Thursday, November 25, 2004

Civilian Oversight of Law Enforcement, Report

ANGUILLA
CIVILIAN OVERSIGHT OF LAW ENFORCEMENT:
- Trip report by Don Mitchell QC

At the Request of His Excellency, I attended a conference in Bermuda held 19-21 November 2004. It was organized by the FCO, the Commonwealth Secretariat, and the Bermuda Government. The topic was “civilian oversight of law enforcement.” Also attending from Anguilla was Mr Keithley Benjamin, Commissioner of Police.

The 50-odd participants were drawn from throughout the Commonwealth Caribbean, including (in addition to Anguilla and Bermuda), Antigua, Bahamas, Barbados, BVI, Grenada, Jamaica, Montserrat, and St Lucia. Speakers came from the UK, Bermuda, the USA, and Ghana.

There were essentially four separate oversight organizations represented at the conference. These were: Ombudsmen, Police Complaints Authorities, Public Service Integrity Boards, and Human Rights and Administrative Justice Commissions that combined the other three. In addition, a large number of senior police officers who have to do with complaints and discipline were present.

The conference was very well organized and very informative. Participants came away with a clear understanding of the four different sorts of Commonwealth oversight organizations, their functions, and the problems they face.

Public Service Integrity Boards

The only PSIB represented was Anguilla. Antigua and Barbuda, Trinidad and Tobago, and Guyana among others have such Boards or Commissions, but none of them was present. It is generally accepted that none of them have functioned effectively, that of Antigua and Barbuda having only recently been appointed.

PSIBs are divided into those that have wide power to investigate allegations of corruption and conflict of interest and those that have limited powers. In the case of the UK, for example, the equivalent Public Service Integrity Commission investigates complaints from the public made against Ministers of Government, Parliamentarians, Civil Servants, and members of Statutory Corporations. Their findings are widely published in the press, and as a result of public pressure their recommendations are usually implemented. In Anguilla, by contrast, the PSIB is limited by its organizing statute to responding only to matters referred to it by the Governor, and only to complaints against civil servants. Government Ministers, Parliamentarians, and members of Statutory Corporations are exempt. Its reports to the Governor are, presumably, confidential, and the Board has no hope or expectation of enforcement of any of its recommendations.

Police Complaints Authorities

These statutory bodies hear appeals from citizens or police officers who may be dissatisfied with the outcome of what I will call the ordinary or traditional complaints procedure found in the various Police Acts.

Essentially, in the old-fashioned system (which is the one we have in Anguilla) the Commissioner, or a senior police officer appointed by him, holds disciplinary hearings and imposes any appropriate disciplinary measure when there is a complaint by a citizen. There is no civilian appeal body under the Police Act.

Because this system has been found not to be transparent and to lead to public distrust, many Commonwealth countries have introduced new statutory civilian oversight bodies such as Police Complaints Authorities. Bermuda, Jamaica and St Lucia are three Caribbean examples. PCAs usually have the power to review complaints files, take further evidence, and to report to the Police Commissioner with recommendations. Their findings are usually only of moral effect. In those countries with a PCA, the Commissioner retains the primary traditional duty to investigate complaints against officers and to take disciplinary action; an appeal lies to the PCA. The UK has gone a step further. It has recently set up an Independent Police Complaints Commission with statutory power to take over a police complaints investigation without waiting for an appeal. However, even in the UK, the IPCC makes recommendations to the relevant Chief Constable and has no power to enforce its recommendations. In some Commonwealth territories this lack of enforceability has been considered to be an unsatisfactory state of affairs.

Ombudsmen

The Ombudsman is a statutory creature with power to receive and investigate complaints from persons who allege they have been treated unfairly in the provision of public services and facilities by government agencies, officials and employees. The purpose of the Ombudsman is to protect the individual against abuse of administrative powers or other forms of mal-administration. Such conduct might include bias, neglect, incompetence, inaptitude, turpitude, arbitrariness, corruption, favouritism, bribery, harshness, misleading a member of the public as to his rights, failing to give reasons when under a duty to do so, using powers for the wrong purposes; failing to respond to correspondence, or causing unreasonable delay in doing desired public acts. The Ombudsman usually has power only to recommend corrective action, and cannot enforce his recommendations. Teeth are found only in the publicity given to his recommendations and reports, which are usually required to be published to Parliament, the only body to which he reports. The effectiveness of the Ombudsman is frequently said to depend on the dynamism and drive of the individual filling his shoes.

Administrative Justice Boards

Particularly 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. They 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.

Conclusion

Having heard three days of lectures and public discussion on the various models found in our region and throughout the Commonwealth and the common-law world including the USA, and bearing in mind the limited resources of Anguilla, I have come away with the following recommendations to offer:

· There is in this day and age no good reason for exempting any public servant, whether Civil Service, Ministerial, Parliamentary, Prison, Statutory Body, or Police from civilian oversight. Good governance and transparency in public administration demand it. While there may at present be few complaints against or allegations of corruption and conflict of interest among police and public officers, or of misuse of administrative power by government and quasi-governmental agencies and officials, experiences in other countries of our region and elsewhere show that it is only a matter of time before we in Anguilla are hit by a serious scandal in one or more of these areas. (This has happened recently in the BVI and in Montserrat, in both of which senior civil servants in the Ministries of Finance have been convicted of fraud.) The cost of such oversight designed to expose and prevent corruption before it grows rampant is far outweighed by the saving in the liability that will inevitably arise if such a precaution is ignored.

· Anguilla with a population of 12,000 souls is, however, too small to sustain all of these three agencies of oversight as separate bodies.

· Consideration should be given to following the Ghana/Tanzania model of a hybrid Board and in due time to replacing the present limited PSIB with some sort of Public Service Complaints Board. Such a hybrid Board would be empowered to deal with all the oversight matters listed previously, ie, complaints of corruption, conflict of interest and abuse of office and official power affecting the police, prisons, ministers of government, parliamentarians, officers and employees of statutory corporations, and civil servants.

· To be effective, such a hybrid Board should be given:

a. institutional and operational independence;

b. powers of investigating complaints regarding the police, prisons, Ministers of Government, Parliamentarians, and members of statutory boards, and other quasi non-governmental organizations, in addition to the civil service;

c. adequate funding to be able to effectively exercise its oversight responsibilities by, eg, recruiting professional staff who might be senior retired police officers with extensive investigative experience;

d. a requirement to make an annual report to Parliament to ensure the widest publicity of any report of continuing concern in the event any more confidential recommendation to a particular officer or department is not complied with;

e. power to go to court to obtain an order enforcing its decision or recommendation where it considers that a public officer, minister, parliamentarian, or statutory body is wrongfully refusing to implement it.

· The PSIB has only recently been appointed in Anguilla. We may want to give it a year or two before considering providing for such omnibus oversight as I am here recommending. The priority should be to allow the present PSIB a chance to establish itself as an effective body in dealing with its present limited mandate.

· Even such a combined function as recommended above will in the Anguilla context be very much a part-time job. Any future hybrid Board should be recruited (as the present PSIB was) from among experienced, retired persons who will be very much part-timers and will require minimal compensation for the work and responsibility they will undertake.

