Fevered?

Even if it is legal for the Social Security Board to lend to government why are they keeping quiet about it?  There may well be some arguable justification for the Social Security Board

having loaned contributors’ funds to government.  It could be said that if the loans had not been made government would not have been able to meet the end-of-month salaries to the thousands of public servants on the payroll.  The public service might have struck. Bank loans might have gone into default by the thousand The government might have collapsed as the island descended into chaos and panic spread through the island. However, neither the government not the Social Security Board have deigned up to this date to make a single announcement about the rumoured use of the Social Security Fund in making allegedly unsecured advances to government, far less giving any explanation.  The result is that the concerned citizen can only feverishly speculate.

Would the island have suffered long-term damage to the people, economy and image if it had been allowed, in effect, to declare bankruptcy while preserving the Social Security Fund for the benefit of the contributors?  Was the choice that faced government a simple black and white one of either using up the funds in keeping the public servants employed, or preserving the funds and laying off large numbers of public servants? 

Other questions spring to mind in this fevered circumstance of lack of solid information.  Is there a planned end to this lending?  Is there a top limit, a written-in-concrete line of credit, so to say?  What happens when the limit is reached and there are no further funds to borrow?  Is there a long-term plan to end and to repay this borrowing, or is it just a stop-gap measure until the money is used up or a plan can be hatched?  Is the loan a short-term bridging loan until the proceeds of the promised Caribbean Development Bank loan is received?  Not a word of clarification has been tossed in the public's direction by either the Board or the government.

Why is it all so hush-hush?  Why is this ongoing lending not a matter of full and frank public disclosure and discussion?  Why is the Minister of Finance not going on radio and giving us a measured reassurance?  Why is the argument in favour of the loans not written up and published in the newspapers and in the Official Gazette?  Why has the Social Security Board been silent in the face of all the speculation?  Is it for shame, or is there some other cause for secrecy?

In my view it is fundamentally wrong for the public service, in effect, to plunder the Social Security Fund while failing to have the courage to cut costs where costs need to be cut. 

The failure of the government to have its press officer publish, for use of the press, details of government’s decision to borrow from the Fund, immediately this decision was taken in the Executive Council, amounts to a fundamental breach of the government’s election promise of transparency. 

The failure of the Social Security Board to publish for public information its decision to advance monies from the Fund to government has created a lack of confidence in the new Board that will take a lot of unnecessary effort to cure. 

No justification for the concealment and lack of transparency put forward at this late date can make up for the loss of confidence that has occurred.

In desperation, I have gone to the British government’s Freedom of Information Act website.

Secured loans

Secure lending?  I have been asked the question.  Has the Anguilla Social Security Board ensured that any advances they are making to government from the Social Security Fund have been properly collateralised?  Is there a security of some kind that has been given by government for the loan?  Is there an instrument that can be acted on if government defaults?  If the Board bought government bonds, that would be an investment.  But, if they are making an unsecured loan to a penniless government is that an investment?

Then, what about the borrowing guidelines given to us by the British Government?  Were the borrowing guidelines breached?  In the event that the lending has knowingly been made in contravention of the borrowing guidelines, what effect, if any, would this breach have on the ability of the Board to enforce any obligation of government to pay back the lending?

We have all read about international companies misusing their employees' pension funds to pay off company debts.  They do so without an ounce of conscience.  We read that the companies then go bust and are not able to pay back their employees.  We all feel justifiable outrage. 

           What are we supposed to feel if it is our own government and Social Security Board that are rummaging about in our social security funds?

Investment?

What controls or restrictions does the Social Security Act place on the investment of the monies of the Social Security Fund by the Social Security Board and its Investment Committee? Section 13 of the Act provides that the investment of money of the Fund shall be made by the Director in accordance with the directions of the Board and the Investment Committee. The Board had long ago set investment guidelines that prohibited lending to government.  The previous Board viewed lending to government as a misuse of the trust funds held in the Fund.  It appears that those guidelines have been altered by the new Board. 

