Don Mitchell's Published Papers

Sexual Harassment

2011-11-17T11:41:00.004-04:00

“The Case of Sexual Harassment” by Don Mitchell JA (Ag)

Colloquium on “Gender and the Law”, Castries, St Lucia, November 17-18 2011

[1] This paper seeks to address the topic of sexual harassment as an aspect of gender inequality in employment in the OECS and within the context of an acknowledged weak statutory framework for anti-discrimination. The topic has been the subject of much research and study in the past decade^¹. However, despite encouragement and recommendations, that concern has not translated into legislative action. A search of the website of the Eastern Caribbean Supreme Court reveals only one case^² in which the term “sexual harassment” is even mentioned, and then only as an aside. It is perhaps not surprising that this activity has been the subject of so little judicial pronouncement within the sub-region served by the Eastern Caribbean Supreme Court. The lacuna is evident elsewhere. A search of the website^³ of the Trinidad and Tobago Supreme Court does not reveal one case dealing specifically with the topic. A similar search of the website^⁴ of the Supreme Court of Jamaica is no more productive. We have to assume that there has been no litigation on the subject in either of those two Commonwealth Caribbean States.

[2] In a 2006 paper^⁵ published on the website of the CCJ, Justice Desiree Bernard provided us with a thorough description and analysis of the phenomenon of sexual harassment in the West Indian workplace in these terms,

“Sexual harassment in the workplace is a not too unfamiliar scenario in our Region. While victims of sexual harassment can be male or female, women suffer disproportionately. Many young women are exploited and forced into sexual liaisons with their male employers to obtain or retain employment. Sexual favours are the “quid pro quo” for permanent job security or advancement. This type of harassment in the workplace frequently destroys a productive working environment and the self-esteem of those who experience it.

However, sometimes sexual harassment is difficult to identify particularly in our Region where women regard a touch on the buttocks or risqué jokes as part of our normal social intercourse, and may only treat it as serious when the harassment develops into more aggressive conduct. In less formal employment situations such as domestic service any sexual suggestion or gesture by a male employer will constitute sexual harassment because of the advantageous position and dominance he enjoys in his household.

Overall, the key ingredient in sexual harassment is the authority which the harasser wields over the victim who is usually at a disadvantage owing to her fragile economic position, the current employment being in most cases her only means of livelihood. With this foremost in her mind a victim may be reluctant to confront her harasser or report any unwelcome advances.”

[3] The lack of relevant legislation has long been the subject of complaint in the region. A 2003 paper by Linden Lewis^⁶ reveals that only two Caricom countries, Belize and the Bahamas, have established specific sexual harassment legislation. As Mr Lewis writes,

“For the most part, sexual harassment is widespread in the region. Many men in the Caribbean fail to recognize the import of this problem. Indeed, many do not view it as a problem at all. Though some men would stop short of sexual battery, they see no harm in engaging in sexual banter in the workplace or creating an uncomfortable environment for women, lesbians and gay men. It is reasonable to argue that in the Caribbean as a whole, sexual harassment represents behaviour which is largely normalized. The patriarchal culture of the region nurtures this type of behaviour. Sexual harassment is an extension of behaviour associated with public harassment of women and gay men. Hegemonic men in the region retain the right to shout remarks at women in public spaces. These remarks are sometimes complimentary, often sexually suggestive, and other times very insulting, humiliating and embarrassing to women in public. Subordinate men do not escape such public taunting. Often these disparaging remarks directed to gay men are accompanied by the threat of violence or backed up with actual violence. Ironically, men who raise the issue of sexual or public harassment are seen as strange or confused or are believed to have lost their way socially.”

He points out that common and sexual assault criminal charges are inadequate to provide the protection from this type of harassment that employees are entitled to. His urging that more of our countries should adopt the model Caricom sexual harassment Bill^⁷ to seems to have fallen on deaf ears.

[4] In 2006, Justice Bernard, in a second paper^⁸ delivered on the occasion of the 60^th anniversary of the UN Commission on the Status of Women, repeated Mr Lewis’ hope that the Caricom model Bill will soon be enacted by our legislatures. As she expressed it then,

“In the Caribbean, conduct which is now regarded as harassment was endured without complaint by women with few options who were seeking or were desirous of retaining employment. A number of states in the Region have enacted sexual harassment legislation, but no statistics are available to ascertain how effective they have been.”

This Caricom model Bill would prohibit sexual harassment in the workplace, as well as in education and accommodation, and would include provisions which would empower officers to conduct investigations and establish a tribunal to hear complaints. This draft Bill is now almost exactly 20 years old.

[5] In 2007 the Grenadian Education and Labour Minister, Claris Charles^⁹, declared open a one-day consultation on creating a policy framework for developing sexual harassment legislation in Grenada. She questioned then what sort of society was being built on the island when women accept violence in their homes, as well as being harassed at work, and the abuse of their children at home. She complained,

“There is need for the public-at-large to become more aware of what is happening around them through education. We do not have a public that would inform on those things. Everything they hide it. So a woman is sexually harassed, she goes home, she tells her friend and that's it. A woman is abused, she accepts it because she is emotionally dependant.”

What is true for Grenada is no less true for each of the States and Territories in our sub-region.

[6] The time for us to be treating sexual harassment as a private wrong is long past. In a 2009 United Nations Development Fund for Women (UNIFEM) article^¹⁰ published in the Stabroek Newspaper, Senior Lecturer at UWI Tracy Robinson explained,

“Many of us remember when domestic violence was dismissed as ‘cultural’, ‘man and woman business’, even though most of the violations were already in theory crimes. The passage of legislation naming and defining domestic violence in law has played a key role in altering the way we now understand and address domestic violence. Like the domestic violence law, the sexual harassment legislation will introduce crucial new remedies, and send a message about the seriousness of the violation.”

[7] The jurisprudence in the Eastern Caribbean is negligible. We have seen the dearth of reported cases. I have found one journal article on a 1994 ground-breaking Industrial Court case^¹¹ from Trinidad and Tobago where sexual harassment was for the first time upheld as good grounds for dismissing a senior employee who had provided 25 years of commendable service to his company. This was the first case on sexual harassment to go as far as the Industrial Court. In providing the rationale for its decision, the court advised:

"It is therefore left largely to employers to establish a reasonable framework for addressing problems associated with sexual harassment at the workplace. The unions, too, have an obligation to their members to work towards elimination of these problems. It is to be hoped that until Parliament enacts legislation, the parties would find it possible to co- operate in the formulation of an appropriate policy on the subject."

[8] And, so, in the absence of a legislative framework, it is left for those of us concerned about limiting the opportunities for sexual harassment in the workplace to find ways to take private initiatives. The USA has led in the corporate field in promoting active policies at Board level to discourage sexual harassment and to provide mechanisms for employees who feel harassed to be able to make a complaint and to have their grievance heard and dealt with in a fair and impartial matter. For several years in the 1980s, I was a representative of the Caribbean Family Planning Affiliation on the Board of Directors of a New York-based not-for-profit corporation with hemisphere-wide branches. This was the International Planned Parenthood Federation (Western Hemisphere Region) Inc, or IPPF(WHR). While I was on its Board, IPPF(WHR) adopted a sexual harassment policy for all of its employees. It was quite extensive and read as follows:

“B. SEXUAL HARASSMENT POLICY

Sexual harassment is a violation of local, state and federal law, as well as of this policy. Although all forms of discrimination and harassment are treated with equal seriousness, sexual harassment is often difficult to define, so it is addressed in further detail in this Handbook. The Equal Employment Opportunity Commission has issued guidelines which define sexual harassment as any unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact and other verbal or physical conduct, or visual forms of harassment of a sexual nature when submission to such conduct is either explicitly or implicitly made a term or condition of employment or is used as the basis for employment decisions, or when such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive work environment. Sexual harassment is a general term and includes more than overt physical or verbal intimidation. It can occur among co-workers as well as from supervisors or managers. Lewd or vulgar remarks, suggestive comments, pressure for dates or sexual favors and unacceptable physical contact are examples of what can constitute harassment. It is important to realize that what may not be offensive to one employee, may be offensive to other employees.

All employees are expected to know the procedure to follow if sexual harassment occurs so that the problem can be corrected quickly and effectively. Any employee who believes he or she has been subjected to sexual harassment or has any knowledge of such behavior should report it at once to his/her supervisor or Department Head or to the Director of Human Resources. The Department Head or supervisor must consult with the Director of Human Resources related to a complaint.

C. COMPLAINT PROCEDURE- DISCRIMINATION AND HARASSMENT

IPPF/WHR strictly forbids making submission to any harassing or discriminatory conduct a basis for an employment decision and will do its best to keep the work environment free of any conduct that creates an intimidating, hostile or discriminatory work environment for our employees.

Any employee who feels that he or she has been harassed or discriminated against based on any protected personal characteristic in the course of employment should contact his or her supervisor, and report the relevant facts immediately. If an employee feels uncomfortable bringing the matter to the attention of his or her own supervisor or if the supervisor is thought to be involved in the harassment or discrimination, the employee may contact the Director of Human Resources or the Regional Director. Charges of harassment and discrimination will be promptly and thoroughly investigated. Such investigation may include witness interviews and requests for statements concerning the facts of the complaint. Reports of discrimination or harassment will be handled with sensitivity. Confidentiality will be maintained throughout the investigatory process, to the extent practical and appropriate under the circumstances, in light of the important privacy interests of all concerned. However, IPPF/WHR reserves the right to disclose information and take any appropriate remedial and disciplinary action in order to discharge its legal obligations. Records of all discrimination and harassment complaints and investigations will be maintained for at least the same length of time as other personnel records are maintained.

If IPPF/WHR determines that harassment or discrimination has occurred, appropriate relief for the employee bringing the complaint and appropriate disciplinary action against the harasser or discriminating person(s), up to and including immediate discharge, will follow. IPPF/WHR will make follow-up inquiries to ensure that the harassment or discrimination has not resumed.

An employee who remains unsatisfied after the investigation may seek review from the Board of Directors of IPPF/WHR, who may direct or conduct an additional independent investigation and will advise the employee of the results of the second .investigation. The Regional Director may take further investigatory remedial or disciplinary action as is appropriate.

No employee may be retaliated against for the good faith exercise of rights under this policy (regardless of the outcome) or for cooperating in an investigation under this policy. Any person who knowingly makes a false or malicious complaint under this policy will be subject to appropriate disciplinary action.”

What was admirable about this policy was that it not only prohibited the sexual harassment of employees, but it also set out detailed procedures to be followed by the employee who felt compelled to complain. The one is not much use without the other. I found the IPPF regime so worthwhile that while I was an attorney in private practice in Anguilla, I had occasion to encourage appropriate clients to adopt it for inclusion in their by-laws and employee handbooks.

[9] As elsewhere in our region, Anguilla’s laws on the subject are defective. Sexual harassment by male employers is perfectly acceptable under the criminal law, provided it is directed to an adult employee and not towards a minor. Section 158 of the Criminal Code creates the offence of “sexual harassment of a minor” and imposes a penalty of a fine of $10,000 or 5 years imprisonment. The offence only exists within the environment of employment or prospective employment. So, interestingly, the section includes sexual harassment of an adult by a minor in the employment environment. It creates the offence of the importuning of an adult in authority by a person between 16 and 18 years of age “who holds out the promise of sexual favours in exchange for any benefit or advantage or the forbearance from the exercise of any right, power or duty relating to that authority”. There is no similar offence of sexual harassment of an adult employee.