· Oversight expense might be further reduced and the limited available expertise maximized if the sub-regional Overseas Territories of Anguilla, Montserrat and the British Virgin Islands enacted in due course similar if not identical legislation and appointed the same person or persons to each territory’s Board, so that there is, in effect, a sub-regional oversight body. Some formula such as a Board of three persons with one appointee from each territory and with a non-local acting as Chairman of the Board in each territory might be considered. There is no necessity for all three territories to co-ordinate the commencement of such an initiative. A start could as easily be made in any of Tortola or Montserrat as in Anguilla. The other two could join in when their legislation has been passed.

· Meanwhile, the Governor and Deputy Governor might consider bringing up the matter at future annual Governors conferences and Deputy Governors conferences with a view to encouraging their peers in the sub-region to return home from the conference with a determination to do something about the present state of affairs in the public services of their own territories (eg, in the area of drafting new legislation in this field).




Don Mitchell QC
25 November 2004

Monday, October 25, 2004

Public Service Integrity Board, Acceptance Speech, 25 October 2004

May I first, on behalf of myself and my colleagues, Pastor Cecil Richardson and Mr Alister Richardson, thank the Governor for the confidence that he has shown in us in appointing us to be the first members of the Public Service Integrity Board. We trust that we shall be able to live up to the high expectations that we know that both he and the Anguillian community have of us, and that we will never be perceived as having let all of you down.

Our Duties
Our duties are set out in the Act[1] under which we are appointed. It may be worth reminding ourselves what those duties are[2]:

  1. First, to examine requests for permission from public officers to hold interests in commercial undertakings or to engage in private work;

  2. Second, to report to the Governor whether any grant of such permission would be a conflict of interest;
    Third, to investigate as directed by the Governor any alleged conflict of interest;

  3. Fourth, to examine the Establishments Department’s lists of public officers who hold interests in commercial undertakings or are engaged in public work; and

  4. Fifth, to report to the Governor the results of all investigations with recommendations.

From the above, it will be apparent that the main issue that the Anguilla House of Assembly passed this Act to deal with was conflicts of interest among public officers. The Board is not an Ombudsman, and does not investigate complaints against actions and decisions of public officers. The Board is not a court to hear evidence and try cases brought against public officers. The Board will principally investigate allegations of conflict of interest involving public officers.

Conflicts of Interest
What is a conflict of interest? Section 1 of the Act provides the definition. It means a direct or indirect interest of a public officer in a commercial undertaking, or direct or indirect involvement of a public officer in private work, if such interest or work clashes or is incompatible with his official duties. The Act gives examples, such as where his private work impairs his efficiency, or brings the public service into disrepute, or impinges on his official responsibilities, or makes him unavailable for official duties outside normal working hours, or puts him in a position where he is able to use his official position for private gain[3].

The Anguillian community, through its representatives, the House of Assembly, in passing this Act into law, has said that these situations are unacceptable in Anguilla. It will be for the Board, on receipt of proper directions from the Governor, to investigate and to make recommendations to him for further action, if any such situations are found to exist among public officers in Anguilla.

Public Officers
Who is a public officer is not defined in the Act. It is different in Great Britain. There, the then PM, the Rt Hon John Major, announced in the House of Commons on 25 October 1994, ten years ago to this day exactly, the setting up in Britain of the Committee on Standards in Public Life, chaired by Lord Nolan, with the following terms of reference:

To examine . . . concerns about standards of conduct of all holders of
public office, . . . and make recommendations as to any changes in present
arrangements which might be required to ensure the highest standards of
propriety in public life.

For these purposes, public office should include: Ministers, civil
servants and advisers; Members of Parliament . . .; Members and senior officers
of all non-departmental public bodies and of national health service bodies;
non-ministerial office holders; and members and other senior officers of other
bodies discharging publicly-funded functions; . . .[4]

The Anguilla Public Service Integrity Board is not vested with similar terms of reference from the Governor. The Board’s terms of reference are not as wide as Lord Nolan’s were. Instead, we are bound by the statutory limitations set out in the Act of the House of Assembly that established our Board.

We are limited to dealing with pure civil servants. Others undeniably engaged in the public service are not included. So, for example, Members of the House of Assembly and Ministers of Government are out of bounds to this Board. Members of statutory bodies such as the Public Health Authority, the Social Security Board, the Financial Services Commission, and ANGLEC’s Board of Directors are outside of our remit. Quasi-governmental bodies, such as the Carnival Committee, are untouchable by this Board.

Nor, unlike in Britain, does the Board deal with public concerns. The House of Assembly did not intend the Board either to respond directly to complaints from the public nor to act on its own initiative in ferreting out conflicts of interest and corruption. The way the Act is framed, the Board generally responds only to directions from the Governor. So, if any complaint from a member of the public about a particular alleged conflict of interest comes directly to the Board, then we shall be obliged to pass that complaint on to the Governor. Only if he considers that an investigation is called for, and directs us to carry one out, will we be able to respond to any particular public concern. We will also examine the Establishment Department’s list of public officers who hold interests in commercial undertakings or are engaged in public work. If any matter seems worthy of investigation to us, we shall bring it to his attention with a view to receiving his directions.
Whether these limitations on the reach and scope of the Public Service Integrity Board is a good thing will be for others to debate. If the House of Assembly comes to the conclusion that this was an oversight, it will be easy enough to correct it by an amendment to the Act.

Seven Principles of Public Life
Having mentioned Lord Nolan, I cannot do better than to remind all of us of the Seven Principles of Public Life set out in the first Report of his Committee[5]. They are:

  1. Selflessness
    Holders of public office should take decisions solely in terms of the public interest. They should not do so in order to gain financial or other material benefits for themselves, their family, or their friends.

  2. Integrity
    Holders of public office should not place themselves under any financial or other obligation to outside individuals or organisations that might influence them in the performance of their official duties.

  3. Objectivity
    In carrying out public business, including making public appointments, awarding contracts, or recommending individuals for rewards and benefits, holders of public office should make choices on merit.

  4. Accountability
    Holders of public office are accountable for their decisions and actions to the public and must submit themselves to whatever scrutiny is appropriate to their office.

  5. OpennessHolders of public office should be as open as possible about all the decisions and actions that they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands.

  6. Honesty
    Holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest.

  7. Leadership
    Holders of public office should promote and support these principles by leadership and example.

These principles are not limited only to Britain. They have been eagerly accepted and adopted throughout the Commonwealth[6]. I expect that they will overshadow and guide the work of this Board in the following two years and into the future.

Public service integrity is not a matter that concerns only the Anguillian public. Other countries both Commonwealth and foreign have appointed public service integrity boards and commissions. Trinidad and Tobago have entrenched a Board similar to ours in their Constitution[7].

Perhaps the time is right for the Anguilla Civil Service Association to consider adopting a written Code of Ethics for the guidance of its members. Some public services such as that in New Zealand[8] have adopted a Code of Ethics in order to assist their members who are uncertain about certain activities[9]. The Australian Parliament has gone so far as to give its public service Code of Ethics statutory force[10]. Without a written Code of Ethics to give guidance, it is sometimes difficult for the best-intentioned public servant to always know what is the right thing to do in borderline cases or on issues that only infrequently arise.

ConclusionWe, the members of your Board, must now begin our work. We shall have to inform ourselves what exactly are the standards that our public servants are expected to meet. To this end, we shall have to educate ourselves and the public on conflict of interest issues and how to resolve them.

