Constitutional and electoral reform is
in the air again. I heard the Minister
on the radio some days ago promising that we should see the roll-out of Government’s
new draft proposals that it intends to urge on the UK Foreign Commonwealth and
Development Office (FCDO), within the next month or two.
When Government
publishes the promised draft Constitution, I shall study it carefully. Will it be a version of the constitutional
abortion that the AUF Administration in 2019 presented to the FCDO team during
the November negotiations? Or will it
accord with the 2017 draft that the Constitutional and Electoral Reform
Committee presented to the Government of Anguilla (GOA)? Or will it be based on the 2020 FCDO draft that
they sent GOA shortly after the 2019 consultations but which Government
concealed from us until early 2022? It can
be found on
the government website. It is based
on our locally produced 2017 draft. I
suggest that whatever Government proposes, it must be consistent with, if not
identical to, the FCDO draft. I wonder
why Governments like keeping us in the dark about these matters for so long!
I don’t blame you for
not remembering what the previous Administration did in 2019 to ruin our 2017 proposals
for constitutional reform. So much time
and so many traumatic events have occurred since them, that the memory is
hidden under psychological scar tissue.
So, I’ll briefly remind you of the assault by the AUF administration on
the original reform proposals. Those 2017
proposals (set out in a draft Constitution, Elections Act, and Electoral Boundaries
Commission Act, emerged from extensive public discussions in person, on several
radio stations, and in widely published newspaper articles and papers, between
2000 and 2017. The AUF administration
presented to the FCDO in 2019 their changes to the 2017 proposals with no real
attempt to explain their changes to us, far less to secure our agreement with
them. These changes gutted the Committee’s
2017 reforms.
Electoral
reform was part of the mandate of the 2000 David Carty Committee, the 2006 Commission,
and the 2017 Committee. The resulting
draft new Elections Act of 2017 was contained in the 2017 Report. The AUF Administration succeeded in 2019 in
persuading the FCDO, in effect, to help them sabotage the most vital electoral reform
proposals.
The first insult to
the 2017 electoral reforms was to remove the provision for regulating campaign
financing. The people wanted to
bring an end to the old vote-buying system.
Each party was to prepare and publish a budget showing where its
campaign financing is coming from and how it will be spent. They will go to jail if they are found to
have lied.
In some countries, campaign
financing legislation prohibits a political party from soliciting funds from
the public. Campaign financing laws
limit each party’s spending only to the sum of money provided by government to
each party. That way, all parties are
financially on the same footing. You go
to jail if you are found to have cheated.
The AUF’s draft Constitution completely omitted any mention of campaign
financing.
Another 2017 provision
that was left out without explanation was for the regular revision of the Voters
List. At present, there is
continuous registration with no revision.
Once you get on the List, you can practically never be removed. If you emigrate and remain away from Anguilla
for forty years, you remain on the List.
The List is never cleaned up. The
Committee recommended it be revised every ten years after the usual decennial
Census exercise. The people demanded
it. They left it out.
Yet another provision
that was omitted was to reform the Assembly by having thirteen elected seats
instead of seven, to abolish the nominated members, and to remove the votes
of the two ex-officio members. They
merely got rid of the nominated members.
The voters were supposed to be more fairly distributed among the
constituencies as settled on by the Electoral Boundaries Commission, with
nine more or less equal districts and four at-large seats. In 2019, the AUF and the FCDO changed this without
warning or discussion with us. They
imposed a rushed 2019 Amendment Constitution and an Elections Act
that kept the same old unfairly populated seven constituencies, merely adding
the four at large seats. They omitted to
abolish the position of Parliamentary Secretary, or to remove the voting
power of the ex officio members, or to revise the boundaries. They said it was too urgent to discuss.
This abortion of electoral
reform missed the entire point of the exercise.
If it was designed to keep the incumbent party in office, it
failed. They lost the later 2020
elections.
Voters knew that the
aim of the popular 2017 reform proposal was to ensure that Government would
have six Ministers from the ranks of thirteen elected members of the Assembly. With the proposed thirteen voting members
distributed between six ministers, Government backbenchers, and the opposition,
the six Ministers would never outnumber backbenchers plus the opposition.
Under the previous
system, with four Ministers, a Parliamentary Secretary, and two ex officio
members, (seven out of nine) ExCo dominated the Assembly. The opposition hardly had a say in the
deliberations. The 2019 change to five Ministers,
a Parliamentary Secretary, and two voting ex officio members (eight out of
thirteen) did not alter the balance of control in the Assembly. It was no reform at all.
Constitutional reform
was the other part of the 2017 proposals to replace the 1982 Constitution. What the AUF did in 2019 to amend the 1982
Constitution, just days before the general elections, was to cut the heart out
of them. And this without any
explanation, save to assure us that the amendments were too “urgent” for
further consultation.
What the FCDO did in
2019 in accepting the AUF’s betrayal of the 2017 constitutional and electoral
reform proposals was to shore up ExCo’s domination of the Assembly. With now five Ministers, two ex officio
members, and a retained Parliamentary Secretary, ExCo controlled more than half
of the thirteen voting members of the Assembly.
An obvious omission
made in the AUF’s 2019 Amendment Constitution was the Integrity Commission. This watchdog institution was the most vital
of the proposals for ensuring integrity, transparency, and accountability in Government
going forward. It may be obvious to us why
the AUF omitted it without explanation, but we must insist it be put back in. The FCDO’s draft 2020 Constitution now
before us for discussion does so.
The 2017 public
finance constitutional reforms were strongly resisted by the previous
Administration. In 2019, they circulated
a paper claiming that these provisions were unnecessary as they were already present
in existing laws. In fact, they sprang
from a draft Anguilla Public Finance 2015 Order in Council circulated by
the FCO in that year. This essentially
proposed that Anguilla’s management of her public finances be turned over to a
UK appointed official. He would be
empowered to cancel all ExCo decisions and repeal laws passed by the Assembly
if he did not approve of them. This
caused an almighty stir in the community.
The FCDO backed off.
By 2015, because the
Government of Anguilla had for so many decades been living beyond its means,
its finances were in a disastrous state.
There were various statutes and Memoranda of Understanding with the FCDO
that were designed to ensure that government spending was conducted in a
regulated manner. We never followed any
of these statutes or agreements. The FCDO
must have been at its wits’ end. That is
why they wanted to impose on us by a 2015 Order in Council the rules we
were supposed to be following. To ensure
the rules were followed, the control of our finances would be entirely placed
in the hands of a UK administrator, superior even to the Governor.
What the 2017 Committee
proposed was that we introduce the most important contents of the 2015 draft
Order in Council into our Constitution. We
would, of course, omit the unacceptable provision that a UK bureaucrat could
reverse decisions of our Cabinet and laws passed by our Assembly.
The idea behind our 2017
proposal was that if we imposed these financial management rules on ourselves
through our Constitution, there would be no need for the UK to take our
finances away from us.
Further, by our taking
the financial management rules out of the previous long-ignored statutes and
rules, and placing them in our Constitution, we would give the rules increased
force. Breach of them would be not only
against a law but be unconstitutional.
It is essential that
whatever our new Government proposes to the FCDO, it must be consistent with,
if not identical to, the substance of the 2020 FCDO draft Constitution. This draft came out of the negotiations
conducted with the AUF’s negotiating team in November 2019. Through this 2020 draft, the FCDO has
redeemed itself from its earlier betrayal of us in 2019. It accepts nearly every one of our 2017
proposals. Only a few provisions remain
to be resolved. These are clearly marked
in the FCDO draft and should be the only issues remaining for discussion. None of them is particularly difficult. Stay tuned.
