Thursday, November 25, 2021

Wallblake Airport and Tintamarre During WW II

 

I have been asked if the original airstrip at Wallblake in Anguilla, built in 1943 during WW II, resulted from the Lend-Lease Agreement between the British and US governments during the War.  The answer is no, but the story is complicated.

Most of my information comes from the author, Patrick Leigh-Fermor.  Bored with England, he took off as an 18-year-old in 1933 to walk from the Hook of Holland across Europe to Constantinople in Turkey.  He finally ended up in Greece where he remained until war broke out and he returned to England to join up.  Because of the fluency he had developed in Greek, he was soon recruited as an intelligence officer by the Special Operations Executive.  The SOE parachuted him into Crete behind the German lines.  His best-known exploit was his role in the kidnapping and evacuation of the German commander, Major General Heinrich Kreipe, from Crete to Mersa Matruh in British-held Egypt.  These events were the subject of the 1957 film Ill Met By Moonlight, in which he was played by the actor Dirk Bogarde.

 The Traveller’s Tree

Shortly after the end of the War, in 1948, he accompanied his friend the Greek photographer, Costa Achillopoulos, on a trip to the West Indies.  Leigh-Fermor came along as interpreter for Costa who had a commission to publish a book of Caribbean photographs.  Leigh-Fermor was to write the captions for the photographs.  For the Leeward Islands segment of their trip, they chartered the Rose Millicent from Anguillian sloop-owner, Zylphus Fleming, and explored the islands in it, with Zylphus at the helm.  He took profuse notes of what he saw, and these notes were the basis for his first book, The Traveller’s Tree, published in 1951.

 

Remy de Haenen

Leigh-Fermor appears to have had access as an ex-SOE officer to confidential intelligence files in London.  These files were the source of his description of Remy de Haenen’s leasing of Flat Island from its owner, Leo Constant Fleming of Marigot in French St Martin.  Flat Island, or Tintamarre as it is known by the French, lies two miles to the east of St Martin.  It was then uninhabited, but the previous owner, Diederick Christian van Romondt (DeeCee) of Mary’s Fancy in St Martin, lived on it in the first three decades of the twentieth century and farmed cows, sheep, and goats on it.  The ruins of his home are still visible.  DeeCee sold the island to LC Fleming in 1931.  The 500-acre Mary’s Fancy Estate is of particular interest to Anguillians.  DeeCee left it to his mistress, Miss Josie, in his Will.  She in turn willed it to Ronald Webster, who was employed by her on the Estate.  He broke it up and sold it off to fund the 1967 Anguilla Revolution.

 

Ruins on Tintamarre

According to Leigh-Fermor, De Haenen was a German intelligence officer, an agent of the Abwehr.  His mission was to secure a replenishing base for any German U-Boats that might become active in the Caribbean Sea in the event of War.  His cover was that he was a French pilot in the service of the French post office.  He obtained the contract to collect and deliver the mail by air among the French West Indies.  Leigh-Fermor describes how de Haenen delivered the mail to St Martin.  He writes, probably from first-hand observation, that there was no air strip in St Martin.  De Haenen would circle his single engine aeroplane around the football field in Marigot, playing out a rope with a hook at the end of it holding the bag of mail he was delivering.  When the bag became almost stationary in the middle of the field, the postmaster would run up to it, drop the bag and then hook up the return mail for delivery to Guadeloupe.  De Haenen would winch the bag up and fly off, job done.

Edgar Oliver Lake recalls that up to the early 1950s de Haenen occasionally used a similar system to deliver mail to Anguilla.  Either to save fuel or the inconvenience of a Wallblake airstrip landing, he would lower his speed and altitude over the old Courthouse/Treasury/Post Office building on Crocus Hill and no doubt compensating for wind drift drop a packet of Anguilla’s mail in the courtyard.

Wallblake airstrip in 1967

With the permission of Mr Fleming, de Haenen cleared an airstrip on Flat Island and constructed a small forge on it.  The ostensible need for the airstrip was to train learner pilots to land and take off.  The forge was used for minor U-Boat repairs carried out at night when the Boats could surface unobserved.  For the use of the crews, he collected and stored fresh Dominican fruit and vegetables and flew in tinned foodstuffs from Puerto Rico.  Fleming’s permission was subsequently formalised in 1945 in a lease, and de Haenan used Flat Island as the headquarters of his short-lived airline company, Companie Aerienne Antillaise (CAA).  He taught several young men of the region to fly using the 500-metre long dirt track until operations of CAA ceased in 1952.

