Self-government

Increased self-government in our island must be accompanied by checks and balances. Social commentator Henry Jolson has an eye-opening article in the TCI Journal on how unrestrained Ministers in the Turks and Caicos Islands used the powers of self-government vested in them by the Constitution to abuse and exploit their people and the country’s resources.

The article begins with this paragraph:

Currently there is a lot of spin going around by PNP Government supporters, spin doctors, pseudo nationalists, CARICOM and persons who apply history in a convenient manner ignoring the realities of today’s history. Unlike the old days of conquest, imperialism and slavery, the TCI suffers from a form of conquest and abuse meted by duly elected members of the TCI Government. There is certainly a paradigm shift and routinely islanders are denied rights, jobs, opportunities by the elected government of the day. Yet owing to a decided vesting of powers and policy control in the elected Government, there is nothing the British Government can do to stop this runaway Government unless it removes the Government.

Read the entire article, and think of Anguilla.

Attorney Robert D’Arceuil has a very readable general article on constitutional reform in the same publication.

He looks forward to the next Constitution with this hope:

The new constitution will contain many other features principles and objectives than are set out here. The public debate will give the people of the islands a chance to decide on the shape and scope of the constitution so that its higher aims will benefit the people and the way they want to live. The objective of accountability and equal protection before the law, openness and transparency have to be realised this time around. The goal of transparency must be achieved. Above all else people seek equal rights and equal protection before the law.

I think his words are very applicable to us in Anguilla. We cannot continue with the same old close-ended freeness in government where only the friends of Ministers get work permits to bring in cheap labour, and only those with the right influence can have the ExCo overrule the planning board’s decisions.

We are tired of it all. We look forward to a brighter day.

Shallowness

Tell the People the Truth! There is a joke among lawyers. It is supposedly advice on strategy being given by an old lawyer to a young one. It goes like this.

“When the law is against you, rely on the facts. When the facts are against you, rely on the law. When the facts and the law are against you, attack your opponent’s integrity.”

It is only partly a joke. It is a good description of the tactics frequently used by unscrupulous lawyers to confuse the adjudicator. The reason the tactic is used so often is that, transparent though it often is, unethical as it always is, it so often succeeds. Otherwise intelligent people fall for it over and over again. So, I was not surprised when someone anonymously posted a personal attack on me as a “comment” on my latest post below. He or she wrote in part,

“It is quite obvious that you are pro-colonialism. Are you suggesting that Anguilla will dissolve into chaos if Anguillians are Self-Governing? Is it that you believe that Osbourne Fleming, Victor Banks, Albert Hughes, Eddie Baird, McNeil Rogers, Kenneth Harrigan and Hubert Hughes are incapable, in any permutation, of governing Anguilla properly and in the Best interests of the People of Anguilla? Or is it that you are of the view that English people are more capable, by virtue of evolution, in the field of Governance?”

It is a rhetorical question, of course. It does not expect an answer. Its purpose is to attack the loyalty and patriotism of the author of this blog. Accusing a West Indian of being “pro-British” is one of the easiest ways of condemning him in an uncritical public mind. Persons who look at skin-colour and stop thinking may be easily persuaded to believe the worse. The misrepresentation of what I have been warning about needs no comment. It will be transparently clear to anyone who has been reading my posts.

The Westminster-style Constitution traditionally places a minimum of emphasis on creating and installing institutions and mechanisms to secure integrity, transparency and accountability. That system has been described in the past with some justification, because of its lack of checks and balances, as a dictatorship of the Prime Minister. No matter how gentlemanly our present representatives are, we do not know who our government will be in the future. We need a system that will guarantee our freedoms if our future leaders turn out to be not what we expected. We must have a system where increased power in the hands of our ministers is checked by procedures to correct any mischief that might occur. Those twin objectives would have been achieved if the recommendations of the Anguillians contained in the 2006 Report of the Constitutional and Electoral Reform Commission had been implemented.

It is noticeable that the BVI and the TCI have negotiated, just last year, new Constitutions that significantly reduce the power of the FCO to interfere in internal matters and transfer to local institutions most of the powers previously enjoyed by the Governor. But, they neither demanded nor received “full internal self-government”. They are enjoying the benefits of a modern Constitution and a modern relationship with the British. No doubt, when they are ready, they will seek full political independence. But, they recognise they are not ready for it. Cayman Islands have just published their constitutional proposals. They do not demand full internal self-government. And, they are even richer and more financially self-reliant than we in Anguilla are.

The British have said that we must not come to them with a demand for full internal self-government unless we are prepared to accept a short timetable for independence. Our representatives have repeatedly told us that they are not interested in political independence at this time. But, they will demand full internal self-government for Anguilla. The two positions are at odds with each other. They are on a collision course. They are incompatible. Something will have to give. Either it will be the negotiating team that will settle for something less than their maximum demand. Or, it will be the British who will force us into an unplanned and unprepared-for independence. Either way, we lose.

