What Are the Most Important Issues for Constitutional Reform Today? A Personal View
My question is, why have so many of our constitutions in the Commonwealth Caribbean let us down? What, if anything, can we do to correct this failure?
The US Constitution: In the USA, 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 amendment to the Articles of Confederation were debated and enacted. The result of this concentrated, intellectual focus is the present-day Constitution, acknowledged to be the pre-eminent exposition on the separation of powers and the rule of law.
The President nominates Supreme Court Justices, but their appointments must be approved by the Senate. The President selects his Cabinet, but their appointment is subject to approval by the Senate. In addition to legislative checks on the judiciary and the executive, there are the familiar judicial checks on the executive and the legislature. The judiciary has power to declare laws unconstitutional, and to review actions of government. 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.
Westminster-style Constitutions: By comparison, what did we in the West Indies do? From 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 and Commonwealth Office bestowed a Westminster-style constitution on our unsuspecting people. Since then, despite our attempts to tinker with the peripheries of the system, it has proven to be inadequate and unsatisfactory in ensuring that we are governed by law and not by man.
Checks and Balances: In my submission, the principal defect in our institutions of government has been a lack of checks and balances. The result has been a universally acknowledged state of poor governance in all our territories. Where there is bad governance, it is the common man who suffers. The well-connected will always prosper.
Demand for Good Governance: Gradually, the people of the West Indies are demanding that the system be changed, and that measures that guarantee good governance be introduced. The citizens of St Vincent and of Grenada have recently demonstrated that they will not accept a mere fiddling with the peripheries of the problem. They rightfully demand that our constitutions do more to protect our lives and liberties. They want to feel confident that the constitution brings them under an acceptable system of government.
Integrity, Transparency and Accountability: There are three elements universally accepted as essential. These are integrity, transparency, and accountability. They are not so much legal principles as ethical concepts, relying for their enforcement mainly on convention. This has not proven a reliable enforcement mechanism. In the absence of time-honoured conventions promoting good governance, only the legal system can ensure it, and the highest form of law in our region is the constitution. It is appropriate then that good governance institutions be put in place, protected by constitutional guarantees. Experience in Trinidad and Tobago and elsewhere has demonstrated that having a mere Act of Parliament is not sufficient. The governing and opposition parties can and do conspire to ignore them. There must be genuine constitutional guarantees that the citizen can enforce when they are breached.
Let us now look briefly at each of integrity, accountability and transparency.
Integrity: 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. But, you will search our islands largely in vain for any punishment meted out to a politician known to have left office hugely enriched by his public service. No sensible person would suggest that our politicians are persons who naturally lack integrity. However, the Westminster System of government that we have inherited seems almost designed to encourage us to give up our natural integrity. Singapore went into independence governed by the same undemocratic style of constitution as ours. But, none of us in the Caribbean was so lucky as to have a long-time Prime Minister who used his undemocratic constitutional powers to demand the highest standards of personal integrity of his Ministers and of his people. The result for the positive economic development of Singapore is clear for all to see.
Watchdog Institutions: With our poor choices for leadership, we need to put in place in our constitutions ‘watchdog institutions’ that are designed to ensure integrity in our systems of government. Let us look at some of the more obvious ones.
Integrity Commissioner: The Interests Commissioner, sometimes called the Integrity Commissioner, is intended to receive declarations 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, if we are to have confidence in our representatives, that this filing be done before, during and after taking up office, and that it be published for all to see. In the exercise of her functions the Integrity Commissioner is not to be subject to the direction of any other person or authority. Her 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 Commissioner receives the resources needed to carry out her functions. The requirement is of no real or practical use unless there are penalties for breach.
Additionally, the constitution must provide that a Minister can be removed from office, with a right either of review or appeal, if the Integrity Commissioner determines that he or she has breached the Code of Ethics for Public Life, or that he or she has failed to comply with the registration of interests requirement.
Public Procurement: Much of our budget is spent on construction, repairs and maintenance of the infrastructure. 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 to enrich themselves. 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. In other words, we need Tenders Boards to be enshrined in our constitutions, and protected from outside influence. Alternatively, a Public Procurement Commissioner whose duty it is to ensure the public procurement process works as intended, without a wronged tenderer being obliged to take his complaint to court at great expense, as presently obtains, is an obvious solution, once it is embedded in the constitution. Trinidad has had such an Act for years, but it has conveniently never been brought into effect. In the absence of a constitutional remedy, there is nothing the citizen can do.