An elderly Anguillian friend of mine, the hotelier David Lloyd, was a sailor before and during the War.  I knew him as one of the founders of the Anguilla Rotary Club in 1978, and we often spoke.  He told me of the many trips he and other Anguillian sloop owners made for de Haenen, fetching foodstuffs, fruit, and water to Flat Island.  He thought at the time that they were for smuggling into St Martin.  St Martin was then in French Vichy hands until the British sent four armed policemen from St Kitts to capture it.  It was only after the War that the sloop owners learned what the purpose was of their visits to Flat Island.

Eden Rock Hotel in its prime

After the War, De Haenen converted his home in St Barths into the famous hotel, Eden Rock.  He went into local politics and became Mayor of St Barths.  In the early 1980s he was my client.  When he visited my law chambers, I would press him on the truth of the stories of his exploits during the War.  He always denied them, and claimed they were invented by his enemies.  But it seems to me that Leigh-Fermor had no reason or opportunity to become his enemy, as he was just passing through the West Indies.

The details of the clandestine arrangements between de Haenen, the German Abwehr, and LC Fleming, as described by Leigh-Fermor, could only have been written by an Intelligence Officer who had access to secret files.  As a result of his agreement with de Haenen, LC Fleming reputedly became the richest man in St Martin.  His family still to this day enjoy the proceeds of the Nazi gold he was paid for the use of Flat Island.

As I recall it, this bit of Second World War history written by Leigh-Fermor was where I first read a very short account about the construction in Anguilla of the grass-covered airstrip by the US Army Corps of Engineers after the US joined the War in late 1941.  Leigh-Fermor describes it as having been built as an emergency landing strip in early 1942 for the use of US ‘planes flying on their way to and from Puerto Rico and the Coolidge Air Base in Antigua.  It was only ever intended as a place where ‘planes could land if they experienced an emergency in mid-flight.  If any of them landed in Anguilla during the War, I never heard.  There was no air service to Anguilla until LIAT started one in the 1960s.  LIAT’s founder, Frank Delisle, my mother’s cousin, told me that he was one of those taught to fly on Flat Island by de Haenen shortly after the War.  Still visible on Flat Island to this day are engines and other parts of disabled aeroplanes dating back to the time when de Haenen taught West Indians to fly.

The Anguillian air strip, originally known as Wallblake Airport, was not part of the 1941 Lend Lease program.  The 1940 Destroyers for Bases Agreement was an earlier project in which the British received moth balled First World War US destroyers in exchange for long leases of land to the US Army, Air Force and Navy for bases in Trinidad, St Lucia, Antigua, and other British colonies in the West Indies.  The US had not yet entered the War, and Roosevelt was blocked by Congress from giving the British military aid.  So, he and Churchill hit on this exchange of assets device as a way round Congress.  When the Lend-Lease Act of 1941 was passed by Congress it officially sanctioned the earlier agreement between Roosevelt and Churchill.

By 1941, Britain and its Empire was the sole holdout against the Nazi armed forces.  More British shipping was being sunk in the Caribbean Sea by U-Boats than was sunk around the entire coast of Europe.  This was due to the importance of the Panama Canal to the British for trade, and the oil fields and the oil refinery of Trinidad for fuel.  The Texaco oil refinery in Trinidad was at the time the largest in the Empire.  Indeed, the Battle of Britain was fought on Trinidadian aviation fuel.  Wallblake and Flat Island were part of these wartime events, not that you will read about them in any official account of World War Two.

Wednesday, November 03, 2021

Gender Studies

 

Gender studies is a perfectly respectable area of social study in academia, first coming to prominence in West Indian intellectual circles in the 1970s and 1980s and continuing.  It approaches our deep-rooted gender inequalities in the Caribbean demonstrated, for example, in the types of jobs women are in.  It studies and explains sexism, racism, classism, and other systemic inequalities.  It attempts to explain the irony of the patriarchy coexisting within a system of matriarchal families, and our long tradition of female economic autonomy.

