Consequences of Betrayal

 

I heard the Minister of Home Affairs speaking on the radio the other day. He was attempting to explain why his government had abandoned the constitutional reform project. He said that the government had been too busy with other projects like rebuilding the schools and expanding the airport. He claimed there was no time to pursue the promised constitutional reform. He was not convincing. It is just a matter of prioritising. It is a betrayal of those of us who put so much effort into soliciting the opinions of the public and reporting back to government. It is a betrayal of the vast majority of the people who so ardently supported the proposals for constitutional advance. It is a betrayal of the voters who voted for a change in government.

The most time-consuming aspect of the constitutional reform exercise is public consultation. The various Constitutional and Electoral Reform Committees that have criss-crossed the island since 1995 have done all or most of the necessary public consultations. The majority views of the public have been placed before the government for implementation. Most of the recommendations for reform were designed to introduce integrity, accountability, and transparency into our weak system of government as demanded by the public. The British and Anguillian negotiating teams have already agreed ninety nine percent of the proposed reforms. There is no need for more public consultation. They should have kept the promises that got them elected in 2020. One of them was to work diligently on constitutional reform.

There is only one reason I can think of why the government would not want to carry out their promise to make these amendments. That is because they don’t consider integrity, accountability, and transparency to be an advantage to them in the way they govern. It seems to me they have given these principles very low priority. It is also possible that the extremist Muslim and Christian minority have them terrified of losing votes in the next elections. Perhaps they feel it is safer to let constitutional reform die quietly.

I don’t know about females in politics. As regards males, I have always suspected that there are three main reasons why we males go into politics. There may be other reasons, but self-sacrifice and civic concerns do not seem to be genuine motives or attributes of most male politicians. Mainly, we men appear interested in three advantages that come with political power.

One is a generous dose of sex. There are always women who frantically throw themselves at powerful men. The female obsession with powerful men has been long studied. It is thought to have a genetic root. A woman wants and needs security for her children and her home. Having a husband or a lover who possesses power, makes her feel more safe and secure in her nest. So it is that generous amounts of sexual opportunities seem to flow naturally to us men from our acquisition of political power. It is the same thing with the female preference for the “bad man”. Intellectually, she may know he is the wrong choice. But her instincts trick her into seeing him as a “strong man”. So, she will often prefer the bad man to the good man.

The second reason why men are attracted to politics is the love of money. I have heard of one politician, whose friends witnessed him accepting a bulging envelope from a stranger. He only half-humorously told them, “I don’t understand these Americans. They keep handing me envelopes full of money I never expected.” If he knew he was not owed the money, then logically he should not have accepted it. Why did he not refuse to accept it? He only had to say “No, I can’t take your money. I have to decide whether you deserve the licence you have applied for.” But, no, in his case those envelopes were the very reason why he entered politics. Besides, the average cost of buying a vote in the last election was reputed to be US$300.00. It must cost a lot of money to win a district in Anguilla. And, famously, “The cow must feed where she is tied.”

When the Central Bank was about to close the two local banks several years ago, I was in a group with a politician then in power. He told us that he was worried about his savings. He had accumulated several Time Certificates of Deposit of over a million dollars each. He was going to the bank the following day to convert them into savings accounts. He considered that was safer than keeping the money in Certificates. He did not need to explain to us how he managed to collect so much money. It was obvious.

The third reason is the love of power. There are some men who relish the ability to tell some supplicants yes, while telling others no. These politicians are not overly interested in money or sex. The pleasure they get from exercising power must be as near as they can get to sexual gratification without actual sex.

There must be some male politicians who have never taken a dollar while in power or taken the opportunity to cheat on their wives. Almost inevitably you will find that their addiction is to power. They might be congratulated for their lack of acquisitiveness and their self-control in the face of an obvious offer of sex. But the abuse of power is just as much a form of corruption. It is worthwhile remembering the remark the famed orator Robert G Ingersoll made of Abraham Lincoln, “Most people can bear adversity. But if you wish to know what a man really is, give him power. That is the supreme test”.

I have not heard any accusation against our Premier in matters of money or licentious behaviour. But he famously becomes vengeful when he is crossed. Feel pity for the person he feels has blocked him. No matter how rightly or correctly that person acted, he will be relentless in his pursuit of retribution.

