Thursday, April 28, 2011

Beyond Walls - Part 2

Beyond Walls: Multidisciplinary Perspectives – 2011 Anguilla Conference Held at the National Bank of Anguilla Conference Room, The Valley, Anguilla on 28 April 2011
New Perspectives in Oppression: The British Foreign and Commonwealth Office and Proposals for Constitutional Reform in the Overseas Territories of Anguilla, Montserrat and the Turks and Caicos Islands
PART 2
Good Governance
[43]   The three essential ingredients for assuring good governance are generally recognised, we have said, to be (a) integrity, (b) accountability, and (c) transparency. Let us deal with them one by one.
[44]   (a) Integrity: No sensible person would suggest that our politicians are persons who naturally lack integrity. However, the system of government that we have inherited, we have said, seems almost designed to encourage us to give up our natural integrity once we achieve political power. The obvious solution is for our legislatures to put in place what the TCI Recommendations[1] call ‘watchdog institutions’, and what I call ‘checks and balances’, which are designed to ensure integrity in our systems of government. What are some of the most obvious ones? We shall consider (i) the Interests Commissioner; (ii) the Tenders Board; (iii) dealing in Crown land; (iv) an Appointments Commission; and (v) Codes of Ethics.
[45]   (i) Interests Commissioner: This office is sometimes called the Integrity Commissioner. It is designed to receive declarations and reports from public officers of their assets and liabilities. The usual, official explanation of this requirement is the need for persons to be aware of any potential conflict of interest that may arise. The more truthful explanation is that the citizen needs to know with what assets a public servant commences public service, so that, in the event of an unexplained jump in his wealth, inquiries can be made to determine whether the windfall was legitimate or the result of corrupt conduct. In most of our territories there is no law requiring public officers, that is, civil servants, politicians and Ministers, to declare their interests. When there is a law, as there is in Montserrat, it is usually not enforced or is without teeth.
[46]   In Anguilla, the 2006 Report of the Constitutional and Electoral Reform Commission made a recommendation[2] to the effect that this provision in the Constitution be strengthened. The recommendation[3] for TCI includes ensuring that the Constitution establishes the office and provides a framework for its operations that ensures its independence and impartiality. The exercise of its functions is not to be subject to the direction of any other person or authority. Similar to the existing provision for judges, the office should not be allowed to be abolished during its tenure. The appointment should be made by the Governor after consulting the Premier and the Leader of the Opposition. The Constitution should provide a mechanism to ensure that the office receives the resources needed to carry out its functions. The suggested mechanism is for the Commissioner to submit a budget bid to the Appropriations Committee for scrutiny and adoption, with the Governor having reserved legislative power to ensure that an appropriation is in place within four months of each financial year. A Minister can be removed from office if the Integrity Commission finds that he or she has breached the Code of Conduct for Ministers, or if he or she has failed to comply with the registration of interests requirements on two separate occasions. Such a provision should be viewed as fundamental if good governance is to be ensured.
[47]   The TCI Recommendation is commendable because it provides for local supervision of the political directorate. This is exactly the sort of democratic development that we should be looking for in our new Constitutions if we are to see local institutions taking control of good governance issues. It is regrettable that it was not thought necessary to do the same for Montserrat. In Montserrat, there is an Integrity Act, but the Commission is not established by the Constitution. The Commission could be shut down tomorrow if the Governor were dissatisfied with it. It is to be hoped that Anguilla will benefit from the same provisions as the recommendations for the TCI.
[48]   (ii) Tenders Boards: The second essential institution for the ensuring of integrity in government is the Tenders Board. Much of our budgets in the BOTs is spent on developing infrastructure, repairs and maintenance. Our procurement systems are essentially lawless and unregulated. The system under which most of us presently operate is an invitation to sharp practices. Procurement of goods and services, relating to contracts for roads and schools and offices and hospitals, offers the most attractive opportunities for those who wish to corrupt the process and illegally enrich themselves. Newly employed public procurement officers are coached by more experienced ones that, “The cow must feed where she is tied”. This is a lesson that one must make the most personal profit out of opportunities that will arise in ordering public supplies. This system is fundamentally flawed.
[49]   A Tenders Board that is genuinely meant to protect the public interest is required to be established by the Constitution and insulated from outside influence. There is in many cases, such as in Montserrat and Anguilla, not even a governing law. Our Tenders Boards are committees of political appointees. The resulting corruption damages not only governments, but also companies and individuals in our communities.
[50]   No provision for a constitutionally protected Tenders Board has been made in the TCI Revised Recommendations. It must be a concern for us in Anguilla that on these precedents the issue will continue be ignored or forgotten by the FCO when we come to look at making new recommendations and adopting a new Anguilla Constitution.
