Tuesday, July 21, 2009

Constitutional Reform Brief

To:      A Politician
From: Don Mitchell
Date:  21 July 2009

The question you have asked me is, what in my view are some of the basic Constitutional improvements everyone in Anguilla wants to see?  What are the bare minimum reforms that are needed?  What are the checks and balances that we now know will help Anguilla to be better governed in the future?

I think it is generally agreed that we need to see two major changes:

1. Internal self-government.  No one is saying that Anguilla is ready for independence.  No one in Anguilla is asking for political independence at this time.  But, the old colonial regime has been discredited.  The United Nations has been saying for years that colonialism must come to an end.  The British government has been saying for years that it does not want any colonies.  It wants only self-governing overseas territories.  Anguilla has been paying her way in the world without financial assistance from the British government for years.  The British government has said that it wants a partnership relationship with us[1].  We are ready for partnership.  What does this mean?

(a) Public Service:  Appointments, promotions and disciplining of civil servants should no longer be in the personal control of the Governor.  Appointments, promotions and discipline should be on merit, and should be in the control of an independent, local group of respected members of the community appointed to the Civil Service Commission by the Governor.

(b) Teachers:  Appointments, promotions and disciplining of teachers should no longer be under the personal, uncontrolled discretion of the Governor.  Teachers should be handled by an independent Teachers' Commission.  Teachers should no longer be lumped together with civil servants.

(c) Police:  Appointments, promotions and terms of service of police officers should no longer be under the personal control of the Governor.  These should be handled by an independent Police Service Commission.

(d) Chairing Executive Committee:  It is time that the Executive Council be chaired by the Chief Minister or Premier.  The Premier must discuss business with the Governor and listen to his advice, but no one has elected the Governor to make decisions about the affairs of Anguilla.

(e) The Governor:  The Chief Minister and the Leader of the Opposition should be consulted on the appointment of a new Governor.  They should see the curriculum vitae of the proposed appointee.  We have a right to be consulted on the type of person they are sending to be Governor of Anguilla.

(f) Cabinet:  Increase the size of Executive Council [Cabinet]:  The number of Ministers should be increased to take account of the increased burden of government in the 21st Century.  Four persons to run the affairs of this country is unrealistic.  With increased self-government, there will be an even greater burden on Ministers.  We need a Cabinet of at least six persons.  This way, we can get rid of the office of Parliamentary Secretary.  If we keep the Parliamentary Secretary, we must make sure the total can never again exceed fifty percent of the size of the House.

(g) Ex-Officio Members of Cabinet:  Let the ex-officio members, the Attorney-General and the Deputy Governor, remain in Cabinet to advise.  However, they should have no vote.  The elected members take the benefit and the blame of their decisions.  Nobody elected the ex-officio members.

(h) Governor's reserved powers:  The Governor must consult with the Chief Minister on the exercise of his reserved powers.  It is embarrassing for a responsible local government to have to learn about the actions of the Governor for the first time by hearing it on the radio.

(i) DPP:  The decision to prosecute somebody for a serious crime should not be in the hands of a member of Cabinet, such as the Attorney-General.  The Constitution must provide for an independent Director of Public Prosecutions who does not take orders or advice from any politician.

(g) Power to return a Bill to the House:  The Governor cannot continue to refuse to a Bill if he returns it to the House once, and the House considers his recommendations and sends it back to him.  The people's representatives take the credit and the blame for what laws are passed.  No one elected the Governor to decide what laws can pass for Anguilla.

(h) Power of disallowance.  At the moment, the Secretary of State can reject any Bill passed into law by the Anguilla House of Assembly, and assented to by the Governor.  He must never again have the power of disallowance of a Bill passed by the Anguilla House of Assembly, except in strictly limited situations, eg, where the Act will bring Britain in breach of some international obligation or Treaty.

(i) Mercy Committee: At present the Governor has sole discretion in exercising the prerogative of mercy.  He decides in private and on his own.  No one knows what criteria he applies.  He should act on the advice of an independent group of citizens who follow recognised rules of procedure.

