Time Kendall Speech

I have been around for so long that I can remember the Mighty Sparrow when he was a teenager.  When he won his first Road March aged 18 with “Jean and Dinah” I was a 9-year old student.  When the West Indies Federation was formed I was a 12-year old.  And when it broke up I was 16 years old.

Geddes Granger was the 1970 leader of the Black Power Movement of Trinidad.  It is likely that to the day he died last year Makandal Daaga, as he preferred to be called, was unaware of how the government destroyed his Movement.  At the urging of the Eric Williams Administration the CIA sent in a black agent sporting a huge Afro hairstyle to infiltrate the Movement.  He led a Black Power mob in an invasion of the Cathedral of the Immaculate Conception in Port of Spain.  They smeared human excrement on the inside walls.  This was guaranteed to turn the mainly Roman Catholic, urban, black, middle-class citizenry resolutely against the Black Power Movement.  You will not be surprised to learn that this “black ops” strategy was so successful that the Movement entirely collapsed within weeks.  I heard the details of the story brought back to the family dinner table by my father from National Security Council meetings he attended.  He told the story and others like it many times over the years.

The politician Bhadase Maraj was the leader of the sugar workers’ trade union.  My father was the managing director of a large Trinidad sugar company.  They had to negotiate with each other over wage increases every year.  At the time I was naively shocked to learn that they secretly met together late at night to agree what would be the result of the coming negotiations.  The company and the labour leader agreed in advance when there would be a strike and what the outcome of the strike would be.  Mr Maraj was a very successful elected politician and labour leader over many years.

In addition to what as a boy I learned of the tricks and stratagems of our nations’ political leaders I have lived and worked as lawyer in two, and as a judge in all nine, of our OECS countries from Grenada in the south to Tortola in the north.  To this day I still enjoy reading the digital editions of one or more daily and weekly newspapers from most of our island countries.  A very few of them are occasionally brave enough to publish revelations of government misconduct.  As a result I feel I have some basis on which to comment on our system of governance.

Let us start by considering why the US Constitution, by contrast with ours, has been so successful over two centuries in providing corrections for their instances of bad government?  What did the mothers and fathers of our Commonwealth Caribbean Constitutions miss when our constitutional arrangements were being carved out of the mass of available precedents?

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 original Articles of Confederation took place.  The result of that concentrated, intellectual focus is the present-day US Constitution.  It is 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.

And the Judicial Branch with its power to declare laws unconstitutional, and to review actions of the government, is a check on the Legislative and Executive branches.

It is a written constitutional system that has lasted longer than any other written Constitution in the history of the world.

By comparison what did we West Indians do during the early independence period?

·        With little or no public involvement or public education the Foreign Office bestowed its Westminster-style Independence Constitutions on our unsuspecting people with the willing collaboration of our leaders.

·        Since then from Jamaica and the Bahamas in the north to Trinidad and Guyana in the south we have stumbled from one unsatisfactory new Constitution to the other with little or no sustained public debate or participation.

In my submission the principal defect in our institutions of governance has been the absence of checks and balances in our Constitutions.  The result of this lack has been universally acknowledged poor governance in all our states and territories.  Where there is bad governance it is the people who pay.  The daily demonstrations of venality, incompetence, and hubris shown by our leaders cause the ordinary person to hold our constitutional arrangements in quiet contempt.

The people demand that the core of the system be changed.  Measures that guarantee good government must be introduced and enforced through our Constitutions.  What use is a law that states that a national Budget must be presented to the House of Assembly each year by a certain date?  That provision must be in the Constitution for a citizen to be empowered to take steps to enforce it.  It is only if checks and balances reside in the Constitution that corrective measures will be safe from sabotage and the average concerned citizen will be able to seek the help of the court to ensure compliance.

Antigua and Barbuda is not the only West Indian country where a Judge of the Supreme Court can retire from the bench and move smartly into well-paid employment by one of the most frequent litigants who appeared before him previously.

What confidence can our people have in the rule of law when our judges are willing immediately after they have brought their judicial career to an end to take up employment with a litigant who repeatedly appeared before them?  Such conduct brings the judicial bench on which he swore to serve to the best of his ability into public contempt.  When that happens we should not be surprised if the disappointed litigant wants to go back and look at the judgment the judge delivered against him even while he was contemplating taking up such a questionable post-retirement career.

Antigua and Barbuda is not the only Caribbean country where Ministers of Government retire as millionaires after a few years of allegedly public service.