We shall then have to respond to requests to investigate those against whom complaints are made.
Our reports and recommendations on any particular conflict of interest will eventually find their way to the Public Service Commission. It is worth reminding ourselves that under our Constitution it is the Public Service Commission, and not this Board, that has responsibility for the disciplining of civil servants.

Nevertheless, in our work we shall be touching on people’s income and livelihood, than which there are few more touchy subjects.

It is not going to be easy to get a correct balance between the public interest and private rights.

We are going to need all the help from the public that we can get.

It is the Anguillian public, after all, who in the final analysis will decide what is or is not acceptable conduct among public officers. It is the average man and woman in Anguilla who will have to set the standard that we all expect our public officers to live up to. If they think that certain practices are OK, and they are content to permit them to continue in Anguilla, then there is little that a Board can do to change that perception of those practices. If, on the other hand, Anguillians stand up and join in the chorus that certain behaviour is not acceptable, then, when some public officer falls below the benchmark, it will not be difficult for the Board to assist the Governor and the Public Service Commission with the enforcement of those standard.

Thank you.

FOOTNOTES
[1] Public Service Integrity Board Act, Revised Statutes of Anguilla, Cap P170
[2] ibid section 8
[3] ibid section 1
[4] Hansard (HC) 25 October 1994, col 758
[5] [Nolan Report] United Kingdom, First Report of the Committee on Standards in Public Life, Vol. 1 (London: HMSO, 1994)
[6]A Strong Foundation: Report of the Task Force on Public Service Values and Ethics (Canada, 2000)
[7] Trinidad & Tobago Constitution, Chapter 10
[8]Values and Ethics Code for the Public Service of Canada; New Zealand Public Service Code of Ethics; Mauritius Code of Ethics
[9]New Zealand Public Service Code of Conduct
[10]Public Service Management Act 1994, s.9

Saturday, July 10, 2004

Caricom

RECENT DEVELOPMENTS IN CARICOM LAW – A SPEECH BY DON MITCHELL QC, to CARALL XIX, Bahamas, July 2004

BACKGROUND

Let me begin by placing a disclaimer of sorts on the record. It is not permissible under the Code of Ethics adopted by the judiciary of the Eastern Caribbean Supreme Court[1] for a serving judge to make comments on matters of great public interest if to do so would cast reasonable doubt on his ability to decide impartially on any matter that may come before him in court. I am only free to address you today on the topics you have chosen for me, and to express the opinions I do, because I am no longer a serving judge of the court. I have sat as a judge for the last time, and am now on leave prior to going into retirement. I speak to you, then, as one who is about to become a private citizen, and who no will longer sit as a serving judge.

It is as well to remind ourselves of the background to this discussion[2].

THE TREATY OF CHAGUARAMAS
The Caribbean Community was established by the Treaty of Chaguaramas, 1973[3]. Caricom presently consists of 15 countries and territories.

Antigua and Barbuda
The Bahamas
Barbados (1973)
Belize
Dominica
Grenada
Guyana (1973)
Haiti (2002)
Jamaica (1973)
Montserrat
St Kitts and Nevis
St Lucia
St Vincent and the Grenadines
Suriname (1995)
Trinidad and Tobago (1973)

The absences from the list are immediately obvious: the TCI (1991), the BVI (1991), Anguilla (1999), the Cayman Islands (2002), and finally, Bermuda (2003), are only Associate Members, not full members. They are all British Overseas Territories. They are all small but not insignificant members of the Caribbean region. Cayman is the 5th largest banking center in the world. Anguilla banks 2/3 of all foreign currency in circulation in the OECS. Bermuda is one of the largest re-insurance and offshore financial centers in the world. The BVI holds the largest Register of Companies in the world, and is recognized as a leading international financial center. These five British Overseas Territories are important international and regional financial centers. Besides, even if they were not, they are integral members of what Dr Gonsalves likes to call “our West Indian Civilization.” Caricom will be a poorer place, and not just financially, without their full presence and participation in a future West Indian country. Their exclusion from Caricom while they lie in close proximity to full members, will provide opportunities for loopholes for doing mischief of one kind or another that will only serve to frustrate the integration efforts of our leaders.

So, what is Caricom? In brief, the principal organs of Caricom[4] are twofold: (a) The Conference of Heads of Government, and (b) the Community Council of Ministers. The Conference is the supreme organ of the Community. It consists of the heads of government of all member States. It determines and provides the policy directions for the Community. It concludes treaties on behalf of the Community and makes financial arrangements to meet the expenses of the Community. Its decisions are generally taken unanimously. The Council consists of Ministers responsible for Community affairs. It develops Community strategic planning and coordination in the areas of economic integration, functional cooperation, and external relations.

There are 3 principal further bodies of the Community: (i) The Legal Affairs Committee provides the organs of Caricom with advice on treaties, international legal issues, harmonization of laws, and other legal matters; (ii) The Budget Committee examines the draft budget and work programme prepared by the Secretariat and submits recommendations to the Council; (iii) The Committee of Central Bank Governors makes recommendations on matters relating to monetary cooperation, payment arrangements, free movement of capital, integration of capital markets, monetary union, and other related matters. Additionally, there are some 20 Community Institutions, most of which are well known to us. They include such bodies as CEDERA and CARDI. Ranking just below them are some 5 Associate Institutions of the Community. These include the CDB and the Secretariat of the OECS.

All of the member States and territories of Caricom are characterized by smallness and vulnerability. Each, taken on its own, possesses a relatively small labour force, a tiny consumer population, and very limited resources. The result is that we are vulnerable to forces as diverse as economic shock and natural disaster. We have achieved little in the past 25 years in any field that propels development; in none of economics, law, entrepreneurship, or science. We offer our people limited opportunities for growth. We experience continued high rates of out-migration, unemployment, social restlessness, corruption, crime, drugs-trafficking, and other evidence of lack of social cohesion. The present post-colonial regime we have inherited poses unnecessary obstacles to the natural development of our markets and business activity, upon which the well-being and progress of our people depend. Our economies face being overwhelmed in the new atmosphere of globalization and liberalization, driven by multinational conglomerates that dominate global commerce[5]. The globalization train is gathering speed. The choice is clear. Either we are going to wave the train goodbye, or we are going to try to get on it[6].

There have been other significant developments since 1973, the year Caricom was founded. Gone are many of the state enterprises and our past over-dependence on the protection of infant industries, many of which were trade-restrictive and inefficient. We have continued until recently to depend on rigid economic structures based on preferences. This status, these preferred relationships, no longer exist. Gone too is the dependence on import licences and rigid exchange control regimes designed to steer trade and manage economies.

So, change is inevitable. The enterprise of integration is forced upon us. While timing is important, it is not always our own choice. The problem is to ensure that the people benefit from change. There will always be the inevitable resistance to change. Will we respond by continuing each to try to go it alone? Or, will we learn to cooperate using and enjoying common rights, common law, and common rules in a regional economy? Can we so integrate our markets as to give our entrepreneurs access to resources, common economic and foreign policies, and common institutions? Can our disparate countries come together to achieve the community, political and social cohesion so vital for progress?