Integrity Pacts: The Integrity Pacts, as recommended by Transparency International, would carry the tendering process upwards to an entirely new level. An Integrity Pact is essentially an agreement between the government agency offering a contract and the companies bidding for it that they will abstain from bribery, collusion, and other corrupt practices for the extent of the contract. This has been found to be a powerful tool to help governments, businesses, and civil society fight corruption in public contracting.
Public Assets: Another 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 traditionally treated as a state secret, there is no publication 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 a 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.
Appointments Commission: The British have bequeathed to us a “winner takes all” system of appointments. Immediately a new government is put in place, 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, the Carnival Committee, and even the Poor Law Board. It is called “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. A constitutionally protected Appointments Commission should be empowered to vet all appointments by Ministers to government boards, committees and commissions before they take office, as is the common practice in more developed Commonwealth jurisdictions. Under the proposed new Anguilla Constitution, the Minister may not appoint any person to any government-controlled board or committee without the approval of this Commission.
Code of Ethics: A Code of Ethics for Persons in Public Life must be put in place and strictly enforced. Workshops for incoming ministers, boards of statutory corporations, and public servants, should be a regular feature of every new administration's drive to achieve good governance. All persons in public life can benefit from compulsory attendance at seminars and workshops on the meaning of nepotism, cronyism, and conflicts of interest, and how to avoid them. If judges and lawyers can subject themselves to Codes of Ethics, as they do, why should not all public servants and politicians?
Accountability: The second area of checks and balances that promote good governance is that of accountability. Recognised devices exist, other than general elections every 5 years, to ensure that government is held accountable for its actions and omissions.
Ombudsman: The Complaints Commissioner is another name for the Ombudsman. Without an Ombudsman to call upon, 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 remedy can be.
Police Complaints Authority: We also need an independent Police Complaints Authority. Complaints by members of the public against the abusive or oppressive conduct of a police officer are usually heard and determined in private by the Commissioner of Police. Such a system does not make the police service accountable for the misdeeds of the odd rotten apple in the barrel, and leads to public distrust. Some progress is being made. Bermuda, Jamaica and St Lucia, among others, have introduced civilian oversight bodies for their police services. These are still deficient in that they may only make recommendations to the Commissioner who retains the primary duty to take disciplinary action against officers. While this has not been an entirely satisfactory a solution, what is certain is that it is no longer acceptable for complaints against police officers to be handled internally by the Commissioner of Police, and in secret, as presently occurs.
Human Rights Commissioner: Today, the citizen’s rights against administrative abuse can only be protected by the individual at great personal cost. It is time for our constitutions to provide the citizenry with a Human Rights Commissioner, sometimes called the Administrative Justice Board. This is a publicly funded institution which is authorised to bring an action on behalf of a citizen against any government agency for breach of the constitution or of the rules of natural justice.
Freedom of Information: In most of our countries, it is nearly impossible to obtain any information on the activities of any department of government, or to discover what files they hold on us. The administration is insulated from any notion of accountability to the public. Constitutionally mandated Freedom of Information Acts are long overdue. Under the new Anguilla constitutional proposals, the public will have a right, within reason, of access to all information held by public authorities. The Information Commissioner will receive complaints where copies of documents are refused, and will investigate, decide on, and report to the Assembly on compliance with the Act by public authorities. There is no surer mechanism for guaranteeing observance of the rules of natural justice than an effective FOI Act.
Public Accounts Committee: The Public Accounts Committee, or PAC, is the surest 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 to them by the legislature. The public purse is perhaps the most obvious area where accountability is essential. The PAC exists in theory in all of our constitutions, yet, due to lack of political will, and training and resources, it functions properly in few of our territories. Under the Anguilla constitutional proposals, the PAC will have power to summon witnesses to testify on oath in public hearings. The PAC must report to the Assembly, and if the Assembly adopts a report of the PAC and requests a minister to advise the Assembly on what action he has taken in respect of the report, the minister will have a constitutional deadline for responding.
Transparency: The third key element of good governance is transparency. It is the lack of transparency in our systems of government that causes so many of our ministers’ actions to be suspect. Most politicians do not seek public office solely to engage in making back-room deals and accepting under-the-table packages, contrary to popular opinion. Voluntarily introducing mechanisms and techniques that guarantee transparency would give the self-confident politician the tools to demonstrate his honesty, effectiveness and integrity.
There are various proven systems that we can put in place designed to increase transparency. Let us look at some of them.
Mercy Committee: In most of our territories, the Governor, or some other member of the executive, has the constitutional power, without any public involvement, to decide on early release from prison. In some cases, the Prime Minister can do it on a whim. This is a most unsatisfactory state of affairs. This function is best performed by a Mercy Committee.
