Wednesday, May 28, 2014

Commercial Courts



DON MITCHELL CBE QC
OWEN LANE, NORTH HILL
P O BOX 83, THE VALLEY
AI-2640 ANGUILLA, BWI

Landline: (264) 497 2139
Cellphone: (264) 235 8654


28 May 2014


Mr Don Rose
Interim Project Manager, Jurist Project
Caribbean Court of Justice
314 Henry Street
Port-of-Spain
Trinidad


Dear Mr Rose,

Caribbean Commercial Courts

Thank you for your invitation to submit a paper about Commercial Courts for use in planning for specialized courts for a Project Implementation Plan that you are preparing. 

I am afraid that anything I shall say about the role of the Commercial Court in the West Indies of today will probably amount to no more than stating the obvious.  The Faculty of Law of the University of the West Indies, Cave Hill Campus, is hosting the 13th Annual Caribbean Commercial Law Workshop in Trinidad from August 10-12 at the Hyatt Regency in Port-of-Spain.  The theme of the workshop is “Re-Building the Region: The Role of Caribbean Commercial Law.”  The persons who will speak at this workshop will undoubtedly have views on the potential role of Commercial Courts based on extensive experience and study.  None of the trivialities that I can say will compare with the learning that will come from this exercise.  However, I am confident that nothing that will come from the workshop will contradict the thoughts that I offer here.

As I see it, the need for specialized commercial judicial services in the West Indies exists at two levels.  The first and most important is the local, and the second is the international.  I deal first with the international. 

Several of our OECS jurisdictions, including the Virgin Islands, Anguilla, Montserrat, Antigua and Barbuda, St Kitts and Nevis, Barbados and St Vincent and the Grenadines, have made a deliberate effort to fashion themselves as bases for international financial services, with varying success.  The BVI has undoubtedly been the most successful.  The legitimacy of locating international companies of every type in West Indian international financial centers depends to a large extent on the perception that mind and management is located here.  Providing court services for the resolution of international disputes involving our locally incorporated structures will give substance to that perception.  The international financial centers of Hong Kong, Singapore, London and New York know that.  One of the reasons their international financial services industry has developed so substantially is the existence of highly specialized, swift and efficient judicial services. 

Foreign lawyers have stated at conferences that it is unrealistic for us to imagine that any reputable financial advisers in New York or London will send their business to one of our States or Territories if they are not assured that they will find a specialized Commercial Court located there for the resolution of disputes involving their clients.  At the moment, there is no Commercial Court outside of Tortola serving the Eastern Caribbean Supreme Court system.  A dispute involving the shareholders or management of a St Vincent offshore company must necessarily take its place in line behind divorce and ordinary civil suits filed at an earlier date.  This is not satisfactory.  If our financial centers are to have any credibility, we need to establish the capacity to swiftly and efficiently determine international commercial disputes involving our structures.  Whether our governments will be willing to make the investment that the government of the British Virgin Islands made in its Commercial Court, is unclear to me.

Most of the independent Commonwealth Caribbean Countries are high tax jurisdictions.  They hold no interest for international financial planners and advisers.  It is not realistic for them to be contemplating an internationally recognized commercial court.  However, the notorious delays in achieving justice through their court systems need to be addressed for the sake of local economic development.  Any available international commercial work will flow naturally once the infrastructure is present.

So, I come to the need for a specialized commercial court for the settlement of local commercial disputes.  I submit that we cannot any longer rely on the antiquated plantation system of having a dispute between major commercial enterprises, or between one commercial enterprise and the government, stand in line behind the divorce list and the criminal trials awaiting judicial attention, as presently occurs.  Our High Court judges, bright as they are, come generally from a public service background.  They are usually drawn from the ranks of Registrars, Magistrates, and Solicitors General.  That practice does not always place emphasis on the commercial necessities of speed and experience in commercial law principles.  The future fair and balanced development of our economies will depend to an increasing extent on the swiftness and efficiency with which we can resolve local commercial disputes.  The speakers at the Workshop will demonstrate and prove this, I am confident.