[51]   (iii) Crown land: The third requirement for ensuring integrity in public life is the constitutional protection of public assets, mainly land. In many of our territories, Crown lands are dealt with under the signature of the Governor. In practice, this means that the Governor relies on the advice of Cabinet, and signs whatever is put in front of him. Since every matter discussed in Cabinet is treated as a state secret, there is no public awareness of proposals for the disposition of public assets. It is commonly assumed, and justifiably so in the TCI particularly, that government Ministers deal in public lands for the benefit of their families and friends. The integrity of dealings in public lands ought to be enforced by having a provision in the Constitution that any resolution to deal in any significant area of public land, say a half acre or more, is required to be brought to the Legislature for public debate and approval. In the case of Anguilla, this was the recommendation[4] of the 2006 Commission.
[52]   While a majority of the participants at the public forums organised to discuss the TCI Recommendations wished to see constitutional provisions set out how Crown land would be managed and dealt with, a small minority felt this was not a topic for constitutional inclusion. The result was a most unfortunate decision[5] to leave the power to deal with Crown lands in the hands of the Governor. We know what this has meant in the past in the TCI when there have been weak Governors and compliant A-Gs. The Governors have allowed Ministers of government and senior public servants to misuse Crown lands for their own and their families' profit.
[53]   The consequence has been that the TCI Recommendation fails to seize the opportunity to enshrine the protection of Crown land in any new Constitution. At most, the recommendation is to develop a land policy and to leave it for the Governor and his Ministers to continue to deal with Crown land in private. We do not need to maintain a system that has shown itself to have failed in the past. Neither the Mandarins in Whitehall nor the Governor in Government House is an acceptable substitute for local scrutiny. Let the Government answer to the public for any proposed dealing in public lands. We need the disinfecting powers of openness, transparency and fresh air.
[54]   In the case of the recently imposed 2010 Montserrat Constitution, there is similarly no requirement for publication of and prior open discussion of dealings in Crown land. The Governor and his Ministers will continue to deal with public assets in private. The fear must be that we in Anguilla can expect that the recommendation of the 2006 Anguilla Commission will similarly be ignored.
[55]   (iv) Appointments Commission: At present in our Territories we have a ‘winner takes all’ system of appointments to boards, committees and commissions. Immediately a new government is appointed after general elections, the first order of business is to terminate the previous political appointees and to share out the various directorships among the principal supporters of the various new Ministers. We watch as every five years they dismantle the Social Security Board, the Public Utilities Board, the Public Health Board, the Tourist Board, the Carnival Committee, even the Poor Law Board. We call it “enjoying the fruits of office”. This system makes a mockery of the whole notion of good governance. The public accepts it as a normal state of affairs, but we sneer under our breath. This unregulated system has got to be stopped if we are serious about good governance. We need to take a leaf out of the British book and have all appointments vetted by an independent, constitutionally established body[6]. This will go some way to ensuring that Ministers appoint only qualified persons to these positions. Given the infrequency with which the situation develops, there is no need for a separate Commission to be established. The functions can easily and effectively be assigned to an existing office such as the Integrity Commissioner.
[56]   (v) Codes of Ethics: In Anguilla after the February 2010 general election, relations between the Governor and the newly elected Ministers collapsed. The problem appears to have been that the members of the new government did not know how Ministers are supposed to conduct themselves. For example, the new Ministers attempted to enter into contracts binding on government, not being aware of the correct procedure to follow. When their Permanent Secretaries attempted to correct them, they were viewed as frustrating the Minister's programme. Ministers then accused their Permanent Secretaries of joining with the Governor in undermining them. The new Chief Minister delighted in being abrasive in his relations with the Governor. Instead of requesting[7] of the Governor that he appoint an acting Chief Minister in his absence, he had one of his Ministers write a memo to all Department Heads informing them that he had been appointed as acting Chief Minister and directing them that they should govern themselves accordingly. The Governor’s office was obliged to circulate a memorandum to all departments advising that no such appointment had been made.
[57]   In Anguilla, as doubtless in other BOTs, persons in public life are not regularly taken through seminars and workshops on the meaning of nepotism, cronyism, and conflicts of interest[8]. Where, as is the case in Anguilla, basic honesty and integrity in our dealings with others sometimes does not appear to be an ingrained part of our culture, positive steps are required to be taken to train our Ministers, public servants, directors of public and private boards, and committee members in the generally accepted ethical rules. In Anguilla, this necessity has been recognized by the public service. Civil servants have developed and adopted a Code of Ethics to govern[9] themselves. Our judges have bound[10] themselves to a code of judicial conduct. Our lawyers have committed[11] to a binding code of ethics. If Civil Servants, Judges and Lawyers can have them, why not all BOT public servants and politicians?
[58]   When, at the request of an importuning constituent, a Minister telephones the Sergeant at the Police Station to “give a chance” to a young person who has been arrested, he thinks he is responding to the needs of his community. When the Minister gives out work permits to one favoured building contractor, but not to another, he says he is “leveling the playing field”. When the Minister overrules a Chief Immigration Officer or a Planning Committee order, he says he is only “showing a good heart”, and softening the harsh decisions of unfeeling bureaucrats. But, it is quite the opposite: he is corrupting the system that has been designed for the even-handed protection of all citizens.