THE REVISED TREATY OF CHAGUARAMAS
In response, our leaders have decided on a global strategy. They have adopted a new world view of our development into the 21st Century. It involves deepening economic integration, widening the economic mass of our Caribbean Community, and learning to negotiate together to participate in other regional and multinational rule-based frameworks. They have called on us to enter into the Caricom Single Market and Economy. This regional economy and market will consist of some 15 million consumers spread over 2,000 miles. When bilateral agreements are added, the consumer population increases to over 75 million persons[7]. The combined GDP of this single market exceeds US$25 billion. The opportunities for growth and prosperity for all of our people is obvious. The possibility is evident for widening and deepening the buffer against external shock.

The CSME derives from the Grand Anse Declaration of 1989. Between 1989 and 1992, the original treaty had been amended by 9 Protocols, each of which addressed a specific area of concern. These included:

Free Movement of Goods
Free Movement of Services
Free Movement of Capital
Rights of Establishment
Supporting and Facilitating Measures and Policies
Private Sector Participation
External Interface

The contents of the Protocols were incorporated in the year 2001 into the Revised Treaty of Chaguaramas[8]. The Revised Treaty has been in effect since February 2002. The Treaty is supplemented by various inter-governmental agreements, implementing laws, regulations, orders and rules; and a dispute settlement regime providing for enforcement both under domestic law and under the Caribbean Court of Justice. The Revised Treaty imposes an obligation on each member State to enact the Revised Treaty into national law. As of March 2004, only Barbados, Belize, Suriname and St Vincent and the Grenadines had done so. All other member states have yet to enact the Revised Treaty into domestic law. We have only six months left to do this, and until then we cannot claim to have a fully integrated Caricom economy.

The CSME will be a Rule-based entity, an economic space, a regional economy, a market system, an integral part of Caricom. The key principles underpinning the CSME will be equal rights and treatment in the market for all persons of member States. The final product will see freedom for all our people to create, establish and operate companies and legal entities in any part of the market. We will enjoy freedom to travel anywhere in the community, benefiting from national treatment at ports of entry, and using machine-readable travel documents, including a common Community passport.

In addition to the Treaty, and inter-governmental agreements, a large part of our domestic law must be amended to give effect to the vision of the CSME. These include company laws, laws regulating access to land and other property, partnerships, monopolies, origin criteria, enforcement of judgments, movement of persons across borders; travel and landing documents, and national treatment at ports of entry. Laws that will be affected include those regulating export drawback, tariffs, and internal taxes and charges. Prohibited will be import duties, quantitative restrictions, government assistance to economic development, public undertakings, and export subsidies. With minor exceptions, a government can be sued if it gives subsidies that are injurious to free trade. The aim and objective is market liberalization by ensuring free movement of persons, trade, goods and services. The Treaty provides that all existing restrictions in law must be removed by 31 December 2005.

Our governments have committed to removing prohibited restrictions and preferences from our laws over the period 2003-2005. A table of the laws that contain prohibited restrictions and of the promised schedule for amending the legislation to remove them may be made as follows:

COUNTRY ALL RESTRICTIONS 2003 2004 2005
Antigua 15 5 7 3
Barbados 34 31 - 3
Barbados
Belize 31 7 3 21
Dominica 27 21 1 5
Grenada 21 5 1 15
Guyana 43 5 8 30
Jamaica 69 28 26 9
Montserrat
St Kitts-Nevis 6 2 4
St Lucia 44 21 13 10
St Vincent 12 5 5 2
Surinam 35 8 1 24
Trinidad 10 2 4 4
TOTAL 349 140 69 130

A detailed analysis of each of the restrictive laws in each of the States and territories, and the status of the necessary amending legislation in each country, is to be found at the Caricom web site[9].

THE CARIBBEAN COURT OF JUSTICE
As the Acting Chief Justice of the OECS, Adrian Saunders JA, said at a recent workshop, it is not productive to rehash the philosophical arguments for or against the CCJ[10]. We have gone past that phase in the debate. It is only a matter of time before the court is established in law in all of our countries. The Caribbean Court of Justice is one of the most important institutions of the Community and Single Market. While the appellate jurisdiction of the court is of vital importance to all of us, it is absolutely critical to have the CCJ as a court of original jurisdiction. By the Treaty[11], it is the tribunal which will adjudicate on commercial matters that arise out of the operation of the single market. As of the latest edition of the Caricom web site all member States except the Bahamas and Montserrat have signed the Agreement[12]. Of those that have signed, only Antigua and Barbuda are yet to deposit the Instrument of Ratification. On the other hand, only Barbados and Suriname have enacted national legislation giving effect to the Agreement[13]. The member States are falling behind in their commitment, and it is now difficult to see how the deadline for full accession to the court can be met.

There is one major threat to the future development of our Caribbean jurisprudence through the CCJ that, in my view, is not being adequately addressed. That is the reluctance of the British government to permit the five overseas territories of Bermuda, Turks & Caicos Islands, Cayman Islands, British Virgin Islands, Anguilla, and Montserrat to join the court as full members. Other than Montserrat, the five BOTs have not been permitted to join Caricom, and the CSME, far less the CCJ.

The rationale of the British is clear enough. Simply put, it is that Britain remains contingently liable for the governance of her overseas territories. To take a not too far-fetched example, if the homophobia so prevalent in our societies was to result in a homosexual being discriminated against in one of the territories, and if the final Caribbean Court of Justice did not provide a remedy for the wrong done to him or her, then Britain is liable to be sued in the European Court of Justice for its breach of the European Human Rights Convention protection of all persons from discrimination on the basis of their sexuality, for having failed adequately to provide the necessary protection. Britain may have to pay out money to cover any harm done by the government of one of its overseas territories, where such harm is not adequately compensated by the local courts. The British feel an understandable need to be concerned to ensure the full protection of the law to the citizens and residents of its overseas territories. It has, therefore, concluded that it must not permit the Caribbean Court of Justice to be final in relation to the British Overseas Territories. Britain has so far declined to permit those of their territories who have expressed a desire to remain within the legal system of the Caribbean family of nations by acceding to the Agreement setting up the Caribbean Court of Justice.

The flaw in the argument is immediately obvious. No country’s final court of justice is truly final. As an example, St Vincent and the Grenadines is an independent country, and has acceded to the CCJ. But, St Vincent and the Grenadines is also a signatory to the American Convention on Human Rights[14]. A resident of St Vincent whose human rights are being infringed in that country always has the right in appropriate circumstances, before or after exhausting all his remedies in the local courts, to appeal to the Inter-American Court of Human Rights[15]. This is no imaginary process; dozens of such appeals have been filed from many Caricom OAS member States. Similarly, there is no insurmountable obstacle in law to Britain permitting the overseas territories to join Caricom and the CSME and to adopt the CCJ as its original court in trade matters and its final court of appeal, subject to the appropriate right of intervention by either the Privy Council or the European Court of Human Rights where Britain’s contingent liability is concerned. Our region risks falling apart with the loss to it of the countries of the BOTs.

Lack of knowledge and incentive within the communities of the British Overseas Territories reduces to a minimum pressure that might be brought on our leaders from within society to give effect to the widespread dream of our citizens to be fully integrated in the coming West Indian State. What is needed is vision and states-craft on the part of our leaders. It is sincerely to be hoped that before it is too late, our leaders will press for Britain to permit each of the five BOTS to join Caricom, the CSME, and the CCJ.

CONCLUSION
In conclusion, let me touch on two problems that are common across our sub-region of the Windward and Leeward Islands. The first is lack of information and the second is corruption.