In my view, the need for a specialized division of the court system to more speedily resolve commercial disputes at the local level is pressing.  A Commercial Court Division ought to be instituted in each of Supreme Courts.  The infrastructure and the staffing of such Courts ought to be of the highest quality to inspire the necessary confidence.

Yours sincerely,



Don Mitchell

Wednesday, May 14, 2014

Political Independence for Anguilla


DON MITCHELL CBE QC
OWEN LANE, NORTH HILL
P O BOX 83, THE VALLEY
AI-2640 ANGUILLA, BWI

Landline: (264) 497 2139
Cellphone: (264) 235 8654

14 May 2014

Mr James Ronald Webster
“Father of the Nation”
Seafeathers
Anguilla

Dear Mr Webster,
We spoke today about the question of Anguilla’s need eventually to seek political independence from Britain.  You expressed an interest in my views on any good governance prerequisites before independence could be safely achieved.  I promised to put my views in writing for you, and I do so now.  You are free to share these views with anyone you choose, even as I am constantly doing.
We need to have in place a reliable and trusted system of checks and balances before we entrust our lives and property to an independent and unsupervised Cabinet of ministers.  We know this from observing what has happened over the last 50 years to our brothers and sisters in our unfortunate neighbouring Commonwealth Caribbean Countries, since they achieved political independence.  We also need to prove to ourselves that we can handle the burdens of greater self-government.  The standard of governance shown by the various political parties in the past several years, even under British oversight, has fallen short, and left many persons disenchanted with the notion of independence at this time.
The three essential ingredients for the good governance of Anguilla are well known.  They are (A) integrity, (B) accountability, and (C) transparency.
(A)     Integrity: The system of government that we have inherited seems almost designed to encourage us to give up our natural integrity once we achieve political power. The obvious solution is to put in place ‘checks and balances’ to ensure integrity in our system of government.  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.
A(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 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.
The Constitution itself should establish the office of Integrity Commissioner and provide a framework for its operations that ensures its independence and impartiality.  The exercise of his 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 Chief Minister 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 Commissioner can remove a Minister from office if 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.
An Integrity Act by itself, without entrenchment in the Constitution, is not sufficient.  Without such entrenchment, the Commission could be shut down tomorrow if the Governor were dissatisfied with it.
A(ii)   Tenders Boards: The second essential institution for ensuring integrity in government is a constitutionally protected Tenders Board.  Much of Anguilla’s capital budget is spent on developing infrastructure, repairs and maintenance.  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.  Our procurement system is essentially lawless and unregulated.  It is an invitation to sharp practices. 
Our Tenders Board has no tenure, or guarantee of independence.  The risk is the inevitable resulting corruption will damage not only government, but also companies and individuals in our communities.  A genuine Tenders Board is one established by the Constitution and insulated from outside influence.  A Tenders Board Act by itself is not a sufficient guarantee of integrity. 
A(iii)  Crown land: The third requirement for integrity in public life is the constitutional protection of public assets, mainly land.  In Anguilla, Crown land is dealt with under the signature of the Governor.  In practice, the Governor relies on the advice of Cabinet.  There is no public awareness of proposals for the disposition of public assets.  The integrity of dealings in public lands ought to be ensured by having a provision in the Constitution that any resolution to deal in any significant area of public land, in our case a half acre or more, is required to be brought to the House of Assembly for public debate and approval.
A(iv)  Appointments Commission: At present in Anguilla, 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.  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.  We need to take a leaf out of the British book and have all appointments vetted by an independent body established by the Constitution.
 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.
A(v)   Codes of Ethics: When, at the request of a supporter, a Minister telephones the Police Station seeking “a chance” for 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 Cabinet overrules the Chief Immigration Officer or a Planning Committee decision, they say they are only “showing a good heart”, and softening the harsh decisions of unfeeling bureaucrats.  But, it is quite the opposite: they are corrupting the system that has been designed for the even-handed protection of all citizens.  These are all common occurrences in Anguilla.
