Smoke Screens

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

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

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

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

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

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

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

Who knows what the truth is?

Governor's Press Release

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

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

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

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

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

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

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

I don't understand the Governor's reaction.

Montserrat 11

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

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

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

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

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

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

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

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

Montserrat 8

There are other objectionable provisions in the draft Constitution that are familiar to us in Anguilla.  The section 51 restriction on Montserratians who have travelled, and been so lucky and enterprising as to have acquired a second passport, from being able to be nominated and elected to the Legislature is most objectionable.  It repeats the provision in the old Constitution.  One would have thought that preparing a brand new Constitution would have been the opportunity to remove such an anachronism.  It should form no part of a modern Overseas Territory Constitution.

Section 81 and the following sections set up a Public Service Commission, but it is a powerless institution.  It has the right to consult only on public service appointments and on matters of discipline.

No FCO-appointed Governor or his deputy should have total power over the appointment and discipline of public servants in a British Overseas Territory.  He should be obliged to follow the advice of a PSC, except, perhaps, for the highest ranks, where consultation with the Chief Minister might be appropriate.  Similarly for teachers and the police force. 

I note that section 84 expresses a hope that one day a Public Service Act might one day be passed that will oblige the Governor to act on the advice of the PSC.  Such a hope is not good enough.  The Constitution should require it to be done.

Montserrat 7

It is accepted that Montserratians live in a country under threat by volcanic eruptions as well as hurricanes.  States of emergency may have to be declared from time to time.  The traditional constitutional provisions are well known, and have been tested in the courts.  There is no need to weaken the rights of the average Montserratian only because there is a risk of more natural disasters striking.

The draft Constitution would have the section 18 provision for protection of persons detained under emergency laws significantly curtail the rights of the detained person. 

There is no good reason why the family and the public should wait 10 days to be notified of the identities of persons detained.  It should be no more than 3 days. 

Nor is there any reason why persons should be able to be detained for up to 30 days without an appearance before the court.  This should be no more than 5 days. 

Nor is there any need for any other tribunal but the established courts of the island.  Except in a police state, the courts are the most reliable protector of the rights and freedoms of the citizen.

The evil does not stop there.  The draft states that if an independent tribunal recommends that a detainee be released, the authority that locked them up in the first place can ignore the Tribunal’s recommendation.  This provision would mean that the authority could ignore a decision of someone such as a judge appointed by the Chief Justice to preside over the tribunal.  This should be a frightening prospect.

This new provision vests draconian and dictatorial powers in the hands of the Governor and the police.  It is completely unacceptable in a modern Constitution of a British Overseas Territory in the West Indies.

Montserrat 6

The section 17 provision in the draft Constitution for declaring periods of public emergency is anti-democratic in that the Governor alone decides.  The section should provide as in the British Virgin Islands that he acts in declaring a state of emergency on the advice of Cabinet unless otherwise instructed by the Secretary of State.

That is not all.  There is a further whittling away of the rights of Montserratians in the section.  The traditional test for restricting the rights and freedoms of the individual is generally expressed as having to be “reasonably justifiable in a democratic society”.  However, in relation to the Governor’s emergency powers, the standard would be set considerably lower in the draft Constitution.  The new test would be “reasonably justifiable for dealing with the situation that exists.” 

The alteration of the test for justifying a declaration of a state of emergency is undesirable, particularly as that provision has been judicially reviewed in Montserrat.  One may infer that the reason for the watering down of the test is that it is designed to enable the Governor to act in a heavy-handed way in the future without his being accountable to the Courts. 

Such a deplorable development in a proposed Constitution for a British Overseas Territory is much to be regretted.

Montserrat 2

In my view it is shameful what the FCO are doing to the Montserratian people:  We are going to spend the next couple of posts looking at the new draft Constitution 2010 that the FCO is proposing to implement for Montserrat. 

I have come to the conclusion that the draft is bereft of any sign of an interest in good governance on the part of the FCO.  It is devoid of any of the principles of integrity, accountability or transparency, as I shall attempt to show.  These principles are routinely touted by the same FCO as the three pillars of good governance.  The draft Constitution of Montserrat has missed the opportunity to contribute to this movement.

The concentrating of power in the Governor’s hands, as proposed by this draft Constitution, tends towards arbitrary, one-man rule.  It may be true that a good governor is better than a bad local Cabinet.  We cannot be confident that our Governors will always be good.  Experience, especially in the case of Montserrat, teaches otherwise. 

