Thursday, November 03, 2016

Constitutional Reform - A Personal Perspective

I have been around for so long that I can remember the Mighty Sparrow when he was a teenager.  I was a 10 year-old student in Trinidad in 1956 when he won his first Road March with “Jean and Dinah”.  I was 12 years old when the West Indies Federation, now only a distant memory, was formed, and I was 16 when it broke up.
When I was a youth growing up, my Grenadian father worked for Tate & Lyle, a multinational corporation with sugar interests in Trinidad and in Jamaica.  Though neither Eric Williams nor Michael Manley was a regular visitor to our home, my father’s involvement with them and their governments was a topic for discussion around the lunch table.  As early as the 1950s, my father and Dr Williams represented employers and labour respectively at ILO meetings in Geneva.  Towards the end of our residence in Trinidad, in the 1970 State of Emergency caused by the Black Power Uprising, my father served on Dr Williams’ National Security Council.  Dr Williams needed his company’s pest-spraying aeroplanes to keep an eye on the mutinying army and to report back to the loyal government forces that eventually overcame them.  In later years, he told us many stories of the outcomes of some of those National Security meetings.
I am sure that, to the day he died earlier this year, Geddes Granger (Makandal Daaga), the 1970 leader of the Black Power Movement of Trinidad, was unaware of the role played by the American CIA in defeating him.  They sent a black agent, sporting a huge afro hairstyle, to lead a mob in smearing human excrement on the inside walls of the Cathedral of the Immaculate Conception in Port of Spain.  This sacrilegious act was guaranteed to turn the mainly Roman Catholic, urban, black middle-class resolutely against the Black Power Movement, ensuring its collapse within weeks.  I heard the details of the story, brought back to the dinner table by my father from National Security Council meetings, and recounted many times.
After he negotiated the sale of Caroni Ltd by Tate & Lyle to the Williams administration, my father was persuaded by Dr Williams to accept Trinidad and Tobago citizenship for him and my mother as a gift from his Government.
In 1971, Tate & Lyle transferred my father to Jamaica where, as Managing Director of the West Indies Sugar Company, he ended his career selling the company’s assets to the Michael Manley Government.  The month after he concluded negotiations for the sale of WISCO to the Jamaica government in 1973, my father died.  I well remember the Prime Minister’s dramatic attendance at his funeral in Kingston.  He arrived at the church by helicopter, scattering the curious children who had come running into the churchyard to find out what all the noise was about.
In addition to what I learned of the foibles and cupidity of our governments at my father’s lunch table, I have lived and worked as lawyer and judge in all nine countries of our OECS, from Grenada in the south to Tortola in the north.  To this day, I still read the digital editions of one or more daily and weekly newspapers from most of them.  I have been an observer of government in all our nations, both independent and those still colonies.  I have been honoured to have served as the chairperson of a Constitutional Reform Commission in 2006 and a Constitutional and Electoral Reform Committee in 2015, both established by Governments of Anguilla.  I hope the recounting of this personal history persuades you that I have some basis of experience on which to comment on our system of governance.
This is a mighty mansion of a topic, and I do not pretend to be as qualified as some of you in this room are to explore the depth and width of the many rooms and halls of the structure.  For the purpose of this talk, I limit myself to a specific area of my concern.  Why did independence go so wrong for so many of us?  What was the principal cause of our national failure in constitution-building, and what, if anything, can be done to remedy the situation?
To lay the background to my premise, that our independence Constitutions have failed the man on the St Georges’ mini-van, let me briefly compare what the US fathers of their Constitution did to what the fathers of our West Indian Constitutions did.  And, in doing so, I will take some liberties with accuracy in the interest of conciseness.  For my purposes, I will paint the picture of our state of affairs with a broad brush and with bright colours, eschewing pastels and fine shading.