After the February 2010 general election, relations between the then 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 in office.  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, instead of requesting of the Governor that he appoint an acting Chief Minister in his absence, 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.  This crisis was caused by lack of training.
Persons in public life are not regularly taken through seminars and workshops on the meaning of nepotism, cronyism, and conflicts of interest.  Positive steps are required to train our Ministers, public servants, directors of public and private boards, and committee members in 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 themselves.  Our judges have bound themselves to a code of judicial conduct.  Our lawyers have committed to a binding code of ethics.  If Civil Servants, Judges and Lawyers can have them, why not Ministers?
(B)    Accountability. The second area of checks and balances that promote good governance, and that one would expect to see given emphasis in the Constitution, 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 include (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.  In addition, (vi) as a prerequisite for eventual independence, we need to increase the responsibility of local institutions by insisting that the British Government keeps to its promise of Partnership with us.  While they have all the power, we are not really a partner with them.
B(i)    Complaints Commissioner: This is another name for the Ombudsman.  Without an Ombudsman or Complaints Commissioner, the citizen must go to court to protect his rights.  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.  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.
B(ii)   Police Complaints Authority (PCA): At present, complaints from the public against misconduct by a police officer are heard and determined in secret by the Commissioner of Police.  This system is not transparent, and leads to public distrust.  It is not satisfactory for complaints against police officers to be handled internally and in secret.  There is no reason why, in the interests of reducing costs, the functions of a PCA cannot be combined with one or other of the recommended watchdog institutions.
B(iii)  Human Rights Commissioner: One of the complaints frequently heard is that the citizen’s fundamental rights can be protected only 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.
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.
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 corporations.
B(iv)  Freedom of Information (FOI) Act: In Anguilla it is nearly impossible to obtain any information from 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. 
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.
What the FOI Act 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.  Senior administrators violently dislike and are strongly oppose the FOI.  It should be entrenched by putting its establishment in the Constitution to ensure it cannot easily be dismissed.
B(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 to them by the Legislature.  In Anguilla, 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
B(vi)  Partnership with the British:  Some of the institutions suggested in this paper involve a transfer of power from the Governor to local institutions, eg, the independent Service Commissions.  There is need for more devolution by way of a new Constitution in preparation for eventual independence.  It is time that the Constitution provides that the Chief Minister, and not the Governor, chairs Cabinet meetings.  The appointment of a new Governor should be made by the FCO only after consultation with the Chief Minister and the Leader of the Opposition, who should have a right to see the curriculum vitae of the proposed appointee.  The size of Cabinet should be increased from the present 4 to at least 6 persons to take account of the increased burden of government.  The ex-officio members of Cabinet may remain in Cabinet meetings to advise, but they should have no vote.
The Governor must be required to consult with the Chief MInister on the use of his reserved powers.  The Governor should no longer have a power to refuse to assent to a Bill once passed by the House.  Nor should the Secretary of State have the power of disallowance of a Bill passed by the House of Assembly, save in strictly limited situations.  As a British Overseas Territory, Anguilla is a colony, and the British retain other effective mechanisms to reign in an outlaw or out of control government. 
Belonger status should not be defined by British citizenship, since so many Anguillians have had to renounce British citizenship to enjoy the privileges of the country where economic hardship has driven them to migrate temporarily.  Retaining British citizenship as a qualifier for public office deprives Anguilla of the services of these persons when they return home. 
Nominated Members of the House of Assembly should be done away with, as they are unelected and their presence is undemocratic.  Several of the seats in the House should be reserved for Members elected at large to reduce the number of small constituencies that can be bought by wealthy or influential politicians.  Campaign funding should be regulated by law so that politicians are compelled publish an audit on a regular basis.  Ex-officio Members may stay in the House to advise, but should have no vote. 