Distinguished Caribbean academics such as Christine Barrow, Edith Clarke, Keith Hart, Donna P Hope, Patricia Mohammed, Rhoda Reddock, Olive Senior, Catherine Shepherd, Raymond Smith, and Kevin Yelvington, to mention a few, have researched how sexual orientation and gender in the West Indies are conceived, studied, discussed, and experienced.

There are hundreds of books and dozens of academic journal articles on the subject.  The Caribbean Review of Gender Studies”, is a highly thought of journal of the University of the West Indies, focusing on publishing research on gender studies.

Perhaps the most threatening area of all this research has been the study of how dominant masculinity has persisted and resisted the extending of civil rights to women.  The patriarchy is not happy with gender studies.

The result in recent years has been a public onslaught on the so-called “gender ideology”.  These attacks are backed by extremist Christian and Muslim clerics and organisations.  The one thing these groups agree on is that the traditional family is under attack.  They believe children in the classroom are being indoctrinated to become homosexuals, and that “gender” is a dangerous, if not diabolical, ideology threatening to destroy families, local cultures, civilization, and even “man” himself.

Evangelicals and other fundamentalists make such incendiary claims to defeat what they see as “gender ideology” or “gender studies”.  They object to “gender” because it is said to deny biological sex, and it undermines the natural or divine character of the traditional family.  They fear that, if we start thinking along gender lines, men will lose their dominant positions.  They believe that children are being told to change genders.  They preach that our children are actively being recruited by gay and trans people, and our boys and girls are being pressured to declare themselves as gay in educational settings where an open discourse about gender is caricatured as a form of indoctrination.

These extremists worry that if something called “gender” is socially accepted, a flood of sexual perversions, including bestiality and paedophilia, will be unleashed upon the earth.  Anyone who listened to or participated in the Constitutional Reform Town Hall Meetings held in Anguilla over the past several weeks, will recognise this language.  It captures the rhetoric and the reasoning used by the Christian fundamentalists who addressed the meetings.  Our Christian fundamentalists make the outlandish demand that any new Constitution must contain a clause confirming that the only marriage that will ever be recognised in Anguilla is one between a man and a woman.

The principal aim of this woman-hating and homophobic movement is to oppose progressive legislation won in the last decades by the gay, lesbian and feminist movements all over the world.  In attacking “gender” they oppose reproductive freedom for women and the rights of single parents.  They oppose protection for women against rape and domestic violence.  They deny the legal and social rights of homosexuals.  They oppose legal and institutional safeguards against gender discrimination.  They support conversion therapy, forced psychiatric internment, brutal physical harassment, the killing of gays, and the criminalisation of abortion.

It is easy enough to debunk and even ridicule many of the claims that are made against gender studies or gender identity, since they are based on thin caricatures.  The truth is there is no single concept of gender.  Gender studies is a complex and internally diverse field that includes a wide range of scholars.  It does not deny sex, nor does it threaten any unbigoted male.  It tends to ask how sex is established, through what medical and legal frameworks.  It explains how our understanding of sex has changed through time.  It examines what difference it makes to the social organization of our world to disconnect the sex assigned at birth from the life that follows, including matters of work and love.

We generally think of sex assignment as happening once.  But what if it is a complex and revisable process, reversible in time for those who have been wrongly assigned?  To argue this way is not to take a position against science, but only to ask how science and law enter the social regulation of identity.  “But there are two sexes!”  Generally, yes, but even the ideals of two distinct forms of male and female that govern our everyday conceptions of sex are in many ways disputed by science.  Research has shown how vexed and consequential sex assignment can be.

Fundamentalists and extremists claim that the very concept of “gender” is an attack on Christianity or traditional Islam.  They accuse those who discuss “gender” of discriminating against their religious beliefs.  And yet, it is evident that the enemies of freedom do not come from the outside.  Acceptance of blind dogma is to be found on the side of the would-be censors.

Opponents of “gender” seek recourse in the Bible and Koran to defend their views about the natural hierarchy between men and women.  They push the distinctive values of masculine and feminine (although progressive theologians have pointed out that these are based on debatable readings of the early texts).  They claim that assigned sex is divinely declared, suggesting that contemporary biologists and medical doctors are curiously in the service of 13th-century theology.