Between the Declaration of Independence of 1776 and the adoption of the US Constitution in 1787, and of the Bill of Rights in 1791, some 15 years of continuous debate and amendment to the Articles of Confederation took place.  The result of this concentrated, intellectual focus is the present-day US Constitution, acknowledged to be the pre-eminent exponent of the separation of powers and the rule of law.  Today, the President nominates Supreme Court Justices, but they are not appointed until the Senate approves.  The President selects his Cabinet, but they do not sit in Congress.  The President nominates them, but their appointment is subject to approval by the Senate.  In addition to legislative checks on the Executive, there are legislative checks on the Judiciary.  The Executive branch is vested with powers to supervise both the Legislative and the Judicial branches.  And, the Judicial Branch with its power to declare laws unconstitutional, and to review actions of the government, is possessed of checks on the Legislative and on the Executive branches.  It is a written constitutional system that has lasted, with amendment from time to time, for longer than any other written Constitution in the history of the world.
By comparison, what did we in the West Indies do?  From Jamaica and the Bahamas in the north to Guyana in the south, commencing in the year 1961, we have stumbled from one unsatisfactory Constitution to the other.  With little or no public involvement or public education, the Foreign Office bestowed our Westminster-style Independence Constitutions on our unsuspecting people.  Despite tinkering with the peripheries of the system, our Constitutions have proven to be inadequate and unsatisfactory.  Far from being confederated, our West Indies are still divided, quarrelsome, ineffective, and ill-governed.
In my submission, the principal defect in our institutions of governance has been a lack of checks and balances in our Constitutions.  The result has been universally acknowledged poor government in all our states and territories.  Where there is bad governance, it is the people who suffer.  The venality, incompetence, and hubris, not to mention complicity in sacrilege, shown by our elected leaders, cause outside observers to hold us in quiet contempt.  The people demand that the system be changed, and measures that guarantee good, accountable government introduced and enforced through our Constitutions.
There are three elements universally accepted as essential for good government.  They are integrity, transparency, and accountability.  In the absence of conventions promoting good governance, only the legal system can ensure it.  The highest form of law in our region is the Constitution.  We require good governance institutions to be put in place protected by constitutional guarantees.
Let us now look at each of integrity, accountability and transparency.
Integrity in public life is an elusive objective at the best of times.  In the UK, parliamentarians have gone to jail for fiddling their expenses, and, in the US, congressmen have been indicted for accepting bribes.  You will search our islands largely in vain for any punishment meted out to politicians known to have left office hugely enriched by their public service.
No sensible person would suggest that our politicians are persons who naturally lack integrity.  However, the system of government that we have inherited seems almost designed to encourage us to give up our natural integrity.  The obvious solution is for our Constitutions to put in place ‘watchdog institutions’ that are designed to ensure integrity in our systems of government.  What are some of the most obvious ones?  They are independent Interests Commissioners; professional Tenders Boards with security of tenure; constitutional restrictions on dealing in public assets without parliamentary approval; independent Appointments Commissions to review all Ministerial appointments to Boards and Government Committees; and enforceable Codes of Ethics for all persons in public life.
The Interests Commissioner, sometimes called the Integrity Commissioner, is intended to receive declarations and reports from public officers of their assets and liabilities.  In most of our territories there is no requirement that public officers declare their interests.  And, if there is such a requirement, there is no obligation for the declaration to be available for public inspection.  And, if the declaration is not filed, there is often no punitive consequence.  It is essential for us that this filing be done before, during and after taking up office.  In the exercise of her functions the Integrity Commissioner is not to be subject to the direction of any other person or authority.  The appointment should be made by the Governor-General after consulting the Prime Minister and the Leader of the Opposition.  The Constitution should provide a mechanism to ensure that the office receives the resources needed to carry out its functions.  The Constitution must provide that a Minister can be removed from office, with a right of appeal, if the Integrity Commissioner finds that he or she has breached the Code of Ethics for public life, or if he or she has failed to comply with the registration of interests requirement on two separate occasions.