Boundaries Commission: Independent, politically balanced Boundaries Commissions are essential for guaranteeing public confidence in our election system. There is no reason why the modern practice of having the electoral boundaries re-examined after every population census should not apply universally.
Voters List: In Anguilla, it is generally agreed that there is a need to clean up the Voters List to remove all persons who may be wrongfully on it. As it is practically impossible under our law, in the absence of death, to remove a person from the Voters List once he is on it, even if he has moved away from Anguilla for many years, periodic enumerations will be necessary to ensure the List is kept relevant. At present, under our system of continuous registration of voters, the practice is for politicians or their agents to submit to the Registration Officer bundles of applications for registration. No vetting actually takes place before the busy electoral officer registers them. Under our electoral reform proposals, applicants for registration will be required to appear in person at the office of the Supervisor of Elections, who is mandated to require the applicant for registration to prove that he is qualified to be registered.
Public Service Commission: Unless all appointments to the public service are constitutionally placed in the hands of professional Public Service Commissions, governed by appropriate laws and regulations, trained in the exercise of their functions, and insulated from political interference, there will be no public confidence in the independence and integrity of the public service. Police officers should no longer be appointed at the sole discretion of the Commissioner of Police. Appointments up to the rank of Inspector will be made by the Deputy Governor, who is the head of the Public Service, on the advice of the Police Service Commission. Appointments above the rank of Inspector will be made by the Governor acting on the advice of the Police Service Commission, and after approval by the National Security Commission, which for Anguilla will be a new institution intended to advise the Governor on matters relating to internal security.
Open Meetings: 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 under the cloak of secrecy has proven itself not to be conducive to good governance.
Annual Reports: Government departments demonstrate transparency by regularly publishing reports on their activities. Departments are generally expected to publish Annual Departmental Reports and for the Minister to lay them 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.
Post-Cabinet Press Conferences: Cabinet decisions taken on our behalf are our business, not the private business of government. Obligatory and regular Post-Cabinet Press Conferences would increase knowledge of, and encourage public confidence in, the functioning of government. If a common sense approach to transparent government is ineffective, then the constitution should mandate that Cabinet meetings are opened up to the public whenever possible.
Term Limits: Too many of our Premiers and Prime Ministers develop over time 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, and they automatically become the head of government again and again, the result is an invariable deterioration in their performance and integrity. The Americans have cured this defect by instituting a maximum two-term limit for the President. We can benefit from this salutary provision by placing it in our constitutions.
Power of Recall: 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 of an elected representative would serve as a reminder of his vulnerability if he is seen to betray the confidence of the public. The new Anguilla proposal contains a power of recall of a member of the Assembly.
Declaration of Interests: Additionally, within one month of the coming into effect of the new constitution each member of the Assembly will be required to file his declaration of interests, and to file it annually thereafter, failing which his seat in the Assembly will be declared vacated. If he is reluctant to publish his and his family’s assets, then he should not offer himself for public service.
Disqualification to Be Elected: By a constitutional provision, conviction of any offence of dishonesty or immorality will result in a Member’s automatic vacation of his seat in the Assembly, and disqualification for life. Additionally, there will be an automatic vacation of his seat in the Assembly if an elected member, which includes a Minister, breaches the Code of Ethics for Persons in Public Life.
Referendum: There is widespread agreement in Anguilla that the constitution ought to provide for Government to be able to seek the approval of the Anguillian public by way of a referendum on important initiatives. Additionally, there will be a provision to enable the people to initiate a referendum. Calling for such a referendum will require a petition to Cabinet signed by 25% of the electorate, and the result of the referendum will be binding on the government and the Assembly, once more than 50% of those voting support the question.
Standing Committees: A further constitutional check on an unrestrained executive will be the powers of the Standing Committees of the Assembly. There are required to be at least an Appropriations Committee and a Public Accounts Committee. They will have the power to summon any Minister or public officer to answer questions and to provide information and documents on oath in public hearings. The Standing Committees are to be chaired by the Opposition, are to report to the Assembly, and their Reports are to be published.
Motion of No Confidence: Another restriction on abuse of the powers of the executive is that the constitution will provide that a Motion of No Confidence must be dealt with within one month.
Fixed Date Elections: A fixed date for general elections is another widely supported constitutional precaution against abuse of the electoral system by a Prime Minister who has become more conscious of his power and privilege than of his promise to serve the public good. More and more Commonwealth Countries are adopting this provision, and we have recommended it for Anguilla’s new constitution.