A major problem concerning Caricom, the CSME and the CCJ is a lack of information available to the public in the sub-region I come from. Those who are interested enough to find the incentive, and have both the time and the means, may ferret out the details of progress by studying the many helpful documents published on the Caricom website. However, a perusal of the daily newspapers[16] of the Windward and Leeward Islands will show that on any particular day there is hardly a mention in the press of any of the topics of Caricom, the CSME or the CCJ. No national political, business or labour leader in the sub-region appears willing to venture out into the spotlight with comment or advice, not that it is reported, anyway. It is almost as if our opinion-makers have unanimously agreed to play down the momentous changes that, with the planned reforms, are coming to our people’s lives. One is forgiven for harbouring the suspicion that they have deliberately chosen to duck the issues in an effort to minimize feared political collateral damage. Perhaps, the intent is to let the larger countries of Jamaica, Barbados and Trinidad and Tobago do the running, and, when the CSME and CCJ have proven themselves to be a success, then to ride home on the coat-tails of the pioneering work done in the larger territories. That would be an understandable, if shortsighted, political dodge. It is not a course of action designed to maximize the opportunities that are instead being missed by their communities. We in the lesser developed nations of the region, due to the lack of our leaders’ foresight, run the risk not only of missing the train, but of being bumped from the plane, and being made to walk the ship’s gang-plank.

Let me finish by touching on one development that has been concerning me for some time. That is the issue of official corruption and the obstacles it places to the development of Caricom law and good governance. Transparency International’s new Global Corruption Report 2004 adequately describes the problems that official corruption presents[17]. The abuse of political power for private gain deprives the most needy of vital public services, creating a level of despair that breeds conflict and violence. Corruption by governing politicians and administrators hits the pockets of taxpayers and employers in all our countries. There is no excuse for the silence and lack of protest from within our communities. Most of our independent countries have acceded to the Inter-American Convention against Corruption[18]. The OAS, at its recent 34th Session of the General Assembly, meeting in Quito, Equador, June 6-8, focused on hemispheric efforts to combat corruption[19]. It is a major problem through the Americas.

No less destructive to the potential of the CSME for our economies and of the CCJ for our jurisprudence is the effect on our societies of the corruption of our police forces. I cannot speak with any familiarity for Jamaica, the Bahamas, Barbados or Trinidad and Tobago. I can only speak with some experience about the Leeward and Windward Islands. When I was a young magistrate in Anguilla in the 1970s, and then a lawyer in private practice in the 1980s, I was made aware that US Drug Enforcement Agency officers out of San Juan and Miami were corruptly concerned in the business of drugs importation into the United States. Large shipments of cocaine seized in our islands and sent to them for safe-keeping invariably disappeared before the cases came to trial. Later, as a lawyer in private practice in the 1990s, I have been consulted on the case of a former Windward Island Commissioner of Police who had failed to pay a gambling debt of a quarter of a million US dollars owed by him to a casino in St Maarten.

The word on the street is that bad cops within our police forces now control and run the organized prostitution, gambling, and drugs importation and distribution industries. If there is any truth in the allegations, it means that in each of our islands, criminal elements within our police forces are able to bring the power of the State to bear on developing and protecting their prostitution, cocaine and gambling empires. These industries are a trio of cancers eating away at the hearts of our societies. We hear the same thing equally concerning the British Overseas Territories as we do about the independent ones. It would mean that it is only their competitors and opponents who are being either arrested and prosecuted, or their children brutally assaulted and butchered in punishment for some unknown drugs-trafficking transgression.

These rumours of corrupt elements within the police forces of the Windward and Leeward Islands have been circulating within our societies for nearly two generations, with hardly a word of criticism from the press or the pulpit[20]. We hear these allegations as equally in my own island of Anguilla as we do in the independent ones of Antigua and St Kitts in the Leeward Islands, and St Lucia and St Vincent in the Windwards. The suggestion is that the politicians permit and participate in this activity because they depend on the payments and kickbacks to finance their election campaigns. We hear hints that many of the richest entrepreneurs of our societies have achieved that status through financing these illegal industries. Lawyers are implicated in many of the stories. They are whispered about at dinner parties, and in rum-shops, but no one speaks out in public, no investigation is made.

If there is any substance to the gossip, the reason for this pervasive silence is not hard to guess at. Since the 1970s, the DEA has regularly supplied our police forces with sophisticated surveillance equipment, ostensibly for use in the war against drugs. This equipment can be more usefully employed in turning it on the lives of our politicians, businesspersons, clergy, magistracy and judiciary, and other opinion-makers in our societies. They are the ones that may be perceived as the real threat. Files on them and their indiscretions can be kept in police safes in each island, to be brought out and used at the appropriate moment. Whatever the explanation, the result has been an almost universal silence in the face of these long-standing and persistent rumours.

The concern is that unless the honest elements within our governments and police forces show a stronger commitment to rooting out such corruption as does exist, our leaders will ultimately fail in their noble dreams, and our countries risk descending into a Haiti-like condition. If there is any substance to this widely held belief about the extent of corruption, then the best intention of our leaders to improve the economic and social status of our people through the opportunities provided by the CSME risks being defeated. If this scourge is as widespread and endemic as one hears, then we as a people have to find the courage to speak out in protest, otherwise all of our hopes and aspirations for the improvement of the lives of our children and grandchildren are likely to be doomed to failure.

Footnotes
[1] Code of Conduct for Eastern Caribbean Supreme Court Judges, Canon 1.
[2] Ivor Carryl, Programme Manager CSME, Power Point presentation of May 2004, from which much of the following history is taken verbatim.
[3] Treaty Establishing the Caribbean Community, Chaguaramas, 14 July 1973: For the text see the Caricom website: http://www.caricom.org/
[4] See the page on the Caricom website Structure of the Community at: http://www.caricom.org/
[5] According to a UNCTAD Investment Report of 1993 there were then 37,000 multinational enterprises in the world with 170,000 foreign affiliates. The top 1% of all multinationals accounted for nearly ½ of all the world’s direct investment.
[6] HE Lorne T McDonnough, Jamaican High Commissioner to the Republic of Trinidad and Tobago, speech to the Rotary Club of Port-of-Spain on 13 May 2003.
[7] In December 2001, Caricom concluded its first free trade agreement with the entry into force of the Caricom/Dominican Republic Free Trade Agreement. A more recent one is the Caricom/Costa Rica Free Trade Agreement, signed on 9 March 2004.
[8] See the text at the Caricom website: http://www.caricom.org/
[9] Programmes for Removal of Restrictions: http://www.caricom.org/
[10] Saunders JA: Strengths and Weaknesses of a Regional Appellate Court and Recommendations for Enhancing such Court’s Effectiveness, paper presented at a workshop to discuss the proposed court.
[11] The Agreement Establishing the Caribbean Court of Justice, signed at Barbados on 14 February, 2001.
[12] Establishment of the Caricom Single Market and Economy – Key Elements (Updated 14 April 2004): http://www.caricom.org/
[13] All information taken from the website http://www.caricom.org/
[14] OAS Treaty Series No 36, entered into force on 18 July 1978
[15] Established by the Statute of the Inter-American Court of Human Rights, OAS Res 448
[16] Most of which are electronically available at the very useful website: http://www.caribbeannewspapers.com/
[17] The details may be read at: http://www.transparency.org/
[18] Adopted at the 3rd Plenary Session, 29 March 1996. The text is available at the OAS website: http://www.oas.org/
[19] See the press-release page on the Transparency International website http://www.transparancy.org/
[20] One notable exception is the courageous coverage of police and government corruption given by the Star Newspaper of St Lucia. See almost any issue of the paper at: http://www.stluciastar.com/

Wednesday, February 25, 2004

Benchers

BENCHERS – On the Appointment of Sir Dennis Byron CJ to be a Bencher of the Inner Temple
By Justice Don Mitchell

News has just been received that Sir Dennis Byron, CJ, has been appointed a Master of the Bench of the Inner Temple. What does that mean?