We need Tenders Boards to be enshrined in our Constitutions, and protected from outside influence.  Much of our budget is spent on developing infrastructure, repairs and maintenance.  Procurement of goods and services, relating to contracts for roads and schools and offices and hospitals, offers the most attractive opportunities for those who wish to corrupt the process and illegally enrich themselves.  In my island, I know of one contractor who boasts that he has a “mole” in the Tenders Board who, for a commission, feeds him information that will ensure that he or his partners are successful in any bid.  We must insist on the highest standards and procedures in relation to procurement and tendering.  We need appropriate laws and regulations to set out how public contracts are to be awarded.  The Integrity Pacts recommended by Transparency International would carry the process upwards to an entirely new level.
The third requirement for ensuring integrity in public life is the constitutional protection of public assets, mainly land, mineral, and fishing rights.  In many of our territories, Crown lands and national assets are dealt with behind closed doors.  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.  There is no accountability.  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 public asset, say a half acre or more of land, is required to be brought to the legislature for public debate and approval.
The British have bequeathed to us a “winner takes all” system of appointments.  Immediately a new government is appointed, 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 new administration.  We watch as they dismantle the Boards governing Social Security, Public Utilities, Public Health, the Tourist Board, Carnival Committee, and even the Poor Law Board.  We call it “enjoying the fruits of office”.  This system of replacing one set of incompetent political appointees with another set makes a mockery of the whole notion of good governance.  Either the Legislature or a constitutionally protected Appointments Commission should be empowered to vet all appointments to government Boards, Committees and Commissions before they take office.
Codes of Ethics for persons in public life should be put in place and strictly enforced.  The British Cabinet Office has developed a series of handbooks to guide public servants and ministers on the correct protocols to be followed by incoming Ministers.  Other Commonwealth countries[1] have excellent handbooks for Ministers, Legislators and other public officers.  These could easily be adapted for our use.  Workshops for incoming Ministers, Boards of statutory corporations and public servants should be a regular feature of the administration's drive to achieve good governance.  All of persons in public life can benefit from compulsory attendance at seminars and workshops on the meaning of nepotism, cronyism, and conflicts of interest.  If Judges and Lawyers can subject themselves to Codes of Ethics, why not all public servants and politicians?
The second area of checks and balances that promote good governance 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 the Complaints Commissioner; a Freedom of Information Act; and a functioning Public Accounts Committee.
The Complaints Commissioner is another name for the Ombudsman.  Without an Ombudsman, the citizen must rely for enforcing his rights against an unfair or biased public officer on going to Court.  And, we all know how expensive and unsatisfactory that can be.  We also need an independent Police Complaints Authority.  Complaints by the public against the conduct of a police officer are usually heard and determined in private by the Commissioner of Police.  This system is not transparent, and leads to public distrust.  Some progress is being made.  Bermuda, Jamaica and St Lucia have introduced statutory civilian oversight bodies, 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[2] has the power to take over a police complaints investigation and to make binding recommendations to the relevant Chief Constable.  What is certain is that it is no longer satisfactory for complaints against police officers to be handled internally and in secret as presently occurs.
We need to consider constitutionally providing for a Human Rights Commissioner:  Today, the citizen’s fundamental rights can only be protected by the individual at great personal cost.  The solution is to place the protection of the individual’s rights in the hands of a publicly funded institution.  This is sometimes called the Human Rights Commissioner or the Administrative Justice Board. 
In most of our countries, it is nearly impossible to obtain any information on the programmes or activities of any department of government, or to discover what files government departments hold on us.  Constitutionally mandated Freedom of Information Acts are long overdue.  There is no surer mechanism for guaranteeing transparency than a FOI Act and the various regulations that make it work.
The Public Accounts Committee is perhaps the most effective mechanism designed by our Constitutions to enable Members of the Legislature to question and investigate the manner in which public officers have spent the monies voted by the Legislature.  The PAC exists in theory in all of our Constitutions, yet, due to lack of political will and lack of training, it functions properly in few of our Territories.