[59]   It is not as if we have to re-invent the wheel. The British Cabinet Office has developed a series of handbooks to guide public servants and Ministers in the correct protocols to be followed. Other Commonwealth countries[12] have excellent handbooks for Ministers, Legislators and other public officers. These could easily be adapted for use in the BOTs. Any local legal draughtsman would have no difficulty doing the adaptation. Then, there will require to be training. Workshops for incoming Ministers, Boards of statutory corporations, and public servants should be a regular feature of the local administration's drive to achieve good governance.
[60]   In Anguilla, the Governor has sole and total control of the civil service. Absolute and unrestrained power rests[13] in his omnipotent hands. There does exist a Public Service Integrity Board to assist the Governor in his monitoring of the public service. Its members are appointed by the Governor under a governing Act[14]. The result has not been encouraging. This Board has turned out to be an ineffective institution. Its sole function is to investigate those questions of conflict of interest in the civil service that happen to be put to it by the Governor. The Governor need not consult with the Board, except on an occasion when it pleases him to do so. The Board has no power to respond to complaints from the public or to institute an investigation of its own initiative. This is most inadequate[15]. There is a real need instead for an Integrity Commissioner established by the Constitution and supported by meaningful integrity laws and regulations.
[61]   The 2006 Anguilla Commission recommended[16] the introduction of Codes of Ethics both at ministerial and at statutory board levels. There has been no progress in this direction since the recommendation was made. The new Montserrat Constitution does not mention the need for any Code of Conduct or Code of Ethics to govern public life. The TCI Recommendation[17] is innovative, but contains a sting in the tail. It is that the Integrity Commission be required to publish, following wide consultation, a Code of Conduct for Persons in Public Life. The Commission is then to keep the Code under review, and to investigate, either in response to a complaint or on their own initiative, any alleged failure to abide by the Code by those subject to it. This recommendation would have been a major advance on the system in Anguilla and Montserrat and would have been highly commendable if it had rested there.
[62]   However, the TCI Recommendation[18] is for the introduction of a completely new structure, a Statement of Governance Principles. The proposal is that each time the FCO appoints a new Governor it will publish a new Statement that will set out how government is to function and what standards are expected. The down side of this proposal is that the Governor, under the new TCI Constitution, will be specifically empowered to reject any advice to act, whether given to him by the Premier, legislature, Cabinet, or independent body, if the Governor believes that such action would be “in contravention of” the governance principles. This is the sting in the tail previously referred to.
[63]   Such a Statement by itself has much to commend it. What is objectionable about the proposal is that it appears to have been made with the intention of introducing an essentially undemocratic form of government under the guise of improving good governance. There is no assurance that there will be a mechanism for ensuring that the FCO determines the wishes and expectations of the people. The risk is that the FCO may from time to time impose its own dubious and unreliable notions of good governance. We cannot assume that the Statement will be negotiated with the local government. The likelihood is that it will be a Statement of foreign governance principles imposed on us from outside. Such a proposal does not provide hope for the local development of good governance mechanisms. As presently worded, it should be repugnant to all right-thinking persons.
[64]   Particularly objectionable is the proposal to empower the Governor to reject a measure coming to him from the local Legislature for his assent. To have a Governor empowered by administrative fiat to reject a law passed by the colonial Legislature has not happened in the Leeward Islands since before the time of the General Assembly in 1705. Only the strongest language is appropriate to condemn such a reactionary recommendation.
[65]   The situation in the TCI may be regrettable, but nothing justifies the proposal to abrogate democratic government to the extent that is proposed. A more acceptable proposal would have been to have the future TCI Constitution include measures for the people of the TCI themselves to exercise increased democratic control over errant Ministers. Those mechanisms include the whole range of local, democracy-enabling measures which are dealt with in this paper.
[66]   We have seen[19] the provision that the Governor may enact a law without it having passed through the Legislature. The TCI Recommendations[20] suggest rejuvenating and strengthening this provision in the case of any new TCI Constitution. The proposal is that the Governor's powers should be widened to allow him to legislate “to ensure compliance with the Governance Principles”. A more objectionable recommendation it is difficult to imagine.
[67]   There is no question of either the FCO or the Governor needing such draconian powers in any BOT. We have seen[21] what happened in Montserrat only a few years ago. In my opinion, what the Governor did then was the correct way for legislation to be made in a BOT. To remove the power of the local legislators to legislate for their country is to destroy democracy itself. A constitutional framework such as that proposed for the TCI has nothing of either democracy or of good governance in it.