Located on prime property between Fleet Street and the Thames, Inner Temple is one of the Inns of Court – the only institutions permitted to call lawyers to the bar of England and Wales. All students in England or Wales intending to be barristers must join one of the Inns. There are four Inns of Court. They are the Middle and Inner Temples, Lincoln’s Inn, and Gray’s Inn.

They are called Inns of Court because in the earliest days, the study of law was quite informal and disorganized. Students of law learned their law by sitting at dinner with the judges on their circuits when they stayed at various inns, and asked them questions. Until recently, no matter how well you had done at your exams, you were not permitted to be called to the bar unless you had eaten a prescribed number of dinners at your Inn.

The Inner and Middle Temples are so-called because their property originally belonged to the mysterious order of the Knights Templar, made famous for their exploits during the time of the Crusades. When King Henry VIII confiscated the property of the monasteries during the Reformation, he gave their property to the lawyers who practiced at the Royal Courts. The church of the Knights is still in use by those who live and work in the surrounding area.

The barristers who practice in the Royal Courts of London occupy chambers in or near to one or the other of these Inns of Court. The four Inns are clustered around the Royal Courts, within easy reach for the barristers.

Since at least the time of Queen Elizabeth I, these Inns of Court have formed a set of colleges for the study of the law. They are not called a University because they have never been incorporated. Each is an independent institution with an ancient history. Each has its dining hall, its library, and its chapel. Like a university college, each Inn was enclosed and had its garden.

The Inner Temple is separated from the Embankment by the famous Temple Gardens. Here it was that Shakespeare placed the conflict which began the Wars of the Roses as the opposing factions plucked white or red roses as badges of allegiance. Illustrious members of the Inner Temple include Geoffrey Chaucer; and, Sir Edward Coke, CJ, “father of the common law.”

The Inns are governed by the Masters of the Bench, or “benchers.” There are some 200 benchers who run the Inner Temple. Among them are some of Britain’s best known lawyers: the former Lord Chancellor, Lord Irving, and both his immediate predecessors; Lord Woolf, the architect of recent legal reforms; the former vice-president of the European Commission, Lord Brittan; the former Home Secretary, Michael Howard; and the Foreign Secretary, Jack Straw. Benchers devote a considerable portion of their time to the Inn. Specifically, they manage the property: they lease office space to sets of barristers, and ensure compliance with heritage regulations, while, say, accommodating net IT projects. Others oversee training courses, and the remainder apply themselves to allocating scholarships with a total value of £600,000.00.

Sir Dennis may not have many opportunities to join his fellow benchers as they sit at their high oak table – made for them at the order of Queen Elizabeth I from a tree in the royal gardens – in the great hall looking down on the members of the bar and mere students as they dine. But, we hope that on his occasional visit to London he will be able to take his seat among the other eminent members of the profession to whom have been granted this special honour and recognition.

25 February 2004

Wednesday, February 18, 2004

Speech to Attorneys General of the UK and the BOTs, 18 February 2004

Peter Island, Wednesday, 18 FEBRUARY 2004 – By Justice Don Mitchell QC


We have just enjoyed a sumptuous dinner at the fabled Peter Island Resort. You have had a heavy week, discussing important matters of state and public policy. You have no desire to hear a stranger to your deliberations, such as myself, pontificating about any new matter of substance. That does not mean that I cannot invite you to look about you with freshly opened eyes.

The fact is, you need to be aware that you stand today, or sit as the case may be, on sacred ground. The British Dependent Territories in the Caribbean are hallowed ground for those of us who are native to these lands. I invite those of you who are not so fortunate as to have been born among us to join me in that conviction.

We may be small in land mass, and miniscule in population compared with others. But, the blood of great men and women flows undiminished in our veins. Their indomitable spirit, honed through centuries of adversity and achievement, fashions our will to overcome and to accomplish. We can trace some of this character through the achievements of the great and the good who once walked among us, and through the suffering and survival of those of our ancestors who once trod these special lands. We are an integral part of the West Indian Civilization.

Virgin Islands: British Virgin Islanders have always been noted for their enterprise and achievement. During the eighteenth century, the Medical Society of London was the premier medical institution in the United Kingdom. I wonder how many of us remember that that Society was founded by a native British Virgin Islander. Dr John Lettsom was born on Little Jost Van Dyke, not a stones throw from where we sit tonight. He later earned the right to be appointed surgeon to the King. He was the premier surgeon of his day, master of the latest medical techniques. Of him it was said,

I, John Lettsom,
Blisters, bleeds, and sweats ‘em.
If after that, they
choose to die,
I, John, lets ‘em.

There have been other noted Virgin Islanders, who have distinguished themselves in quite a different way. One of these was the Hon Arthur Hodge of Tortola. In the year 1811, he was a member of the Assembly, and of the Council of the British Virgin Islands. He was, in his day, one of the wealthiest and most powerful sugar planters and slave-holders of this territory.

To his annoyance, his mangoes were at risk. Not from theft, no one would be so bold as to attempt that. They were at risk from the elements. The wind was dashing those of them that were ripe to the ground, bruising the fruit. So, he set his slave Prosper the task to guard them.

Hodge, in his later defence, testified that he had warned Prosper what would happen if he should fail. His tongue-lashing had no effect. Prosper missed the catch when one of the fruit fell from its branch to the ground. Hodge was livid. He would show these lazy good-for-nothings the need to be diligent at their tasks. He ordered Prosper to be lashed. This was no ordinary lashing. He had Prosper lashed until his back was flayed. Then, he flung him into the estate punishment cell without medical attention. Prosper’s wounds festered, and he died several days later.

Such punishment, was not exceptional, for the time. It was normal in the Navy, in the Prisons, and on the sugar estates. However, on this occasion, it was considered by the authorities to have been inflicted in circumstances of extreme triviality. After much dithering and hesitation, the Hon Arthur Hodge was brought to trial on a charge of murder before a jury of his peers. No doubt, this was as a result of excessive pressure being brought to bear from London – something that, I am pleased to say, you will not yourselves be familiar with.

The trial was of interest to the plantocracy of the region for an unusual feature that it possessed. The witnesses at the trial were all slaves belonging to the accused. The British Virgin Islands Assembly had never got around to passing the law on the books in all the adjacent colonies that prohibited the giving of evidence by a slave against his master.

The legislature of the British Virgin Islands was then barely two decades old – compared with that of nearby St Kitts that was nearly two centuries old. When, in 1778, London had appointed George Suckling to come out to be Chief-Justice of the British Virgin Islands, he had been forced after a delay of many months to give up his post and return to England. The recently elected Assembly had not got around to passing any laws that would permit him to hold the Assizes. Persons who had committed murder remained at large, unless they did not boast friends in high places.