In 2006 the Anguillians said that it was time to reduce the powers of the British in Anguilla, but that that must be accompanied by checks and balances. They did not recommend that we confront the British with a demand for full internal self-government. Will the same Anguillians be stampeded in 2008 into accepting full political independence under a Westminster-style Constitution before the necessary mechanisms for the protection of our life, liberty and property are put in place?

Will our leaders come to their senses and negotiate for what amounts in practice to full internal self-government, without waving that red flag in the face of the bull? That is what the people said they want.

We patiently await the draft of the promised Constitution. When we see that, we will know whether our leaders are honestly preparing to negotiate in our best interests. Or, we will see whether they are selling us a pig in a poke that will only increase their own powers over us.

Either way, I’ll be sure to tell you what I think.

No more shallow thinking, please.

Politics

All Members of the House of Assembly Form a United Front. Everyone in Anguilla is commenting on the current unity of interest being shown by the elected members of the House of Assembly. All seven of them appear regularly on public forums, sitting together and agreeing with one another. They appear to be singing in harmony from the same song sheet. It is not a phenomenon we are accustomed to. Normally, they bicker continuously among themselves.

Momentum is building up. Village and constituency meetings are being held all over the island. For the first time since the last elections, significant crowds of citizens are coming out to hear and support the speakers and panelists. A sort of election fever is heating up. The chorus of “full internal self-government” is now being sung loudly and clearly and in unison. The issue that is gaining everyone’s attention is opposition to continued rule over the island’s affairs by the Foreign and Commonwealth Office. All the elected representatives are singing the same tune. Down with Orders in Council! Unity runs so high that bills and motions proposed by government representatives are taken up enthusiastically by members of the opposition. Not a word of opposition is heard, in or out of the House.

So, the question today is, what is happening?

Those of us who have been around for a few years will not have failed to notice that general elections are just around the corner. The House of Assembly’s life comes to an end in early 2010. Elections must be held by April of that year at the latest. What is a politician’s most powerful motive? To get reelected, of course! A popular platform is a sure help in this process. What better subject than “freedom from the foreign oppressor”? After all, it has proven successful in the past all over the world. The book is a best seller. It is a song the words of which are known by heart.

The FCO can be relied on to feed the fire. They have repeatedly stated that they will not entertain a move for full internal self-government, except within the framework of a short timetable for independence. Both government and opposition members of the House have stated that they are not interested in political independence for Anguilla at this time. There is no evidence of a widespread interest in the country for independence. The classic foundations for a dispute are forming up.

It was noticeable on Anguilla Day that the crowd in the stands sat stoically while the police band played the National Anthem. Only the dignitaries under their special tent felt obliged to stand up. The crowd in the stands only jumped to their feet when the tune of the National Song began. The evidence is clear. The message is sinking in. There is a common enemy we must unite against. And, thank God, they are foreigners! This is so much better for a country’s soul than an internal dispute and a fragmented nation!

It is going to be an uphill battle for the new crop of candidates. Not only do they have to struggle against the natural advantage enjoyed by the incumbents. The old war horses have begun to paint themselves as the radical patriots. Will the young and coming politicians find an alternative issue that can capture the imagination of the electorate? To have any hope of success in the coming struggle, they will have to find a platform of their own that will distinguish them from the present crop of representatives. They cannot be seen to oppose “full internal self-government”. That would be to tar themselves with the charge of lack of patriotism. A young politician does not win an election by swimming against the current.

What does it all mean? The next two years are going to be difficult ones for the relationship between the FCO and the Anguillian people. Turmoil is coming. What will be the long-term effect? Will our leaders be able to control it? Will they succeed in using the issue to win another term, and then let things calm down? Or, will matters get out of hand, and political excitement turn into civil unrest? That is not in the best interests of anyone of us trying to earn a living and pay our mortgage.

We shall just have to wait and see.

Big Chief

Government by Laws Rather than by Men. Last Monday, on the Webster Park, during the public meeting to discuss the constitutional reform programme, I thought Brent Davis asked a perfectly reasonable question. I cannot remember his exact words, but it went something like this. He said, “We all know that, at present, if a contractor needs a work permit, and the Immigration Department is refusing it, all he has to do is to go and speak to the Minister personally. If he is a friend and supporter of the Minister, he will get the permit. If he begs hard enough. If he is not a friend, he will not get it. If any Anguillian wants to develop his land in a way the Land Development and Control Committee will not approve, all he has to do is to go to see the Minister. The Minister will tell his Permanent Secretary, who is the Chairman of the Committee, to approve it.”

Then, he asked, “How do you expect Anguillians to give you more power over us when you do not have a system in place that is transparent and applies equally to all?”