Campaign Financing: Campaign financing is an area of political life that is the cause of much suspicion and speculation as to misconduct by some business persons and candidates for election. The draft new Anguilla Constitution proposes that campaign finances will be required to be audited and published. Political parties will be required to keep a strict account of all donations and contributions, whether in cash or in kind and whether made to or on behalf of the party or of the candidate. The name and address of every donor of $5,000 or more must be recorded. It is proposed that the Supervisor of Elections will impose a penalty of $2,000 per day on any party which fails to comply with the requirement to keep accounts and to file an audited report. Until the report is filed, or the penalty paid, a candidate who has been returned as a member shall be temporarily disqualified from membership of the Assembly.
Public Finances: It is generally accepted in Anguilla that public finances need to be more thoroughly regulated, and the existing rules more stringently enforced. The deliberate ignoring of the provisions of the Financial Administration and Audit Act over the past 40 years has resulted in the Chief Auditor repeatedly criticising Anguilla’s public accounts. We have, it appears, never received a clean audit report. No member of the public has ever had the means of ensuring that the statutory rules governing the raising of revenue and the spending of public funds are strictly followed by the Administration. That will all change under the new constitutional provisions.
Fiscal Framework: The Government will now be required to formulate a Fiscal Framework setting limits to public debt relative to public revenue, limiting debt service costs, and setting levels of reserves. Every 6 months, the Minister must report to the Assembly on the state of performance of the public finances and the economy of Anguilla. Where an Appropriation Act will not return a surplus budget, the Minister must lay before the Assembly a statement explaining the reasons.
Where the Government is in breach of the Fiscal Framework, any Appropriation Act must be approved by a Secretary of State and Government must agree a Medium Term Fiscal Plan with milestones for meeting key debt ratios. These procedures, requiring the agreement of the Secretary of State, are applicable only in a British Overseas Territory (BOT). In the case of an independent country analogous terms and conditions are contained in a Borrowing Agreement with the International Monetary Fund. The conditions imposed by the IMF on the borrowing state are, typically, even more onerous than those demanded by a Secretary of State in the case of a BOT.
Waiving a Tax: No tax, rate or levy may be imposed save under the authority of an Act, and where an Act authorises a person to waive or vary a tax, that person must report to the Assembly every 6 months. Any waiver of an amount in excess of $1,000 will require the approval of the Assembly. In Anguilla, the Chief Auditor reports that taxes imposed by law are on occasion waived or varied by decision of the Executive Council, or on occasion even by the Permanent Secretary, without any report to, or approval by, the Assembly. In future, any such breach of the financial rules will be not just illegal but unconstitutional, and for the first time capable of enforcement by constitutional action.
Actuarial Assessment: All contingent liabilities of Government are to be subjected to an independent actuarial assessment every 2 years, and a report made to the Assembly and published within 2 months.
Appropriations: All Government revenues must be paid into the Consolidated Fund, unless an Act authorises otherwise. Money may be withdrawn from the Fund only to meet expenditure charged on it by a law, or where authorised by an Appropriation Act. In Anguilla, at the present time, as evidenced by the Chief Auditor’s published Reports, it is common practice for the Minister, or his Permanent Secretary without any written instruction from his Minister, to divert public funds from approved headings to projects that have not been approved by the Assembly. Such diversion will in future be not merely illegal but unconstitutional.
Supplementary Appropriations: There is obliged to be an Appropriations Bill every year. If the funds appropriated are insufficient, there shall be a supplementary estimate and a Supplementary Appropriation Bill laid by the Minister before the Assembly. This, of course, is a standard rule for management of public funds. But, it has been many years since any Supplementary Appropriation Bill has been prepared, far less submitted to the Assembly, in Anguilla. It will be provided that the Governor may refuse to assent to an Appropriation Bill, even if passed by the Assembly, if it is inconsistent with the Fiscal Framework.
Annual Report by Minister of Finance: It will now be a constitutional duty for the Minister of Finance, at least 6 weeks before the new financial year, to present to the Assembly the estimates of revenue and expenditure. He must also set out targets for revenue and expenditure, and an assessment of performance against debt sustainability limits as established in the Fiscal Framework.
Borrowing: All borrowing must be authorised by an Act, and be in accordance with the Fiscal Framework. The Minister will be required to report to the Assembly every 6 months as to the country’s total indebtedness; on the servicing of any loan; and on the utilization and performance of the loan.