The third key element of good governance is transparency.  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.  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 among our elected leaders are afraid of showing transparency.  The self-confident and the honest welcome it:  The introduction of mechanisms and techniques for guaranteeing transparency would give them the tools to demonstrate their honesty, effectiveness and integrity.
Systems that increase transparency include the appointment of civil servants, teachers and the police by truly independent Service Commissions; the exercise of the prerogative of mercy by Mercy Committees; the regular revision of electoral boundaries by independent Boundaries Commissions; and opening up Cabinet Meetings and all government committee meetings to the public.
Unless all appointments to the teaching service, the police service, and the public service generally, are constitutionally placed in the hands of professional and independent Public Service Commissions, governed by appropriate laws and regulations, and trained in the exercise of their functions, there will be no public confidence in the independence and integrity of the public service.
In most of our territories, the Governor has the constitutional power to function without any local Mercy Committee to advise him on what to do about early releases from prison.  In some, the Prime Minister can do it on a whim.  This is a most unsatisfactory state of affairs.
Independent, politically balanced Boundaries Commissions are essential to guarantee public confidence in our elections systems.  There is no reason why the modern practice of having the electoral boundaries re-examined after every population census should not apply universally.
Open Meetings legislation allows public access to government meetings, and ensures that their decisions are transparent and publicised.  There is no reason why the Constitution should not contain a clause requiring all governmental meetings such as those of Building Boards, Land Development Committees, Boards of Governors of Schools and Hospitals, and Cabinet itself, to be open to the press and public, within reason.  The old, discredited practice, probably deriving from an outdated British Official Secrets Act, of hiding every decision and action of a department of government has proven itself not to be conducive to good governance.
Departments of government are generally expected to publish Annual Departmental Reports for laying before the legislature.  This requirement was strictly enforced during the earlier colonial period, but seems to have fallen into disuse in many of our territories. These reports, even when they are prepared, seldom reach the public eye.  They should be insisted on, and required to be published on government websites for the public to have access to them at will.
If a common sense approach to good government is ineffective, then the Constitution should mandate that Cabinet meetings are opened up to the public whenever possible.  Post-Cabinet Press Conferences encourage public confidence in the functioning of government.
In Anguilla, we are taking integrity, accountability, and transparency a step further.  The Constitutional and Electoral Reform Committee, established by government to prepare a new Constitution and a new Elections Act, has taken recommendations from the public.  Anguilla wants to see a provision for a maximum two-term limit for the Premier;  a power for the electorate to recall an elected representative who is felt to be performing unsatisfactorily;  and for there to be a fixed date for general elections.  Too many of our Premiers and Prime Ministers develop a God-delusion, and, worse, a sense of entitlement and ownership of the country if their party continues to be elected to office beyond two terms, invariably resulting in a deterioration in their integrity.  The Americans have cured this defect by instituting a maximum two-term limit after the death of 3-term President Franklin Delano Roosevelt, and we can learn from this salutary provision.  Elected representatives, particularly after they are appointed Ministers, sometimes lose their awareness that the public placed confidence in their promise to serve.  A power of recall should serve as a reminder of their vulnerability if they are seen to betray the confidence of the public.  A fixed date for general elections is another obvious constitutional precaution against abuse of the electoral system by a Prime Minister who becomes more conscious of his power and privilege than of his promise to serve the public good.
In conclusion, it is generally accepted that any form of government that does not encourage public participation is the opposite of good governance.  Since the introduction of universal suffrage in the West Indies after the Second World War, democracy has flourished in these islands.  If bad government now seems entrenched in our islands, we have no one to blame but ourselves.  Our politicians may not always be of the highest integrity, morals or standards.  But, by ensuring genuine accountability to the electorate, their greater excesses can be restrained.

A public speech delivered at the Annual Law Week of the Grenada Bar Association in St Georges, Grenada on 3 November 2016.

[1]    See, eg, 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.