The Chief Minister responded instantly, and, it seemed, from the heart. He was obviously being honest and earnest. He said, “Brent, you know we are all politicians. Civil servants can sometimes be very hard and uncompromising. They do not show flexibility in appropriate cases. We politicians have a softer heart. We listen to our people. We sometimes have to step in and soften the decisions taken by our civil servants.”

My heart sank. The Chief had no idea how bad he sounded. He did not know that his response was the definition of one of the most corrupting systems of government in the world. It is government by big chief, instead of government by law. By defending the system that Brent had just described, he was showing that he was a supporter of it. At the very least, he did not recognise how dangerous and unacceptable it is to a modern, educated people such as the Anguillians of today.

In a democratic, transparent, accountable system of government, it is the duty of Ministers to lay down the national policy. Then, they have to leave it to the civil service to carry out their policy. For appropriate cases, they put in place a system of appeals to an independent board. There can never be allowed a personal appeal to the Minister to reverse an official's decision. The official has a duty to apply government's policy fairly and evenly across the board. To have it otherwise, means that the law and policy are not applied evenly and fairly to all citizens. Victimisation is the inevitable result.

If there is something wrong with the law or policy, change the law or policy. That is what the Ministers can do. That is their role and power. When society becomes accustomed to permitting Ministers to overturn official decisions for their friends and supporters, we begin the long downward slope to arbitrary and dictatorial rule.

The Chief Minister was not alone in not understanding this fundamental rule of fair government. Besides Brent, I doubt there were more than five persons in the crowd on the park that evening listening to that exchange who thought there was something strange about the Chief Minister's response. Most of them seemed to think his response was perfectly normal and correct. In their defence, it is the only system they have known in Anguilla all their lives. They have no knowledge of how government by law is done in other parts of the world.

In defence of our Ministers, it is also true that it is the people who corrupt their system of government. It is not the leaders who start off corrupt. Leaders sometimes come into power with honest and sincere intentions to do good for their people. We then go to visit them, and beg them for special favours. We offer them all sorts of inducements to grant our wish. Sometimes it is our vote, sometimes an envelope of money, sometimes sexual favours. Our leaders know that is how government works in other islands of the West Indies. The risk is that they may come to think it is normal. We live in fear that one day they may give in to the temptation.

We have been fortunate in Anguilla to have had, over the years, men and women in power who were decent and honest. They have stood up to and resisted the temptations. We have not suffered from the type of corruption that has affected so many of our neighbours. We really have been lucky!

Some will say that the island is too small to expect that the standards that exist in the outside world will survive and work here. They shrug their shoulders and say that only in a big country will there be newspaper journalists and radio talk-show hosts who will make it their mission to demand more integrity, transparency and honesty from our leaders. I say that is not true!

No matter how small our community, we are entitled to expect that government will be of law and not of men.

Checks & Balances

Checks and Balances. The United States Constitution is often touted as that which best demonstrates checks and balances on the power of the Executive. We have all seen the Senate Committees in action. The President nominates someone to be the next Chief Justice. That is the Executive influencing the Judiciary. There has to be a check and balance. The Senate Judiciary Committee must approve the President's nomination, or the person selected by the President cannot be appointed. That is the Legislature acting as a check on the power of the Executive. This is recognised and appreciated as one of the finest aspects of the US Constitution.

The US has a Presidential-style Constitution. We in Anguilla have what is called a Westminster-style Constitution. It is a written form of the unwritten rules that prevail at Westminster in London. One of the characteristics of a Westminster-style Constitution is that there are no checks and balances. The British traditionally left all that to individual honour and integrity. Parliament was then considered a gentleman's club. No Prime Minister could be thought to be acting improperly in making appointments! Now, even the British have given up on that mistaken theory. Prime Ministers need to raise large sums of money to get re-elected. Money greases the wheels of power everywhere. So, the British have begun to introduce checks and balances into their system. Today, in England, the Minister cannot appoint a crony to a Hospital Board, as used to be done in past years. An Appointments Commission, set up by law, must check credentials and background and approve all appointments to public boards in the UK.

Many of us in Anguilla have not woken up to the weaknesses and deficiencies in this area of our Constitution. We are not surprised when, after every general election, the Ministers divide up the statutory boards and national committees between themselves. One Minister might appoint incompetent but politically important supporters to the Social Security Board. Another Minister, by agreement, would take the Anglec Board. [No, I have no particular appointment in mind. I picked them at random as typical of appointments to all boards and committees over the years in Anguilla]. No one in Anguilla questions these appointments. We laugh, and call it “enjoying the fruits of office”, and think nothing more of it. In fact, it stinks of corruption, and should make us all ashamed of our governments, past and present.

If we are going to ask the people to support a push for increased internal self-government, we must show that it is balanced by checks on abuse of power. If as much thought is not put into checks and balances, then people will not support increased self-government. They will think, better to have arbitrary, one-man, government by the far-away British who seldom get in our face, than the same by an unchecked and unbalanced local politician who can, and will, delight in harming the interests of those of us he perceives as opposing his wishes and interests.