Such love of the exercise of power, especially to hurt his perceived enemy, or to unfairly favour his own family or friend, is a corrupt act. Who of us can forget the Premier’s recent failure to deal properly with his minister’s outrageous display of violence in a local restaurant. Repeated threats by a minister against the life of a citizen, accompanied by a vicious attack on him with a chair, all evidenced on a widely circulated video recording, brought only silence and inaction from the Premier. His far-too-late explanation that he was waiting for a police report on the incident before taking action was a pathetic excuse for his failure to act promptly to chastise his errant minister. He did not need a police report. All the relevant evidence of her conduct was there in the tape. In my opinion, that was not the reaction of a strong person. It was evidence of character weakness and a lack of principle.

I heard him on radio recently giving a much-delayed explanation for his cowardly caving in to the British on the question of the Goods and Services Tax the day after he won the last general election. One of the main planks of his party’s political platform was the refusal to introduce the GST that the British were insisting on. He reneged on that promise without any explanation at the time.

His recent explanation for his forcing the tax through the House of Assembly without majority political support was unconvincing. We remember that two of his ministers voted against the Bill. He only got it through the House with the votes of two ex-officio members of the House appointed by the Governor, the Attorney General and the Deputy Governor. His explanation was that two or three days before the general elections, the previous AUF Premier had secretly signed a memorandum of understanding with the Governor. The previous Premier promised the Governor he would introduce the tax in exchange for a British contribution of one hundred million dollars needed to pay civil service salaries due just days after the elections. Dr Webster said that promise put him in a corner. He claims the Governor threatened that if he did not sign on to the previous Premier’s promise to introduce the tax, the British government would not make the promised gift. The resulting failure to pay public service salaries on time would lead to the collapse of government. He gave in to the implied threat. So, our Premier’s first act of government was to betray the very promise that got him elected.

The introduction of this new tax was not what was most objectionable. Personally, I think it is a fair and reasonable tax. For me, what was unforgivable was that the Premier did it secretly. He did it sneakily, without a word to his people about the quandary he says he found himself placed in until many months had passed. Maybe he thought he would benefit from the notorious eight-day life cycle of Anguillian scandals. In this he is seriously mistaken. Some of us will not forget or forgive such betrayals of the public trust. This was Victor Banks’ style of government. We were promised this would all change. In future we were to have transparency, accountability, and integrity. We were betrayed again.

There was another Webster who many years ago headed the government of Anguilla. There is no Anguillian who could have any doubt how that Webster would have reacted to such blackmail. It would not have been neat and tidy. It would have been messy and painful. Ronald Webster would have called the people to a meeting in Webster’s Park for the very next day. He would have put his quandary to them. He would have explained to them the hard spot he was placed in by the AUF’s secret deal. He would have asked their opinion on whether to give in to the blackmail or instead to stand his ground and refuse to pass the tax as he promised. Whatever the outcome, he would have been a hero to all Anguillians.

If he was minded to introduce the tax to help public servants meet their financial obligations, he should, in my opinion, have come back to us. If he and his colleagues put a convincing argument for the tax to the people, I have no doubt he would have had our support. But instead, he showed us he is no Ronald Webster.

Even if he did not call a public meeting, he should not have waited until just months before the end of his term of office to try to explain what he says happened. He should have come out to the people immediately. Whatever the mood of the public, he would have had their enduring support for coming back to them. He would be guaranteed re-election. Despite the recent splashing around of public money, that guarantee has now evaporated.

It is not the tax itself that has most people upset. It is his concealment from us of the corner he says he was pushed into by the previous AUF government. His secretiveness is what was distasteful and disrespectful. It seems to me that he has proven himself to be a weak and unprincipled man. His party does not deserve a second term in government.

Because of these and other betrayals, no member of his political party will get my vote.

Because of historic political betrayals, no member of the AUF opposition will get it either.

Depending on who the other candidates are, sadly, I may effectively be deprived of my franchise.

Ronald and Labour

I will tell you what happened.  You take from my story what you want.  Feel free to discard the rest.

In late 1980, I was in the last of my four years as Magistrate, Registrar of the Supreme Court, and Registrar of Companies of Anguilla.  Reginald Lucie-Smith was the Attorney General, and at that time the only other lawyer besides me in the public service.  Ronald Webster’s party was victorious at the polls.  He was the new Chief Minister.  He dropped into my office at the Courthouse unannounced.  He explained that he had a little job for me.  Reggie was on vacation.  In Reggie’s absence, Ronald decided that he wanted me to draft a law for him to make trades unions illegal in Anguilla.