The number of elected Members should be increased to ensure there are more elected Members than Ministers in the House, and the House is no longer a mere committee of Cabinet (there are at present 7 elected members, 4 of whom are Cabinet Ministers).  With the proposed 6 Ministers that will require a House of at least 13 elected Members, only 2 more than the present number of 11 Members (including the 2 Nominated and the 2 Ex Officio Members).  
A vote of no confidence in a Chief Minister should take a simple majority instead of the present three-quarters.  This will help to ensure that a Premier cannot continue to rule with a minority government.  The present often ignored convention that such a motion should be given priority by the Speaker should be spelled out in the Constitution to ensure that the Speaker cannot at the Chief Minister’s request subvert the system.
The Police and the Public Service should be under independent Commissions and not the Governor. 
If the British really mean what they say about partnership, they must take these steps to prepare us for increased experience in self-government prior to our seeking full independence.  All of the above suggestions should be entrenched by placing them in a new Constitution and given several years to work before we consider a referendum for Independence.
(C)    Transparency. The third key element of good governance is transparency.  It is the lack of transparency in our system of government that causes so many of our Ministers’ actions to be wrongfully categorised as corrupt.  The obvious solution is to institute systems that increase transparency.  These include (i) the appointment of civil servants, teachers and the police by independent 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 (vii) providing for the appointment of a Director of Public Prosecutions (DPP).
C(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.  To put all 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.
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.
C(ii)   Mercy Committee: The Governor has the constitutional power to pardon convicted persons 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.  This power ought to be exercised by a Mercy Committee with the Governor as Chairman.
C(iii)  Boundaries Commission: There has been no alteration to the electoral boundaries for several decades.  Some of the political constituencies are a small fraction of the size of others.  Good governance demands that our people have more or less equal representation in the House of Assembly.  There is no reason why the modern practice of having the electoral boundaries re-examined after every population census should not be required by the Constitution to equally apply in Anguilla.
C(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 of hiding every decision and action of a department of government is 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. The Constitution should 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.
C(v)   Departmental Reports: Departments are generally expected to publish annual reports for laying before the House of Assembly.  This requirement was strictly enforced during the earlier colonial period.  The practice seems to have fallen into disuse in recent decades.
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 are they published, or are they kept secret?  Members of the House of Assembly ought to 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.
C(vi)  Cabinet Press Conferences:  Cabinet meetings should be opened up to the public whenever possible.  At the very least, post-cabinet press conferences should be regularly and diligently held so that the public may be informed as to decisions taken in the public interest.
C(vii) Director of Public Prosecutions (DPP): It is not acceptable for the Attorney-General to be the prosecutor in all serious charges tried in the criminal assizes.  In Anguilla, 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.
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.  
When the rebelling colonists in the Thirteen Mainland Colonies in America contemplated an independence Constitution, their leaders placed “checks and balances” in it to guarantee their freedom.  So, the President nominates a Supreme Court Justice to fill a vacancy in the highest level of the judiciary.  But only the Senate Judiciary Committee can confirm his appointment.  The President nominates a Secretary of State to the Cabinet.  But only the Senate can approve this appointment to the highest level of the executive branch of government.  Sometimes, these checks and balances frustrate a President in achieving his goals.  But the fathers of the American Constitution considered this a reasonable price to pay to ensure that there could never be a dictatorship in the United States. 
We deserve our own constitutional checks and balances to guarantee good governance when independence comes, as it inevitably must.  We must prove to ourselves that we can run a transparent and democratic government by a transfer of some of the present powers of the Governor to local institutions, prior to advancing to independence.  These must be put in place in a new Constitution, and they must be shown to function effectively, before there is any referendum on independence. 
Further debate in Anguilla will reveal what other mechanisms than the ones I have set out above are considered equally vital.
I look forward to discussing these ideas with you at any time you should desire to do so.

Yours respectfully,

Don Mitchell