Recent history in the Caribbean has proven it ever to be so. And, they say we cannot learn from history?

Garden Path

Full Internal Self-Government. Young people don't beat around the bush. They come straight to the point. They asked, “Are you in favour of the Chief Minister telling the British Government that we demand our full internal self-government?” I told them, “No”. They asked, “So, you don't believe Anguillians are ready for full internal self-government?” I answered, “Yes, Anguillians are ready. On condition that there is a full safety-net of checks and balances. Better we deal with one hand tied behind our backs with the far-away British who do not interfere with our rights than we deal with two hands tied behind our backs with a government we may get one day that is malicious and spiteful.”

The problem is not with Anguillians running the various agencies of government. The question is, will the new Constitution contain all the checks and balances that the 2006 Constitutional and Electoral Reform Commission Report recommended? Until I see that done, I am very concerned that we will give away our present liberties and be taken advantage of by greedy men with no real interest in the welfare of their people.

The second reason why we should not demand full internal self-government at this time is strategic. The British government has no objection to us asking for full internal self-government. We will get it anytime we ask for it. They have told us so repeatedly. What they insist on is that we must come with a timetable for independence when we want to talk about full internal self-government. Nobody in Anguilla, nobody with any sense anyway, is in favour of independence in the foreseeable future.

We all know how fragile Anguilla's democracy is. It is of such a short duration that we have little or no experience in the many mechanisms of democracy. All the Leeward Islands, except Anguilla, had Legislatures since the Seventeenth Century. We in Anguilla debated our first law in the Legislative Assembly as recently as 1976. We do not have a critical press. There is no transparency in government. Everything government does is a state secret. Promises of regular consultation with the people have not been kept. We do not have viable political parties which offer us a choice when we want a change in government. The proof is to check for yourself when last we voted out an incumbent member of the House of Assembly. We have seven elected members of the House. One, Hubert Hughes, has been there since the dawn of constitutional rule in Anguilla in 1976. Others, Kenneth Harrigan, Osborne Fleming, Victor Banks, and Albelto Hughes, have been there since before the 1982 Constitution. The only new ones, Eddie Baird and McNeil Rogers, have come in at the resignation of the incumbents. We have proven ourselves too timid to change our representatives. It is almost a case of, “Better the devil you know than the one you don't know.” We need to see our institutions of democracy grow and mature before we can hope that our leaders will be honest and dependable. Until then, better the devil you know . . .

We also know how fragile our economy is. We have one industry, tourism. The livelihood of everyone in Anguilla depends in one way or another in its continued growth and success. The fear is what is going to happen to that industry when Cuba opens up to the American market? Will we be able to fill all the hotel rooms we are presently building? We need to work hard, perhaps for another 40 years, to diversify our economy to the state that we can withstand a shock on any one sector. Even Cayman Islands, so much richer than us, are refusing to look at a timetable for independence at this time.

The destiny of Anguilla has already been determined by our geography and our history. It lies in a future independent West Indian State. None of us wants an independent Anguilla sending representatives to the United Nations, London and Washington. We will turn into a failed-state disaster like Grenada, St Vincent, and Antigua. When Tobago and Barbuda and Nevis are free of their colonial bondage, when the people of our islands are ready to come together as one country, we want Anguilla to be a Province in that country, the Republic of the West Indies. There is safety in numbers. We would be quite mad to expose ourselves to unrestrained rule by our clueless leaders and their crooked cronies.

A third reason for not clamoring about our right to full internal self-government is that we can get almost all the full self-government improvements that we can handle. The British gave it to BVI and TCI without their waving it like a red flag in the face of a bull. The Constitutional and Electoral Reform Commission collected and published the recommendations for change and improvement agreed to by Anguillians. If implemented, they would have amounted to full internal self-government. The Commission did not use the slogan, given the warning that the British Government has given us.

It is a pointless exercise. We are not going to get it, without a time table for independence. We do not have any timetable for independence.

Is the Chief Minister being led down the garden path? Or, does he have a plan?

Open Mic

National Youth Ambassador Corps. On Friday, I had the privilege of addressing the young people of the Corps on the need for checks and balances in any future Anguilla Constitution. On Wednesday 28 May coming, the Corps has organised a panel discussion. It is designed to educate young people about the process of Constitutional reform. The event will be broadcast live on Kool FM. Questions can be emailed to the Kool FM Chat Room on the night of the event. It has been widely publicised on the island.

At the Friday meeting, we discussed the need to ensure that any future Constitution of Anguilla does not set in place a dictatorship of the Executive Council. Executive Council has the power to do permanent and irreversible damage to Anguilla and its society. At present, the only check on ExCo is the overriding power of the Governor and the Secretary of State. None of us has ever heard of either of them intervening to put a brake on the mismanagement of our leaders.