His mind was on St Kitts and Antigua.  During the 1940s, 50s and 60s, strong trades unions were, with the help of the British Labour Party, established in those islands.  They formed political parties and sought political office.  They were successful and pervasive.  It took some forty years before any other political grouping challenged their hold on power.

Ronald was determined not to allow this to happen in Anguilla.  He had previously been forced out of office by a splinter group of his party.  He considered he had crushed them in the general elections of earlier that year.  The tourist industry was beginning to take off in Anguilla.  More and more workers were going into that industry.  He was concerned that they might become organised.  He recognised that worker organisation might pose a threat.  He feared trades unionism becoming a contending political force in Anguilla.  His solution was to pass a law banning trades unions.  I told him I would have a go at drafting it for him.

After a few days, I went to see him empty handed.  I told him that I had done the research.  Britain had signed up to a Geneva Convention that made it illegal for a country to criminalise trades union activities.  The Constitution was against him.  It protected the fundamental right of Anguillians to associate together in unions.

Ronald was not fazed by my failure.  He had a back-up plan.  He would create a Labour Department that would be so pro-worker that no trades union would ever be needed in Anguilla.  He would make sure that his administration was so protective of workers’ rights that it would never occur to them to form a union.

And so was born the Labour Department Act and the Fair Labour Standards Act.  Ronald next secured the passage into law of the Social Security Act.  Employers and workers contribute to a fund.  The fund provides sickness benefits and pensions to workers in the private sector, like the arrangements then existing only for public sector workers.  And so, Ronald accidentally completed Anguilla’s workers’ protection scheme.

Minimum Wage Law

Until about the year 1978, Anguilla offered its people little by way of wage labour.  The first modern hotels (as distinct from family-owned and -run guest houses) were Cinnamon Reef, Cul de Sac and Malliouhana.  These pioneers were obliged to train their own labour force, since there was no previous hospitality industry to do so for them.  Indeed, Leon and Lyane Royden famously bought the Cul de Sac hotel from the aging Ruth Goodnow to use as a training school for their staff for their soon-to-be-opened Malliouhana Hotel.  Once the Malliouhana opened, they sold the Cul de Sac as no longer needed.

Hotel workers accepted whatever salary was offered by these early employers.  Previously, the women had been unemployed housewives, or, in the case of the men, salt pickers, fishermen and construction workers.  If the wage offered was unsatisfactory, the worker could always resign.  There were plenty others to take his or her place.

As the years passed, a corps of trained front office, housekeeping, and restaurant staff grew in the island.  Grumbling began about wages and other work conditions.  Starting in the mid-1980s, political parties seized on the minimum-wage issue for electioneering purposes.  Both the island’s two main political parties took up the refrain.  They both promised to introduce minimum wages during their term of office.  Despite setting up committees to conduct research and produce reports, nothing concrete came of it.

What was preventing the passage of the appropriate law?  The cynic answers that the big hotels were major contributors to party campaign funds.  In this way, they captured each administration.

A little research reveals another kettle of fish.  It seems that the major (foreign-owned) hotels pay well above the average, when share of gratuity is factored in.  Every hotel and restaurant guest pays a 10-15% tip, service charge or gratuity, on top of their bill.  This money is typically pooled and controlled by a workers’ committee at each place of employment.  The gratuities are usually distributed to the workers on a point-based system.  This share of gratuity forms a substantial part of each worker’s remuneration.  In many months, I understand, it exceeds the basic pay.

Many locally owned hardware stores, groceries, restaurants and guest houses are fair and generous to their workers.  But there are exceptions.  Here is where most employee complaints come from.  Foreign hotel owners don’t have the vote.  Local employers do.  Guess which ones each government is more afraid of offending by introducing minimum wages.  Each time there is an initiative to introduce minimum wage legislation, it is lobbying by local employers that stops progress.

The Gig Economy

Ronald’s intention was to have the Labour Department stand between worker and employer, and always favour the worker.  To this end, mandatory mediation and conciliation procedures were introduced by his new labour legislation.  A Labour Commissioner was appointed, empowered by law to descend on any allegedly offending employer and demand to see the books.  The Labour Commissioner could disrupt the work of the employer and call meetings of the workers.  Through “conciliation” the Commissioner could persuade employers to make concessions satisfactory to the workers.