Funding Institutions of Good Governance: The administration can stifle an institution protecting good governance by depriving it of public funds and resources. The Anguilla proposal for funding these institutions is designed to make this difficult, if not impossible. A constitutional duty will be laid down for Government to provide accommodation and other resources reasonably required. The PSC will be mandated to approve the temporary transfer to any such institution of members of the public service reasonably requested by the institution.
By August 31 of each year every institution protecting good governance must submit its budget for approval by the Appropriations Committee and the Assembly. The Assembly will be prohibited from adjusting this budget. It must pass or reject the budget, but may not amend it. Once passed, the institution’s budget will become an integral part of the Appropriation Act for that year. If the budget is rejected, the Appropriations Committee must reconsider it, discuss it with the institution, and recommend a revised budget to the Assembly.
Remuneration of Members of the Assembly: In Anguilla, a frequent cause of complaint has been the ad hoc manner in which members of the Assembly approve increases in their salaries, allowances and pensions. The draft new constitution will provide that the Speaker’s and other Members’ remuneration must be prescribed by an Act. Any Bill for an Act for remunerating Members of the Assembly must be recommended by the Integrity Commission, and be published for public discussion before it is enacted.
Chief Auditor’s Report: Finally, on finance, the new constitution will provide that the Chief Auditor’s Report is to be published each year. Only two of these annual audit reports have ever in the history of Anguilla been published. The Chief Auditor will audit the accounts of all government departments, of the Assembly, and of all institutions of good governance. He will submit his Reports to the Governor and to the Speaker who will lay them before the Assembly. The Speaker is then required to publish any such Report within one month of receiving it.
Rule of Law: Leaving now the topic of transparency, it is axiomatic that the rule of law, and the willing submission of the administration, to the principles of natural justice are essential prerequisites for good governance to flourish. The rules of law and of natural justice will not thrive based only on the constitution. We lawyers must be vigilant to ensure that bad legislative provisions that may enable cronyism, nepotism and conflicts of interest are rooted out of all of our government arrangements. When a new Planning Act or Building Act is found to contain provisions for Cabinet to overrule the planning or building board, or to remove a planning or building issue from an appeals tribunal, we must see it for what it is, a provision designed to undermine the rule of law.
Where any government procedure is about to be put in place that will permit one citizen who enjoys political patronage to advance, no matter how questionable his enterprise, while another citizen who is out of political favour will have his interests, no matter how admirable, frustrated, there is the essence of bad governance, and the Bar Association must be ready, loudly and publicly to challenge such a proposal.
We must not imagine that the constitution can be relied on to protect us from all efforts by the political elite to advance their and their friends’ interests. Constant vigilance and the courage to raise our voices in protest will sometimes be needed. But, as a start, when there is an opportunity offered to make proposals for constitutional reform, we can take steps to ensure that the constitution, the highest law in the land, does provide our citizens with all the tools needed to block discrimination, victimisation, and oppression if any of them should ever be attempted. This is the imperative that was ignored, to their loss, by those who promoted the recently failed attempts at constitutional reform in Grenada and St Vincent.
Independence for Anguilla: From time to time, someone raises the question whether Anguilla is not ready to seek immediate political independence from Britain. The British Government has repeatedly stated that independence is the undoubted right of Anguillians, and that the UK will not place any obstacle in our way, once independence is shown to be desired by the majority of Anguillians. The Committee heard and read several presentations on the topic, both pro and con, and decided that the proposal had little or no public support at this time.
I suspect that the Anguillian public would prefer to wait and see how the political parties deal with the institutions designed to protect good governance contained in the new constitutional proposals. It seems to me that the average Anguillian would not favour exposing his life, liberty and property to an administration that has not shown that it has learned how to govern under the proposed new dispensation which is designed to ensure and guarantee the attributes of transparency, integrity and accountability. That mistake was made by the independent Commonwealth Caribbean states around us, and does not need to be repeated by us.
Lessons Learned: 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 adult suffrage in the West Indies after the Second World War, popular democracy has flourished in these islands. If poor governance now seems entrenched in our systems, we have no one to blame but ourselves. Our politicians may not always come with the highest integrity, morals or personal standards. But, by our failure to insist on genuine integrity, transparency, and accountability in their public life, we share responsibility for spurring on their greater excesses.
This is a speech delivered at the Continuing Legal Education Seminar of the OECS Bar Council Meeting in Anguilla on 2 December 2016, and is a substantially revised version of a speech previously given in Grenada on 3 November 2016: https://donmitchellcbeqc.blogspot.com/2016/11/constitutional-reform-personal.html