We can't blame the British. They have bigger fish to fry. The Governor is not put in Anguilla to guide and advise Ministers, far less to lead them. He has traditionally got one instruction from the Secretary of State before he sets out to take up his appointment, “Just make sure that we do not hear of any scandal in the press!” Once the Governor succeeds in keeping his assigned country quiet and peaceful, he is considered to have done a good job. If the locals allow their government to create havoc with their freedoms, that is their business. The Foreign Secretary is busy arranging to help the US bomb Iraq, while trying to restrain them from doing the same to Iran. How could we expect him to even be aware of Anguilla's existence, far less be concerned about the state of our government?

So, we are going to have to take the issue of good governance into our own hands. No one is going to look after our interests if we do not do it for ourselves. The new Constitution is our opportunity. We have to persuade the Legislature and the Executive and the British government to insert a full raft of checks and balances in our Constitution. Then, we shall be able to sail into future waters of increased self-government with confidence. If we do not, then it will be a case of the same old, same old. Only, with worse consequences.

Most of the different oversight bodies that I have previously written about come out of the Recommendations of the Constitutional and Electoral Reform Commission. Some have emerged from the subsequent discussions that have taken place under the aegis of the Chief Minister's Negotiating Team. So, what are some of these essential checks and balances? The list, with a link to any relevant earlier post, includes:

National Security Council

Boundaries Commission: 3 April 2008

Public Service Commission: 7 April 2008

Teaching Service Commission: 7 April 2008

Police Service Commission: 16 April 2008

Financial Service Commission: 20 April 2008

Judicial Service Commission: 24 April 2008

Anguillian Status Commission: 22 April 2008

Mercy Committee: 28 April 2008

Human Rights Commissioner: 27 April 2008

Complaints Commissioner/Ombudsman: 15 January 2008

Police Complaints Authority: 16 April 2008

Interests Commissioner: 19 February, 11 March, and 15 March

Crown land: 30 August 2007

Public Accounts Committee: 9 August 2007

Freedom of Information Act: 14 February 2007

Procurement: 26 February 2008

Integrity Pacts: 28 February 2008

This list is not exhaustive. The list is not necessarily the best. It may be too short for some. It may be too long for others. It may need compacting and collapsing. The functions are all important ones. It is not essential that there be a separate Commission or Commissioner to carry out each separate function. Given what a small island we are, one Complaints Commissioner may be able to handle the functions of the Ombudsman, the Police Complaints Authority, and the Human Rights Commissioner. It is not difficult for a legal draftsman to provide one body that will perform several quite different oversight functions.

Just let us not lose track of each of these functions.

I hope they come up on “Open Mic”.

Mercy Committee

Advisory Commission on the Prerogative of Mercy. This is the last commission that falls to be provided for in Anguilla's new Constitution when it comes to be drafted. It is sometimes called the “Mercy Committee”.

Such a Commission does not exist strictly for the enforcement of a fundamental right. Mercy is not a right. However, it is recognised in all civilised societies that sometimes conditions affecting a prisoner change. It is then appropriate, in suitable circumstances, for society to show mercy. There is no reason why mercy should be applicable only in cases of the death penalty. We do not have a death penalty. We have prisoners. Some of them may well, one day, deserve an element of mercy.

Lawyers refer to it as the “Queen's prerogative of mercy”. It is not a personal attribute of the Queen. It is an aspect of society acting, at the highest impersonal level, in the interests of the community. The Queen is merely a convenient legal fiction for this concept.

At present, there is no mercy committee provided for in the Constitution. The Governor represents “the Queen” in Anguilla. He may or may not exercise the prerogative of mercy from time to time. It is not known how or when he does it. There are no published reports or statistics. This is recognised by all Anguillians as a most objectionable state of affairs. It needs to be corrected. Governors must find the personal responsibility oppressive. Everyone wants the situation corrected.

Fortunately, we do not have to re-invent the wheel. The Virgin Islands have a most acceptable provision in their new VI Constitution 2007. It is section section 44. There is no reason I can think of why we should not be able to adopt it wholesale.

We have now looked at several Commissions. Some of them already exist. Others would be new. The big change would be making them independent of the Governor and the Ministers. Giving them real responsibilities and powers.

Each of them performs a vital job. That does not mean that we need to make government top heavy with Commissions. There are several steps we could take to prevent this.

We could double up the personnel on each Commission, and to provide that only one stipend was payable, no matter how many Commissions an individual served on.

Membership of one Commission could be dependent on agreement to serve on other Commissions.

Most Commissions should incur little or no expense to the public.

Independent oversight bodies are vital. they provide an essential function in a democratic society. They constitute checks and balances on the Governor and the Ministers. We must ensure that they are put in place if we are to guarantee the protection of our rights and liberties as we move into the new era of increased self-government.