[68]   The TCI Recommendations[22] include a proposal that the Constitution should provide that the Governor may act contrary to the advice of Cabinet in an area of ministerial responsibility if, in his view, no doubt supported by the FCO, to act in accordance with Cabinet's advice would be contrary to the Statement. At first blush such a proposal may seem acceptable on the basis that the Ministers having negotiated the Statement with the FCO they should not be permitted to act in breach of their commitment to act in accordance with it. The objection is that it is an anti-democratic provision. It does nothing to promote and to develop notions of good governance in the Territory. There is no reason to suppose that a Governor will be seized of a greater sense of good governance than anyone else. We have seen in Anguilla a Governor write[23] a letter saying that it was acceptable for the Chief Minister to continue in his private-sector position as Chairman of the Board of a local bank having major business dealings with government. More recently we have seen in Anguilla a Governor defend[24] his appointment of an ex-Commissioner of Police on the day after the top cop demitted office to serve on contract as one of the two Stipendary Magistrates for Anguilla, this despite the protestations of the local Bar Association. Both of these actions amounted to major assaults on the rule of law and the separation of powers, cornerstones of good governance.
[69]   To put the issue of the Governor’s proposed power to overrule Cabinet in context, it is to be remembered that the Governor chairs meetings of Cabinet. He is accompanied there by his Deputy Governor and the Attorney-General as they debate with Ministers the development of national policy. 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. Such a proposal involves a replacement of representative government by foreign, arbitrary and dictatorial rule. It is by its nature a denial of good governance.
[70]   We await with some trepidation proposals for the development of Codes of Ethics, Statements of Governance Principles and other instruments for the encouragement and promotion of integrity in public life in Anguilla. The danger is that if the system proposed for TCI is introduced into Anguilla, we shall have been returned to an even more barbaric system of colonial administration than we had in the past.
[71]   (b) Accountability. The second area of checks and balances that promote good governance, and that one would expect to see given emphasis in a modern BOT Constitution, after the general area of integrity, is that of accountability. There are recognised devices, other than general elections every 5 years, which ensure that government is held accountable for its actions and omissions. These are traditionally considered to be (i) the Complaints Commissioner; (ii) the Police Complaints Authority; (iii) the Human Rights Commissioner; (iv) a Freedom of Information Act; and (v) the Public Accounts Committee (PAC). Not one of these vital mechanisms exists in Anguilla.
[72]   (i) Complaints Commissioner: This is another name for the Ombudsman, one of the great human rights inventions of the Scandinavians. Without an Ombudsman or Complaints Commissioner, the citizen must rely for enforcing his complaint against an unfair or biased public officer on going to Court. And, we all know how expensive and unsatisfactory that can be. The Ombudsman, on the other hand, is free of cost to the complaining citizen, is completely independent of any politician or public servant, and reports only to the Legislature. Many of the larger islands have a Complaints Commissioner, but few if any of the smaller ones do. If the quarrel with the establishment of the office is the question of its expense, there is no reason why the function of the Ombudsman should not be combined with other watchdog functions.
[73]   The precedent of a Complaints Commissioner being established in our Constitutions has been set in Cayman Islands[25] and in Montserrat[26]. The TCI Recommendations contain a proposal[27] that the office be constituted for that territory in any new Constitution. It would appear that Anguillians can with reasonable certainty expect that, if we demand that a similar check and balance be inserted into our new Constitution, the FCO will have no objection.
[74]   (ii) Police Complaints Authority (PCA): At present, complaints from the public against the conduct of a police officer are heard and determined in secret by the Commissioner of Police. This system has been found not to be transparent, and has led to public distrust. Bermuda, Jamaica and St Lucia are examples of Commonwealth Caribbean countries that have introduced new statutory civilian oversight bodies known as PCAs, though these may only make recommendations to the Commissioner who retains the primary duty to take disciplinary action against officers. In the UK the Independent Police Complaints Commission[28] has the power to take over a police complaints investigation and makes recommendations to the relevant Chief Constable. In my view, it is not satisfactory for complaints against police officers to be handled internally and in secrecy as presently occurs in Anguilla. It is desirable that there be a PCA provided for in any new Anguilla Constitution. There is no reason why in the interests of reducing costs its functions cannot be combined with one or other of the recommended watchdog institutions.
[75]   (iii) Human Rights Commissioner: One of the complaints frequently heard is that the citizen’s fundamental rights can only be protected by the Anguillian individual at great personal cost. The solution is to place the protection of the individual’s fundamental human rights in the hands of a publicly funded institution. This is sometimes called the Human Rights Commissioner or the Administrative Justice Board.
[76]   There are many different types of national human rights and administrative justice institutions in the Commonwealth. They include 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. Such administrative justice boards are typically given broader jurisdiction and stronger powers than the classic model of the Ombudsman. Where they include the functions of the Ombudsman and the Complaints Commissioner they are called the ‘hybrid model’. Those in both Ghana[29] and Tanzania[30] are empowered to take complaints to court to enforce their recommendations if they have not been complied with in a specified period.
[77]   So far as the West Indian BOTs are concerned, the Human Rights Commissioner has been established[31] by the Constitution in the Cayman Islands. In Montserrat the Complaints Commission has[32] the job of “encouraging the resolution of human rights complaints”, which is to say that in Montserrat the Commission has no power to make binding recommendations. The TCI Recommendations[33] contain a proposal for such an office to be provided for in the new TCI Constitution, but it is not clear what the powers will be.