In the absence of any restrictions in the  Act, we look to the ordinary meaning of the words.  To “invest” is defined by the Oxford Dictionary as meaning to employ money in the purchase of anything from which interest or profit is to be expected.  The notion of investment is one of placing money into some form of profitable property.  The restrictions are not set out in the Act.  They are waiting to be defined by the court.  Someone will have to have the impudence to bring a law suit to have them finally determined. 

I venture to propose, though, that the common man would answer the question by stating that the duty of the Social Security Board is to prudently manage the Social Security Fund for the benefit of the persons who essentially own it, the contributors.  

 If people are dutifully paying their dues to the Board then, in return, the Board is duty-bound to apply those funds to such matters as pensions and sick leave and maternal leave payments, and nothing else.  Surplus funds are expected by all of us to be profitably invested.   

The implicit responsibility of the Board and its Investment Committee is to invest the funds of the Board wisely so that the contributors may receive their entitlements whenever it is necessary to claim them. 

Any idea that some of us may have had, that the Social Security Board was prohibited from advancing to government the trust funds held by the Board for the working men and women of Anguilla, was misplaced.  In the absence of any public disclosure or other information this is just what I understand is going on.  Indeed, it may well be perfectly legal for the Board to keep on advancing to government the monies needed until the entire fund has been depleted.

That is, it would be perfectly legal so long as such advances legally qualify as an investment.  It is at least questionable whether advancing $10 million a month from the Social Security Fund to government for the purpose of paying the wages of government workers from those funds are a legitimate form of investment.  Especially if it is to go on for a year or more.  And, especially if it is an unsecured loan.  And, especially if the government has not demonstrated any possibility of paying it back. 

At this rate, the total funds of the Social Security Board will have been depleted in less than a year and a half.

Controls

I have had a look at the Social Security Act to see if there is any control on how the fund is to be administered.  Section 3 sets up the Social Security Board.  By the Schedule to the Act the Board is to consist of 7 persons to be appointed by the Minister of Finance, viz, the Director, 2 representatives of Government; 2 representatives of employers; and 2 representatives of employed persons.  Sounds eminently fair, and no doubt it would be, if only it worked like that.  (The Social Security Act should be able to be read on the Board’s website, but both links provided are dead!)

Needless to say, immediately after the general elections of February 2010 the new Minister of Finance (Hubert Hughes) fired the cronies of the previous Minister of Finance (Victor Banks) who had been appointed to the Board and appointed instead his own cronies.  The rule in Anguilla, as elsewhere, is the winner gets all.

We know who the new members of the Board are from The Anguillian Newspaper.  They are Thomas Astaphan, chairman; Alkins Rogers, vice-chairman; Timothy Hodge, Director; Dr Aidan Harrigan, member; Evan Lake, member; Pastor Victor Hugo Brooks, member; Kirkley Carty, member.  Astaphan and Harrigan represent Government; Carty and Lake are said to represent employers; and Rogers and Brooks to represent employees.

Section 12 of the Act sets up a Social Security Fund Investment Committee.  The Committee is said to consist of the Chairman (Tommy Astaphan), the Permanent Secretary Finance (Kathleen Rogers); two persons nominated by the Minister, and the Director (Timothy Hodge).  That amounts to almost complete control of the funds available for investment by government officers from the Ministry of Finance.  More worrying, a search of the Social Security website, four months after the general elections of February 2010, does not reveal who are the other two members of the Investment Committee.  The membership of neither the Board nor the Investment Committee is mentioned on the Board’s website.

Borrowing

Social Security has been advancing trust funds to government to pay bills since before the elections.  Both the past and present governments have been dipping their sticky fingers into the Social Security Fund.  The borrowing, we are told, is meant to meet their monthly recurrent salary bills.  

Why is it that I feel a personal slight at receiving this information? After all, I have never made any social security contributions.  I am retired now.  When I worked as an attorney self-employed persons were not required to make contributions.  The Social Security Board will never have to advance one red cent to me. None of my personal funds are invested in Social Security.

Yet I feel more than slighted: outraged, soiled, and dirtied even, at this information.

Am I right to feel instinctively that, no matter what the circumstances, this is a breach of trust by the Board?  Or, is it just that there is something wrong with me, and I am being super sensitive?

