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.