[78]   What is needed in all of our territories is the Ghanian and Tanzanian model, where, if mediation fails, the Commissioner can take a complaint to court on behalf of the citizen who prefers not to seek private legal representation. To minimize cost, a hybrid Complaints Board could be empowered by the Constitution to deal with all the oversight matters of corruption; conflicts of interest; abuse of office; police and prison complaints; and ethics issues affecting Ministers of government, civil servants, parliamentarians, and officers of statutory corporation[34].
[79]   (iv) Freedom of Information (FOI) Act: In Anguilla it is nearly impossible to obtain any information on the programmes or activities of any department of government. This undesirable situation would be cured by an effective FOI Act. Freedom of information legislation is also sometimes called “open records” law. There is no surer mechanism for guaranteeing transparency than a FOI Act and the various regulations that make it work
[80]   The FOI Act is a law which sets rules on the access to information or records held by government. Such a law defines the legal process by which government information is required to be made available to the public on request. Sweden’s Freedom of the Press Act of 1766 is thought to be the oldest of such laws. Today, over 70 countries around the world have it. In the USA it is described as “sunshine” law, as in “There is no better disinfectant than sunshine”.
[81]   What FOI legislation does is to alter the burden of proof. The burden of proving that the matter requested should be kept confidential rests on the person who argues that it must be kept confidential. The assumption is that the public has a right to all information kept by government. You may ask for a copy of any document without having to give any reason why you want it. If the information is not disclosed, a valid reason has to be given. If the reason is unacceptable, you can appeal to the Commissioner of Information to make a ruling, and to enforce his ruling.
[82]   Not only does the UK have such a law, but it was introduced in the Cayman Islands by their 2009 Constitution[35]. On this precedent, there is no reason why Anguilla should not have this reform if we should ask for it.
[83]   (v) Public Accounts Committee (PAC): The PAC can be an effective mechanism to enable members of the Legislature to question and to investigate the manner in which public officers have spent the monies voted them by the Legislature. In some territories, including Anguilla as of the time of writing, no PAC has ever been appointed, far less functioned as it should. In Anguilla the PAC is not established by the Constitution, but is mentioned only in the Assembly’s rules of procedure[36].
[84]   We all know the reasons for this relaxed state of affairs. Those presently in government have no interest in setting up a tribunal that will expose the budgetary wrongdoings that they may have been engaged in. Those who are presently in opposition have no desire to start an institution that may perhaps haunt them when their turn comes to be in power and their opportunity comes to misuse public funds. The typical Governor has an interest in keeping the PAC quiet. He wants to go back to London, after his term of winking at misconduct is up, with no questions being asked that may prevent him from receiving his due pats on the back and other accolades. Everyone, except the tax-paying public, has an interest in silencing the PAC. On the other hand, Montserrat and the BVI have long-existing and functioning PACs, and there should be no objection to constitutionally establishing the institution in Anguilla if we were to demand it.
[85]   (c) Transparency. The third key element of good governance is transparency. Contrary to public opinion, most politicians are not engaged in making back-room deals and accepting under-the-table packages. Only the insecure and the deceitful ones among our leaders are afraid of transparency. The self-confident and the honest ones welcome it: mechanisms and techniques for guaranteeing transparency give them the tools to demonstrate their honesty, effectiveness and integrity.
[86]   It is the lack of transparency in our systems of government that cause so many of our Ministers’ actions to be wrongfully categorised as corrupt. Where the basis for a decision is concealed, suspicions naturally arise. The obvious solution is to institute systems that increase transparency. These include (i) the appointment of civil servants, teachers and the police by Service Commissions; (ii) the exercise of the prerogative of mercy by a locally appointed Mercy Committee; (iii) the regular revision of electoral boundaries by an independent Boundaries Commission; (iv) the opening up Cabinet Meetings and government committee meetings to the press; (v) instituting the regular publication of annual departmental reports; (vi) holding post-Cabinet press conferences; and (vi) providing for the appointment of a Director of Public Prosecutions (DPP). Let us now consider each of these.
[87]   (i) Service Commissions: In Anguilla, all appointments to the public service, the teaching service, and the police service, are in the hands of one person, the Governor. He consults with a Public Service Commission (PSC), but need not follow its recommendations. The thinking is that this mechanism guarantees the independence of the civil service and protects public officers from political interference.
[88]   While this objective is honourable, the result in practice is the contrary. The public is unlikely to accept that there is transparency and fairness in public service appointments unless such appointments and related matters are constitutionally placed in the hands of a local, professional, and independent PSC, governed by the appropriate laws and regulations and trained in the exercise of their functions.