[10] It has been left to individual corporations and institutions to include in their bylaws and constitutions provisions against sexual harassment. In Anguilla, a number of organisations have begun to include such provisions in their employee handbooks and office manuals. So, for example, the offence is mentioned in the Anguilla Public Service Code of Ethics. It is more clearly spelled out in the 2001 Anguilla Association of Office Professionals Code of Ethics which I offer up to you as an example of a worthwhile private initiative. Clause 14 reads as follows:

“14 Sexual Harassment

Sexual harassment is any unwelcome sexual advance, request for sexual favours, sexually motivated physical contact, and other verbal or physical conduct, or visual forms of harassment of a sexual nature, when submission to such conduct is either explicitly or implicitly made a term or condition of employment or is used as the basis for employment decisions, or when such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive work environment. Lewd or vulgar remarks, suggestive comments, pressure for dates or sexual favours and unacceptable physical contact are examples of what can constitute harassment. We recognise that a harmonious and productive working relationship is essential in the work place. We shall do what we must to foster harmonious and productive working relationships that encourage mutual employee respect. We recognise that in a few cases there is a degree of sexual harassment in the workplace that has to be faced up to and overcome. We shall not ourselves engage in sexual harassment of our juniors, nor shall we accept it from our seniors.”

[11] So long as our legislatures are reluctant to debate and to enact laws criminalising sexual harassment, it will continue to be the responsibility both of good corporate citizens and of workers’ representatives to ensure that their institutions’ corporate by-laws, employee handbooks and Board policies contain provisions expressly dedicated to outlawing sexual harassment in the workplace and providing mechanisms for victimised employees to seek redress. I cannot find a better process to recommend to such persons than that adopted by the IPPF for Family Planning Associations of the West Indies.

Anguilla

13 November 2011

1See for example the 2005 ILO paper: “Sexual harassment at work: National and international responses” by Deirdre McCann: http://www.ilo.org/dyn/gender/docs/RES/429/F1845214041/Sexual%20harassement%20at%20work.pdf

2Bank of Antigua v Errol Williams (Antigua and Barbuda Civ App 23 of 2001) unreported decision of 31 March 2003

3http://www.ttlawcourts.org/index.htm

4http://supremecourt.gov.jm/judgments

5“Confronting Gender-based Violence in the Caribbean” by The Hon Mme Justice Desiree Bernard, OR, CCH, Judge of the Caribbean Court of Justice.

http://ccj.org/papersandarticles/07-Confronting%20Gender-Based%20Violence%20%2029%2011%2006.pdf

6“Gender Tension and Change in the Contemporary Caribbean” delivered at an Expert Group Meeting on “The role of men and boys in achieving gender equality”, 21-24 October 2003, Brasilia, Brazil.

http://www.un.org/womenwatch/daw/egm/men-boys2003/EP11-Lewis.pdf

7The model “Protection against Sexual Harassment Act” drafted in 1991.

8Published on the CCJ website and entitled “Advances Made on Gender Equality and Women's Human Rights in the Caribbean Region”:

http://www.caribbeancourtofjustice.org/papersandarticles/06-Advances%20Made%20on%20Gender%20Equality%20%2010%2011%2006.pdf

9Article in Grenada Today: http://www.belgrafix.com/gtoday/2007news/Oct/Oct13/Combatting-sexual-harassment.htm

10Entitled “Why we need sexual harassment laws in the Caribbean”

http://www.baiganchoka.com/why-we-need-sexual-harassment-laws-in-the-caribbean/

11Dell Mohess v Republic Bank. See article in “Executive Time Magazine, Caribbean Edition”:

http://www.angelfire.com/journal/executivetime/sexual.htm

Beyond Walls - Oral

2011-04-28T18:12:00.004-04:00

New Perspectives in Oppression: The British Foreign and Commonwealth Office and the Colonies in 2010 –

ORAL PRESENTATION

The 37-page paper a copy of which you have before you does not deal with the important issue of political independence for Anguilla. It is not about the horror of a West Indian people living under the abusive system of colonialism.

I entirely agree with those who say that there is only one road for Anguilla. There is only one road for any community which finds itself subject to the dictates of foreign, non-elected and unaccountable people of a different culture. That is, for the people to seize their inalienable right to self-government. The only justification for colonial rule is racism, which is itself unjustifiable and universally condemned. The system of colonial rule is itself inherently corrupt.

Let us now see a show of hands from all the Anguilla United Movement supporters in this room who would be happy for the Anguilla United Front to take us into independence. The answer is …

Now, hands up from all the Anguilla United Front supporters in this room who would be happy for the AUM to take us into independence. The answer is …

Do the results of this little poll mean that there is no one in this room who is interested in achieving political independence from the British Crown? The answer, I am certain, is No. It does not mean that. It just means that we crave freedom itself more than we crave freedom from British colonial rule.

So, what is my paper about? It is about the failure of the British Government, and in particular that Department called the Foreign and Commonwealth Office, up to the end of the first decade of the 21^st century to provide our colonial people with the constitutional framework that would give us a chance to achieve full political independence with some certainty of freedom from local tyranny. I argue that unless there is a paradigm shift in the attitude and methods of the FCO, the likelihood is that we shall grow increasingly weary of an apparently brutal and arbitrary colonial rule. History has shown that we shall then demand and be given political independence. History shows that we shall, shortly after the euphoria of Uhuru has worn off, descend into an even more brutal period of self-imposed, local tyranny.

The paper, a copy of which is before you, is based on my experience. I am an old-age pensioner now, having been born in St Kitts in 1946. I lived in Trinidad when it gained political independence in 1961 under the tyrannical rule of Dr Eric Williams. His administration became so corrupt and oppressive that there was an armed uprising which was put down only after CIA and US State Department infiltration of the rebels. Eric Williams gave my St Vincent-born father Trinidadian citizenship in gratitude for the role he played in supplying his company’s aeroplanes to follow and observe the rebels from the air so that the forces loyal to Dr Williams could defeat them.

I have lived through a Jamaica dominated in the early 1970s by the charismatic but cruel and confiscatory reign of Michael Manley. My father died in Jamaica in 1973. Prime Minister Michael Manley flew in to attend his funeral in his army helicopter, frightening all the children for miles around with the noise it made as it landed in the churchyard. All my life I have listened from close up to the rhetoric of popularist West Indian politicians, and I have observed with an intense sense of outrage their use and abuse of the power entrusted to them by the people.

I have observed an Antigua and Barbuda dominated in the 1960s, 70s, 80s, and 90s by the oratory of a corrupt and venal Vere Cornwall Bird. After he died, his country continued to be run by kleptocratic politicians supported by a corrupt police force whose main reason for its existence appears to have been to supply and distribute cocaine throughout the country. That is, when their soldiers are not running the whorehouses and local gambling dens from which they have made themselves wealthy on for the past 50 years, as Tim Hector exposed so many years ago before they burned down his printing press and shut him up. There are one or two retired police officers I know of who have spent their entire career doing little else but carry brown paper bags of money from one person to another.

I have been concerned about a St Vincent and the Grenadines dominated by two political parties whose only purpose in life appears to have been to enrich and empower their leaders at the expense of the people. These political parties’ idea of constitutional and electoral reform is to remove yet more of the freedoms of the people and to hold them back in poverty and ignorance. My father was born in St Vincent, and I am entitled to citizenship of that unfortunate country. I have lived and worked in it and speak from personal knowledge.

I have lived through the era that saw the rise and fall of Eric Gairy of Grenada, one of the most venal and corrupt of West Indian political leaders. He flourished under the very same colonial regime that we are subject to in Anguilla at this time. His wallet grew fat in stolen wealth, and his reputation slimy from the many young women he debauched. I say that about Grenada even though my father’s roots were in Grenada, and under the Grenada Constitution I am entitled to apply for, and to hold, a Grenadian passport.

My paper argues for a paradigm shift in colonial governance if we Anguillians are to enjoy a future where our system of government will be strengthened by institutions that offer the people a way to hold our leaders to account.

The term “paradigm shift” was coined by Thomas Kuhn in his influential book “The Structure of Scientific Revolution”, published in 1962. It describes a change in the basic assumptions, or paradigms, within the ruling theory of science. Once a paradigm shift is complete, a scientist can no longer, for example, reject the theory of evolution and revert to the clerical theory of the divine creation of species. A doctor can no longer reject the germ theory of disease and go back to the medieval theory that it is a “miasma” that causes disease. In a non-scientific context the term describes a profound change in a fundamental model or perception of events. That is the sense in which I use it in the paper before you.

The paper argues that the present Westminster model Constitution we in the BOTs have inherited is inadequate to provide the protections necessary for a colonial people on the verge of being sent out into self-government and eventual independence. In the paper, I contend that the structure of our present colonial Constitution is misshapen and unworkable in providing good governance. Part of the explanation, I posit, is that our 21st century fundamental rights and freedoms unevenly overlie the skeleton of an 18^th century colonial structure of administration, now reduced to writing. What we have as a written Constitution is the unwritten British parliamentary model, but with none of the institutions or structures that exist in Britain, whether inside or outside of the legal framework, to ensure that the whole works smoothly and evenly.

To give a few examples, typically Tenders Boards are not established by our colonial Constitutions. In many territories they are not even governed by legislation. They are generally ad hoc committees appointed by a Minister or by the Governor. Public contracts are routinely awarded on the basis of family and friendly relationships. Statutory Boards and government committees are staffed with unsuitable political supporters on the basis of “the winner takes all” after every general election. Land Development Planning Committees and Building Boards have their policy-based decisions subject to reversal by politicians. Immigration Department orders and Work Permit decisions are made by politicians on the basis of unpublished and unknown policies. In some cases in Anguilla, the local statute specifically permits political interference in the administration of government policy. The result is that, with a Minister of Government on my side, I can safely ignore every regulation that had originally been put in place presumably for the public good.

I argue that there is no integrity in a system such as we have in Anguilla that permits a personal appeal to a Minister to overrule the decision of a Board or of a public officer carrying out the national policy. Victimisation and discrimination are the inevitable result. And, indeed, that is precisely the system of government that most of us labour under, supervised by the Governor and the FCO. There are innumerable examples, some of which I set out in my paper, of the mechanisms that have been put in place by Commonwealth law-makers to ensure that the system is self-correcting, and that corruption is winkled out and punished. Corruption will always exist, as it does in British politics to this day, as we have seen in the Parliamentary expenses scandal of last year. The question is do we continue to shrug our shoulders at it as we do now? Or, do we do like the British and demand that practical steps be taken to catch it and to nip it in the bud?

We, the citizens of the BOTs, do not accept that our islands are too small for high standards similar to those that are expected in the outside world to survive and work here. No matter how small our territories are, we are entitled to expect that our governments will be of laws and not of men. The solution suggested in the paper before you is for the FCO to establish in our Constitutions the necessary checks and balances, to encourage us to pass the necessary enabling laws, and then to assist us in formally educating the public and the leadership in the principles of good governance. It seems desirable that this constitutional reform occur, and time be given to permit it to show it can work, before we turn over our lives and our freedoms to the unsupervised, sticky fingers of our local political leaders.