If the Labour Commissioner was not successful in mediating the dispute, there was a statutory provision for the Minister of Labour to intervene to “conciliate” the dispute.  The Minister of Labour was usually the Chief Minister, a powerful office.  The Minister of Labour was the person who issued work permits, a necessity for foreign-owned hotels and restaurants.  There were occasions when members of staff were dismissed for gross misbehaviour such as stealing, and either the Labour Commissioner or the Chief Minister forced a backdown and reinstatement of the worker.

Due to these and other abuses, employers cast about for a method to free themselves from the more tiresome aspects of local labour.  Replacing them by foreign labour was not a good solution.  The Minister of Labour could not always be persuaded to issue the needed work permit in time.  The solution hit on was to alter the relationship between worker and employer so fundamentally that the oppressive provisions protective of workers no longer applied.  Convert long-term employees into short-term employees on annual contracts.  At the beginning of each new tourism season, make previous employees apply for employment afresh.  They might or they might not be offered employment, on the same or different conditions.  This solution required official approval, or at least condonation.  Some foreign employers got it.

Anguilla is not the first country to find employers replacing full-time staff with short-term contracts, usually of one year.  This arrangement is often referred to as the “gig-economy.”  A gig, an abbreviation for “engagement”, originally described short-term employment in the entertainment industry.  A musical band going on tour would require temporary electricians, stage carpenters, and electronic technicians, to accompany them.  They were said to be doing a gig.  At the end of the gig, these short-term employees would be released from their employment.  A gig worker was not a permanent employee, but instead classified in employment law as an independent contractor.  Consequently, there were no pension costs or holiday pay obligations as with permanent employees.  Unless the Social Security Act was amended, as was done in the UK but not in Anguilla, there was no obligation for the employer of an independent contractor to contribute to the social security scheme.

Slowly, hotel by hotel, Anguillian hotel workers were re-classified as “self-employed” and placed on one-year or shorter contracts.  Any recalcitrant worker need only be endured until the end of the contract and then, without risk or cost, be permanently let go.  The fierce anti-firing procedures originally developed by Ronald became redundant. 

This arrangement is of no benefit to the worker.  It is solely created for the benefit of the employer.  It does not benefit society.  In the event of termination after several years of steady employment, no severance-type benefit applies, since this was merely an annual contract.  If the hotel is sold, the new owner is not obliged, as the law requires for permanent employees, to take on the employees on the same or better terms, since these are annual contracts. 

This annual contract arrangement would be illegal under the provisions of the Fair Labour Standards Act, if the Act was strictly enforced.  The Act was quietly ignored.  There was no trades union to take up the interests of the workers.

Government squeezed one concession out of the major employers.  Without special provision in the law, an employer of an independent contractor is not legally obliged to pay social security contributions.  No such provision was made in the law in Anguilla.  Even though it was not strictly legally required, the short-term contract employers in many cases agreed to continue to make the social security contributions in return for enjoying the benefits of being able to classify their workers as independent contractors and not as employees.  And so, with a minimum of expenditure and cost, most of Ronald’s scheme for protecting Anguilla’s workers was dismantled.

The new Labour (Relations) Act of 2019 is touted to bring changes to employer/employee relations in stages in the coming years.  Will it bring real reforms to Anguilla?  Or, will it become dormant like so many other legislated social reforms before it?

Letter to Ronald Webster on Independence

Letter of 14 May 2014 to the Father of the Nation, James Ronald Webster, on the Question of Independence for Anguilla, Written at his Request, together with his Reply, Both of Which Were Published in the Anguillian Newspaper

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We spoke today about the question of Anguilla’s need eventually to seek political independence from Britain.  You expressed an interest in my views on any good governance prerequisites before independence could be safely achieved.  I promised to put my views in writing for you, and I do so now.  You are free to share these views with anyone you choose, even as I am constantly doing.

We need to have in place a reliable and trusted system of checks and balances before we entrust our lives and property to an independent and unsupervised Cabinet of ministers.  We know this from observing what has happened over the last 50 years to our brothers and sisters in our unfortunate neighbouring Commonwealth Caribbean Countries, since they achieved political independence.  We also need to prove to ourselves that we can handle the burdens of greater self-government.  The standard of governance shown by the various political parties in the past several years, even under British oversight, has fallen short, and left many persons disenchanted with the notion of independence at this time.