We accept it as part of the perks of office that a Minister can, with apparent impunity, both divert public resources for his or his friends’ benefit and accept gifts or ‘campaign donations’ for the award of government licences and permits.  What type of public leadership do we have when our Ministers act as what in Sicily is known as the “Capo di tutti capi”?

Antigua and Barbuda is not the only OECS country where a police officer can spend his entire career having done nothing more onerous than moving brown-paper bags of money and contraband from one part of the country to the other.

What guidance do we offer our youth when they view law enforcement as nothing more than a drugs gang, an armed one operating with the full force of the State behind them?

As the late Tim Hector explained in ‘The Outlet’ many years ago when he questioned how Immigration Officers could meet Santo Domingo ladies at the plane door and escort them to their places of work all while wearing their official uniforms, ‘First they start by providing protection services;  then they realise they can make more money owning the business’.

In my view a concern over whether the Senate should be abolished, or an elected Chamber put in its place, or whether there should be a unicameral parliament, is a mere tinkering with the trappings.  Changing from a Monarchy to a Republic, desirable though it undoubtedly is, does not improve our system of government.  Replacing the Privy Council by the CCJ, though long overdue, does nothing to improve the common man’s perception of whether he will get better justice.  When lawyers and politicians discuss these questions, and claim they are aiming for “constitutional reform”, the public lose interest and public apathy reigns.  These issues do not touch on the real question that concerns the average citizen:  the absence of effective measures to rein-in the kidnapping of the instruments of governance over the past 50 years.

There are three elements universally accepted as essential for good government:  Integrity, Accountability, and Transparency.  We require good governance institutions to be put in place, protected by constitutional guarantees.  Without entrenchment in the Constitution good governance provisions can be easily avoided by changing the law.

So let us now look briefly at each of the three preconditions of Integrity, Accountability and Transparency.

Integrity in public life is an elusive objective at the best of times.  US and UK public servants succumb to temptation just as frequently as ours do.  The difference is that in the UK parliamentarians have gone to jail for fiddling expense accounts.  In the US congressmen have been indicted and jailed for accepting bribes.  You will search our islands’ law reports in vain for any punishment meted out to public servants known to have left office hugely enriched by their public service.

The solution is for our Constitutions to put in place ‘watchdog institutions’ designed to ensure integrity in our systems of government.  What are some of the most obvious ones?

The Interests Commissioner, or 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 where there is such a requirement it is usually not enforced.  If the obligatory declaration is not made there is no compulsory punitive consequence.  If a declaration is filed there is usually no obligation for it to be available for public inspection.  It is kept secret by the Speaker and is of no use to the public.

An obvious way to give the provision teeth is for the Constitution to provide that a public officer is automatically removed from office with a right of appeal, if the Integrity Commissioner determines that he or she has failed to comply with the requirements for registration of interests.

The Constitution should provide a mechanism to ensure that the office of Integrity Commissioner receives the resources needed to carry out its functions, free of any political control.

Our Constitutions should require that Codes of Ethics for persons in public life are put in place and strictly enforced.

Other Commonwealth countries have excellent handbooks to guide Ministers, Legislators, and other senior public officers on the correct protocols to be followed as they enter into office.  This is how you teach ethical conduct.  We could easily adapt these handbooks for our use.

All persons in public life can benefit from compulsory attendance at seminars and workshops on the meaning of nepotism, cronyism, and conflicts of interest before taking up office.

The Constitution should provide that a serious breach of the Code of Ethics for Persons in Public Life as determined by the Integrity Commission should result in immediate removal from office, subject to a right of appeal to the court.

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 opportunity for those who wish to corrupt the process and illegally enrich themselves.  After all, as the public officer ‘on the take’ explains, “The cow must feed where she tie.”

Procurement and tendering require the highest standards and procedures.  The Integrity Pacts recommended by Transparency International would carry the procurement process upwards to an entirely new level of integrity.  The solution is to enshrine our Tenders Boards in the Constitution and protect them from outside influence.

An important 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 by Ministers and Permanent Secretaries secretly, 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.  The integrity of dealings in public lands and assets must be guaranteed by having a provision in the Constitution that any proposal to deal in any significant public asset, say a half acre of land or more, or the grant of an oil prospecting licence, must first be brought to the legislature for public debate and approval.

It is generally accepted that any form of government that does not encourage public participation ensures the opposite of good governance.  Since the introduction of universal suffrage in the West Indies after the Second World War a type of democracy has germinated in these islands.  It is still only a slip of a plant, not yet a mature tree.  Bad governance everywhere, flowing from the concentration of power in the hands of a few, has held back a full flowering of our democracy and national development.