(j) Anguillian status:  Anguillians have for generations traveled the world seeking to improve themselves.  There are thousands of Anguillians around the world who do not have British citizenship.  These persons are deprived of their belongership, though they are recognised by all Anguillians as being Anguillian.  By contrast, Anguillian status, or belongership, is granted when an alien becomes naturalised in Anguilla.  Naturalisation is controlled by the British Nationality Act, and is not recognised as an Anguillian procedure.  This allows certain persons to avoid the constitutional provisions for acquiring belongership by residence, marriage, etc.  In future such persons should not be given Anguillian or belonger status.  British nationality should be removed from belonger status. 

2. Checks and balances.  Internal self-government requires that the public be confident that the opportunities for abuse by local leaders will be minimised.  It is no use taking the power away from a British civil servant and giving it to a local politician if the politician can use it to promote his family and friends.  What are some of the checks and balances that we can put in place?  Here is a shopping list, with no sense of priority.

(a) The House of Assembly must stop being a rubber-stamp for the Executive Council.  The main reason why this happens is that most members of the House are Ministers of government, or Parliamentary Secretaries, or Nominated Members, or Ex-Officio members of Executive Council.  The solution is to completely alter the structure of the House so that:

(i) Nominated Members must be done away with.  They are not elected and their presence is undemocratic;

(ii) Ex-officio members should not have a vote.  Nobody elected them to vote in the House.  They can stay in the House to advise the Speaker and the Members, but without the power to vote;

(iii) Increase the number of elected members so that the Ministers will never again fill most of the seats.  Let the House be big enough that a substantial part of it will always be independent of the Ministers.  One way to achieve this is to provide that Ministers can never be more than half of the House, eg, with 13 members, a maximum of 6 Ministers.

(iv) A vote of no confidence should pass on a simple majority.  The present position is that it takes a vote of three-quarters of the House.  That means that a minority government can continue to try to rule the country without ever being able to pass a law or a motion in the House.  That happened with Hubert's last government.  It should never be allowed to happen again.

(b) The Police should be under the control of an independent Police Complaints Authority.  It is wrong that if you have a complaint against a police officer you can only go to the Commissioner to complain about it.

(c) Ministerial Code of Ethics:  We can no longer leave it up to the private code of ethics of Ministers.  Ministers should be educated in how to deal with conflicts of interest, and they should promise to conform to a Ministerial Code of Ethics as is done in other countries.

(d) Voting at large:  The constituency system has its weaknesses.  The persons who get elected tend to be the ones with most family connections in the Constituency, or the ones who are rich enough to pay for votes.  If the whole country had to vote for some of the representatives, we can be sure that they would not be related to most of the people across the country, and they would never afford to pay off voters throughout the country.  It would bring to the House persons who were genuinely popular throughout the country.  In Montserrat, all the Members are elected this way, in BVI it is some of them.

(e) Campaign funding:  We need a law in place to provide for the regulation of political fund-raising.  We need to make politicians provide an audit of their political funds on a regular basis.  There should be stiff penalties for infringement. 

(f) Public Accounts Committee:  We need to strengthen the provision for this committee to keep an eye on public expenditure.  The committee is not provided for in the Constitution, and it has never sat.  We need to make sure this never happens again.

(g) Interests Commissioner:  There must be an entrenched provision for Members of the House to declare their assets and interests and for their declarations to be published, with severe penalties for infringement.  This is one of the most important anti-corruption measures that is missing from our Constitution.

(h) Crown land:  At the present time, the Governor deals in public land based on the advice of Executive Council.  There is no transparency.  Land is exchanged and leased without the public knowing anything about it.  In future, no land in excess of half an acre should be dealt in without a resolution or the House of Assembly.

(i) National Security Council:  There should be provision for such a Council to deal with national security issues.  It should be made responsible for all matters of policy and oversight relating to internal security, including the police force.

(j) Ombudsman/Human Rights Commissioner:  There should be provision for such an officer of Parliament to report to the House and to be independent of any government department.

(k) Boundaries Commission:  The Constitution should provide for an independent Commission to review the boundaries of parliamentary districts from time to time, say, after each census, and to ensure the districts are more or less equal in population size.

[1]    In the Partnership for Progress White Paper.