The three essential ingredients for the good governance of Anguilla are well known.  They are (A) integrity, (B) accountability, and (C) transparency.

(A)     Integrity: The system of government that we have inherited seems almost designed to encourage us to give up our natural integrity once we achieve political power. The obvious solution is to put in place ‘checks and balances’ to ensure integrity in our system of government.  We shall consider (i) the Interests Commissioner; (ii) the Tenders Board; (iii) dealing in Crown land; (iv) an Appointments Commission; and (v) Codes of Ethics.

A(i)    Interests Commissioner:  This office is sometimes called the Integrity Commissioner.  It is designed to receive declarations and reports from public officers of their assets and liabilities.  The citizen needs to know with what assets a public servant commences public service, so that, in the event of an unexplained jump in his wealth, inquiries can be made to determine whether the windfall was legitimate or the result of corrupt conduct.

The Constitution itself should establish the office of Integrity Commissioner and provide a framework for its operations that ensures its independence and impartiality.  The exercise of his functions is not to be subject to the direction of any other person or authority.  Similar to the existing provision for judges, the office should not be allowed to be abolished during its tenure.  The appointment should be made by the Governor after consulting the Chief Minister and the Leader of the Opposition.  The Constitution should provide a mechanism to ensure that the office receives the resources needed to carry out its functions.  The Commissioner can remove a Minister from office if he or she has breached the Code of Conduct for Ministers, or if he or she has failed to comply with the registration of interests requirements on two separate occasions.

An Integrity Act by itself, without entrenchment in the Constitution, is not sufficient.  Without such entrenchment, the Commission could be shut down tomorrow if the Governor were dissatisfied with it.

A(ii)   Tenders Boards:  The second essential institution for ensuring integrity in government is a constitutionally protected Tenders Board.  Much of Anguilla’s capital budget is spent on developing infrastructure, repairs and maintenance.  Procurement of goods and services, relating to contracts for roads and schools and offices and hospitals, offers the most attractive opportunities for those who wish to corrupt the process and illegally enrich themselves.  Our procurement system is essentially lawless and unregulated.  It is an invitation to sharp practices. 

Our Tenders Board has no tenure, or guarantee of independence.  The risk is the inevitable resulting corruption will damage not only government, but also companies and individuals in our communities.  A genuine Tenders Board is one established by the Constitution and insulated from outside influence.  A Tenders Board Act by itself is not a sufficient guarantee of integrity. 

A(iii)  Crown land: The third requirement for integrity in public life is the constitutional protection of public assets, mainly land.  In Anguilla, Crown land is dealt with under the signature of the Governor.  In practice, the Governor relies on the advice of Cabinet.  There is no public awareness of proposals for the disposition of public assets.  The integrity of dealings in public lands ought to be ensured by having a provision in the Constitution that any resolution to deal in any significant area of public land, in our case a half acre or more, is required to be brought to the House of Assembly for public debate and approval.

A(iv)  Appointments Commission: At present in Anguilla, we have a ‘winner takes all’ system of appointments to boards, committees and commissions.  Immediately a new government is appointed after general elections, 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 various new Ministers.  Every five years they dismantle the Social Security Board, the Public Utilities Board, the Public Health Board, the Tourist Board, the Carnival Committee, even the Poor Law Board.  We call it “enjoying the fruits of office”.  This system makes a mockery of the whole notion of good governance.  We need to take a leaf out of the British book and have all appointments vetted by an independent body established by the Constitution.

 This will go some way to ensuring that Ministers appoint only qualified persons to these positions.  Given the infrequency with which the situation develops, there is no need for a separate Commission to be established.  The functions can easily and effectively be assigned to an existing office such as the Integrity Commissioner.

A(v)   Codes of Ethics:  When, at the request of a supporter, a Minister telephones the Police Station seeking “a chance” for a young person who has been arrested, he thinks he is responding to the needs of his community.  When the Minister gives out work permits to one favoured building contractor, but not to another, he says he is “levelling the playing field”.  When the Cabinet overrules the Chief Immigration Officer or a Planning Committee decision, they say they are only “showing a good heart”, and softening the harsh decisions of unfeeling bureaucrats.  But, it is quite the opposite: they are corrupting the system that has been designed for the even-handed protection of all citizens.  These are all common occurrences in Anguilla.