Chromosomal and endocrinological differences complicate the binarism of sex.  The evidence is that sex assignment is sometimes revisable.  The anti-gender advocates wrongfully claim that “gender ideologists” deny the material differences between men and women.

The anti-gender movement is not a conservative position with a clear set of principles.  It is a fascist trend.  It mobilizes a range of rhetorical strategies from across the political spectrum to maximize the fear of infiltration and destruction that comes from a diverse set of economic and social forces.  It does not strive for consistency, for its incoherence is part of its power.

It is depressing to see that there are even a few women who have joined this homophobic, misogynistic, and anti-liberal movement.  No freedom loving Anguillian should be opposed to gays and lesbians having the same marriage rights as we heterosexuals.  Thankfully, there is hope in the coming generation of leaders.  They generally do not subscribe to two-thousand-year-old views on sex and gender.  As always, the youth are the future.[1]



[1]     With thanks to an article by Judith Butler, visiting distinguished professor of philosophy at the New School University in New York, and published in the Guardian Newspaper of 23 October 2021, the source of much of this article:  (https://www.theguardian.com/us-news/commentisfree/2021/oct/23/judith-butler-gender-ideology-backlash).

Friday, October 15, 2021

The Right to Marriage

 



The right for gay people to marry is a fundamental human right, recognized by dozens of countries around the world.

I am confident that if a poll were taken today in Anguilla, most persons would be in favour of giving gays and lesbians the same right to marry as heterosexuals presently enjoy.  Yet, a voluble minority still oppose it.

Many liberal church members, in all religions, have been outspoken supporters of gay rights.  Movements within churches, have been aiming for a wider acceptance of gay rights.  However, some religious leaders have been accused of sparking hatred and violence by arguing against gay rights.

Because of their very verbal opposition, some church leaders are guilty of causing suicides, murders, and great suffering for members of the gay and lesbian community.  By preaching against gay rights, church leaders have furthered discrimination and vengeance upon the gay community.  In addition, by turning away from gays and lesbians, churches have added to the alienation felt by same sex couples.

We can obtain some guidance on how to view the question of gay marriage by looking at what happened in the United States.  There, in 2015, in the case of Obergefell v Hodges, the Supreme Court clarified that the “right to marry” applies with “equal force” to same-sex couples, as it does to opposite-sex couples.[1]  It held that the Constitution requires a State to license a marriage between two people of the same sex.  In so holding, the Court recognized marriage as being an institution of both continuity and change.  Recent shifts in public attitudes respecting gay individuals necessarily informed the Court’s conceptualization of the right to marry.

The Court recognized that the right to marry is grounded in four principles and traditions.  These involve the concepts that

(1) marriage (and choosing whom to marry) is inherent to individual autonomy;

(2) marriage is fundamental to supporting a union of committed individuals;

(3) marriage safeguards children and families; and

(4) marriage is essential to the nation’s social order because it is at the heart of many legal benefits.

With this conceptualization of the right to marry in mind, the Court found no difference between same- and opposite-sex couples with respect to any of the right’s four central principles.  It concluded that a denial of marital recognition to same-sex couples ultimately demeaned and stigmatized those couples and any children resulting from such partnerships.  Given this conclusion, the Court held that, while limiting marriage to opposite-sex couples may have once seemed “natural,” such a limitation was inconsistent with the right to marriage inherent in the “liberty” of the person as protected by the Constitution.

It is my view that Anguillans ought to embrace the opportunity of the coming new Constitution and to ensure that it includes language that does not stop gays and lesbians from enjoying the right to marry.

In support, we recall the words of Archbishop Desmond Tutu, the prominent anti-apartheid campaigner, Nobel Prize laureate, and Chairperson of the Truth and Reconciliation Commission.  In 1984 he wrote

Apartheid’s most blasphemous aspect is … that it can make a child of God doubt that he is a child of God.  For that reason alone, it deserves to be condemned as a heresy.”

More than a decade later, he used very similar words to denounce homophobia and heterosexism.  He wrote that it was “the ultimate blasphemy” to make lesbian and gay people doubt whether they truly were children of God and whether their sexuality was part of how they were created by God.