While we are dealing with section 7 of the Constitution and government’s power to confiscate private property let us spend a few minutes looking at the question of government “borrowing” money from Social Security.  

Contracts

Contracts:  We are looking at our constitutional right to protection of property.  There are exceptions.  The seventh exception found in the 1982 Constitution of Anguilla has to deal with property being confiscated in contracts.   

      The Constitution says that any taking of possession, or acquisition of someone's property as part the agreement for a lease, tenancy, licence, mortgage, charge, bill of sale, pledge, or contract, is legal.  Basically, this can be understood as saying that if I have agreed to lose my property if I break a contract, then I cannot complain when this happens. 

Impounding

Impounding:  We are looking at the exceptions to the constitutional provision protecting private property.  We have looked at five of them.  The sixth exception will be more familiar than some of the others.  It is the provision that says that it is not an unlawful deprivation of property for a law to provide for the impounding of an animal found straying or trespassing.  Without the Public Pounds Act, it would be unlawful for any officer of the Agricultural Department to pick up my goats, when they are roaming loose and doing damage, and impounding them.  It is only legal to impound people's private property because the Constitution says so, and it is done under a law which was passed for the purpose.

      Which I suppose brings me to the story of the shoats. I have been asked how we West Indians can tell the difference between goats and sheep. Apparently our sheep, living in the tropics as they do, have no wool and are indistinguishable from goats to those of our visitors who live in northern climes.  I have had pleasure in clearing up the confusion.  I could have told about the goat's tail which sticks out horizontal to the ground, or sometimes sticks straight up.  The sheep's tail hangs down.  Or, I could have given instructions about how to jump on the animal, wrestle it to the ground, and look for cloven hooves.  Instead, I have explained that we don't have to distinguish them.  The two have long hybridised and now we have only shoats.  This information has been known to leave a big impression.

Samples

Samples:  We are looking at the exceptions to our fundamental right to enjoyment of private property set out at section 7 of the Constitution of Anguilla.  We have looked at four so far.

The fifth exception is very insignificant at this time in Anguilla.  The section says that it is not unconstitutional for the Government to take a piece of our property away for the purpose of sampling it.  So long as there is a law setting out how it is to be done.

So, suppose that the Public Health Department was to go to one of our hydroponic farms and take away a head of lettuce to test it to see if it was hygienic.  The owner might be able to sue the Government, claiming this was an unconstitutional deprivation of property.  And, so it would be, if it were not done under a law providing that taking of a sample was permitted.

Antiquities

Ownership of antiquities:  We are looking at the fundamental right to ownership of personal property in Anguilla, and the exceptions recognised by the Anguilla Constitution.  The fourth exception to our fundamental right is a little more obscure.  It says that a law which makes provision for taking away property that is being removed from Anguilla in contravention of the law is legal.

So, if a law says that if you attempt to remove one of the old cannon from Anguilla, it can be confiscated, that would be a constitutional confiscation.  If we find an old Amerindian carving in the sand at Rendezvous Bay, and we try to take it out of Anguilla, and the law says that is illegal and the carving can be confiscated, that would not be an unconstitutional confiscation of our property.  It is an attempted removal from Anguilla in contravention of our law.  The law which makes provision for taking away property that is being removed from Anguilla is provided for.  Sorry!

Confiscation

Confiscation of property by the court.  We are looking at our fundamental right to own private property.  We have seen that there are exceptions when the right may be abrogated.  The first occurs when our property is acquired under a law that makes provision for compensation.  The second is when we are obliged to pay some of our money to government by way of taxes to cover the cost of public services. 

The third exception to the fundamental right set out in the Constitution is where a law provides a penalty for breach of the law.  If we commit an offence under the Criminal Code, and the judge or Magistrate fines us, we cannot complain that this is a confiscation of our property.  The Constitution clearly makes allowance for fines and penalties. 

The law can also impose a penalty which is collectible under civil process.  So, if we bring into Anguilla goods that are either prohibited or restricted under the Customs Act, such as imitation firearms or fireworks, we may find them being seized or forfeited in civil proceedings in the Magistrate’s Court.  We cannot then claim that our constitutional rights are being infringed.