In my paper I set out some of the time-proven mechanisms that the FCO needs to give attention to, if they are really serious about “good governance”. Most of these mechanisms have been introduced into law in Britain itself. All of them are to be found in one Commonwealth country or the other. I express in the paper regret that the FCO seems to feel no urgency about introducing them into their remaining BOTs. They have not done so in Montserrat, nor do they propose to do so for the TCI in the constitutional recommendations published in 2010. So, why should we expect them to think any differently of us in Anguilla?

I conclude my paper by voicing the fear and concern that if the sleight of hand and trickery that was apparent in the September 2010 process of constitutional reform in Montserrat, and that is threatened for 2011 in the Turks and Caicos Islands, is perpetrated in Anguilla, then there is no hope for us. We shall be destined to reject colonial rule and to take our independence in due course, burdened with the same defective constitutional and legal mechanisms as our cousins in Trinidad, Jamaica, Barbados, Grenada, St Vincent, St Lucia, Dominica, Antigua and Barbuda, and St Kitts and Nevis did.

Thank God I am too old to experience all over again what that will mean in practice for the freedoms and liberties of another one of our West Indian people. If what I fear should come to happen, I shall observe it in silent desperation from the side-lines. I shall take no pleasure in repeating to myself the maxim that, “If we do not know where we are coming from, then most likely we will not know where we are going to.”

Don Mitchell CBE QC

28 April 2011

Beyond Walls - Written

2011-04-28T18:11:00.003-04:00

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

Beyond Walls: Multidisciplinary Perspectives – 2011 Anguilla Conference Held at the National Bank of Anguilla Conference Room, The Valley, Anguilla on 28 April 2011

By Don Mitchell CBE QC

Setting the Stage

[1] The first decade of the twenty-first century was not a positive one for either good governance or constitutional reform in the remaining six British Overseas Territories (BOTs)[1] in the West Indies. The Cayman Islands and the British Virgin Islands stand out as possible exceptions. The Cayman Islands after approval by referendum accepted a new Constitution[2]. The British Virgin Islands after wide consultation and public approval did the same[3]. Bermuda has a form of Associated State Constitution[4]. This gives her full internal self-government. It is not thought that she can ask for much more constitutional advancement short of full independence. The same cannot be said for the Turks and Caicos Islands (TCI), Montserrat and Anguilla. Anguilla is still struggling to work an antiquated 1982 Constitution[5]. The TCI got her new Constitution in 2006[6], but vital parts of it have since been suspended. Montserrat was persuaded to accept a new Constitution in 2010[7].

[2] The three most recent West Indian BOT Constitutions, viz, those of the BVI, Cayman Islands and Montserrat, were principally designed to update the human rights provisions. The aim of the Foreign and Commonwealth Office (FCO) in encouraging and approving constitutional reform would appear to have been to ensure that Britain was in compliance with her obligations under the European Human Rights Convention. There is a good argument that, with this limited perspective, too little of an effort was made to ensure that mechanisms designed to guarantee good governance were put in place. All three of the new Constitutions suffer from many of the defects that will be discussed below when we come to deal with Anguilla’s situation.

[3] Five years ago, at the 2006 Overseas Territories Consultative Conference (OTCC), light and hope were much in evidence. The economies of all the Territories, except Montserrat, were booming. The world-wide recession that was to commence in December 2008 had not yet begun, though Montserrat was still devastated by the eruption of the Soufriere Volcano which had made the larger part of the island uninhabitable. At this 2006 OTCC, the FCO circulated a paper on the need, as perceived by it, for good governance in the Overseas Territories.

[4] The 2006 FCO paper claimed as the provenance of this need for good governance the 1999 White Paper Partnership for Progress and Prosperity. This 1999 FCO policy-paper had set out the policies which allegedly govern the relationship between the British Government and the governments of the Overseas Territories[8]. The 2006 FCO paper reads in part:

“2. Good governance is part of the partnership between the UK and its Overseas Territories set out in the 1999 White Paper, which highlighted the importance of providing governance of a high quality. It is essential that the UK and its Territories subscribe to high standards of human rights, openness and good government. Good governance builds trust amongst citizens of a society in its institutions and assists social cohesion. It encourages domestic investment; promotes higher rates of growth; and enables a society’s development to be shared equitably amongst its citizens. And it also promotes greater confidence amongst potential external investors. Moreover, good governance is a key element in ensuring sustainable development, another important area highlighted by the White Paper. For without good governance, the potential for sustainable development is severely undermined.”

[5] It might be useful at this point to remind ourselves that good governance in an Overseas Territory does not exist for the benefit of the FCO. ‘Good governance’ is not a mantra designed to make the public servants of the FCO feel comfortable with themselves. It exists purely for the benefit of the citizens of the territory concerned. If there is bad governance in a Territory, it is the people who suffer.

[6] The 1999 White Paper had recognised the need for more participation, transparency and openness in the BOTs in the future. This White Paper had been the result of extensive negotiation between the existing BOTs and the FCO. Colonialism in its most brutal and elemental form as it existed previously was to be ended. Ever since this 1999 policy statement the FCO has not legislated for Anguilla without our consent and approval. For them to have done so would have been a denial of the 1999 promise of partnership in the future. Even before that year recent Orders in Council such as the 1991 one abolishing the death penalty for murder[9] and the subsequent one legalizing homosexual acts in private[10] had been signed into law only after negotiation and agreement with the Overseas Territories. That is why the manner in which the new Montserrat Constitution was brought into effect in October 2010, and the recent questionable recommendations of November 2010 for TCI constitutional amendment[11], are so worrying. They suggest that all this progress is about to be reversed.

Subordinate Legislatures

[7] The general proposition must be that, colony or not, the making of domestic laws is in normal circumstances a matter for a country’s elected representatives. Our colonial Constitutions all provide that it is for the local legislatures to pass laws, subject to the Constitution. So, section 71 of the 2010 Montserrat Constitution provides that

“Subject to this Constitution, the Legislature shall have power to make laws for the peace, order and good government of Montserrat.”

We may describe this as the ‘normal’ way that laws are made in a BOT. However it is not the only law-making mechanism in a BOT.

[8] Under our Constitutions, the FCO has reserved five other ways to make laws for us. They may in short be described as (i) the reserve power of the Queen to make laws by the use of the Royal Prerogative, (ii) the power of the Governor to refuse his assent to a Bill that has passed through the House of Assembly, (iii) the Governor’s reserve legislative power; (iv) the Secretary of State's power of disallowance of an Act that has passed through the House and has been assented to by the Governor; and (v) the power of the British Parliament to make laws for us. Let us look briefly at them and consider whether they are all still appropriate for the encouragement of good governance in a BOT.

[9] (i) The Queen's power: Section 121 of the 2010 Montserrat Constitution is typical of a BOT Constitution. It provides,

“Her Majesty reserves to herself power, with the advice of her Privy Council, to make laws for the peace, order and good government of Montserrat.”

This section preserves the traditional colonial power of the FCO to make Orders in Council in the name of Her Majesty. These Orders derive from two sources. They are made either in exercise of the ‘Royal Prerogative’ or under the West Indies Act of 1962. The concept of the Royal Prerogative dates back to the days when the King claimed absolute authority to rule without consulting his subjects. Needless to say, it is seldom if ever used to make law in the UK itself. It is reserved for the colonies. The Act in theory empowers the Monarch (in reality the Secretary of State and the FCO) to legislate for the BOTs by way of Orders in Council. This power has justifiably been described as ‘the nuclear option’[12] held by the British government for control of an unruly BOT.

[10] An Order in Council, under whatever authority, in my view, may legitimately be made for a colony in the twenty-first century in only two circumstances. One is in a time of emergency when the normal law-making powers have collapsed or are not appropriate for some good reason. The second is when it is made with the consent of the Government and people in question. We regularly see the first in operation when emergency orders are made prohibiting trade by a BOT with a foreign country in breach of United Nations sanctions. We have seen the second in operation in such matters as international security and civil aviation. In such circumstances, it is more convenient for a BOT to adopt legislation by an Order in Council made in London than to waste local resources in drafting and enacting a local law.

[11] When an Order in Council is made affecting our basic right to self-government, without public information, consultation and consent, a wrong is done, in my opinion, to the people of the BOT[13]. This is the nuclear option at work in its anti-democratic aspect. The Chagos Islands case[14] is the classic example. During the 1960s the British government had, by an Order in Council made under the Royal Prerogative, deported the residents and citizens of the British Indian Ocean Territory to make room for a US naval base on the island of Diego Garcia. It had previously been accepted constitutional dogma that an Order in Council affecting a colony was unimpeachable in one of the Queen's Courts. The English High Court and Court of Appeal in enlightened judgments ruled that was no longer the case, and that all Orders in Council were subject to review by the Courts. Both courts held that a law for the deportation of an entire colonial people could not be said to be a law passed for the “peace, order and good government” of the people in question. The courts ordered that the survivors and descendents of the inhabitants should be returned to the Chagos Islands. The House of Lords, by a narrow majority, overturned the Court of Appeal decision. It held that, while such an Order in Council was reviewable by the Courts, it was not for the Courts to substitute their judgment for that of the Secretary of State as to what was conducive to the peace, order and good government of the Territory. This judgment was a sad day for the people of the BOTs. The House of Lords turned back the clock on decades of constitutional advance in the territories. The islanders have since taken the matter to the European Court of Human Rights, and we await a final decision on whether or not the House of Lords was correct in its ruling.

[12] (ii) The power of the Governor to refuse his assent: This is the second way in which the FCO reserves the right to legislate for us. Until the Governor has written the magic words “I assent” on an Act that has been passed by the Legislature and has signed his name to it, the law is not yet in effect. In an independent country, the Governor's power to refuse his assent is as theoretical as is the Queen's power to refuse her assent to an Act of the British Parliament. It is different in a colony. The older BOT Constitutions, such as Anguilla's is, give an unfettered discretion to the Governor to refuse his assent. In my opinion, that is not an acceptable situation for a BOT in the twenty-first century.

[13] It is unacceptable because it is undemocratic, redundant and anachronistic. It is undemocratic because the Governor has not been elected to make laws for us. It is redundant because the Governor sits in Cabinet[15] while a proposed Bill is being discussed and can affect the decision arrived at. It is anachronistic because it is a power that found its raison d’êtres in the days of the horse and buggy when colonial people could not be trusted to pass just laws. The Governor, his Deputy Governor and his Attorney-General (A-G), all have an opportunity to influence the wording of a draft Bill. In a smoothly running BOT where the elected leaders cooperate with the Governor, it would be unusual for a Governor, having joined in Cabinet in approving a Bill, to refuse his assent when once it has passed through the Legislature. That this has happened in Anguilla several times during the year 2010 is evidence of a breakdown in the relationship of comity expected between the elected Ministers and the non-elected members of Cabinet. To quote Justice Adrian Saunders in the celebrated High Court freedom of speech case of John Benjamin v Minister of Information[16],

“If this comity does not exist, then the wheels of democracy would not turn smoothly. A jarring and dangerous note will resonate from them.”

