009 and current.

Recurrent Revenue

At December 31, 2009 recurrent revenue collections totaled EC$145.65 million.  This represents a 30% decline from 2008 recurrent revenue collections of EC$203.74 million.  To put the situation truly into context, 2009 recurrent revenue collections were not only lower than 2008 but lower than 2007 and 2006 collections as well.  Consequently it is no exaggeration to say that recurrent revenue situation in Anguilla has been set back 5 years.  Key revenue heads such as Customs Duty Other, Stamp Duty and Accommodations Tax were down by 33%, 54% and 25%, respectively from 2008 collections.  It should be noted that revenue collections of EC$246.92 million was budgeted for 2009.

Recurrent Expenditure

Recurrent Expenditure for the year ending December 31, 2009, on the other hand, was EC$204.17 million, marginally lower than recurrent expenditure of EC$206.87 million in 2008.  A retrenchment in public sector salaries and wages and a partial freeze on hiring were key to cutting expenditure from the budgeted amount of EC$241.81 million for 2009. 

It should be noted that there were some EC$14.25 million in unpaid invoices as at the end of December 31, 2009 which will be accounted for in 2010 as they are paid.  These include:

1. 
   
   Anguilla Social Security Board: EC$6.88 million (Benefit Contributions)


2. 
   
   Civil Service pension Board: EC$1.57 million (Pension Contributions)


3. 
   
   ANGLEC: EC$1.32 million

Recurrent Balance

The recurrent balance, which is the difference between recurrent revenue and recurrent expenditure, for 2009 was a deficit of approximately EC$58.52 million.  This translates to an average monthly recurrent deficit of just under EC$5 million.  This is clearly unsustainable.

Capital Expenditure

In terms of capital expenditure this was approximately EC$10.58 million, a fraction of the EC$98.12 million budgeted for 2009.  The Capital Budget bore the brunt of the austerity measures imposed by Government.

Overall Balance

Given the situation with respect to the recurrent and capital accounts Government’s overall balance for 2009 was a deficit of EC$69.10 million.  This deficit was partially financed by the drawing down of Government’s fiscal reserves in the amount of EC$39 million.  The remaining deficit was financed by borrowing from the local and regional banking system. 

As a result of the deficit on Government accounts Central Government Debt increased to approximately EC$172.1 million in 2009, up from EC$149.65 million at the end of 2008. The government has found itself in a position where it has been borrowing money each month since October 2009 to fund Civil Servants salaries and other obligations. This practice is unsustainable and cannot be continued indefinitely. This will even prove to be more difficult because of the financial crunch where Banks and other lending institutions are finding it difficult to lend to government because of liquidity issues and the borrowing guidelines that the British Government has agreed with the Government of Anguilla.

The current Fiscal Position as at March 11, 2010 is as follows:

• 
  
  Overdraft position: deficit of EC$13.7 million


• 
  
  Payables: Unpaid bills: EC$16.3million

The financial position will temporarily improve with a grant of approximately EC$16 million expected from European Development Fund (EDF 9 4^th Tranche). These funds will be used to repay a short-term loan of $12m from Eastern Caribbean Central Bank which is due and payable by April 1, 2010.

The Caribbean Technical Assistance Centre (CARTAC) has been providing ongoing support to the Government of Anguilla in a number of consultative and training initiatives. As part of this support the government is benefiting significantly from the expertise of Economic Consultant Dr. Eliahu S. Kreis who has been in Anguilla from 28 February, and leaves on 18 March 2010. He has been working with technical staff in the Ministry of Finance assisting with GDP and Fiscal projections for the period 2010 to 2014.

As a result based on the data compiled it is projected that revenue for 2010 will be approximately $148M while expenditure is expected to be around $237M. This will result in a recurrent deficit of over $89m. Therefore, the Government of Anguilla will have to limit its Capital Expenditure significantly which is normally funded by a recurrent surplus.

With this revelation the Government of Anguilla will have to find ways and means to narrow the gap between expenditure and revenue as the Ministry of Finance puts together the budget for 2010. The Government of Anguilla has been operating on a Provisional Budget in the absence of an Approved Budget for 2010. This arrangement cannot continue beyond 31 April 2010. However, the Ministry is confident that a budget will be finalized before the deadline. The gloomy position that government has find itself in means that serious measures will have to be implemented in order to stabilize the deteriorating financial position of the government.

Both Permanent Secretaries in the Ministry of Finance have been mandated along with other technical staff to put together a recovery plan that will assist the Government of Anguilla in closing the Gap identified. This will be completed in a short period of time in order to be reflected in the 2010 budget. When the recovery plan is completed the General Public will have an opportunity to review it.

One of the main revenue generators Customs Duty has experienced a leakage of over $ 113 million for the period 2005 – 2009. Government has therefore committed to the implementation of a new policy to address this practice.

Every effort will be made to cut out all wastage. In addition, the following areas have been identified and are being considered for review.

• 
  
  Rental agreements for office accommodation


• 
  
  Allowances


• 
  
  Freeze on hiring of new Staff


• 
  
  Redeployment of staff as oppose to hiring of new staff


• 
  
  Reduction in Electricity usage


• 
  
  Limiting the use of Governments vehicles after working hours


• 
  
  Training


• 
  
  Duty free concessions


• 
  
  Overseas travel not funded


• 
  
  Restructuring of Boards and Committees


• 
  
  Contributions


• 
  
  Roadside cleaning


• 
  
  Temporary staff


• 
  
  Contracts


• 
  
  Restructuring Debt

At this time an immediate cost saving initiative has been implemented with the retrenchment of Special Assistants, Advisers and Consultants that will result in savings of over $2m dollars. However, in the future consideration will only be given if absolutely necessary to persons with the technical expertise to contribute to the development of Anguilla in a meaningful way.