Unfortunately for the Hon Arthur Hodge, those happy days were now over. The charge was laid. His peers duly listened to the evidence and unanimously convicted him of the offence of murder. The only sentence available in law to the judge in relation to such a conviction was the sentence of death. The gallows were erected and the no longer honourable Arthur Hodge was taken to it and the sentence carried out. And so, Tortola received the distinction of being the first of the British Sugar Colonies to see a white planter sentenced to death for the murder of his slave – and, convicted for that on the evidence of his slaves. Oh, brave land! Land of pioneers!

Montserrat: Montserratians have their claim to fame. Few of us today are old enough to remember the famed Rose’s lime juice. Throughout the nineteenth and twentieth centuries, this Montserrat product was the sole source of bottled lime juice available in the United Kingdom. When Joseph Sturge sailed through the islands in 1837 to report on the outcome of the Apprenticeship system, that followed the abolition of slavery, his heart went out to Montserrat. Then, as now, well, perhaps not quite as now, its people suffered from the disadvantage of a lack of opportunity. There were fewer enterprises than were to be found in the neighbouring islands. Joseph Sturge, as a member of a famous and wealthy Quaker merchant family, determined to bring employment to the people. He acquired a large Montserrat estate and employed free men and women to plant and tend to his orchards of lime trees. These were, after only a few years – limes, unlike oranges and grapefruit, are notoriously quick to mature - ready to be reaped, and the juice squeezed from them, and to be shipped back to the UK by the barrel-full. There it was bottled and marketed to a public grateful for any additional source of vitamin C. The Sturges lived in Montserrat into the twentieth century, their family-owned estates continuing to produce the famed lime juice.

Until Sainsburys more recently started selling fresh limes on its grocery shelves, Montserrat lime juice, marketed under the name Rose’s Lime Juice, was the principal source in Britain of bottled lime juice. The estates are now not only abandoned, but their location unknown to either the local population or to the visitors who come to gawk at the devastation caused to the land by the Soufriere Volcano. Sic Transit Gloria, indeed. Montserratians are now the Phoenicians of the Leeward Islands. By force of circumstance they are obliged to venture overseas to find employment and livelihood. I like to think that a faint memory of the achievement of Joseph Sturge and his descendents has helped fashion their famed enterprising nature.

Turks & Caicos Islands: And who of us can be left unaware of the role played by the Turks and Caicos Islands in the Seventeenth and Eighteenth Centuries in provisioning the sailing vessels that left the Caribbean on the long haul back to the shipping ports of the United Kingdom, or to the ports of the Northern Colonies of New England? It was the salt of Sal Cay that was used to preserve the fish and meat required for use on the voyage. Canning, as a method of preserving meat, was not available until the chemists of Napoleon discovered the technique in the early Nineteenth Century. The sailors and salt workers of Bermuda annually sailed south to Sal Cay and helped to develop the industry and to people the Turks and Caicos Islands, making their contribution to the development of the character of the people, now enjoying a prosperity unknown to their forebears.

Cayman Islands: And, the famed Cayman Islands, the home of the Boddens and the Ebanks, descendents of free men who would not live as slaves in mainland Jamaica. These sturdy sea-farers and fisher-folk of Grand Cayman and Cayman Brac have given rise to progeny who are no less enterprising and ingenious. It is the culture of independence and self-reliance that characterised these early settlers that is responsible for the social and commercial success enjoyed by the islanders today. This is hallowed land! For over half a century, one of the top five banking centers of the world!

Bermuda: And, Bermuda, famous from so early that even William Shakespeare based a play on it! When Sir George Somers’ ship, the “Sea Venture”, was shipwrecked on its shores, the incident was widely reported. At least two published accounts of the fierce storm that caused the catastrophe, and the terrors of the landing on the wild shores, were available to him before he wrote “The Tempest.”

And, which other British territory can boast of such a long period of parliamentary government? Why, the legislature of the Bermudas is even older than that of England, interrupted as it was by Cromwell’s Commonwealth and his abolition of the Rump Parliament. Bermuda, the location of the longest continuous history of parliamentary sittings in the entire Commonwealth of Nations. Sacred territory, indeed!

When Churchill sent Bill Williamson out to the West Indies, even before the United States joined the War, with the mission to steam open and to read every letter leaving the USA that might carry information on the war preparations of the allies, where else but Bermuda did he select to set up his teams of searchers for micro-dots and secret inks? This man called “Intrepid” was the precurser to the fabled insurance brokers who during and after the War stopped off on the long flight from Heathrow to Shannon to Bermuda to New York, and who would found the Re-Insurance subsidiaries that to this day underlie the International Financial Service industry of Bermuda. Oh, happy land, indeed! One of the most prosperous in the entire Western Hemisphere!

Anguilla: And my own Anguilla? The land of Johanna. Have I never ever told you of Johanna? In the year 1825, for administrative reasons, Britain condemned us to live under the government of the Council and Assembly of St Kitts. In that year, the colony of St Christopher and Anguilla came into being. It was to last until the year 1967, when the first successful armed revolt in the British West Indies brought about a permanent separation of the two islands. The Anguilla Revolution lives on in song and literature and life of the islanders, as they celebrate their freedom and true, not mere symbolic, political independence.

In that year, 1825, the Chief Justice of St Kitts, the Honourable Robert Williams Pickering, sailed his sloop from his estate on the north-west coast of St Kitts to hold the first Assizes in Anguilla under the new regime. The Chief Justice of those days was a planter, not a lawyer. He knew no law, not unusual, some might say, of judges today. But his heart was in the right place, unusual for those times. To arrive at the port of Road Bay, he had to sail past the small Anguillian Cay known as Dog Island.

The Honourable Peter Lake was then the owner of the Road Plantation and one of the leading citizens of Anguilla. He had been smitten by the beauty of his slave Johanna. Consumed by passion, he brazenly conducted an affair with her that soon came to the knowledge of his wife. Mrs Lake, with the cunning of a woman scorned, hit upon a device to get rid of Johanna. She secretly cut up her own clothes and linen and torched them in her yard in the absence of her husband, falsely placing the blame on Johanna.

She gave evidence, at the subsequent trial before the magistrate, that she had observed Johanna committing the act. Johanna’s protestations of innocence could not squelch the guilt felt by the magistrate at the infidelity that her beauty had incited in his colleague towards his own wife. She was convicted of the arson, and sentenced to be marooned on Dog Island for a month, as punishment. Now, Dog Island was, and is, a tiny, barren Cay, with just a shed and a shallow well on it for the use of the shepherds placed there to keep an eye on the goats and other small stock that it was home to. And then, as now, marooning was and always has been an illegal punishment, not sanctioned in any legal text.

As Chief Justice Pickering sailed past Dog Island, whom should he spy but the beautiful Johanna, illegally marooned on the Cay in punishment. The Chief Justice was smitten, as were most men who crossed Johanna’s path. On his arrival in Road Bay, accompanied by Johanna,, he brought charges against the magistrate who had imposed the illegal sentence. He had the constable drag the unfortunate man before him. The charge was drawn up by the chief justice himself. It was read to the magistrate who pleaded not guilty.