Taxes

When our property rights cease to exist:  We are looking at our constitutionally protected property rights under the 1982 Anguilla Constitution.  We have seen that section 7 enshrines our fundamental right to the ownership of personal property.  The Constitution goes on to set out a number of exceptions to this protection of our property rights.  The first and most obvious one is where we are obliged by a law to satisfy any tax or rates.  If the House of Assembly passes a law that we must pay house tax, we cannot complain that this is a confiscation of our property.  In our case, we have the Valuation and Rating Act which sets out government's right to calculate our annual property tax.

So, in addition to the government’s right to have parliament pass a law to take away our property, with compensation, there is also a standing series of laws that impose taxes, licences, and rates on us.  We must pay them, or pay the penalty.  The Constitution says they are not an infringement of our rights.

Public purpose

When can our property be taken away from us without our consent?  We are looking at our section 7 constitutional guarantee of our property rights in Anguilla.  As usual with all these rights, there are exceptions.  The first exception that we have in Anguilla is where our land is taken away from us for a ‘public purpose’ under the provisions of the Land Acquisition Act.  Government can take away our property for any reason at all.  But, if they acquire our property under the Land Acquisition Act they must satisfy the conditions set out in that Act.  One of these conditions is that the land must be acquired for a public purpose.  There is nothing in principle stopping government passing a new law called The Acquisition of Property for Any Reason at all Act.  That would be in full compliance with our Constitution.

Property rights

Property rights:  The sixth of the fundamental rights enshrined in our 1982 Anguilla Constitution is the right to protection from deprivation of our property.  Section 7 of the Constitution provides that no interest in, or right that I may have, over any of my property, of any description, shall be compulsorily taken possession of, except by a law which says how I am going to get compensated for it. 

Under the Anguilla Constitution, there is no restriction that limits government to taking away our property only for a public purpose, as in the rest of the Caribbean.  In St Kitts or in Antigua, government can only compulsorily acquire private property if it is for a public purpose.  Not in Anguilla.  In St Kitts or in Antigua, government must declare so in the Resolution acquiring the property.  Here in Anguilla it is different.  Government can confiscate our property for any reason at all, eg, just because they do not like the way we look.  That is a little unusual in West Indian Constitutions.  Normally, government must have a public purpose in mind, and must say so in the Resolution introduced into the House of Assembly. 

As an example, in the now suspended Turks and Caicos Constitution, government could only take away private property where the acquisition “is necessary in the interests of defence, public safety, public order, public morality, public health, town and country planning, or the development or using of the property will promote the public benefit or the economic well-being of the community”.  There is no such limitation in the Anguilla Constitution.  Fortunately, this draconian power in the Anguilla Constitution has never, to my knowledge, been misused.

There are a couple of conditions under the Anguilla Constitution that government must satisfy before they can compulsorily acquire our property in Anguilla.  First, they must do it under a law.  Second, that law must require the prompt payment of adequate compensation.  The law must say how the compensation is to be given, and must prescribe the manner of enforcing the right to any such compensation.   

You may think that is quite a mouthful.  What it means is that Government can take away our property for any reason once they do it under a law, but Government must pay compensation for it.   

           And, when we are talking about property, it is important for you to realise that we are not just talking about land.  We are talking about all kinds of property.  I well remember one case a few years ago when an Anguillian teacher had deductions made from her salary that she had not agreed to be made.  She very bravely took government to Court.  The Court ruled that Government had to pay her back, because this amounted to a compulsory and illegal taking of her 'property' without her consent.

Caning

 Corporal punishment in school:  I find it regrettable that concern for very deserving human rights has now gone so far as to make it dangerous for the principals of our High Schools in the West Indies to order canings of delinquent students.  A caning from time to time of the worst offenders in school has always had a very salutary effect on maintaining discipline.  A couple of raps across the knuckles, or a belting across the bottom is just as salutary.  I do not know about you, but I never suffered any harm to my body or soul from all the canings I got as a school child.  So far as I can remember, I got six strokes from the pesi cane on my backside most Monday mornings for five years for refusing to play boring sports on weekends.  The caning is meant less to modify behaviour than to teach a lesson.  The caning did not make me want to play sports.  It was not intended to convert me to be a sports lover.  What I learned from my regular weekly canings was that there are consequences for breaking the rules.  The caning merely said that if you disobey a direct order from the Sports Master, there are going to be painful consequences.  If a child puts his hand in the fire on the stove he gets burned and never does it again.  A valuable lesson for life is learned.  Caning is a cheap, effective and instantaneous form of teaching.  Today it is banned, and there is no effective suitable alternative available in school. 