A new Constitution should rather be trying to develop local democratic institutions that will involve the people in their own governance.  It is preferable that the Constitution should encourage responsible government in the Overseas Territory, rather than destroying it.  Responsible government is a better guarantee of democracy, justice, and fairness in government than one-man rule.  The draft Constitution provides for absolute power to be concentrated in one person, subject only to the oversight of the Secretary of State far away in London. 

In this respect the draft Constitution increases the deficit of democracy in Montserrat.

TCI 8

In this post we conclude my preliminary thoughts on Kate Sullivan's Initial Recommendations for Changes to the Constitutional and Electoral Arrangements in the Turks and Caicos Islands?  If you have not read her paper I urge you to do so by clicking on the link above.  I have dealt with the earlier portions of her Recommendations over the past seven posts.  I end with these final but preliminary thoughts:

[16]      Recommendations 36 and 37 retain the power of the Governor to deal in Crown Lands.  We know what that has meant in the past when there have been weak Governors and Attorneys-General.  The Governor has allowed ministers of government secretly to misuse Crown Lands for their own and their families' profit. 

The proper reform is to have the Constitution require any dealing in Crown Land to be approved by the House of Assembly.  Let the government answer to the public for any proposed dealing in Crown Land.  This is not a proper province for either the mandarins in Whitehall or for the Governor in Government House. 

We need the disinfecting influences of openness, transparency and fresh air.  We do not need to maintain a system that has shown itself to be a failure in the past.

[17]      There are many other Recommendations in this Report that we can all appreciate and approve of, particularly the provisions for Watchdog Institutions.  One complaint would be that they are not complete and others are missing. 

For example, the Constitution makes no provision for a Tenders Board, with security of tenure and guarantees for its independence. 

Similarly, the Constitution makes no provision for a Public Accounts Committee. 

For democratic principles to begin to flourish in what has clearly become a failed kleptomanic state, institutions such as these are essential.  No dictatorship by a foreign Governor can be an acceptable substitute for the nurturing and encouragement of local democratic institutions.

[18]      There are several other recommendations that one might legitimately have strong views on.  There are other obvious and timely recommendations that could and should have been made but that are missing.  We in the Overseas Territories need to act swiftly to discuss them on a variety of forums. 

Our concern should be transparent and obvious.  It is that if these recommendations are permitted to find their way into the TCI Constitution, it will not be long before there is pressure for them to be introduced into ours, for consistency and administrative convenience.  However, this paper is long enough for all but the very patient to be able to read, and I propose to stop writing here.

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TCI 7

We are proceeding to examine Kate Sullivan's Initial recommendations for Changes to Constitutional and Electoral Arrangements in the Turks and Caicos Islands.  We have in previous posts dealt in fourteen numbered paragraphs with some of my concerns at earlier portions of her Recommendations.  We now continue:

[15]      Recommendation 31 proposes to completely emasculate the Public Service Commission and give it a completely vacuous and useless role.  The TCI has at present one of the most advanced and democratic provisions in its Constitution for the governance of the public service.  A Commission of locals appointed by the Governor on the recommendation of various stake-holders makes the decisions about appointments and conditions of service of public servants.  The Governor is required to implement their recommendations.  That is as it should be. 

If the system in TCI is not working, of which there is no suggestion, then the members of the Commission need to be trained in their proper functioning, not have the country deprived of the institution. 

It is essential that the FCO recognise that its mandate is to develop and to improve the local institutions of self-government so as to help the people of the Overseas Territories to learn the proper rules of government and how to avoid cronyism, conflicts of interest, and nepotism. 

Putting appointments in the hands of an FCO functionary, advised behind the scenes by those cronies that he and his superiors select, is not an acceptable alternative.

To be continued …

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TCI 6

We continue to look at Kate Sullivan's initial recommendations for Changes to the Constitutional and Electoral Arrangements in the Turks and Caicos Islands.  We have previously dealt in thirteen numbered paragraphs with some of the first 25 Recommendations.

[14]      Recommendation 26 is headed in the wrong direction.  It proposes keeping the Governor's old colonial powers unilaterally to make a law for the TCI without that law having been passed by the House of Assembly.  It goes further and widens his power unilaterally to legislate for the islands “to ensure compliance with the Governance Principles.”  A more objectionable provision it would be difficult to imagine. 

There is no question of either the Governor or the FCO needing such a draconian provision in TCI or in any other of the BOTs.  In this day of instant communication the FCO is well informed about all proposals to introduce legislation in good time to make interventions to ensure that Britain's contingent liabilities are not put at risk. 