The records of the impeachment proceedings preserved in the Public Records Office at Kew Gardens reveal what happened next. Unable under the laws of St Kitts, which had by now been extended to Anguilla, to call Johanna or any other slave to testify, the Chief Justice could find no free Angullian who would testify at the trial. Blazing with fury, the Chief Justice did what no judge, hopefully, would do today. He tore off his wig from his head, stepped down from the bench upon which he sat with the two local assessors who by law joined him at the trial, and entered into the witness box to testify. When he had finished, he put back on his wig and resumed his seat. He then bullied his assessors to join him in bringing in a verdict of guilty against the justice of the peace. The sentence I do not now recall. But, Anguilla thereby became the first colony in the British Empire where the chief justice acted not only as judge but also as prosecutor and sole witness in the successful prosecution and conviction of an offender at the Assizes. Who can say that these are not special lands!

Conclusion: And so we continue to survive. Some would say, at the margins of legality. Others would say, with ingenuity. We, citizens of the British Overseas Territories in the West Indies, are nothing if not enterprising. We continue to live by our wits. Resisting powers and princes more powerful than we are. Scurrying around the corners, just out of reach of claw and tooth. Scuttling over the obstacles and hazards put in the way of the advancement of the interests of our people. Dodging unseen and unexpected missiles thrown our way. But, we do it because these are special lands that have produced a special people. Successful against overwhelming adversity. We are survivors all.

Thursday, January 08, 2004

The Anguilla Courthouse


Anguilla Court House:  By Justice Don Mitchell
Prior to the year 1825, when Anguilla joined with St Kitts and came under the jurisdiction of the St Kitts judicial system, Anguilla had no legally established Court.  A committee of the Anguilla Council served as Justices of the Peace and imposed such penalties and fines as seemed proper to them.  Appeals lay informally to the Governor in Antigua, but this right was seldom exercised.  This was unusual in the West Indies at the time.  All of the other colonies had legally constituted courts, some of them from the first half of the seventeenth century.  By the time of the General Assembly of the Leeward Islands of 1707, when the common law of England was formally adopted by an Act, all of the islands except Anguilla had legally established courts.  The explanation lies in the poverty of the soil and the extremes of drought that the island regularly suffered.  The plantation economy never flourished in Anguilla.  The sugar industry made a brief appearance in the 1740s, but was extinguished by the American Revolution of 1776 and the ensuing blockade of trade with the rebelling colonies that was enforced by the Royal Navy.  Even the deputy governor of Anguilla functioned without a formal patent.  Every other governor and deputy governor was appointed by royal patent.  The leading planters of the island always appointed the governor of Anguilla.   As he would inevitably be the most powerful planter in the island, he was in effect self-appointed.  As one governor in Antigua reported to the Committee of Trade and Foreign Plantations in London in late eighteenth century, “If the cudgel of the governor of Anguilla be one whit lesser than one of his subject’s, then ‘good night governor!’”
From the year 1825 the Chief Justice of St Kitts visited Anguilla on board his sloop to conduct the Assizes periodically.  Sitting with him on the bench were two local JPs who assisted him as his assessors.  Anguilla’s judicial system changed with the judicial system of St Kitts to which it was joined.  By the year 1967 the colonies of the Leeward and Windward Islands, after the break-up of the West Indies Federation, were headed to independence like their elder brothers and sisters in Jamaica, Trinidad & Tobago, and Barbados.  They entered into the intermediate status of Associated States with Great Britain. 
Associated Statehoodship brought with it the West Indies Associated States Supreme Court.  It had a short life in Anguilla.  Within two years Anguilla was in rebellion against its enforced marriage with St Kitts and Nevis.  The Anguilla Revolution of 1967 was the first successful armed revolt in the British West Indies.  The thirteen members of the St Kitts police force manning the police station were packed onto a LIAT airplane still dressed in their pyjamas.  The St Kitts judge was jeered out of his courthouse and chased down the runway until he boarded a waiting flight to take him back to St Kitts.  As is well known, the social welfare officer, Raphael Lake, was appointed Magistrate by the Anguilla Council and functioned in that office until he was replaced by the British administration after their invasion of the island in 1969. 
In 1971 the British Parliament passed the Anguilla Act, which permitted Britain to separately administer that part of the Associated State of St Kitts, Nevis and Anguilla.  Britain selected and paid for a Magistrate, a High Court Judge, and three Judges of the Court of Appeal.  These were rubber stamped by the Judicial and Legal Services Commission of the West Indies Associated States.  Appeal lay to the Privy Council, and at least one appeal went all the way before Anguilla re-joined the West Indian judicial family.  Several West Indians, most of them retired judges, were appointed from time to time to act as Magistrates and High Court judges in Anguilla in this way.  They included the late Elwyn St Bernard and Frank Field.  Don Mitchell of St Kitts and Anguilla, Ena Woodstock of Jamaica, and Patricia Mark of Grenada were among those appointed as Magistrate.  Long-serving clerks of the court at this time included Mary Richardson, who on occasion in later years was appointed JP and acted as Magistrate in emergencies, and Marge Connor, still well known in the community.
By 1980, the People’s Action Movement party in St Kitts had gained power by defeating the Labour Party in general elections.  The administration of the new St Kitts-Nevis premier, Dr Kennedy Simmons, negotiated with Britain for independence.  The British agreed, on condition that Sombrero was transferred to Anguilla from which they could more easily control the light-house island and the sea approaches to the Panama Canal, and on condition that St Kitts let Anguilla go.  By the year 1982, the Eastern Caribbean Supreme Court, to give recognition to the demise of the Associated States and their replacement by independent Commonwealth Caribbean countries, had replaced the West Indies Associated States Supreme Court throughout the region.  The Anguilla Assembly passed the Eastern Caribbean Supreme Court Act, and re-entered the fold of the regional judiciary.  From that time the Magistrates and Judges of Anguilla have been appointed by the Judicial and Legal Services Commission, and not just been rubber-stamped.
Prior to the Hurricane of 1950, the courthouse was situated on the top of Crocus Hill in what was probably Governor Gumbs’ old home.  The wooden structure was blown off, but the masonry basement, including the cell, can still be seen alongside the large ugly water storage tank in its yard.  It was only in 1964 that the Bradshaw administration replaced the lost courthouse.  One of the first buildings that Wallace Rey built after he retired from the US base in Antigua where he had worked since the War, was the new court house.  Its magnificent reinforced concrete beams that reach up from the foundations and arch up and over the roof to descend on the other side made it one of the most imposing structures at the time on the island.  That courtroom served as the home for the Anguilla Assembly, the Court of Appeal, the High Court, the Magistrates Court, and the Juvenile Court.  They all shared the one-room premises without difficulty.  Until recently, the Magistrates court sat on Thursday mornings, the Juvenile Court on one Friday morning per month, if there was a case to be heard.  The High Court judge visited from another island no more than once or twice a year for a month at most.  The Court of Appeal sat for a day or two as needed.
By the late 1990s the old courthouse was no longer adequate to serve as a multi-purpose building.  The tourism industry had fuelled an enormous growth in the economy, and crime and other litigation had mushroomed.  With British financial assistance, a new building was constructed in the administration grounds.  It now consists of the present three rooms we know.  They are the Magistrate’s Court, the High Court, and the House of Assembly.  These will serve Anguilla for the foreseeable future, but inevitably, in time, will come to seem in their turn to be out-dated and in need of replacement.  We can but hope that that will be a long time coming.  As we in turn achieve independence as our neighbours have done, it will be time for us to make the funds for its replacement available so that future generations will have the structures they will require.

8 January 2004.