The new administration has committed to a consultative and an open approach in a spirit of cooperation with ministries and the general public. As a result the Ministry of Finance, welcomes any suggestions and ideas that the General Public can contribute that can positively impact the development of Anguilla.”

Borrowing $89 million to bridge the gap is clearly out of the question. No one would be so stupid to lend us that kind of money. Raising $89 million in additional revenue is impossible. We can't grow our economy before the end of the year, with the best intentions in the world. With the inevitable litigation that will follow, it could be two years before any compulsory acquisition of Flag could result in new funds flowing. Saving a few dollars by cutting Boards and rent is essential, but is not going to carry us far.

It seems to me to be inevitable. There will have to be major cuts in the establishment, and all public servants will have to accept major salary reductions.

Conspiracy?

There is an interesting editorial in the Cayman Net News this morning.  I recommend you read it by clicking here.  It has to do with the old canard raised from time to time by some of my friends right here in Anguilla.  These are the conspiracy theorists, of whom I am sometimes one, who are convinced to the point of fanaticism that it is the secret desire and dastardly plot of “the British”, by whom I understand they mean the gnomes of the Foreign and Commonwealth Office, to drive the native Anguillians out of the island and replace the population with Anglo Saxons.  Another version has it that it is the City of London which has hatched a plot to extinguish Anguilla’s offshore industry in order to spoon the cream onto its own strawberries.  Perhaps the most extreme version I have heard has it that Britain wants to replace the native Anguillians with Chinese and others because their own degenerate culture is under attack by the pristine purity of the Anguillian, and they must destroy us in self-defence!

The editorial expresses more eloquently and clearly than I ever could why all this hysteria is such a load of nonsense.

Of course the Cayman Net News is more restrained than I could ever be.

Still, it was entertaining to learn that this visceral fear is shared by our BOT cousins, and is not endemic to Anguilla.  I think even the most conspiracy-minded of us realise that if our economy and society is eventually ruined, it will have been done to us by our own politicians, contractors and businessmen.

And, did I hear Mitch on The Elkin Show a few weeks before the election speaking about his recent visit to the Turks and Caicos Islands?  I thought I heard him say that he found the majority of the people happy that the British FCO had temporarily got rid of their corrupt parliament and government.  Knowing Mitch, I half expected him to say that the population was planning a revolution against what that crook Misick called a “British Invasion”.  So much for the two pig-pen-dwelling political parties in TCI coming together to march in protest at the suspension of their constitution, as we have been hearing about recently. 

Let us hope that the British can help the TC Islanders to come up with a new Constitution that contains the safeguards that will guarantee transparency, accountability and integrity before they hand back local government to that bunch of swillers in the next eighteen months.  They don’t have much time left.

Taxing

The big question is, will Alan Roe’s visit to Anguilla result in increased taxation?  The short answer is that, if it does, it will have to be imposed by us, implemented by us, and paid by us.  Of course, he might well make recommendations for removing some taxes, as well as bringing in others.  Hopefully, we will get to see his report at some early point, ie, if the Government of Anguilla puts it on its website, like the Turks & Caicos government already did.  I believe that Governor Harrison has the right ideas about transparency.  Hopefully, it will be up to him whether the GoA goes public with the draft report.

Even then, Mr Roe’s output will only be a set of recommendations.  They will not be binding.  It will be for the politicians and their technical staff to decide whether his report should be implemented. 

Whatever changes he recommends, would it not be better to collect what is out there first?  We know that many residents, local as well as non-local, have been evading existing taxes for years.  Over the past 25 years, the preferred way of doing business in Anguilla has been to encourage the employment of local fronters to negotiate exemptions from taxes on the basis that they were “local” businesses.  Every sort of enterprise in Anguilla was available, if the price was right and so long as the privileged few got their share of commissions and the famous “ten percent”.  Social Security contributions, accommodation tax, property tax, customs duties, planning prohibitions, hospital bills, electricity bills, and water bills, were all ignored with impunity on the basis that the Anguilla Government would not “criminalise” the ordinary Anguillian.  Who knows, but there may be tens, perhaps hundreds, of millions of dollars in uncollected revenue out there waiting for an efficient collector to come along.

Whatever new taxes are proposed, they better be cost-efficient.  No point in proposing to raise $100 if it costs $200.00, or even $50.00, to collect.  Income tax and company tax would be subject to the problems of all small-island economies.  The tax inspector and tax collector would be a family member or friend of the tax payer.  With no audits required in this economy, everyone will lie.  Those who can shift their income overseas will do it.  Less cash will circulate, and the economy will shrink. 

What about rationalising revenue heads?  Out of the 150 existing ones, only about 5 of them bring in 90% of all GoA revenue.

Will imposing a Value Added Tax really encourage Anguillians, as has been suggested, to go to St Maarten and buy there in order to bring in the stuff duty-free?  Given that merchants will have lower landing costs (if Customs Duty is removed at the time VAT is introduced), there should not be such a major increase in the sale price of goods as to make overseas purchasing worthwhile for the average household.  Of course, we cannot see the guys selling BBQ food in The Valley charging 17.5% tax, nor the fishermen. 

If our revenue depended on taxing businesses like those we would be in really serious trouble. 

Nothing

Nearly three weeks have passed since the elections.  And, nothing has tickled my fancy or made me clench my teeth in dismay.  I have nothing to report on, except that Sutcliffe Hodge filed his election petition against Evans McNiel Rogers’ election this morning.  I am as relaxed as fresh road kill. 

I hope everyone else is as laid-back and worry-free.