Nowadays, school children are taught, by the absence of pain and suffering for wrongdoing, that there are no consequences for breaking the rules.  The result is chaos in schools and in society.  We have to have police security at all our school gates to confiscate the knives and guns, and we have to send students to the hospital suffering from wounds and injuries.  The child psychologists who have corrupted our education system in this way have a great deal to answer for.  It is due to their teaching that so many of our students can hardly read and write and have no self-discipline. 

I do not consider a caning in school of a delinquent schoolboy to be in breach of the child's human rights.  Nor do I believe such a caning to be inhuman treatment.  There are many worse things that happen to school children that they survive and move on from.  This includes sexual abuse and drunken maltreatment by their fathers, uncles and brothers.  Such home conditions affect a significant percentage of our school children, yet no one does anything about it.  The perpetrators continue to attend church every Sunday and are accepted as prominent and distinguished members of our society.

I include, as an equally unacceptable form of child abuse, the fact that most of our Primary School children in Anguilla arrive in the High School unable to read or write. 

This aversion to a healthy, harmless and effective form of corporal punishment is the most degenerate of the modern norms of European culture that we are being told we must emulate, or be in breach of the European Convention on Human Rights.

Flogging

Cat-o-nine tails:  While we are dealing with torture and cruel and inhuman punishment, we might look at floggings.  There was an interesting case in St Vincent that occurred about ten years ago.  A man was in prison serving time on conviction of a very serious offence.  His son was serving time as well, in the same prison.  One day, the convict father saw a warder beating his convict son.  He lost his temper and struck the warder with a piece of two-by-four wood.  The warder was knocked unconscious. 

Now, that was a serious offence.  The Superintendent of Prisons could have brought the matter to the attention of the police and had charges brought against the prisoner.  The magistrate would have dealt with the prisoner.  Or, he could have brought charges himself before the Visiting Justices.  They could have ordered a number of penalties against the convict.  These included ordering strokes with the cat-o-nine tails.  The cat-o-nine is a cruel whip.  It has nine lengths of leather studded at the ends with pieces of metal.  It is designed to cut into the skin and cause bleeding besides just pain. At this time, it was available only as a punishment to be ordered by the Visiting Justices against particularly violent prisoner.

The Superintendent in this case did not bother to report the matter to the police.  He did not bother to report it to the Visiting Justices.  He decided to try the case himself.  He had no power under the law to do.  He heard the evidence.  Then he convicted the prisoner.  Then he sentenced him to receive several lashes with the cat-o-nine tails.  The sentence was carried out the same day.  The prisoner was then locked in solitary confinement for over a year.  He was shackled all the time.  He was only allowed out of his cell for one hour every day during that year. 

When he was released finally from solitary confinement, the scars on his back were quite noticeable, as you will imagine.  He made a complaint to Victor Cuffee, a lawyer who was the head of the Human Rights Committee of St Vincent and the Grenadines.  Mr Cuffee brought a case for the convict before the High Court.  He asked the court to find that the flogging with the cat-o-nine tails had been unconstitutional. 

Of course, the Prison Superintendent never had any power to sentence a prisoner to be flogged.  That power was only given to the Visiting Justices.  The High Court declared that the use of the cat-o-nine tails in this case had been unconstitutional.  The court found that a flogging with a cat-o-nine tails, even when authorised by the Prison Act, would be in breach of the fundamental human right not to be subjected to inhuman treatment. 

So, the cat-o-nine tails whip was abolished in St Vincent and the Grenadines, and is not in use any more. 

The High Court and the Court of Appeal awarded damages against the government for the unlawful flogging of the convict.

Torture

Freedom from inhuman treatment:  We are looking at our fundamental rights under the 1982 Anguilla Constitution.  The fifth of these rights is the right to be protected from inhuman treatment.