[14] Recent events have shown us the correct way for a Governor to behave when the Legislature passes an unacceptable law. In late 2007 the Government of Montserrat determined to improve the pensions payable to ex-parliamentarians. They approved in Cabinet an amendment to the Legislators' Conditions and Service Act. I am informed[17] that when the amending Bill reached the Committee stage in the Legislature, the Chief Minister of the day proposed an amendment that significantly enlarged the benefits that would be payable. This amendment had not previously been approved by the Cabinet. The amendment was supported by members of the governing party but opposed by the Opposition. The Bill was passed as amended. The Montserrat press and public protested. The Chief Minister backed down. He invited the Governor to correct the error made by the House by amending the Bill “in such a way that he feels he can consent to it”. The Governor refused this invitation to follow such an anti-democratic process. He insisted that the Chief Minister instead take back to the Legislature the necessary amendment to the illegal Bill. He could have done as the Chief Minister requested. Instead, he signed the bad Act into law together with the later amending Act. He did the right thing. He had encouraged the local Legislature to pass its own proper laws.

[15] Our BOT colonial Constitutions all provide that a Governor may send an enacted piece of legislation back to the Legislature, if he notices some defect in it, so that the Legislature may consider his objection and take such action as they think fit[18]. It goes without saying that if the Legislature chooses to ignore his advice that is their right under the principle of self-determination. We would expect in the future to see in a modern BOT Constitution or in some protocol to it a provision that the Governor will not refuse to assent to an Act that has properly passed through the Legislature except in the most unusual circumstances involving, e.g., Britain's international obligations.

[16] (iii) The Governor’s reserve legislative powers: The third way in which the FCO can legislate for us without the approval of our legislature is through the Governor's reserve legislative power[19]. The constitutional provision means that whenever a Bill has been introduced into the Anguilla House of Assembly, and has not received the majority support of the members, the Governor, if he considers it expedient in the interests of public order or public faith, may at any time declare the Bill to be a valid law and shall give his assent to it. There used to be a similar unrestrained provision in the BVI, but it has been severely restricted by the new Constitution[20]. The new BVI provision limits the Governor to exercising such legislative power to matters which are urgently necessary “for the purpose of complying with any international obligations applicable to the Virgin Islands”. We can hope that a similarly enlightened approach will be taken in relation to any new Anguilla Constitution.

[17] (iv) The power of disallowance: This is the fourth legislative mechanism by which the FCO can overturn a locally enacted law. All of the older BOT Constitutions[21] contain a provision that the Secretary of State is to have an unfettered power to disallow a law that had been passed through the Legislature and been assented to by the Governor. In the eighteenth century this power was operative only for a limited period after the law had been enacted. During the twentieth century it became an unfettered power, but it has been seldom invoked.

[18] The old colonial records are replete with examples of this actually happening. For example, in relation to the Slavery Amelioration Act and the Slavery Abolition Act the colonial legislatures of that day, supported by compliant lieutenant governors, frequently attempted to pass local legislation that was in conflict with the Act of Parliament. The Secretary of State, acting on the advice of the legal advisers to the Colonial Office, would disallow the offending colonial Act.

[19] The retention of this supervisory provision in modern BOT Constitutions is, in my view, now an anachronism. Modern communications ensure that the BOT A-G's Chambers, which are charged to draft laws for the local legislature, will be instantaneously advised of any changes that are required to be made to the drafting long before the provision goes before the Legislature. If the A-G's Chambers fails to keep in close touch with the latest thinking on proposed new legislation, he can be instructed to introduce the necessary amending legislation and to pilot it through the Legislature.

[20] In Montserrat[22] and the BVI[23] the provision has been softened by providing that the Secretary of State must first give the Legislature an opportunity to consider the defect and to correct it themselves. In my opinion, this is a half-way-house measure designed to make the provision more acceptable. We would hope that, if the power is not entirely repealed, this provision would be repeated in the new Anguilla and TCI Constitutions.

[21] (v) An Act of the British Parliament: This is the fifth and final way in which the British Government can legislate for us in the colonies. The procedure is not referred to in our Constitutions. We should not expect it to. It exists as a matter of general constitutional law.

[22] It is incontrovertible that the UK Parliament has the constitutional authority to pass an Act for any of the BOTs. Our legislatures are described in the constitutional literature as “subordinate legislatures”, the British Parliament as the “supreme legislature”. So it was that in 1962 Parliament passed the West Indies Act and in 1982 the Anguilla Act. When a British Colony achieves independence the British Parliament expressly relinquishes the power to legislate for the now sovereign nation. So long as we remain BOTs, it is inappropriate for us to expect that the British Parliament will relinquish the power to legislate for us.

[23] However, in my opinion, it is appropriate for the BOTs to demand that the British Parliament will never again legislate for us except in two circumstances. The first is if we request it. The second is where some vital British security interest is concerned and it is necessary to protect that interest by legislating for the BOT. In my opinion, it would be wrong in principle for the British Parliament to pass a law for us without first consulting us through our elected representatives and Cabinets.

The Problem

[24] The 2006 FCO paper previously referred to sets out what, in the view of the FCO, amounts to good governance. The paper lists the five key elements as being (i) the rule of law; (ii) transparency; (iii) accountability; (iv) the responsiveness of institutions; and (v) effectiveness and efficiency. These five elements may, for our purposes, conveniently be summarised under the three headings of (a) integrity, (b) accountability and (c) transparency.

[25] In my opinion, our system of government in the BOTs has generally failed in all of the above three prerequisites for good governance. We have been running our own internal affairs for decades. We have done so with such incompetence, venality and hubris among our leadership that observers generally hold our Ministers in quiet contempt. The FCO now appears genuinely to want to do something to help us to correct our failings. The issue for us is what can they do to assist us to correct these failings, and are they going about it in the right way.

[26] One of the basic requirements for good governance in any country is the existence of a system of law and custom that is designed to promote that aim. Without law and a strong tradition of integrity in public service it would be naïve to leave it to the good intentions of any political leader to show exemplary standards of public behaviour. The highest form of law is the written Constitution we all enjoy. The greatest protection that good governance institutions can enjoy is for them to be established by the Constitution.

[27] In each of the BOTs, our constitutional system is based on the Westminster Model. That is, our Constitutions attempt to copy the law and conventions that obtained in Britain at the time they were written. If, as I contend, the structure of our Constitutions is misshapen and unworkable in providing good governance, part of the explanation may be that our twentieth century fundamental rights and freedoms unevenly overlie the skeleton of an eighteenth century colonial structure of administration, now reduced to writing. What we have is the British parliamentary model with none of the institutions or structures that exist outside of the law in Britain to ensure that the whole works smoothly and evenly.

[28] The conventions that in Britain promote good governance, e.g., the expectation that a Minister will resign his post once he must defend himself against a serious criminal charge, so as not to bring the Government into contempt, do not prevail here. The reason is cultural and historical. The British have enjoyed centuries of parliamentary democracy, even without a written Constitution. This has given them the time and space to develop conventions that ensure the smooth working of their system. We in the West Indies, with no more than half a century of universal franchise, are still in many ways frontier societies. We have fancy written Constitutions with amateurish politicians who sometimes behave like cowboys, and we have no mechanisms in place to rein them in.

[29] One of the distinguishing features of a typical West Indian BOT Constitution is an almost complete lack of any mechanism to investigate and to prevent abuses of power. The typical Constitution, lacking either written-in checks and balances or universally honoured conventions to supplement the written rules, is intrinsically corrupting. Its lack of checks and balances and watchdog institutions almost seems designed to promote bad governance in our territories.

[30] To give a few examples, typically Tenders Boards are not established by our Constitutions. In many territories they are not even governed by legislation, but are ad hoc committees appointed by a Minister or the Governor. Public contracts are routinely awarded on the basis of family and friendly relationships. Statutory Boards and government committees are staffed with unsuitable political supporters on the basis of “the winner takes all” after every general election. Land Development Planning Committees and Building Boards have their policy-based decisions subject to reversal by politicians. Immigration Department orders and Work Permit decisions are made by politicians on the basis of unpublished and unknown policies. In some cases in Anguilla, the local statute[24] specifically permits political interference in the administration of government policy. The result is that, with a Minister on your side, you can safely ignore every regulation that had originally been put in place presumably for the public good.

[31] Other than the opportunity afforded the citizen every five years to change the faces of our representatives through general elections, there is no publicly enforceable restraint on the abuse of power. There are no provisions for the recall of an errant politician. There is no procedure for impeaching a Minister caught with his hands in the cookie jar. When major decisions or changes in the law have to be made, there is no question of a referendum or other mechanism for ensuring that the wishes of the people are made known and followed. In most of our territories there is nothing to ensure that the spending of public funds will be questioned in a forum that can impose accountability. Despite the media being technically free of censorship, the small sizes of our communities, and the need of our newspaper proprietors to rely on government advertising revenue, ensure that there is a minimum of critical reporting and commentary. Self-censorship prevails.

[32] In a democratic, transparent, and accountable system of government, it is for the politicians to lay down the national policy. Then, they must leave it up to an independent, professional public service to carry out their policy. It is the duty of the public officer to apply government's policies fairly and impartially. In appropriate cases there will be the power of appeal to an independent tribunal, but never to a politician. To have it otherwise means that the law and policies of our countries are not applied evenly and fairly to all citizens. There is no integrity in a system such as we have in Anguilla that permits a personal appeal to a Minister to overrule the decision of a Board or public officer carrying out the national policy. Victimisation and discrimination are the inevitable result. And, indeed, that is the system of government that most of us labour under, supervised by the Governor and the FCO.

The Solution

[33] We, the citizens of the BOTs, do not accept that our islands are too small for high standards, similar to those that are expected in the outside world, to survive and work here. No matter how small our territories are, we are entitled to expect that our governments will be of laws and not of men. The solution is to establish in our Constitutions the necessary checks and balances, pass the necessary enabling laws, and then to educate the public and the leadership in the principles of good governance.

[34] It is arguable that, despite the high-sounding sentiments expressed both in the 1999 White Paper and at the 2006 OTCC, little that the FCO has done in the West Indian BOTs during the first decade of the twenty-first century has contributed to good governance in any of them. The new Constitutions of the Cayman Islands, the BVI, and Montserrat, that update the human rights clauses to take on board the latest concerns of the Europeans on human rights, while at the same time increasing the deficit of democracy in each of those territories, have made no contribution to good governance in any of them. Let us look at some of the details.

[35] In 2010, the FCO successfully brought about a new Constitution for Montserrat. The new Montserrat Constitution was enacted by an Order in Council on 13 October 2010[25]. It comes into effect in September 2011. It had been approved by a resolution of the Montserrat legislature in very suspicious circumstances. As the Hon Don Romeo of of the Montserrat Legislative Assembly has protested[26],

“… it cannot be soundly argued that there was an informed mandate from the public for the legislature to act on their general mandate as our representatives, by ever so abruptly bringing the constitution development process to a conclusion within the next week or so. Therefore, if the FCO and our government now knowingly proceed to force through the Constitution and/or to accept it as it stands, they will have utterly betrayed the moral and historical imperatives and principles of decolonisation that were codified in UN Resolution 1541.”