Self-discipline, and a strong sense of public service, are as essential for good governance as is the limiting of the power of the executive to dispense patronage at the public expense.  Self-discipline is in short supply everywhere.  The British bequeathed to us a “winner takes all” system of appointments that is ripe for abuse.  Immediately a new government is appointed, the first order of business is the wholesale termination of the previous political appointees.  The new administration then shares out the various directorships among their own principal supporters.  We watch helplessly as they dismantle the Boards governing Social Security, Public Utilities, Public Health, the Tourist Board, Carnival Committee, and even the Poor Law Board.  They call it “enjoying the fruits of office”.  We think it is normal but it isn’t.  This system of replacing one set of incompetent political appointees with another set makes a mockery of the whole notion of good governance.

Congressman Sergeant’s much repeated ‘bon mot’ dating back to the 1820s that “He who appoints can disappoint” is neither a validation nor a justification for the wholesale looting of the organs of government that we in the Caribbean have to suffer every time there is a change of administration.  The solution is to ensure in the Constitution that either a Committee of the Legislature, or a constitutionally protected Appointments Commission, is empowered to vet and approve, or disapprove, all appointments to and removals from government Boards, Committees and Commissions.  No person should be appointed to a public board by a Minister without being first certified as competent to perform the functions of the office

The second area of checks and balances that promote good governance is that of accountability.  At present the only device we the public have for ensuring accountability in our government is the right to remove them from office every 5 years.  By itself general elections have proven ineffective as a means of ensuring good governance.  In all our countries the Opposition promises to bring clean government once elected.  One candidate in recent a foreign election famously promised if elected to “Clean the Swamp”.  He was so convincing, dishonest, unstable, and immoral though he is, that the people elected him.  We see the consequences today. 

Everywhere in our islands the Opposition and the Administration laugh at us behind our backs as they take it in turn to plunder our resources for their private enrichment while protecting each other from prosecution as each takes his turn at the trough.  We have to find more effective alternatives, watchdog institutions, to ensure that government is truly held accountable for its actions and omissions.

Without an effective, properly resourced, 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 the process, and how unsatisfactory the outcome, frequently is.  There is no accountability for perverse or biased administration in the absence of a properly resourced Ombudsman.

Complaints by members of the public of abuse by police officers are usually heard in private by a Commissioner of Police or his Deputy.  This is not a satisfactory grievance process.  It is not transparent and even when honestly conducted leads to public distrust.  Without an independent and constitutionally protected Police Complaints Authority the public cannot be faulted for believing that police officers are not accountable for their acts of misconduct.  It must be no longer satisfactory for complaints against police officers to be handled internally and in secret as presently occurs.

Today the citizen’s fundamental rights can only be protected by the individual bringing a law suit at great personal cost.  One solution as in Ghana and other Commonwealth countries is to place the protection of the individual’s rights in the hands of a publicly funded institution whose terms and conditions of service are protected by the Constitution.  This is the Human Rights Commissioner or the Administrative Justice Board.  Such a provision guarantees accountability when public officers abuse the rights of a member of the public.

In most of our countries it is nearly impossible to obtain any information on what files government departments hold on us.  There is frequently no public information on the programmes or activities of any agency of government.  The result is a lack of accountability in government.  Constitutionally mandated Freedom of Information Acts are long overdue.  There is no surer mechanism for guaranteeing accountability than an FOI Act and the various Regulations that make it work.  No administration has ever been in favour of freedom of information.  That alone is a telling point in its favour.

The Public Accounts Committee is perhaps the most effective mechanism enabling Members of the Legislature to monitor and oversee 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, deprivation of resources, and a lack of training, it functions properly in few of our Territories.  We must demand accountability from the public officers who are entrusted with the collecting and spending of the public’s money by ensuring there is a properly functioning Public Accounts Committee.

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.  There are watch-dog type provisions that can be entrenched in the Constitution to improve transparency.

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 proper exercise of their functions, and with no political input, there will be no public confidence in the independence and integrity of the public service.

The lack of transparency in the exercise of the prerogative of mercy is a most unsatisfactory state of affairs in most of our countries.  The Governor or the Prime Minister usually has the constitutional power to function without any local Mercy Committee to advise him on what to do about early releases from prison.  They can do it on a whim.