Human Rights

Human Rights Commissioner. We now turn to look at some independent Commissioners who should exist under our new Constitution. The first would be the Human Rights Commissioner. This is a Constitutional body which exists to protect the human rights of citizens when they are infringed by any member of the executive, or by the Assembly itself. It is not a normal provision in a British style constitution of an Overseas Territory. But, it is not unknown to Commonwealth constitutional law.

I have previously written about the role of such a Commissioner in various Commonwealth countries. In African Commonwealth countries there are many different types of national human rights and administrative justice institutions. There are over 30 Ombudsman institutions in that continent alone. Additionally, there are Human Rights Commissions, Gender Commissions, Racial Equality Commissions, and Anti-discrimination Commissions. Many of them operate in challenging environments of corruption, violation of human rights, military coups, and dictatorships. These Administrative Justice Boards are typically given broader jurisdiction and stronger powers than the classic model of Ombudsman. These are called the ‘hybrid model.’

Ghana’s Commission on Human Rights and Administrative Justice is a model of a hybrid institution which performs the triple mandate of acting as the Ombudsman, a Human Rights Commission, and an autonomous anti-corruption agency. Another feature of the hybrid is that some, like the Ghana Commission, have been given power to have their decisions and recommendations enforced in the courts. The Tanzania Commission of Human Rights and Good Governance also has a similar provision empowering it to go to court to enforce its recommendations and decisions where they have not been complied with in a specified period. This is a departure from the classical Ombudsman, who relies on his moral powers of persuasion.

Given the high cost of litigation in Anguilla, it will not surprise anyone to learn that during the public meetings held in the year 2006, this was one of the most frequently heard requests. The Constitutional and Electoral Reform Commission made the appropriate recommendation when it filed its report with government in August 2006.

Such a provision is not difficult to draft. It could be as simple as:

Human Rights Commissioner

95. (1) There shall be an independent Human Rights Commissioner for Anguilla who shall investigate, resolve and prosecute claims of infringement of any person’s rights under this Constitution.

(2) The Human Rights Commissioner shall have such other specific functions and jurisdiction as may be set out in a law.

The general provisions relating to all Commissioners would apply. Thus, he or she would be appointed by the Governor after consultation with the Premier and the Leader of the Opposition. No person would be appointed who has been a member of the House of Assembly or a candidate for election. He would not be subject to any direction or control of any other person or authority. He should have security of tenure, and not be capable of being dismissed by the Governor or the government. He can only be dismissed for cause such as misbehaviour or ill health. His emolumnts are guaranteed by the Constitution in that they cannot be reduced while he is in office. He must report annually to the Assembly, which must publish his report within a specified time.

Such relief is ernestly sought by the average citizen of Anguilla. It will go a long way to ensuring that the rights of the people can really be said to be guaranteed.

Making it a hybrid, combining the Human Rights Commissioner with the police complaints authority and the Ombudsman, will be an obvious cost-saving measure.

Judicial Services

Judicial Services Commission: One of the most important Commissions under the Constitution is a JSC. One is provided for by section 67 of the Anguilla Constitution 1982. It consists of the Chief Justice, another judge, and the Chairman of the Anguilla Public Service Commission. This JSC is not to be confused with the Judicial and Legal Services Commission, which was established by the Courts Order in 1967 to serve the entire OECS. That appoints the judges of the High Court for the entire sub-region.

At present, the JSC advises the Governor on the appointment of the Magistrate and the Registrar of the Supreme Court for Anguilla. The Attorney-General is supposed, in constitutional theory, to be non-political. But, the JSC plays no role in advising on the A-G's appointment. The Governor appoints as A-G whomsoever he wishes, or more likely, whomsoever the FCO tells him to. The JSC also advises on the appointment of Crown Counsel to the A-G's Chambers.

Because there are so few judicial and legal appointments made in Anguilla, the present JSC functions, we can suppose, only very intermittently. Additionally, the appointments are made by the Governor only after “consulting” the JSC. He is not obliged to follow their advice. The result, we can surmise, is that the JSC is only a rubber stamp committee. It has no real decision-making power. The Governor and his advisers, probably the Attorney-General and the legal advisers to the FCO, make the final decision. This has had most unfortunate consequences in the past.

The Constitutional and Electoral Reform Commission recommended that this situation be changed. It urged that the type of Commission found elsewhere among the BOTs of the Eastern Caribbean Supreme Court system be adopted. We do not have very far to look. The new VI Constitution 2007 sets out the modern role of a JSC in a BOT. Section 94 is the relevant provision. We would do well to adopt it without much alteration. If we did, it would look something like this:

94. (1) There shall be for Anguilla a Judicial and Legal Services Commission which shall consist of—

(a) the Chief Justice, who shall be Chairman;

(b) another judge of the Court of Appeal or the High Court nominated by the Chief Justice after consultation with the Governor;

(c) the Chairman of the Public Service Commission; and

(d) two other members appointed by the Governor, acting in accordance with the advice of the Premier and the Leader of the Opposition who will each nominate one member, at least one of whom shall be a legal practitioner.