In the event that a Government should introduce a new legislative provision that has not passed through Cabinet and had the benefit of the Attorney-General's and the Governor's advice, there are ample powers to pressure the Government to revise the measure.  This was proved recently in Montserrat when the Assembly passed a legislator's pensions provision that was wildly in excess of the provision that had been approved by the Cabinet.  The government of the day was embarrassed into passing through the House of Assembly an amendment immediately thereafter to go back to the original approved provision. 

To remove the power of the legislators to legislate is to destroy democracy itself.  A constitutional framework such as the one proposed here has nothing of either democracy or good governance in it.

To be continued …

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Governor Legislating

TCI 5

We continue to look at Kate Sullivan's initial recommendations for Changes to Constitutional and Electoral Arrangements in the Turks and Caicos Islands.  You can download and read them by clicking on the link above.  I continue at paragraph thirteen of the paper I originally sent to the Editors of the TCI Journal:

[13]      Recommendation 9 would have the Constitution provide that the Governor may act contrary to the advice of Cabinet in an area of ministerial responsibility if to act in accordance with the Cabinet's advice would be contrary to the Statement of Governance Principles.  At first blush this may seem acceptable on the basis that the ministers have negotiated the Principles, and should not be permitted to act in breach of their contract to abide by them. 

The objection to the Recommendation is that it is an anti-democratic provision.  It does nothing to promote and develop good governance in the Territory.  Besides, there is no reason to suppose that a Governor will be seized of a greater sense of good governance than anyone else, as we have seen recently in Anguilla with the appointment by the Governor of the Commissioner of Police for Anguilla to be one of the two Magistrates for Anguilla on the day after the Commissioner surrendered his long-time previous appointment. 

It is to be remembered that we are talking about the Governor rejecting the advice of a Cabinet in which the Governor, his Deputy, and the Attorney-General have sat and participated in formulating.  If, in the presence of these worthy individuals, the Cabinet comes to a decision that some action is needed in the interests of the country, it is simply not acceptable for the Governor to be empowered unilaterally to act contrary to the advice. 

There are other preferable mechanisms that will introduce transparency and good governance into Cabinet decision-making than by making the democratic institution of the Cabinet subservient to the non-democratic one of the office of the Governor. 

Opening up uncontroversial Cabinet discussions to the press and public is one such mechanism. 

Making it mandatory for there to be a press conference immediately after Cabinet meetings, at which the press was not present, to brief the press on major decisions is another. 

Removing secrecy from Cabinet decisions is the best guarantee there is for ventilating and cleaning up those Cabinet processes that do not require secrecy.

To be continued …

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TCI 3

We are looking at my preliminary views on Kate Sullivan's Initial Recommendations for Changes to the Constitutional and Electoral Arrangements in the Turks and Caicos Islands.  I urge you to read the discussion paper if you have not done so.  It can be downloaded by clicking on the link above.  We have in the first two posts on the topic dealt with the background papers and with Ms Sullivan’s statement of what constitutional issues are not open for discussion.  I have expressed my concern there.  I continue:

[8]        So, it is with trepidation that one continues to read Ms Sullivan's initial recommendations.  Recommendations 1, 2 and 3 have their good points.  Recommendation 4 gives should give us a problem.  She is proposing that the Constitution provide that the FCO will issue a Statement of Governance Principles and the Constitution will require the Governor, Premier and Ministers to work within these principles.  The Governor will then have clear power to reject any advice and to refuse to act on any advice from the Premier, the Assembly or the Cabinet if he or she believed that such action would be in contravention of the governance principles. 

The idea of there being in place in any Overseas Territory a Statement of Governance Principles is commendable.  We must assume that it will be negotiated, that it will be a contract made by the FCO acting on behalf of and in the name of the people of the Overseas Territory.  We are expecting that there will be nothing contained in the Statement that will be offensive to or contrary to the wishes and expectations of the people of the Overseas Territory.  We won't know until we see it.

[9]        What is objectionable in this recommendation is that it is made with a view of introducing an essentially undemocratic form of government under the guise of improving good governance.  There will be no mechanism for ensuring that the FCO determines the wishes and expectations of the people.  The risk is that they may from time to time impose their own notions of good governance. 

While such a power to impose could be viewed as a healthy counterbalance to the power of the Premier and his Cabinet, there is the risk that it will introduce an undemocratic counterweight to the elected government.  The proposal does not provide any hope for local development of good governance mechanisms.  It should be repugnant to all right-thinking persons.