After he retired in 1996, he campaigned actively and successfully for the post-apartheid Constitution to be non-discriminatory in relation to marriage.  In 2013 he made headlines with the clear and succinct statement that he would rather go to “the other place” than to a homophobic heaven.  All freedom-loving people everywhere would happily join Archbishop Tutu wherever he is going to end up.

A second principle in the US Supreme Court’s jurisprudence on marriage is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.  This point was central to Griswold v. Connecticut, which held that the Constitution protects the right of married couples to use contraception.[2]  Suggesting that marriage is a right “older than the Bill of Rights,” Griswold described marriage this way:

Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.  It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.  Yet it is an association for as noble a purpose as any involved in our prior decisions.”

A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.  The Court has recognized these connections by describing the varied rights as a unified whole.  It held that the right to ‘marry, establish a home and bring up children’ is a central part of the liberty protected by the Constitution.[3]

Marriage also confers more profound benefits.  By giving recognition and legal structure to their parents’ relationship, marriage allows children

to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”

Excluding same-sex couples from marriage conflicts with a central premise of the right to marry.  Without the recognition, stability, and predictability that marriage offers, their children suffer the stigma of knowing their families are somehow lesser.  They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life.  The marriage laws at issue here thus harm and humiliate the children of same-sex couples.

Fourth and finally, jurisprudence and traditions make it clear that marriage is a keystone of our social order.

In Maynard v Hill, (1888), the Court explained that marriage is “the foundation of the family and of society, without which there would be neither civilization nor progress.”[4]  Marriage, the Maynard Court said, has long been “‘a great public institution, giving character to our whole civil polity.”  This idea has been reiterated even as the institution has evolved in substantial ways over time, superseding rules related to parental consent, gender, and race once thought by many to be essential.

While government is in general free to vary the benefits it confers on all married couples, it has made marriage the basis for an expanding list of governmental rights, benefits, and responsibilities.  These aspects of marital status include: taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decision making authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers’ compensation benefits; health insurance; and child custody, support, and visitation rules.

There is no difference between same- and opposite-sex couples with respect to this principle.  Yet by virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the government has linked to marriage.  This harm results in more than just material burdens.  Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives.  As government itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects.  It demeans gays and lesbians for the State to lock them out of a central institution of society.  Same-sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfilment in its highest meaning.

The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest.  With that knowledge must come the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.

New insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged. Notwithstanding the gradual erosion of the doctrine of coverture, invidious sex-based classifications in marriage remained common through the mid-20th century.  These classifications denied the equal dignity of men and women. One State’s law, for example, provided in 1971 that

The husband is the head of the family, and the wife is subject to him; her legal civil existence is merged in the husband, except so far as the law recognizes her separately, either for her own protection, or for her benefit.”[5]

Responding to a new awareness, the Supreme Court invoked equal protection principles to invalidate this law which imposed sex-based inequality on marriage.[6]

The present law governing marriage in Anguilla burdens the liberty of same-sex couples.[7]  It abridges central precepts of equality.  Same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right.  Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm.  The imposition of this disability on gays and lesbians serves to disrespect and subordinate them.

These considerations led the Supreme Court in Obergefell v Hodges to the conclusion that the right to marry is a fundamental right inherent in the liberty of the person, and couples of the same sex may not be deprived of that right and that liberty.  The Court therefore held that same-sex couples may exercise the fundamental right to marry.

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.  In forming a marital union, two people become something greater than they once were.  Marriage embodies a love that may endure even past death.  It would misunderstand these men and women to say they disrespect the idea of marriage.  Their plea is that they do respect it, respect it so deeply that they seek to find its fulfilment for themselves.  Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions.  They ask for equal dignity in the eyes of the law.  Any new Anguilla Constitution must grant them that right.

 

 



[2]     381 U. S. 479, 484–486 (1965)

[3]     Zablocki, supra, at 384.

[4]     125 U. S. 190, 211 (1888).

[5]     Ga. Code Ann. §53–501 (1935)

[6]     Kirchberg v Feenstra, 450 U. S. 455 (1981)

[7]     This is principally section 13(4)(b) of the 1982 Constitution which permits the House of Assembly to make a discriminatory law on marriage based on the sex of the parties.  The Marriage Act contains no language specifically limiting the right to marry to members of the opposite sex, but it is implied in the language use throughout.