Independent, politically balanced Boundaries Commissions are essential for guaranteeing public confidence in our elections systems.  Unlike in Antigua and Barbuda there is no provision in Anguilla for a Boundaries Commission.  The boundaries have not been revised in over 50 years resulting in gross imbalances.  The modern practice of having the electoral boundaries re-examined periodically to ensure voter balance should be universal in the Caribbean.

The old, discredited practice of hiding every decision and action of a government agency in the dark has proven not conducive to good governance.  It is axiomatic that the best medicine against infection is sunlight and fresh air.  A constitutionally mandated Open Meetings provision would enable public access to all government meetings and promote transparency.  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.  This would ensure that their decisions are transparent.

Departments of government are generally expected to publish Annual Departmental Reports.  This requirement for transparency in the public service was strictly enforced during the earlier colonial period but seems to have fallen into disuse in many of our states and territories.  These reports, even when they are prepared today, seldom reach the public eye.  The Constitution should insist on it and require them to be published on government websites for the public to have free access to them.

Too many of our Premiers and Prime Ministers develop a God-delusion.  Worse, if their party continues to be elected to office beyond two terms, they develop a sense of entitlement and ownership of the country’s assets.  Elected representatives particularly after they are appointed Ministers sometimes seem to forget that the public placed confidence in their promise to serve.  A power of recall in the Constitution would be as a constant reminder of their vulnerability if they are seen to betray the confidence of the public.  They would be encouraged to act with transparent honesty if only out of a sense of self-preservation.

A fixed date for general elections is another obvious constitutional precaution against abuse of the electoral system by a Prime Minister who is always at risk of becoming more conscious of his power and privilege than of his promise to serve the public good.

Effective provisions for the management of public finances need to be entrenched in the constitution.  A sound, modern West Indian Constitution would include requirements that,

·        The macro-economic and fiscal policies of Government are formulated for the sustained long-term prosperity of the people;

·        Public funds are managed on principles of value for money;

·        Government must formulate a Fiscal Framework, approved by the legislature, setting limits to public debt relative to public revenue, and setting levels of reserves;

·        Every 6 months the Minister of Finance must report to the House of Assembly on the performance of Government in implementing the Fiscal Framework and on the state of the public finances and the economy;

·        Where an Appropriation Act will not return a surplus budget the Minister must lay before the Assembly a statement explaining the reasons;

·        Where an Act authorises a person to vary a tax that person must report to the Assembly every 6 months;

·        At least 6 weeks before the new financial year, to give time for public discussion, the Minister must present to the Assembly the estimates of revenue and expenditure

·        Discussion on the Budget must include an assessment of performance against debt sustainability as set out in the Fiscal Framework;

·        All borrowing must be authorised by an Act and be in accordance with the Fiscal Framework;

·        The Minister must report to the Assembly every 6 months as to the total indebtedness, and servicing of loans;

·        Any agreement by Government to give a loan must be of no effect unless approved by the Assembly;

·        The Public Accounts Committee and the Appropriations Committee must have power to summon witnesses to testify on oath in public hearings;

·        Six-monthly reports of the Appropriations Committee and the Public Accounts Committee on their activities relating to the public finances must be promptly published on the government website;

·        Since a Commission that has fallen out of favour is likely to be neutralised by the Administration starving it of funds, the provision of resources for Institutions of Good Governance must be removed from the control of the political directorate and placed directly in the hands of the Assembly;

·        The remuneration of Members of the Assembly must be governed by statute.  Any Bill for increasing the allowances of members of the Assembly must first be recommended by the Integrity Commission, and published; and finally

·        All reports of the Chief Auditor must be laid before the Assembly for debate, and promptly published.

If bad government now seems entrenched in our islands, we have no one to blame but ourselves.  The press, the media generally, members of the public, the Bar Association, and the judiciary, all have to admit our share of responsibility for the lack of standards of government.  We have failed to demand and to achieve genuine transparency, integrity and accountability by our governments to our people.  Our politicians may not always be of the highest integrity or morals.  But, by our ensuring there are effective watchdog institutions enshrined in our Constitutions, their greater excesses can be restrained.

This is a revised edition of the speech I have given several times in recent years on the need for checks and balances.  

It was designed to be the Time Kendall Public Lecture, intended to be delivered at a meeting of the Antigua and Barbuda Bar Association at a public function on 21 September 2017 at the Commencement of the new Law Term, but which was cancelled due to the effects of Hurricane Irma, and instead circulated to all members of the Bar.

Constitutional Reform

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