[10]      Particularly objectionable is the proposal to empower the Governor to reject a measure coming to him from the local legislature for his assent.  Colonial legislatures are by their nature inferior legislatures.  Only the UK Parliament is supreme under the Constitution.  Parliament in the UK can at any time rescind or amend a colonial law.  This situation only changes with independence. 

To go this much further, to provide that the colonial legislature can be overruled at the whim of a foreign official, is not acceptable in the twenty-first century.  The situation may be bad in the Turks and Caicos Islands, but nothing justifies the abrogation of democratic government in an Overseas Territory to the extent that is proposed. 

An acceptable alternative would be to have the Constitution introduce mechanisms for the people of the Turks and Caicos Islands themselves to exercise increased democratic control over errant ministers.  These mechanisms are well understood.  They include provisions for recall and for referendum, as well as a whole range of local, democracy-enabling measures which I summarise below.

[11]      Much-needed, democracy-enabling mechanisms include, without being exhaustive,

ü      strengthening the Integrity Commissioner law to give teeth to ensure that public officers publicly disclose their assets and liabilities at regular intervals;

ü      entrenching the Tenders Board and reinforcing the procurement procedure to make them fair and transparent;

ü      giving the legislature power to oversee dealing in Crown Lands;

ü      introducing an Appointments Commission to monitor the suitability of ministerial nominations to government boards and committees;

ü      enforcing adherence to public service and ministerial Codes of Ethics;

ü      entrenching a Complaints Commissioner to oversee the public service and police service response to complaints from citizens;

ü      supporting and ensuring the effectiveness of the Public Accounts Committee in overseeing the administration's spending of public monies;

ü      introducing and administering Freedom of Information Acts;

ü      obliging the Governor to accept the advice of independent Service Commissions;

ü      introducing an independent Boundaries Commission to minimise the chance of gerrymandering;

ü      and improving the transparency of Cabinet meetings by opening them up to the press and public. 

These are all locally-managed mechanisms for improving democracy and good governance.  They promote self-government and self-determination.  They do not rely on a deus ex machina in the person of the Governor and the FCO to achieve these effects, which is what, I would submit, the proposal attempts to do.

TCI 2

We are looking at my preliminary views on Kate Sullivan’s Initial Recommendations for constitutional and electoral reform for the Turks & Caicos Islands.  I urge you to read them if you have not already done so.  It may not be long before they are being proposed for Anguilla.  That should concern all of us. 

Yesterday we looked in 5 numbered paragraphs at the historical documents that established the interest of the British Government and the governments and people of the British Overseas Territories in establishing the three principles of transparency, accountability and the rule of law in all of our Overseas Territories.  We now continue at paragraph six.

[6]        It is in the light of these three underlying principles that one reads what Ms Sullivan sets out as some of the features of the TCI Constitution that are not to be the subject of the current review.  She lists them as:

·                    That the executive authority – that is, the power to govern – is held by The Queen;

·                    That the Governor is appointed by The Queen on the advice of UK Ministers and that the Governor exercises the executive authority on behalf of The Queen;

·                    That the Queen retains the power to legislate for all matters of government in the Islands, including those that are the responsibility of elected ministers; and

·                    That certain responsibilities – defined in the current Constitution as the ‘special responsibilities’ – are retained by the Governor and are not subject to the control of elected TCI ministers, but are subject to Constitutional limitation in their exercise, including through the fundamental rights provisions;

·                    That the Governor will retain the power to legislate for some matters of government in the Islands, as long as these matters are specified in the Constitution.

[7]        One reads the above words with a mounting sense of concern and dismay.  Points 3 and 5 are particularly disturbing.  The Queen will retain the power to legislate for matters that are the responsibility of elected ministers?  And, the Governor will retain the power to legislate for some matters of government? 

One would have thought that by now the FCO legal advisers were aware that an undemocratic form of government is the opposite of good governance.  Bad governance has flourished in the Overseas Territories under the supervision and tutelage of the FCO.  When unelected officials have the power to legislate in place of elected members of a House of Assembly, that is no assurance of an improvement.  Local politicians may not have the highest integrity, morals or standards.  But, at least they are accountable to the electorate. 

Foreign officials are not accountable.  Some of them are incompetent and others do not have a care for the interests of the people they are supposed to help govern.  When power is transferred from the elected ministers to the Governor, we depend for good governance on the character of the man, not on an institution designed to guarantee democracy and good governance.  A strong and fair Governor may well do no harm and may do some good.  A weak and accommodating Governor is unlikely to make good use of his increased powers. 

The whole notion of replacing democracy by the arbitrary rule of one individual is offensive.

To be continued …

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