Tuesday, September 28, 2021

GST Unconstitutional?

A friend telephoned me with a question.  Is the Goods and Services Tax Act (GST Act) unconstitutional?  I asked him what was the problem?  He responded that he had heard that the Anguilla Constitution did not authorize the ex-officio members of the House of Assembly, the Attorney-General and the Deputy Governor, to vote on a Bill in the Assembly.  They recently voted in favour of the GST Bill.  This allowed it to be passed by a majority of one.  If they had not voted, the Bill would not have become law.  What did I think of that?

I told him that in my opinion the ex-officio members were authorised to vote on any motion before the Assembly, save where they are specifically prohibited from doing so.

The public are presently being consulted by government on the contents of a draft new Constitution prepared by the Foreign and Commonwealth Development Office (FCDO) – based in large part on the desire of Anguillians for the proposed constitutional reforms.  If we object to ex-officio members voting in the Assembly, this might be a suitable time for Anguillians to insist that this is anti-democratic, and the new Constitution should provide that only elected members may vote.

Section 35 of the 1982 Anguilla Constitution says that the Assembly consists of the Speaker, eleven elected members, and two ex-officio members.  Since the 2020 general elections, seven of the elected members sit on the government benches.  Four sit on the opposition side.  The two ex-officio members also sit on the government benches.  That means there are a total of thirteen members of the Assembly, plus the Speaker.

On the vote for the passage of the GST Bill, two of the government Ministers voted against the Bill.  The total of elected members voting in favour of the Bill was five.  Six elected members voted against the Bill.  The two ex-officio members voted with the government members in favour of the Bill, making a total of seven to six in favour.

So, the question is, do the ex-officio members of the Assembly have the right to vote on a Bill before the Assembly?  The answer is to be found in the words of the Constitution and the Rules of Procedure made under it, the Legislative Assembly (Procedure) Rules 1976.

Section 53(1) of the Constitution says who can vote in the Assembly: all questions proposed for decision in the Assembly shall be determined by a majority of votes of the members present and voting.”  Subsection (2) provides that the Speaker has a casting vote only when the votes are equally divided.  Otherwise, the Speaker does not vote.  It should be noted, by the way, that the international convention is that the Speaker usually exercises the casting vote to preserve the status quo, that is, they will vote so the situation does not change.

Section 55 is relevant.  It provides that, “any member may introduce any Bill or propose any motion for debate in, or may present any petition to, the Assembly, and the same shall be debated and disposed of according to the Rules of Procedure of the Assembly.”  In Anguilla, no one doubts that the A-G or the D-G may introduce any motion in the Assembly, and they occasionally do so.

Section 55(1) says that voting on Bills and Motions shall be governed by the Rules of Procedure.  So, what do the Rules say about voting in the Assembly?

The first rule to note is rule 45.  Paragraph (1) provides that, generally, voting is by voice.  Members respond with either a “Yea” or a “Nay” when called on to vote, and the Speaker declares the result.  When the Speaker declares, “The ayes have it.  The motion is passed,” no count is taken of who voted in favour, who did not, and who abstained.

Paragraph (2) provides that if a member calls for a “division”, the votes of the members are taken one by one, and each member’s vote is recorded in the Minutes.  Anguilla has had an Assembly to enact laws only since the previous 1976 Constitution.  The Council set up by the revolutionaries after separation from St Kitts in 1967 never enacted laws.  This vote on 29 July was, so far as I am aware, the first time in the short parliamentary history of Anguilla that a division was called for.

Never before had each member of Anguilla’s Assembly declared openly which side of a motion he or she voted for.  It cannot, therefore, truly be said that this is the first time the ex-officio members voted on a motion.  Though no count is taken on a voice vote, it must be assumed that the ex-officio members have always been included in the past among those who voted with the ministers.  As members of the Executive Council (ExCo) that is their duty under the principle of collective responsibility.