[36] Anguilla continues to dwell under a 30-year-old Constitution. In August 2006, Anguilla published a report[27] making recommendations[28] for constitutional and electoral reform. However, that report did not receive universal acceptance, and progress in implementing its recommendations ground to a halt. General elections took place on 15 February 2010 and a new government was installed. The new government did not accept the Report. It has undertaken to appoint a new Committee to come up with new recommendations for constitutional reform and advancement. The citizens of Anguilla can hope that our government and the new Committee will learn from the errors made in our neighbouring BOTs of Montserrat and the Turks and Caicos Islands. Their reforms tell something about the type of proposals that are likely to be pushed by the FCO for inclusion in Anguilla’s new Constitution.

[37] We Anguillians must consider our options in the context of Anguilla holding the status of a British Overseas Territory, or colony. As such, Anguillians will continue for the foreseeable future to depend on the good will of FCO personnel if we are to enjoy any hope of constitutional advance. What are the constitutional changes the FCO have made to Montserrat and proposed for the TCI in the year 2010?

[38] Regarding TCI, it is as well to get the controversy over the suspension of parts of that Territory’s Constitution and its reversion to direct rule by the FCO out of the way. The waste and mismanagement of preceding TCI governments having come to a head in 2009, the FCO was stirred into action and suspended the three-year old Constitution, assuming direct control of the Government.

[39] While some TCI politicians and their hangers-on who had enjoyed the spoils of government, together with a few misguided political leaders in Caricom, continue to protest the suspension of parts of the TCI Constitution, there can be no doubt that the majority of TC Islanders accepted direct rule with relief. The dissolution of the local government and legislature were essential. It will require a Herculean effort to clean out the Augean stables of the TCI. Direct rule by the FCO was viewed by the TC Islanders as a precondition for the cleansing of the corrupt system under which they suffered at the hands of their local leadership. The introduction of an independent investigative and prosecutorial team to recover some of the stolen public assets and to put the more corrupt leaders in prison was unlikely to be accomplished if those leaders continued to run the organs of government. One gleans from the press in the TCI that the process of prosecuting politicians for corrupt acts and suing for the recovery of misappropriated public assets is grinding on so slowly that the anxious TC Islanders are growing impatient and dissatisfied with the rate of progress. That does not mean that they disapprove of the suspension of the Constitution. On the contrary, it was welcomed by all well-intentioned persons in and out of the TCI.

[40] There is one matter of justifiable concern in TCI. The FCO has appointed a constitutional consultant to come up with a set of recommendations[29] for revising the Constitution of the TCI, allegedly with the objective of improving the appalling standard of governance suffered by the citizens of that territory in past years. The resulting published recommendations can be criticised on two general grounds. The first is that they do not contribute to the improvement of democracy. The second is that the opportunity for installing effective checks and balances against future government excesses has been missed.

[41] So far as Montserrat is concerned, the FCO has, with the agreement of the local government, introduced a wholly repressive and retrograde new Constitution for that Territory. The TCI Revised Recommendations and the 2010 Montserrat Constitution give us some guidance as to what proposals the FCO legal team is likely to make for Anguilla when we come to discuss with it the question of constitutional advance. The omens are not good for Anguilla.

[42] Some questions are appropriate. What are the ‘watchdog institutions’ or ‘checks and balances’ that the FCO propose to introduce into the new TCI Constitution? Which of them, if any, have they included in the 2010 Montserrat Constitution? Which of them are they likely to insist on for Anguilla? What does the recent imposition of the Constitution in Montserrat tell us about the FCO’s true attitude to good governance? In relation to the 2010 Montserrat Constitution and the TCI Revised Recommendations, has the FCO shown any inclination to take steps that will ensure that good governance will prevail? Let us look at the answers to these questions in the context of the requirements for good governance.

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[30] 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[31] to the effect that this provision in the Constitution be strengthened. The recommendation[32] 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[33] 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[34] 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[35]. 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[36] 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[37]. 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[38] themselves. Our judges have bound[39] themselves to a code of judicial conduct. Our lawyers have committed[40] 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[41] 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[42] 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[43]. 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[44]. 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[45] 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[46] 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[47] 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[48] the provision that the Governor may enact a law without it having passed through the Legislature. The TCI Recommendations[49] 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[50] 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[51] 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[52] 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[53] 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[54] and in Montserrat[55]. The TCI Recommendations contain a proposal[56] 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[57] 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[58] and Tanzania[59] 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[60] by the Constitution in the Cayman Islands. In Montserrat the Complaints Commission has[61] 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[62] 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[63].

[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[64]. 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[65].

[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[66] 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[67] 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[68] 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[69] 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[70] 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[71] 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[72] 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[73] 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[74]. By contrast, the reform was fudged in Montserrat[75]. 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[76] 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[77] 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[78]. The Governor has responded by publishing a number of his own press releases[79] 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[80]. 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[81]. 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[82]. 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[83]. 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.

[1] The new name under the British Overseas Territories Act 2002 for a colony.

[2] The Cayman Islands Constitution Order, SI 2009 No 1379.

[3] The Virgin Islands Constitution Order, SI 2007 No 1678.

[4] The Bermuda Constitution Order, SI 1963 No 182.

[5] The Anguilla Constitution Order, SI 1982 No 334.

[6] The Turks and Caicos Islands Constitution Order, SI 2006 No 1913.

[7] The Montserrat Constitution Order, SI 2010 No 2474.

[8] The new UK Conservative/LibDem Government in 2010 shortly after coming to office published its intent to replace the 1999 White Paper early in 2011 by a new policy document which it is developing. It is uncertain to what extent, if any, the governments of the BOTs have been asked to play any part in this exercise.

[9] The Caribbean Territories (Abolition of the Death Penalty for Murder) Order, SI 1991 No 998.

[10] The Caribbean Territories (Criminal Law) Order, 2000.

[11] http://ukinbvi.fco.gov.uk/en/news/?view=PressR&id=93842682

[12] See Peter Clegg: http://redalyc.uaemex.mx/pdf/392/39211247005.pdf

[13] The consent of the TCI belongers was neither formally sought nor obtained before the Order authorizing the FCO takeover of TCI was signed. But, it was, at the time, widely welcomed. Except for the politicians and those depending on them, few felt wronged at the time.

[14] http://www.bailii.org/uk/cases/UKHL/2008/61.html

[15] In some BOTs this is referred to as the “Executive Council”. I will use the newer term “Cabinet” throughout this paper.

[16] 1998 unreported High Court judgment in suit 56 of 1997.

[17] http://corruptionfreeanguilla.blogspot.com/2008/01/colonialism.html [The Montserrat Reporter newspaper website has since mysteriously had the articles referenced taken down.]

[18] The 1982 Anguilla Constitution, section 57. By section 58 the Governor may return to the Legislature any Bill presented to him for assent together with any amendment he may recommend, “and the Assembly shall deal with such recommendation”, whatever that may mean.

[19] The 1982 Anguilla Constitution, section 56.

[20] The 2007 BVI Constitution, section 81.

[21] See, e.g., section 59 of the 1982 Anguilla Constitution or section 81 of the 2007 BVI Constitution.

[22] The 2010 Montserrat Constitution, section 76.

[23] The 2007 BVI Constitution, section 80.

[24] Eg, the Land Development (Control) Act, section 7.

[25] The FCO claims that this new Constitution was brought in with the consent and approval of the people of Montserrat. Indeed it can point to a Resolution of the Legislative Council of Montserrat approving the draft Constitution.

[26] Memo of June 24, 2010 to Ms Teresina Bodkin the Speaker of the Legislative Council, copied to the acting Governor and others.

[27] Report of the Constitutional and Electoral Reform Commission, dated 26 August 2006.

[28] http://www.gov.ai/documents/constitutional%20reform/6.%20Recommendations%20final.pdf

[29] Kate Sullivan: Revised recommendations for changes to constitutional and electoral arrangements in the Turks and Caicos Islands, dated November 2010 (TCI Revised Recommendations): http://turksandcaicosislands.fco.gov.uk/resources/en/pdf/revised-cerrecommendations

[30] TCI Revised Recommendation No 8.

[31] Anguilla Recommendation at paragraph 135.

[32] TCI Revised Recommendations Nos 39 and 40.

[33] Anguilla Recommendation at paragraph 162.

[34] The TCI Revised Recommendations Nos 36 and 37.

[35] See https://www.publicappointmentscommissioner.org/web-resources/resources/7f76c588b44.pdf

[36] As required by section 26 of the 1982 Anguilla Constitution.

[37] Smilingly referred to locally by some as, “a convergence of interests”.

[38] http://www.gov.ai/documents/codeOfEthics.pdf

[39] http://www.eccourts.org/publications.html

[40] http://www.oecsbar.org/

[41] 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.

[42] 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

[43] The Public Service Integrity Act, RSA c P170.

[44] http://www.anguillian.com/article/articleprint/4338/-1/135/

[45] Anguilla Recommendation at paragraph 72.

[46] TCI Revised Recommendation No 41.

[47] TCI Revised Recommendation No 4.

[48] At paragraph [16] above.

[49] TCI Revised Recommendation No 26.

[50] At paragraph [14] above.

[51] TCI Revised Recommendation No 9.

[52] http://www.anguillian.com/article/articleview/691/1/128/

[53] http://www.anguillian.com/article/articleview/8150/1/146/

[54] The 2009 Cayman Islands Constitution, section 120.

[55] The 2010 Montserrat Constitution, section 105.

[56] TCI Revised Recommendation No 36.

[57] http://www.ipcc.gov.uk/

[58] http://www.chrajghana.org/

[59] http://www.chragg.go.tz/

[60] The 2009 Constitution of the Cayman Islands, section 116.

[61] The 2010 Constitution of Montserrat, section 105.

[62] TCI Revised Recommendation No 36.

[63] As the author has previously recommended in his 2004 Report to the Governor on the Bermuda Conference on the Civilian Oversight of Law Enforcement.

[64] The 2009 Constitution of the Cayman Islands, section 122.

[65] The Legislative Assembly (Procedure) Rules 1976, rule 66A.

[66] The 2006 TCI Constitution, sections 83-88.

[67] TCI Revised Recommendation No 31.

[68] The 2007 BVI Constitution, section 76.

[69] Anguilla Recommendation at paragraph 60.

[70] See, e.g., the 1982 Anguilla Constitution, section 76.

[71] Anguilla Recommendation at paragraph 163.

[72] Anguilla Recommendation at paragraph 77.

[73] Other than the “brown” BOT of St Helena.

[74] The 2007 BVI Constitution, section 59.

[75] The 2010 Montserrat Constitution, section 46.

[76] Anguilla Recommendation at paragraph 71.

[77] 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.

[78] See: Caricom News Network article of 21 October 2010:

http://csmenetwork.com/2/index.php?option=com_content&view=article&id=9813:anguilla-governor-and-chief-minister-in-war-of-words&catid=122:csme-network-latest&Itemid=211

[79] See Governor’s press conference of 19 October 2010 as reported by Rainbow FM:

http://www.rainbowfm935.com/more_news_7

[80] See article in The Anguillian Newspaper of 1 October 2010: http://www.anguillian.com/article/articleview/8831/1/140/

[81] 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

[82] 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

[83] See article in The Anguillian Newspaper of 3 December 2010: http://www.festival.ai/article/articleview/9051/1/140/

[i]

Compulsory Acquisition

2011-04-06T18:35:00.003-04:00

Compulsory Acquisition of Land in the Eastern Caribbean

A Presentation to the Offshore Alert Conference

April 6 2011 – By Don Mitchell CBE QC

[1] Compulsory acquisition of land by the government for a public purpose is an ancient public right. In common law countries its legal basis lies shrouded in the feudal concept of the ultimate right of ownership of all land by the Crown. When William Duke of Normandy defeated King Harold in 1066 he acquired all the land of England by right of conquest. He parceled it out to his noblemen, and he could take it back when they displeased him. He did not even need the excuse of a public purpose. Though the feudal system disintegrated over the succeeding one thousand years, the theory that the government could in certain circumstances take away the ownership of private land remained.