2. For the purpose of subsection (1)(d), the Premier and the Leader of the Opposition shall alternate in nominating a legal practitioner, with the Premier making the first such nomination upon the commencement of this Constitution, provided that such nomination shall not be construed as precluding the nomination of two legal practitioners under subsection (1)(d).

3. If the office of a member of the Judicial and Legal Services Commission appointed under subsection (1)(d) becomes vacant or if such a member is for any reason unable to perform the functions of that office, the Governor acting in accordance with the advice of the Premier or the Leader of the Opposition, as the case may be, may appoint another suitably qualified person to that office for the unexpired term of the previous holder of the office or until the holder of the office is able to resume his or her functions.

4. Any decision of he Judicial and Legal Services Commission shall require the concurrence of not less than three members of the Commission, and the Commission shall take its decisions in such form and manner as it may determine.

5. In the exercise of its functions, the Judicial and Legal Services Commission –
   

• shall not be subject to the direction or control of any other person or authority; and
• may regulate its own procedure.”

Note the major changes from the present arrangements. One, the Commission is enhanced by the addition of two persons from within the community. Two, it is democratised by having these two members appointed on the advice of the Premier and the Leader of the Opposition. Three, it is professionalised by having at least one representative of the Bar Association. Four, its decision-making power is guaranteed by having its independence from the Governor and the Ministers entrenched in the Constitution.

There is no reason why we should not get such a Commission, if we ask for it. One, a majority of Anguillians who think about this subject want it so. Two, it is not in Britain's interest to retain a one-man power to appoint the Commission. Three, a modern JSC has previously been approved for other BOTs, so we are not asking for anything unusual. It is clear that if the Chief Minister's negotiating team insists on this type of modern Commission, the Foreign and Commonwealth Office will not put up much more than token resistance.

This goes a long way to what most thinking people mean by “full internal self-government”. That phrase does not mean, as some would have it, giving the elected representatives more power. If it meant just that, it would be better titled “fully guaranteed self-destruction of our liberties”.

An independent local JSC can be a guarantee of independent and professional judicial and legal services for the community. Such independence is one of the bulwarks of liberty under a modern written Constitution.

Anguillian Status

Anguillian Status Commission. We continue our examination of the Commissions and Commissions that are required to oversee our administrators if we are to invest them with increased political powers, amounting to "full internal self-government".

This Commission is the one which decides who is and who is not an Anguillian under the relevant constitutional provision. There is in existance just such a Commission. It was appointed under the Anguilla Constitution 1982. The provision is short. It reads:

“80. (1) There shall be an Anguilla Belonger Commission . . ., the composition and functions of which shall, subject to the provisions of this section, be prescribed by law.”

The law in question is the Anguilla Belonger Commission Act c A60. This may fairly be described as a most unsatisfactory law. The complaints made against it include: (a) it is a stooge of the Chief Minister from time to time, implementing his policy moods as they change, depending on the side of the bed he wakes up on; (b) its members have no security of tenure, so they had better follow the Chief Minister's instructions, or they might all be fired; (c) even the Governor can remove the members without cause; (d) it is difficult to find out how to apply to the Commission for your rights to be determined, as it has no website or other publicly published information about it; (e) it seldom meets to do its work, and if it does meet, this is a state secret. It does not release any information about its decisions. How much of this is true is hard to determine. In theory, the function of the Commission is simply to apply the definition of belonger status under the Constitution.

Needless to say, this type of amateur arrangement does not find approval with most Anguillians. The Constitutional and Electoral Reform Commission did not make any specific recommendations for upgrading the Commission when it presented its Report of August 2006. However, the entire tenor of the Commission's recommendations was directed to improving independence, transparency and integrity in the work of all Commissions, including this one.

Commissions exist to apply government policy, while ensuring that the guarantees of the Constitution are not infringed.

Commissions remove important decisions affecting the rights and property of persons from the political decision-making process.

Commissions ensure that the Constitution and the law are followed by the administration. Such a dichotomy is a necessary guarantee of our liberties. Anguillians recognise this. The British Government recognise this.

It will not be impossible for us to frame a new constitutional provision that will ensure that this objective is achieved.

One, the new Commission must not be subject to the direction or control of any other person or authority in the exercise of its functions.

Two, the Governor should appoint the Chairman after consulting with the Premier, not acting on his advice.

Three, no person who has been a candidate for election to the Assembly should be qualified to be appointed.

Four, security of tenure should be enhanced by making their term of appointment five years instead of the present three. Also, the Governor must not be able to remove a member without cause. And, the emoluments of the members must not be subject to government approval.

Five, the Commission should report annually to the Assembly, not to any Minister or the Governor. The Report must be widely published within a specified time. This will not be expensive. It can be done by a novice IT person free of charge on the government website.

The Constitution sets out who is to be an Anguillian and who is not. It is not appropriate for persons close to the Chief Minister or the Governor to have a final say in such an important matter.