Section 25 of the Constitution may also be relevant.  Subsection (1) is the only section which limits who may vote on a motion.  It reads, If a motion that the Assembly should declare a lack of confidence in the Government of Anguilla receives in the Assembly the affirmative votes of two-thirds of all the elected members thereof the Governor shall dissolve the Assembly and shall act in his discretion in appointing the date for the ensuing general election under section 64 of this Constitution” (my underlining for emphasis).

So, section 25 clearly provides that a vote on a motion of no confidence may only be cast by the elected members.  A vote of no confidence is a purely political act.  It would be improper to allow the non-elected members of the Assembly to have a say in whether the government should stand or should fall.  That would demonstrate a distinct democracy deficit.

This is the only case mentioned in the Constitution of the ex-officio members being prohibited from voting.  No other motion is restricted to the elected members.  What would be the point of specifically excluding the ex-officio members from voting on this occasion if they do not generally have the right to vote?

Other than section 25 (no-confidence motions) rule 46 provides one other exceptional case when a member is prohibited from voting.  That is, a member shall not vote where he or she has a “direct personal pecuniary interest” in the subject, ie, he or she has a conflict of interest.

From all the above, there can be no doubt that the ex-officio members of the Assembly have all the rights of members.  All members are qualified to vote, save where specifically prohibited.  In the case of members who also sit in ExCo, they are further constrained by the principle of collective responsibility to vote in support of every government measure introduced into the Assembly.  If they are unwilling or unable to do so, they should resign their office.

If the two ex-officio members declined to cast their vote in favour of the Bill and abstained, they would have betrayed their duty to ExCo.  Worse than that, from what we are told, the CDB would not have disbursed the loan and public service salaries would not have been paid.  It is unlikely that the public service would have been silent.  The likelihood is that the entire public service would have stayed home from 1 August.  The two ex-officio members would have been responsible for a major government crisis.

It will be interesting to see if salaries will be paid at the end of October.  Or will the FCDO permit more bank borrowing, or, perhaps, more raids on the Social Security Fund?  The banks and the directors of the Fund must know these loans will never be repaid unless the FCDO bails out the government again.  We have had more than half a billion dollars from them since the 2017 hurricane.  We have no right to expect such largess to continue.


Monday, September 20, 2021

GST Objectionable?

 

A safe forecast is that the brand-new GST will not be collected or paid by most businesses.  The present property tax law is not enforced.  We pay less than 40% of the property tax we owe.  No one is prosecuted for non-payment of property tax.  If they do not enforce the old tax laws, why should we expect them to enforce the new ones?  It would make more sense to forget GST and increase the taxes that are easy to collect.

I have no private, inside knowledge of the reasons why the government of Anguilla has proceeded at this time to have the House of Assembly enact the GST in the face of massive public opposition to it.  But they told us that the Caribbean Development Bank agreed to make an EC$20 million loan if they enacted the GST law by a certain deadline.

The World Trade Organisation rules, which we in the Caribbean are struggling to comply with, are that we should encourage free trade, get rid of customs duties, and, presumably, replace them with GST.  Customs duties are said to be a hindrance to international trade and objectionable in principle.

By abolishing customs duties in Anguilla, there will be a busload of customs officers freed up for employment as GST enforcers.  These officers can be retrained to go into supermarkets, hardware stores, lawyers’ chambers, accountants’ offices, hotels, luxury villas, and other applicable businesses to conduct investigations into their income to determine whether they are collecting and paying the correct amount of GST.  A great deal of re-training will be necessary.  While we are at it, we can retrain them to enforce all the other taxing Acts that we presently largely ignore.  If the Assembly does not abolish customs duties, there will be no staff to enforce GST.  But the truth is no Anguilla government is voluntarily going to send home public servants.

The Interim Stabilisation Levy may be considered the most abusive tax in Anguilla.  It amounts to an income tax of 3% on workers’ salaries and the incomes of self-employed persons above EC$2,000.00 per month, with a cut-off at EC$12,000.00.  It is not a tax on income generally but is a tax on small pay cheques.  That means that it is a tax paid mainly by persons of limited means (with the employer being made to match the payment).

If a real GST replaced the Levy, then the average employer would probably pay more tax than his or her employee would, which is only equitable.  The Levy should be abolished at the earliest opportunity.  It should not be kept for the Health Fund, as that will only be raided whenever government gets strapped for cash.  Like the Social Security Fund is.