[2] In the United States it is called the right of “eminent domain”. In the UK it is more accurately referred to as “compulsory purchase”. In Canada it is with brutal clarity named “expropriation”. In the West Indies we more politely label it “compulsory acquisition”.

[3] The overreaching law in each of our Leeward Islands is the Constitution. This incorporates the Bill of Rights, or the fundamental rights provisions. Typically, the ownership of private property is protected by one of the fundamental rights sections of the Constitution. This section provides in summary that no right over any property of any description shall be compulsorily acquired by government except under a law which prescribes how compensation is to be paid and which requires the prompt payment of such compensation.

[4] Over the years a large body of law has built up as the courts of the West Indies have dealt with complaints against confiscatory acts of governments. So, compulsory membership in a sugar workers' union with the employer being obliged to deduct union dues has been held offensive to this section. Deductions from a civil servant's monthly salary in order to compulsorily refund what the government deemed an overpayment has been declared unlawful. And, then there have been the hundreds of land acquisition cases.

[5] Confiscation, expropriation or acquisition of land in the West Indies is governed by the law that is now generally known as the Land Acquisition Act. It is a law that, like so much of our statute law and common law, we inherited from the British. Its modern form goes back to the Land Clauses Consolidation Act of 1845 and the succeeding British Acts of Parliament. The requirement for immediate cash payment on expropriation of land is an ancient one. It dates back to Chapter 28 of the Magna Carta of 1297. This Act still remains on the statute books of England and Wales, though in our countries it has been replaced by the Bill of Rights provisions of our Constitutions.

[6] The Land Acquisition Act of St Kitts-Nevis and Anguilla, with which I am more familiar, was enacted in 1958. It provides for the familiar English structure of a Judge or senior barrister appointed by the Governor to chair a three-person Board of Assessment. The other two members are appointed by the Governor one on the recommendation of the government and the other of the person aggrieved. The parties lead evidence, including their respective valuations, and the Board gives a determination as to the amount of compensation that it deems to be fair. There is a right of appeal, where the Chairman is a judge, to the Court of Appeal, and then to the Privy Council in London. Where the Chairman is a Barrister, appeal typically lies to the High Court, then to the Court of Appeal, and then to the Privy Council.

[7] There can be delays in securing compensation. These delays can occur all along the process. Some are the fault of a dilatory claimant, others are the fault of an impecunious government, and yet others are the fault of the system. If anybody knows of a swift way to extract money from government, please let us all know.

[8] Immediately a compulsory acquisition occurs, negotiations for compensation between the government and the land owners begin, if they have not begun already. The negotiations may be stopped by the claimant filing an interlocutory application challenging some part of the acquisition. It may be alleged that government acted in bad faith. Or, it may be claimed that the acquisition is not needed for a public purpose. Such an application has the effect of stalling the assessment process. No negotiations can proceed in good faith between government and the claimant when the claimant has one or more interlocutory applications challenging the basis of the acquisition pending before the court. The court does not always have the power to force the interlocutory applications to a conclusion. Sometimes, these interlocutory applications have gone to the High Court, the Court of Appeal, and then to the Privy Council. Years may pass before the Governor is permitted to appoint the Board of Assessment and for the Board to begin sitting.

[9] Once there are no court filings blocking the commencement of negotiations, these can begin. More delay can occur at this stage. It is not unusual for government and the claimants to spend years negotiating back and forth before one of them gets frustrated and applies to the Governor to appoint a Board of Assessment to get on with it. I have known claimants to engage in years of negotiations with government before everyone gives up and agrees to the appointment of a Board of Assessment to deal with the issues.

[10] Once established, some Boards of Assessment move swiftly to a conclusion, others take years to get anywhere. The causes of delay at the level of the Board are without limit. The Chairman may be dilatory in fixing hearings. The assessor appointed by the claimant or the government may be elderly and become unavailable for sittings. One assessor may be resident out of the State or Territory, and travel may pose problems. The parties may ask for adjournments to secure better valuation evidence. Some Boards of Assessment conclude their hearings in a year, others take a decade or more. Needless to say, if it is the claimant who is dithering, government is not to be expected to agitate to bring closer the date when it will have to pay the necessary compensation. If it is the Chairman or the government assessor who is dithering, a good lawyer can take steps to bring the dithering to an end.

[11] Once an award is made, either of the parties may appeal to the High Court, the Court of Appeal and up to the Privy Council. These appeals may take years to be concluded. In the end a binding award for a particular amount of compensation to be paid is made. It is not appropriate for government to make payments of compensation once an appeal is pending. If the award of the Board of Assessment were to be overturned by the court after government had started paying out on the award, government would be faced with the accusation that it had made unauthorised payments out of public funds.

[12] Assuming there is no challenge to the amount of the award, government is expected by the Constitution and by the relevant Act to make full and prompt compensation to the claimant. This does not always happen, especially when the claims on public funds are many but the sources of funding are limited. Over the years, governments have tried a number of devices to get out of paying full and prompt compensation. Twenty-year bonds were offered in one case. It is now accepted that the only form of compensation that is expected is payment in cash. The question arises, how is this accepted view to be enforced when it does not translate into the expected cold, hard cash.

[13] For many years, it was thought^¹ that West Indian courts, like the courts in England, were prohibited from making mandatory injunctions for payment of compensation by the Crown punishable with imprisonment. The theory was that a Minister of Government represented the Queen, and the Queen and her representatives could not be imprisoned by her own courts. Such feudal remnants of our compulsory acquisition law were put to rest by the judgment of the Privy Council in the Jennifer Gairy case^². It is now clear^³ that in the West Indies an award of an amount of compensation can be enforced by an order for the imprisonment of the most recalcitrant Minister of Finance who fails to pay the assessed amount of compensation out of the public treasury.

APPENDIX: The Jennifer Gairy Case

[14] All those of you with an interest in the West Indies will all remember Erick Gairy, the eccentric Prime Minister of Grenada. He had been overthrown by the Marxist government of Maurice Bishop in 1979, while he was attending the United Nations General Assembly addressing the assembled dignitaries on the importance of the UFO^⁴ phenomenon. The Bishop government passed a People's Law confiscating what it deemed to be Gairy's ill-gotten assets. A few years later, in 1983, the bombing of the US marine base in Lebanon took place at the same time as the murder of Bishop and his followers by a more extreme faction of the Marxist government of Grenada. The risk posed to US medical students gave President Reagan the excuse he needed not to send more US troops into that violent morass that was Lebanese politics, and Operation Urgent Fury brought an end to the Marxist government of Grenada.

[15] By then Eric Gairy had died. His daughter Jennifer was the Administrator of his Estate. She brought an action before the High Court in Grenada for the return of the properties that the previous Marxist Government had expropriated and for compensation for their unlawful confiscation. The government did not oppose her claim and an order was made for their return and for an assessment to be made of the amount of compensation. The properties were returned and an award of compensation was duly made by the court-appointed arbitrator. The parties returned to court and a judgment in excess of EC$3.5 million with interest at the rate of 6% was entered. The Judge's final order, made with the consent of the Grenadian Solicitor General, was that the Minister of Finance be directed to issue a warrant for the prompt payment out of the consolidated fund of the amounts of compensation.

[16] That was when the delay began. The Grenadian Attorney-General appealed against this consent order. His ground was that the order was contrary to law because the Minister of Finance could not be directed as he had been. The point was not fully argued since the appellant conceded that the mandatory order should not have been made. The parties agreed to amend the order merely to require prompt payment of the amounts due. Three years later, most of the compensation not having been paid, Jennifer Gairy issued a contempt motion in the proceedings. The court issued an order of Mandamus compelling the Minister to make prompt payment of the balance. After a series of hearings the Prime Minister and Minister of Finance swore and filed an affidavit in the proceedings deposing that the Government simply could not afford to pay a lump sum of the amount owing. The High Court in Grenada concluded that the mandatory order against a Minister of the Crown, enforceable by contempt or other coercive proceedings, would be an order against the Crown, and the court had no jurisdiction to make such an order.

[17] Jennifer Gairy appealed to the Court of Appeal, but the Court dismissed her appeal. She appealed to the Privy Council complaining that seven years had passed since an amount of compensation had been ordered to be paid to her father's estate, but that the greater part of it was still outstanding. The courts below had failed to enforce her judgment based, she submitted, on outdated concepts of the immunity of government from coercive orders by a court. The figure due to be paid at the date of her Privy Council hearing amounted to some $2.8 million. The Privy Council rejected the arguments of the Attorney-General and accepted all of Jennifer Gairy's submissions. It ordered the Minister of Finance to take all steps necessary to procure that the outstanding payment be made forthwith. It affirmed that an order for mandamus could issue to enforce a judgment for payment of compensation in a compulsory acquisition case. If necessary, she could apply to a judge of the High Court in Grenada to obtain the appropriate order. By this decision the Privy Council established the principle that the enforcement provisions of our West Indian Constitutions confer unlimited jurisdiction on the court to fashion remedies to secure the enforcement of the fundamental rights and freedoms provisions of the Constitution.

[18] The consequence of this Privy Council decision in the Jennifer Gairy case is that it is now accepted that the courts of the West Indies are empowered by the Constitution and the legislature to ensure compliance with judicial orders for the payment of compensation money by the State. All that is needed is the will of the victim of an act of expropriation to take his or her claim promptly to court, and the skill of the litigant's attorney to fashion a suitable claim for enforcement of any award of compensation.

1See for example Jaundoo v Attorney-General of Guyana [1971] AC 972.

2Jennifer Gairy v Attorney-General of Grenada, PC 29/2000 (Unreported).

3See Appendix.

4http://www.ufoevidence.org/documents/doc1930.htm

Cultural Identity

2011-03-18T06:21:00.001-04:00

THE ROLE OF CULTURAL IDENTITY IN ANGUILLA’S NATIONAL DEVELOPMENT –

A PRESENTATION MADE TO THE CULTURE POLICY DEVELOPMENT GROUP AT THE REQUEST OF THE DEPARTMENT OF YOUTH AND CULTURE

BY DON MITCHELL CBE QC

Introduction

[1] The term culture refers to an integrated pattern of knowledge, belief and behaviour. A people’s culture consists of their language, ideas, beliefs, customs, taboos, codes, institutions, tools, techniques, works of art, rituals, ceremonies, and other related components[1]. The development of a people’s culture is said to depend upon their capacity to learn and to transmit knowledge to succeeding generations.

[2] So, is there something that we can call Anguillian culture? In answering that question, we must acknowledge that we all approach the subject with innate prejudices and preferences. Any answer will be by its nature subjective. There is no objective answer. Does the fact that I am not a born-Anguillian make the formulation of an answer easier or more difficult?