It is fine to say that an aggrieved person can always sue.

Have you checked out the cost of litigation in Anguilla recently?

Financial Services

Financial Services Commission. International financial services is one of the areas that are in the Governor's reserved powers. This is found in section 28(2)(a) of the Anguilla Constitution 1982. This area of governance used to be purely local. The Minister of Finance issued offshore banking licences. Then came the BCCI Financial Scandal in 1990.

Some Pakistani bankers operating out of England defrauded thousands of depositors. The Bank of England was accused by the international press of negligence. It had allowed the Overseas Territories to form subsidiary companies used by BCCI in the frauds. The Bank of England pointed out it had no jurisdiction in the Overseas Territories. The FCO asked the local Ministries of Finance to clean up their acts. They did not move quickly enough. They made mistakes. One was to take away Allen Stanford's Montserrat offshore banking licence. He relocated to Antigua. He sued the Montserrat government. The case took years to complete. The court decided that the Montserrat authorities had acted unconstitutionally. Damages were awarded. Meanwhile, the British Government had taken away international financial services from all the BOT Ministries of Finance. They gave it to the Governors to handle. In Anguilla, they did this by The Anguilla Constitution (Amendment) Order 1990, Statutory Instrument 1990/587.

Since those days we have come a long way. Most Governors have placed the administration of financial services in the hands of the Ministers of Finance. It was the regulation of financial services that the Governors retained.

The Governors could not by themselves regulate banking, insurance, trust companies, mutual funds, and the like. They had laws passed setting up Financial Services Commissions. The law in Anguilla is The Financial Services Commission Act, Chapter F28 of the Revised Statutes of Anguilla. The Commission gives out licences, and penalise those companies that do not follow the rules. The Commission carries out the responsibilities of the Governor in the regulation of international financial services. He does not do it personally.

Most persons in the industry consider this system works well. It is preferable to going hat in hand to a Governor to beg for a licence. That is almost as bad as the previous system. In some islands it meant going cash in hand to the Minister to obtain a licence. A Commission of professionally trained persons charged with the responsibility of carrying out the policies of government is far preferable. In theory, the Governor could still resume direct control of the industry. The Constitution has vested him with that power.

It is now time to step up the system to reflect our growning political maturity and ability to govern ourselves. Accordingly, in August 2006, the Constitutional and Electoral Reform Commission presented its Recommendations to Government. The relevant ones read:

“56. Administration of International Financial Services. . . . It was generally agreed by all persons consulted by the Commission, except the Governor’s Office, that there was no longer any justification for this area to remain one of the Governor’s responsibilities. The Commission recommends that responsibility for the administration of international financial services be removed from the Governor’s portfolio.

57. Supervision of International Financial Services. It is generally agreed that Anguilla benefits internationally from the Governor’s power of supervision of the industry. It is to our advantage to be able to claim that the industry is subject to a higher supervision than can be provided locally. The Governor’s power to supervise is in practice carried out by the Financial Services Commission.

58. Constitutional Recognition of the Financial Services Commission. By the Financial Services Commission Act16 the House of Assembly of Anguilla established the Financial Services Commission (FSC) to supervise the financial services industry. The members of the FSC are appointed by the Governor and they report to the Governor. It generally agreed that it is desirable that the Governor’s office continue to be seen to be responsible for this aspect of the industry. The FSC is however not presently recognised under the Constitution. It was generally agreed that the FSC ought to be given constitutional recognition. The Commission recommends that the Constitution be amended to make provision for the FSC and for its governing law.”

We are not speaking about rocket science. This is a relatively simple matter to accomplish constitutionally. There could be a section which reads something like:

“There shall be for Anguilla a Financial Services Commission which shall be established as a body corporate with perpetual succession and a corporate seal and which shall be responsible for the regulation of the international financial services industry and having such specific functions and powers and a board to be appointed by the Governor all as may be set out in a law.”

There are other general provisions that should apply to all Commissions. These would be set out in a section of general applicability in the Constitution It would cover such matters as:

1. protecting Commissions in the exercise of their functions from the direction or control of any other person or authority;

2. enabling a Commission to confer powers and impose duties on any public officer or on any authority of the Government for the purpose of the discharge of its functions;

3. disqualifying from membership any person if he has been a member of, or a candidate for election to, the Assembly;

4. publishing of reports periodically; and

5. security of tenure of members.

The advantages that would accrue to Anguilla from this type of constitutional advance are several and varied. They should also be obvious. Placing the administration of international financial services directly in the hands of our Ministry of Finance will assist in developing tools of good governance in that regulatory authority. Placing the regulation of the industry in the hands of an independent Commission will help to develop professionalism in our institutions.

The crisis has now passed. There is no need for such a draconian solution as that previously selected. The British authorities would do better concentrating on cleaning up the financial frauds, such as BCCI, that are centered in the City of London, not in the BOTs.