[89]   The new TCI Constitution[37] had one of the most advanced and democratic provisions for the governance of the civil service. The Governor appointed the members of the PSC. He did so acting on the recommendation of various stake-holders. The TCI PSC made the decisions about appointments and conditions of service of public servants. The Governor was required to implement their recommendations. This is as it should be.
[90]   The new TCI Recommendations[38] propose the complete emasculation of the previous TCI PSC and would give it a completely useless role. It will become, as in Montserrat and Anguilla, a merely consultative body, without any power. If the appointment system in the TCI was not working, which the TCI Recommendations do not suggest, the solution is not to destroy the PSC but to re-train its members. Members of all public boards and committees, including Cabinet, need to be trained in their proper functioning. Good governance is not achieved by having a country deprived of a vital instrument for ensuring local self-rule.
[91]   In the BVI[39] there are separate and independent Public Service, Teaching, Judicial and Legal Services, and Police Commissions. The Governor acts on their advice, except in the case of Department heads on whose appointment he consults with the Premier. This is as it should be in every BOT at this time in our history. We have recommended[40] the same for Anguilla.
[92]   To put BOT public service appointments in the hands of an FCO functionary who may be advised behind the scenes by those cronies that he and his superiors may have selected, is not an acceptable alternative to an independent and professional PSC. In any view, arbitrary one-man rule can never in any circumstances be an improvement in good governance.
[93]   (ii) Mercy Committee: In most of our territories, the Governor has the Constitutional power[41] to function without any local Mercy Committee to advise him on what to do about early releases from prison. A foreign diplomat would be unlikely to have first-hand knowledge about who deserves to have his sentence shortened or commuted. He must rely on the advice of some unknown advisers lurking in the darkness around him. This is a most unsatisfactory state of affairs. In Anguilla, we have recommended[42] that this power be exercised by a Mercy Committee with the Governor as Chairman. It is uncertain whether this will find favour with the FCO.
[94]   (iii) Boundaries Commission: In some of our islands, in particular Anguilla, there has been no Boundaries Commission appointed for several decades. Some of the political constituencies are a small fraction of others in the same Territory. Good government demands that our people have more or less equal representation in the Legislature. There is no reason why the modern practice of having the electoral boundaries re-examined after every population census should not equally apply in Anguilla. It is not clear that the FCO will favour the recommendation[43] to make this reform in Anguilla.
[95]   (iv) Open Meetings: Open meetings legislation allows public access to government meetings and ensures that their decisions are transparent and publicised. The old, discredited practice, probably deriving from the Official Secrets Act, of hiding every decision and action of a department of government has proven itself not conducive to good governance. In California, any decision not made in open meeting is voidable in a court of law. A similar provision could be made for Anguilla now, but putting it in the Constitution ensures it cannot be discontinued at whim. There is no reason why the Constitution should not contain a clause requiring all governmental meetings such as those of the Building Board and the Land Development Committee to be open to the press and public, within reason. Yet, the FCO appears to have no interest in insisting on this reform.
[96]   (v) Departmental Reports: Departments are generally expected to publish annual reports for laying before the Legislature. This requirement was strictly enforced during the earlier colonial period. The practice seems to have fallen into disuse in many departments of government of the remaining BOTs. Their reports, if they are prepared, seldom reach even the public library.
[97]   The departments will deny that they have stopped reporting. They will claim that they do submit their reports to their Ministers. That is not the issue. The question is have they been published, or are they kept secret? I invite you to visit any of the BOT websites and see for yourself if you can find any annual departmental reports published on it. It is highly to be desired that members of our Legislatures be more vigilant in insisting that Ministers expose the workings of their Ministries and Departments to the people. Governors and Deputy Governors should insist on publication. It would help ensure good governance if the Constitution mentioned the requirement.
[98]   Cabinet Press Conferences: We should insist that Cabinet meetings are opened up to the public whenever possible. In the Falkland Islands and Gibraltar post-cabinet press conferences are regularly and diligently held so that the public may be informed as to decisions taken in the public interest. Is it only the “white” Overseas Territories[44] that have the self-confidence to hold a press conference immediately after every Cabinet meeting?
[99]   Director of Public Prosecutions (DPP): Political considerations should never affect the enforcement of the criminal law. Prosecutions of serious criminal charges should be separate and independent of government. This is achieved by entrenching the DPP in the Constitution and guaranteeing that his actions are to be performed without interference from anybody. This has been done in the BVI[45]. By contrast, the reform was fudged in Montserrat[46]. Montserrat’s constitutional provision is that during any period when the office of DPP is not filled the A-G shall perform his functions. The result is that the office need never be filled, and the A-G may continue to carry out prosecutions indefinitely. At present in Anguilla the A-G serves as prosecutor in all serious charges tried in the criminal assizes. The A-G also sits in Cabinet and rubs shoulder with the Governor and his Ministers. It is generally accepted that it is not in the interests of good governance to have the prosecutorial arm of government under the control of a Cabinet member. Such a state of affairs offends against the doctrine of the separation of powers. It will be an important reform if the Anguilla recommendation[47] for the appointment of a DPP is carried out.