You may well think that this is a pretty obvious human right.  No one in the West Indies today can be put to the rack for their religion or to collect a confession.  It is generally accepted today that torture is an unreliable means of obtaining useful information.  However, torture has throughout history been used as a means of terrorising populations or specific communities.  

 Franz Fanon, in “Les Damnees de la Terre”, reports that the French in Algeria used ‘preventative torture’ on entirely innocent people to stop them doing anything in the future.  Although claiming to use torture in order to save lives, the French colonial regime killed between 1-1.5 million Algerians in the process.   

The Red Cross has estimated that 80% of detainees held by US Army forces at Abu Ghraib in Iraq were the ‘wrong people’.  Yet, the US Army in recent years with approval from the highest levels has approved torture of these detainees in support of the ‘war on terror’.

Besides these obvious examples of illegal torture, there are some West Indian nuances that you may find interesting.  A few years ago, two murderers in Jamaica, Pratt and Morgan, took the government to court.  They had been convicted and sentenced to death by hanging.  They had appealed their sentence to the Jamaican Court of Appeal, and lost.  They appealed to the Privy Council and lost.  They now appealed to the Inter-American Court of Human Rights.  Jamaica was a signatory to the Inter-American Court of Human Rights Agreement.  The prisoners had meanwhile spent nearly fourteen years on death row, waiting to be executed.  Of course, they had been filing appeal after appeal, which had resulted in the long delay in the carrying out of the sentence. 

They filed a case in the High Court claiming that the delay in government hanging them had subjected them to many years of dread and fear that amounted to cruel and inhuman punishment.  Note, they were not saying that the death penalty was cruel and inhuman punishment.  Their claim was that the long delay in carrying out the sentence, the long wait on death row, was what was cruel and inhuman. 

The High Court in Jamaica laughed at the convicts and threw out the case.  They appealed to the Court of Appeal, and lost.  The case reached right up to the Privy Council in London.  They succeeded in having the Privy Council hold that their sentence amounted to cruel and inhuman punishment.  The Privy Council ruled that if the government cannot for any reason execute a murderer within five years of his conviction, then the sentence must be commuted to life imprisonment.  This ruling applies to all Commonwealth countries in the West Indies and elsewhere.  To keep someone on death row for longer than that period of time, the court ruled, will constitute cruel and inhuman treatment.  That is now the law throughout the West Indies.  It is not very relevant to us in Anguilla, since the penalty of hanging for murder in Anguilla was long ago abolished.  The only penalty for murder now in Anguilla is life imprisonment. 

Still, you may agree that it is useful to have a Supreme Court looking out for instances of cruel and inhuman treatment.

Expect perfection

A little girl played Il Silencio, and I thought I was hearing the sound of heaven.  I have never heard such a young girl play a trumpet before.  And to have heard it played so perfectly!  And by a thirteen year old!

She held me spellbound.  I hope she did you too.  Her name is Melissa Vernema and she is playing with Maestro Andre Rieu in Maastricht in the Netherlands.  City officials are said to have sealed off the town square and closed everything down to achieve perfect noise control.

The real point of this post is that it is quite wrong for us adults to assume that the youth of today are all wasters.  I know one or two young Anguillians who put in a similar effort into their activities, and have the high degree of talent shown here.  The question is how do we get more young people to strive to excel?  The answer, it appears, is to expect more of them, to demand more, to never accept second grade.  I know the child psychologists do not approve.  It does not help with the late achievers and the slow starters.  Well, I am sorry, accepting low scores from those who can do better is not good enough if we want to raise their standards.

Victor Frankl said it better than I ever can as far back as the year 1972.

I like the idea of always overestimating the abilities of my students.  I like the idea of not accepting that they will not, cannot, achieve at the highest level.  For the future, I want to see my students surprise all around them with how much they can learn, and how well they can express it when asked.

A propos of nothing, this is the best rendition of the Hallelujah Chorus that I have ever seen and heard.  Sorry for those who don’t like their Handel being messed with.

My High School was at a Benedictine Monk monastery in Trinidad, but we would never have been able to do something as excellent as the Winter Park High School did.