[3] What does ‘culture’ mean to us? Culture does not have the same meaning for everyone. Not all Anguillians share the same culture. The culture of the Anguillian child consigned to Zenaida Haven[2] is far removed from the culture of the Anguillian academic. The one is a culture of bare survival in a hostile world. The other is a culture of the appreciation of the finer things that life and the human intellect have to offer. The two are as far apart as can be. Some will consider the making of corn dumplings an aspect of culture. Others will scorn dumplings and look for fine fare. Is there any point in debating which is the more authentic form of Anguillian culture?

[4] Anguilla as a unique island society may reasonably be said to have its own particular culture, or socio-cultural system. It overlaps to some extent with other systems. We share our majority religious beliefs with the Judeo-Christian world, though there is a growing Muslim population. The majority of our people accept the variety of rituals and beliefs developed in the 20^th century in the Bible Belt of the southern States of the USA. We share in the West Indian colonial experience of slavery and the plantation system of exploitation. We are part of the English-speaking world, and are firmly rooted in the Americas. In this so-called age of globalization we listen to US and Jamaican music. We dance to a US and Caribbean-inspired choreography. We dress in a combination of New York chic and Los Angeles ghetto. The fear is that with a population of fewer than 15,000 souls it is difficult to justify the continued survival of the “Guillie” culture against the massive onslaught of Black Entertainment TV and the ubiquitous music video. We can be certain that the struggle will be well worth the effort.

“If you do not know where you come from, you will not know where you are going to”[3]

[5] Until the early 20^th century, Anguilla had no organised form of government. It was run by a mid-level civil servant from St Kitts, usually a physician or an administrator. There was no real court, felons being sent to St Kitts for trial by jury. The St Kitts administrator acted as Magistrate, trying summary offences and hearing small debt cases. Roads were rudimentary. Public electricity had to await the Anguilla Revolution of 1967. Brackish water was piped from four Amerindian wells to stand-pipes along the main road. You collected your own rain water that fell on your roof. You built the biggest cistern you could afford, or you learned to drink the salty public supply.

[6] The history of the early colonial era contains the seeds of official contempt and disregard for the needs and aspirations of the Anguillians. After the first settlement of 1650 by landless refugees from Barbados and St Kitts, no Governor in Chief visited Anguilla for nearly 100 years. The islanders exported no crops or other primary produce to Britain or other colonies. Anguilla was not treated as a real colony because it never contributed to the imperial economy. Nor did Anguilla serve any strategic purpose. Its settlers were considered of so little account that the authorities in both Antigua, the head of the Leeward Islands government, and London, could not be bothered to make any arrangement during the first 175 years for its proper administration. The consequence has been a simmering sense in Anguilla of abandonment by all outside authorities, and a deep seated awareness of the need for self-reliance, that characterise the Anguillian political psyche to this day.

[7] Between 1650, the date of settlement, and 1978, the birthdate of Anguilla’s luxury tourism industry, there were few West Indians who had to struggle to make ends meet as did Anguillians. It was said of Dominica that the land was so fertile and the rainfall so continuous that you had only to throw a stick onto the ground and it would sprout and put down roots. Not so in Anguilla. Anguilla is a semi-arid, scrub-covered, flat little island with no weather of its own[4] and few resources for her people. We survived by exporting small stock, pigeon peas, corn and sweet potatoes to our neighbouring islands. Smuggling came easily to the more enterprising of our ancestors. Boat building was a major industry for those who had the talent and skills. Fishing put meat on the table. Everyone engaged in subsistence-agriculture to put vegetables alongside the fish. In the driest years it was corn porridge for breakfast, corn dumplings for lunch and fish and fungi for supper. Our ancestors’ fruit was the occasional wild berry picked while pulling goats from one spot to another in the family’s ‘bush land’.

[8] The journals of the early Christian Missionaries and Ministers who visited Anguilla during the 17^th and 18^th centuries generally depicted a people who, while suffering from the greatest extremes of poverty and deprivation, hungered for knowledge and learning. The Blue Books of colonial statistics submitted by the St Kitts administration to London each year during the 19^th century show large numbers of children in Anguilla attending the Methodist and Anglican schools. There were no government schools until the 20^th century. Yet, an education was valued by the residents as essential if their children were to have a better chance in life than they had had.

[9] The church played an important cultural role as well as an educational one. It provided a route for ambitious young men to better their conditions and to administer to the needs of the island’s inhabitants. The first black Methodist Minister in the entire church was the Anguillian John Hodge who went to New York to be ordained by John Wesley himself. Rev John Hodge returned to Anguilla where he built the Methodist Church at The Valley in 1821 with the help of the slaves and other members of his congregation. He spent his entire ministry between Anguilla and St Martin.

[10] Dr Benjamin Gumbs-Hodge, who flourished in the 1820s, was the first medical doctor[5] known from Anguilla, but he was not the last. As a percentage of population, there is not likely to have been another West Indian island which has over the centuries produced a greater number of doctors, lawyers, preachers and civil servants who served with distinction throughout the region. The simple schools established by the Ministers of Religion and their spouses in the 18^th and 19^th centuries were invariably described as over-subscribed. Dr Samuel B Jones[6] describes Anguilla in the 1920s as spending more money per capita on education than the nearby islands of Antigua and St Kitts. Education was for many Anguillians the one guaranteed route out of poverty and unemployment and into a career and a relatively prosperous life.

[11] In the years just prior to the Anguilla Revolution the material hardships of the Anguillians had not altered much. Long hours of back-breaking labour in the semi-arid fields produced little but corn, sweet potato and pigeon peas. For a few short weeks once a year, a few hardworking salt pickers of South Hill and North Hill villages supplemented their meager income by reaping salt in the Road Pond. Other than that, the only source of cash lay overseas. Emigration was the one hope for the ambitious and enterprising young person. Life at home had been characterised by deprivation and want. A good basic education would provide envied positions as teachers, preachers and civil servants in the colonial administration. There was nothing to look forward to at home in Anguilla.

[12] The character and nature of the Anguillian individual has evolved through hundreds of years of colonial neglect, absence of natural resources, and the struggle to survive. The harsh features of Anguilla’s society and economy from the days of settlement to the late 20^th century moulded the Anguillian of yesterday. It produced positive and good features such as thrift and adaptability. But this harshness also produced negative and harmful characteristics, such as envy and dishonesty. These are all to be seen today.

The Anguilla Revolution, its positive and its negative cultural contributions

[13] The Anguilla Revolution of 1967 saw Anguillians seize their future in their own hands and throw off the burdens of St Kitts administration. There was no support from either Britain or the other islands of the West Indies for the Revolution. The other islands feared what they considered the threat of ‘fragmentation’. Britain was attempting to shed her last colonies in the West Indies by pushing them first into ‘associated statehoodship’, and then, hopefully, into full independence. With the ‘winds of change’ blowing through Africa and the Americas, she was not looking for another colony. However, the Anguillians were determined to separate from St Kitts. A few young men, mainly from Island Harbour and East End villages, incensed at their local beauties parading themselves in swim-suits on stage at the 1967 Statehood Celebrations, rioted. The Anguilla Revolution was born out of this mundane event[7].

[14] The Anguillian leaders formed a ‘Peacekeeping Committee’ which took over the management of Anguilla after the St Kitts administration and police men had been evicted. They had been spurred on by a number of motives, some commendable and others not so commendable. Some of them were original thinkers and political philosophers of merit. Atlin Harrigan was the writer, Bob Rogers was the agitator, while Ronald Webster was the steely-willed leader. Atlin, with the financial help of locals and foreigners, published his influential newspaper The Beacon. In his regular columns he set out eloquently the aspirations of the Anguillians for self-government. Few of his fellow citizens took up the intellectual challenge. There was to be no Benjamin Franklin, Thomas Paine, or Thomas Jefferson of Anguilla. There were some men of immense integrity in Anguilla’s leadership who made not a penny, and were as straight as a ruler. Other revolutionary leaders were more interested in making money by selling licenses and concessions.

“My plenty made me poor”[8]

[15] The next wave of damage to the culture of self-reliance and perseverance that had characterized previous generations of Anguillians came with the development of the luxury tourism industry of Anguilla. The 1970s saw the opening of resorts such as Cul-de-Sac, Cinnamon Reef, and Shoal Bay Villas hotels. Regular jobs and steady incomes from the private sector became possible for the first time in Anguilla’s history. The spin-off in car rentals, lobster and fish sales to foreign and local restaurants took off. Large numbers of both men and women gained employment in industry for the first time. Indeed, many were finding steady employment in Anguilla for their first times in their lives. Within a decade the homes of even the most illiterate manual worker from Island Harbour to West End could boast a deep freeze as well as a refrigerator. By the 1990s there was a TV in every bedroom plus the kitchen. Hip Hop culture was all the rage. Anguilla’s culture of poverty and deprivation was rapidly being replaced by a popular US mass-media driven culture of consumerism and vulgarity.

[16] Anguillians have never examined the malign and adverse impact of the unintellectual and avaricious nature of some of our more recent leaders on the island’s fragile socio-political culture. If only chance had provided us with more enlightened leaders! Anguilla had no one willing and able to lay an intellectual foundation for the birth of this new nation-in-the-womb. We stepped off into comparative self-government on the wrong foot. It would be completely mean and insulting for us to pour scorn on our fathers of the nation. But, the truth is that the fishermen and goat-keepers who were the fathers of our nation had little formal education, and no grounding in the principles of good governance. The British administrators who took charge completely failed to introduce them to such notions. The result of this lack of preparation was inevitable. The dominating political philosophy of our leadership became the enjoyment of copious quantities of sexual favours, monetary gifts, and the use and abuse of power. Our parents and grandparents had emphasized thrift and self-improvement, an education and a career. We, their children, aspire instead to sell sex, marijuana and cocaine to the tourist girls, and bundles of Chinese-manufactured trinkets to the old ladies, on Shoal Bay Beach.

[17] Traditional Anguillian culture has some deep roots. One of them is the ownership of land. With the destruction of the plantation economy in Anguilla in the 1830s, and its replacement by a subsistence economy that lasted to the 1970s, the land was distributed among those who lived here. Some families acquired land by purchase and others by inheritance. Throughout the 19^th century, Anguillians, poor as we were, were known as a landed people. It was said that we were cash-poor but land-rich. In the 1920s and 30s, hundreds of acres changed hands for tens of pounds sterling. By the 1960s, values had hardly increased. An acre was now valued in the hundreds of EC dollars. By the 1990s, an acre of land on the beach was selling at over US$1 million. There followed a frenzy of land marketing. Now, we hear the complaint that Anguillians are running out of land.

[18] There were few Anguillians in the 1980s and 1990s who were not tempted to sell their ancestral lands. Many of us did so. Only a few obeyed the rule, “If you must sell land, sell it for years, not for ever.” A long lease of building land for 60 years, or of a house or apartment for 20 years turns the real estate into currency as readily as an outright sale. It may be gone for this generation and the next, but it comes back to the family.