It has long ago been explained why direct taxes cannot work in Anguilla.  First, most workers in Anguilla are public servants.  Or it was so the last time I checked.  The creation of a huge Inland Revenue Department (IRD) that will be necessary to collect income tax and investigate and prosecute offenders will be absurd.  We will employ dozens of new public servants to collect income tax mainly from themselves.  We cannot afford the present public service.  We should be reducing numbers, not increasing them.

Second, few persons would pay the true amount of tax that is due.  There will be a great deal of cheating.  It will surprise us how many supermarkets and hardware stores will suddenly admit to earning less than EC$300,000.00 a year, the minimum for the Act to apply.

The IRD employs no person charged with enforcing the tax laws of Anguilla by bringing a prosecution.  The police force has no officer trained in investigating tax crimes.  The Attorney-General’s Chambers employs no Crown Counsel with any experience in prosecuting tax offences.

The complex enforcement provisions in the GST Act are a joke.  In addition to there being no trained personnel to perform this function, the political will to prosecute does not exist.  Any civil servant taking steps to enforce the Act will immediately be transferred to the Ministry of Infrastructure and given the Sisyphean job of counting nails and screws.

The reason for this non-enforcement of tax laws, as every Anguillian will recall, was long ago explained by the then Chief Minister, “We cannot turn innocent Anguillians into convicted criminals!”

It is for these reasons that Anguillian taxes can be described as virtually voluntary taxes.  Only those persons who feel conscience-bound to pay taxes generally pay them voluntarily.  Everyone else ignores them.

The one minimal enforcement mechanism is the rule in the Land Registry that you cannot file a land document such as a land Transfer or a mortgage Charge unless you first produce a Certificate of Good Standing from the IRD shewing your taxes are paid up to date.  If you don’t want to pay your property tax, and wish to avoid all adverse consequences, the solution is to not file any land document in the Registry.  That is not a satisfactory substitute for enforcing the revenue laws of Anguilla.

Third, since many Anguillians are past masters at avoiding paying taxes and levies, the tax burden will fall heaviest on persons of limited means whose main income is a pay cheque.  The result is that in future, most employment will be paid for in cash with no records kept.

Fourth, and most importantly, the worker population in Anguilla is tiny, a mere couple of thousand persons.  The establishment of the large and complex income tax bureaucracy necessary to enforce the collection of taxes efficiently and fairly from every person in Anguilla will be a disproportionate burden on the few taxpayers.  My guess is that no enforcers will be either appointed or trained.

We are told that the only fair tax is the GST, which will supposedly be a tax on all applicable services purchased and goods sold.  GST will be fairer than either the Levy or customs duties because it will be paid by all persons in Anguilla, whether rich or poor.  Those who consume more will pay more.  It is their choice.  However, on past evidence the GST will be evaded by most businesses.

A fair and efficient system of GST depends on every qualifying business and service being computerised and keeping records and accounts.  Small businesses have never kept, and will never keep, accurate accounts.  Due to the historical absence of direct taxes, very few Anguillian trades, business, professions, and occupations keep accounts.  The result, we can be sure, will be that only those few transactions that are not feasible without a paper trail will attract GST.

I forecast that on the day before the implementation of GST, most commercial activity in Anguilla will go underground.  Invoices will cease to be issued.  Receipts will not be offered.  [On a personal note, I was recently refused a receipt when I paid for an item in a shop with a wink and the words, “Don’t you know GST is coming?”]

Soon, many commercial transactions that are presently carried out by credit card will be replaced by cash transactions.  And many transactions that are presently conducted in cash will be replaced by barter or similar untraceable methods, all to avoid GST.

If there is no intention to replace customs duties by GST, but to keep them both, then as previously explained, there will be little or no revenue from GST.  My recommendation would be to increase the present tariff on motor vehicles, spare parts, building supplies, alcoholic beverages, tobacco, perfumes, jewelry, watches, computers, other electronics, and all other non-essential items to, say, 150% of CIF.  The blow could be softened by removing all duties from common groceries.  Collection of these increased duties will not add any administrative costs.  The infrastructure is already in place.  That measure alone should bring in enough additional revenue to cover public servants’ salaries.  They, at least, will be happy.