          Conclusion
[100] The recommendations above are all to the effect that locally-managed mechanisms for improving democracy and good governance in Anguilla and the other remaining BOTs in the West Indies be established by their Constitutions. Such mechanisms will promote self-government and self-determination. They ensure good governance. They do not rely on a deus ex machina in the person of the Governor or the FCO to achieve this desirable effect.
[101] Since the introduction of the universal suffrage in the West Indies after the Second World War, democracy has flourished in these islands. If bad government has arisen in the Overseas Territories it has done so under the supervision and tutelage of the FCO and its appointed Governors. Reducing the right of the people of a BOT to govern ourselves in the name of good governance is an oxymoron. Replacing elected members of the local government by unelected officials from outside the West Indies is no assurance of an improvement in government. Local politicians may not always have the highest integrity, morals or standards. But, at least they are accountable to the electorate. The same cannot be said for foreign officials. In any event, an undemocratic form of government is the opposite of good governance.
[102] Ever since the 1948 Universal Declaration of Human Rights we in the West Indies BOTs have enjoyed as a matter of international law a right to self-determination and self-government. The FCO legislating for us without our consent, except in the most extreme case of emergency, such as the outbreak of war, would be a denial of this right to self-government. The FCO legislating for a BOT in relation to its domestic issues is a process generally to be condemned when it occurs. Any recommendation to this effect is retrograde, colonialist and undemocratic.
[103] When power is transferred from the elected Ministers to the Governor, we depend for good governance on the character of the man. A strong and fair Governor may well do no harm, and may do some good. A weak or accommodating Governor is unlikely to make good use of his increased powers and may well do a great deal of harm. Not only are foreign officials not accountable to the local citizenry, some of them have been patently incompetent. Others have not had a care for the interests of the people they are supposed to govern. It would be preferable for us to depend instead on institutions designed to guarantee democracy and good governance. The whole notion of replacing democracy by the arbitrary rule of one individual is repulsive.
[104] The constitutional reform exercise in Montserrat was conducted in secrecy[48] and without consultation of the people. The people of Montserrat were never told what proposals were being considered and were never informed about the issues or of the alternatives that were being discussed. At no time were the people of Montserrat invited to make a contribution to the draft Constitution. This was published for the first time just weeks before being approved by the Government-dominated Legislature. The final draft Constitution as approved by the Legislature was not shown to Montserratians until after it had been passed by the Privy Council. The process of constitutional reform followed by the FCO legal advisers in Montserrat exemplified an undemocratic and unaccountable exercise of power and contempt for the citizens of a British Overseas Territory. The fear is that the same process may be attempted in Anguilla.
[105] In a BOT the process of government depends for its smooth running on a good working relationship between the Governor and the Chief Minister. Unfortunately, since the commencement of the present Administration in Anguilla, that has not occurred. The Chief Minister has on a number of occasions published press releases accusing the Governor of misconduct[49]. The Governor has responded by publishing a number of his own press releases[50] pouring scorn on the Chief Minister and his Ministers.
[106] The Chief Minister of Anguilla has admittedly made mistakes in his dealings with the Governor and the FCO. He signed a letter authorising the Social Security Board to borrow US$200 million secured by the Social Security Fund without having first raised the matter in Cabinet or got its approval. He attempted to have the Governor appoint a “de facto” fifth Minister, when the Constitution provides for a maximum of four Ministers. He authorised one of his Ministers to attend a general meeting of a statutory corporation with a view to replacing the Board of Directors with his nominees. This should have been a government decision, not a party one. He should first have secured the approval of Cabinet to replace the old directors, which he had not done. These are, no doubt, the tip of the iceberg as far as the Governor is concerned, but they demonstrate the difficulty from the Governor's point of view, in working with the present Administration.
[107] The Governor has also made constitutional mistakes and been guilty of bad governance. The Governor has refused to comply with the Chief Minister's advice to remove portfolios from Ministers and to transfer them to other Ministers, in contravention of the constitutional provision[51]. The Governor has refused to accept into any government office a Member of the Legislature who crossed the floor to join the Government benches on the mistaken ground that he would not permit two men, the Governor and the Chief Minister, to subvert the democratic process. His understanding, as he published it, was that the people had made their choice and elected certain representatives to the Opposition and certain other representatives to the Government. In his mistaken view it was a corruption of the democratic process for him to accept the crossing of the floor by the Opposition member. He is alleged to have asked the Chief Minister to resign[52]. These misunderstandings of the constitutional provisions have considerably weakened the Governor’s position in the eyes of the public. The consequence has been the Chief Minister publicly and daily accusing the Governor of conspiring with the Opposition to bring down his Administration[53]. Needless to say, the supporters of the Government and of the Opposition continue to goad both the Governor and the Chief Minister to batter at each other. The Chief Minister has written letters to the UK Minister baiting him to reply on the various issues[54]. None of this bodes well for the constitutional advance of Anguilla.