[19] It may not be fair to compare the Websters, Hodges, Gumbs’, Richardsons and Brooks’ to the Duke of Westminster. But, I am going to do it anyway. The present Duke and his family’s Grosvenor property company control assets in London that were estimated to be worth £6.8 billion in 2010. This family company traces its roots back to the 17^th century. When Sir Thomas Grosvenor married Mary Davies in 1677 she brought to the marriage 500 acres on the outskirts of early London. Today these 500 acres have been absorbed into the heart of an expanded London. They include the most expensive office and residential properties in fashionable Mayfair and Belgravia. These 500 acres and the rental properties built on them have remained in the family ever since they were acquired. They are held in trust by the present Duke for future generations of the family. They are the source of the family fortune. Today they bring in rents of many millions of pounds every week. When one of his condos in Mayfair comes on the market, it sells for upwards of £5 million. No one is surprised to learn that what is being sold is nothing but a lease for 20 years. People line up to purchase since there is no other way to own an apartment in Mayfair. Why has it proven so difficult for Anguillians to learn such a simple lesson?

[20] There was a time when our ancestors struggled to improve their chances for success in the outside world. With the break-up of the West Indies Federation in 1962 into individual colonies that have since gone into independence, it is no longer easy for us to emigrate to practise our professions and occupations in other islands. Immigration Rules are enforced everywhere. Now, we hear complaints that Anguillians aspire to become hotel managers, restaurant chefs, recording artists, and aeroplane pilots. Reading and writing are not essential skills for one to rise to the top in many of these modern occupations. Everything changed with the development of an up-market tourism industry in the 1980s. Anguilla’s economy was catapulted from the 19^th century into the 21^st, hardly stopping for the 20^th. The result is that Anguilla’s modern socio-political culture is new and unsettled. There has not been enough time for binding conventions and new social structures to develop. Anguillian culture may be said to be essentially that of a frontier society: unsettled, shifting, brash and unruly.

[21] Literacy levels in Anguilla have fallen from a peak in the 1950s and 60s. Now, the average public servant can hardly write a complete sentence without at least one grammatical and punctuation error. The Anguilla public service is viewed by all administrations as a sponge to soak up school leavers who are not capable for one reason or another of finding employment in the private sector. The semi-literate Anguillian demanding his or her rights is not a pretty sight. “I born here” is put forward as some sort of qualification for a job, and a justification for an unwillingness to pay taxes or hospital fees. “No one can tell me what to do on my property” has triumphed over the introduction of planning laws. Was the lack of intellectual depth to the Anguilla Revolution responsible for the current rebellious attitude and the rejection of authority that is so widespread? Certainly, these attitudes were popularized and rewarded during and after the Revolution. The result has been that for the past two generations we Anguillians have been brought up to believe that we acquire undeserved rights from the accident of birth. We claim to be entitled to be put first and to hold the best jobs, qualified or not. Arrogance and ignorance have replaced ambition and a drive to succeed.

[22] The Church in Anguilla bears a large portion of the responsibility for the descent of Anguillian values during the latter part of the 20^th century. The Enlightenment of the 17^th and 18^th centuries was a period in which ideas concerning God, reason, nature, and man were synthesized into a worldview that gained wide acceptance. Revolutionary developments in art, philosophy and politics ensued. Central to Enlightenment thought was the use and celebration of reason. Reason is the power by which we can understand the universe and improve our own condition. The greatest goals of the rational man are considered to be knowledge, freedom and happiness. If you were to ask a class of 18-year old Anguillian students, as I have done, how many of them believe that humans and other apes evolved from a common ancestor, you would be lucky to get more than 10% agreeing. It is almost as if the Enlightenment passed us by, leaving us in perpetual intellectual darkness.

[23] Given Anguilla’s economic straits throughout the early period under review, it should perhaps not surprise us that the Enlightenment came and went without any impact on our culture. No aspect of Romanticism touched us, though the Reign of Terror did result in the last violent French invasion of Anguilla in 1798. As Anguilla’s best and brightest, who managed to take advantage of what little education was available from the Church Schools, moved abroad to better themselves, Anguilla as a nation-to-be remained a cultural backwater stuck in time. Other than The Beacon of the Anguilla Revolution, no successful[9] newspaper was to be published on the island until The Light and The Anguillian at the end of the 20^th century. No Anguillian has published[10] any significant study of the culture, economy or history of the island. The learned journals of West Indian science, economics, history and society are devoid to this day of any mention of developments in Anguilla. Culturally, Anguilla does not make any mark on the region or on the world.

“Know thyself”[11]

[24] The year 2006 was a wake-up call for those concerned about Anguillian culture and values. Ten of our young men, ten times more than in most previous or subsequent years, were gunned down or disappeared in drug-related violence. Five of those deaths and disappearances occurred in Anguilla itself and five were scattered between St Kitts, Nevis and St Maarten. Anguillian adults looked on in rising shame and horror as the luxury hotels of Viceroy and Flag were permitted by our government to be built using ‘slave labour’. The first hotel employed almost exclusively workers from India and the second from China, all at scandalously low wages. Anguilla shared in the world economic boom which was not to crash until the year 2008 when Anguilla’s new culture of greed and avarice received its greatest shock from which we are still recovering.

[25] Anguillians, we boast, do not read. While the statement is generally true, it ought not to be a boast. “Reading”, as the Anguilla Public Library radio jingle reminds us daily, “is fun-damental”. The public library is a bank wherein is housed the sum total of human knowledge. It is an exceptional bank. It is the only one where each withdrawal adds to the total amount on deposit. The mother and father who do not read stories at night to their child as they put it to bed, is guilty of more than child cruelty and abandonment. They should stand condemned for child abuse. Such abandonment is a commonplace event in Anguilla, so much so that it is hardly remarked on. The vast majority of Anguilla’s children today are brought up by the television. Unlike the way their parents were themselves brought up, they are members of the ‘latchkey’ generation. After school, the average Anguillian child must lift the latch himself and let himself into the empty house. With both parents working two jobs to bring home the Nike shoes and the latest electronic gadget demanded by their children, the children are left to bring up themselves. When no one reads a child to sleep, no love of books and of learning is engendered. When grandparents and parents are not at home to pass on values to a child, to reassure it of its intrinsic worth and to assure it of unrestricted love, it grows up without the ability to love or to hold and to pass on worthwhile values. The result is the semi-literate society that we are left with in Anguilla today. The children are without culture, we say.

[26] Many of the positive features of Anguilla’s traditional culture remain. Our people are characterized by Independence of Spirit. Never having been under the thumb of absentee proprietors or sugar barons, Anguillians are unique in the whole West Indies for owning their own land. With the only financial institution for a long time being a savings account at the Post Office, there is no tradition of borrowing. The sea and that property had to be sufficient to exist on. The first Anguilla-born doctors went to elementary school barefooted. They never got to watch The Simpsons on television, but so excelled at reading, writing and computing that they blew away all the competition and gained the needed Leeward Island scholarships to go away and study. Their footsteps are followed by the hundreds of modern Anguillian students who take up the scholarships that are offered by the local government, and, after completing their education, return home to take up the challenge of developing their country.

[27] While borrowing has undoubtedly increased, the spirit of Sacrifice remains. The traditional “Child, you have to learn to do without … until you can afford it” still resonates in each adult’s ears. A drive around the island will show that this ethic survives today. The unfinished houses, with their rusty rebar reaching for the sky until another round of fresh funding arrives, show the determination of the Anguillians to build upwards when the time comes.

[28] The Good Samaritan ethic still flourishes. One hundred years ago it was almost unheard of for you to pass a bicyclist disabled with a flat tire. You brought out your own patching kit to assist. You would not let a tired, returning fisherman tug and pull up his row boat onto the beach by himself. As then, today a stronger and fitter neighbour thinks nothing of rushing to your house in the teeth of a hurricane with hammer, nails and timber to help to board up your flapping windows. Nor is there ever a question of payment. Today, we recognize the Jollification, when everyone joins in a house building or the planting or reaping of a field, as a fundamental part of the Anguillian culture.

[29] Anguillians, of necessity, know the virtues of Hard Work. There are 80-year old homes still standing after 30-odd hurricanes. The men who built them walked miles to and from work and used only hand tools. They survived on the meager diet of the times, but they were far fitter than their descendents today. Their genes ensure that today’s Anguillian quickly learns from study or an apprenticeship to fill almost any position available in modern industry today. So, we feel disappointed and let down when we hear the hotelier let it slip that he would rather hire anyone else but an Anguillian either to build or to run his complex.

[30] Anguillians can be argumentative, contrarian and paradoxical by nature. Because of the humiliating treatment endured at the hands of St Kitts and other governing bodies we can seem to be overly sensitive to dealings that are even well-intentioned. The collective feeling towards tourism tends to be somewhat schizophrenic. Gratitude for its presence is offset by occasional rancour and suspicion. Yet, historically, Anguillians are the warmest, most welcoming, and best mannered of islanders. Our Native Charm is frequently referred to in the tourist literature. We look both friend and stranger in the eye and bid them an earnest Good Morning or Good Afternoon! And, we expect a similar response.

[31] Visitors have remarked on the personal Warmth shown by Anguillians among themselves. A European may greet a long lost schoolmate with a sober, “How do you do?” The Anguillians, by comparison, will enthusiastically hug each other, clap each other on the back, and slap themselves on the thigh, when they meet after a separation. As for the Anguillian feeling for their island home, there is no equivalent. Although Anguillians long grew up knowing they were going to have to leave the island to better themselves, their sense of devotion to it, and once away, their sense of exile, have always been remarkable. Today, fewer leave, and when they do, after perhaps preparing themselves for a profession, a trade, or a skill, they now return since there is a better life to return to than before. Even those who cover their bets for future prosperity with a British, Canadian or US passport and citizenship pride themselves on being forever Anguillian. That, perhaps, is the best summation of the Anguillian culture.

18 March 2011

[1] New Encyclopaedia Britannica (Chicago, 15^th edition) 1992.

[2] Anguilla’s juvenile rehabilitation centre.

[3] Frequently-used saying by “Yanchie” Richardson on his radio call-in programme “The Mayor’s Show” on Kool-FM Radio, 103.3fm, on Saturday Mornings at 9:30 am.

[4] According to the High School Geography text book of my day, while St Kitts and Nevis had mountains that caused rain to fall, Anguilla had to be content with whatever the passing cloud systems chose to let drop.

[5] He was also the first Anguillian representative in the St Kitts House of Assembly in 1825 and in subsequent years.

[6] In his Annals of Anguilla (Basseterre: Labour Spokesman) 1931.

[7] According to Louvan Webster an eye-witness of the events, in a private conversation.

[8] Translation of “Inopem me copia fecit” (Ovid, Metamorphoses).

[9] Rev Wilbert Forker published The Times for a short period during the early 1970s, and Felix Fleming and his son James published The Vantage newspaper for some two years in the early 1980s.

[10] Other than the valuable monographs by Colville Petty OBE and Nat Hodge. But, these mainly deal with the Anguilla Revolution and its aftermath.

[11] Socrates’ main maxim for his life. His best known pronouncement is “The unexamined life is not worth living”. Life is not something just to be lived by blindly following base instincts, popular convictions and time-honoured customs. The good life is a life that questions and thinks about things. It is a life of contemplation, self-examination, and open-minded wondering. The good life is an inner life, the life of an inquiring and ever-expanding mind: http://faculty.frostburg.edu/phil/forum/SocratesLife.htm