[108] The likelihood is that without a paradigm shift in the attitude of the FCO towards the issue of good governance in the BOTs, the relationship between the remaining Overseas Territories and the FCO will most likely come to be characterised as one of oppression and regression, rather than partnership and progress.
[109] No meaningful constitutional reform or progress can proceed in the atmosphere that presently prevails in Anguilla between the Governor and the locally elected government. As there has been so little real progress made in our neighbouring West Indian BOTs in the institution of good governance measures in their Constitutions or in their laws, as illustrated above, we in Anguilla cannot expect that the FCO, as it presses for the usual additions to our fundamental rights clauses in our Constitution to bring us into compliance with the human rights concerns of the European Union, will pay any greater attention to the issue during the year 2011.
[110] If this forecast is accurate, there will be a great deal of talk of good governance, but no real progress made in the coming years. The opportunity for meaningful constitutional advance and the buttressing of good government will have been lost to Anguilla. We shall eventually be sent, like the other West Indian territories were, off into independence burdened with a wholly inadequate and defective Constitution. Our citizens will be left to the mercy of vindictive and corrupt politicians and public servants unconstrained by any of the obvious protections that could so easily have been installed.
THE END


[1]        TCI Revised Recommendation No 8.
[2]        Anguilla Recommendation at paragraph 135.
[3]        TCI Revised Recommendations Nos 39 and 40.
[4]        Anguilla Recommendation at paragraph 162.
[5]        The TCI Revised Recommendations Nos 36 and 37.
[7]        As required by section 26 of the 1982 Anguilla Constitution.
[8]        Smilingly referred to locally by some as, “a convergence of interests”.
[12]       See, e.g., the excellent series published by the Government of Queensland titled, The Queensland Ministerial Handbook, The Queensland Cabinet Handbook, The Queensland Legislation Handbook, The Queensland Protocol Handbook, and Welcome Aboard: A Guide for Members of Queensland Government Boards, Committees and Statutory Authorities.
[13]       See the judge’s finding at paragraphs [11] and [12] of the Homer Richardson Case: http://www.eccourts.org/judgments/decisions/2006/HomerRichardsonvAttorneyGeneralofAnguillaecsc1528.pdf#search=%22Homer%20Richardson%22
[14]       The Public Service Integrity Act, RSA c P170.
[16]       Anguilla Recommendation at paragraph 72.
[17]       TCI Revised Recommendation No 41.
[18]       TCI Revised Recommendation No 4.
[19]       At paragraph [16] above.
[20]       TCI Revised Recommendation No 26.
[21]       At paragraph [14] above.
[22]       TCI Revised Recommendation No 9.
[25]       The 2009 Cayman Islands Constitution, section 120.
[26]       The 2010 Montserrat Constitution, section 105.
[27]       TCI Revised Recommendation No 36.
[31]       The 2009 Constitution of the Cayman Islands, section 116.
[32]       The 2010 Constitution of Montserrat, section 105.
[33]       TCI Revised Recommendation No 36.
[34]       As the author has previously recommended in his 2004 Report to the Governor on the Bermuda Conference on the Civilian Oversight of Law Enforcement.
[35]       The 2009 Constitution of the Cayman Islands, section 122.
[36]       The Legislative Assembly (Procedure) Rules 1976, rule 66A.
[37]       The 2006 TCI Constitution, sections 83-88.
[38]       TCI Revised Recommendation No 31.
[39]       The 2007 BVI Constitution, section 76.
[40]       Anguilla Recommendation at paragraph 60.
[41]       See, e.g., the 1982 Anguilla Constitution, section 76.
[42]       Anguilla Recommendation at paragraph 163.
[43]       Anguilla Recommendation at paragraph 77.
[44]       Other than the “brown” BOT of St Helena.
[45]       The 2007 BVI Constitution, section 59.
[46]       The 2010 Montserrat Constitution, section 46.
[47]       Anguilla Recommendation at paragraph 71.
[48]       The 7 March 2006 minute of the joint British/Montserrat government committee charged to negotiate a new Constitution contains the agreement to keep details of the discussions secret from the people of Montserrat.
[50]       See Governor’s press conference of 19 October 2010 as reported by Rainbow FM:
[51]       See article in The Anguillian Newspaper of 1 October 2010: http://www.anguillian.com/article/articleview/8831/1/140/
[52]       See Caricom News Network article of 23 September 2010: http://www.csmenetwork.com/2/index.php?option=com_content&view=article&id=9352&Itemid=211 and the Oscar Ramjeet article in the Caribbean News Now of 25 September 2010: http://www.caribbeannewsnow.com/anguilla.php?news_id=2084&start=0&category_id=3
[53]       See story by Rainbow FM on the Chief Minister’s response to the Governor’s press conference of 19 October 2010: http://rainbowfm935.com/more_news_3
[54]       See article in The Anguillian Newspaper of 3 December 2010: http://www.festival.ai/article/articleview/9051/1/140/