After the February 2010 general election, relations between the then Governor and the newly elected Ministers collapsed.  The problem appears to have been that the members of the new government did not know how Ministers are supposed to conduct themselves in office.  New Ministers attempted to enter into contracts binding on government, not being aware of the correct procedure to follow.  When their Permanent Secretaries attempted to correct them, they were viewed as frustrating the Minister's programme.  Ministers then accused their Permanent Secretaries of joining with the Governor in undermining them.  On one occasion, the new Chief Minister, instead of requesting of the Governor that he appoint an acting Chief Minister in his absence, had one of his Ministers write a memo to all Department Heads informing them that he had been appointed as acting Chief Minister and directing them that they should govern themselves accordingly.  The Governor’s office was obliged to circulate a memorandum to all departments advising that no such appointment had been made.  This crisis was caused by lack of training.

Persons in public life are not regularly taken through seminars and workshops on the meaning of nepotism, cronyism, and conflicts of interest.  Positive steps are required to train our Ministers, public servants, directors of public and private boards, and committee members in generally accepted ethical rules.  In Anguilla, this necessity has been recognized by the public service.  Civil servants have developed and adopted a Code of Ethics to govern themselves.  Our judges have bound themselves to a code of judicial conduct.  Our lawyers have committed to a binding code of ethics.  If Civil Servants, Judges and Lawyers can have them, why not Ministers?

(B)    Accountability. The second area of checks and balances that promote good governance, and that one would expect to see given emphasis in the Constitution, is that of accountability.  There are recognised devices, other than general elections every 5 years, which ensure that government is held accountable for its actions and omissions.  These include (i) the Complaints Commissioner; (ii) the Police Complaints Authority; (iii) the Human Rights Commissioner; (iv) a Freedom of Information Act; and (v) the Public Accounts Committee (PAC). Not one of these vital mechanisms exists in Anguilla.  In addition, (vi) as a prerequisite for eventual independence, we need to increase the responsibility of local institutions by insisting that the British Government keeps to its promise of Partnership with us.  While they have all the power, we are not really a partner with them.

B(i)    Complaints Commissioner: This is another name for the Ombudsman.  Without an Ombudsman or Complaints Commissioner, the citizen must go to court to protect his rights.  And, we all know how expensive and unsatisfactory that can be.  The Ombudsman, on the other hand, is free of cost to the complaining citizen, is completely independent of any politician or public servant, and reports only to the Legislature.  If the quarrel with the establishment of the office is the question of its expense, there is no reason why the function of the Ombudsman should not be combined with other watchdog functions.

B(ii)   Police Complaints Authority (PCA): At present, complaints from the public against misconduct by a police officer are heard and determined in secret by the Commissioner of Police.  This system is not transparent, and leads to public distrust.  It is not satisfactory for complaints against police officers to be handled internally and in secret.  There is no reason why, in the interests of reducing costs, the functions of a PCA cannot be combined with one or other of the recommended watchdog institutions.

B(iii)  Human Rights Commissioner:  One of the complaints frequently heard is that the citizen’s fundamental rights can be protected only by the Anguillian individual at great personal cost.  The solution is to place the protection of the individual’s fundamental human rights in the hands of a publicly funded institution.  This is sometimes called the Human Rights Commissioner or the Administrative Justice Board.

There are many different types of national human rights and administrative justice institutions in the Commonwealth. They include Human Rights Commissions, Gender Commissions, Racial Equality Commissions, and Anti-discrimination Commissions.

To minimize cost, a hybrid Complaints Board could be empowered by the Constitution to deal with all the oversight matters of corruption; conflicts of interest; abuse of office; police and prison complaints; and ethics issues affecting Ministers of government, civil servants, parliamentarians, and officers of statutory corporations.

B(iv)  Freedom of Information (FOI) Act:  In Anguilla it is nearly impossible to obtain any information from any department of government.  This undesirable situation would be cured by an effective FOI Act.  Freedom of information legislation is also sometimes called “open records” law.  There is no surer mechanism for guaranteeing transparency than a FOI Act and the various regulations that make it work. 

The FOI Act is a law which sets rules on the access to information or records held by government.  Such a law defines the legal process by which government information is required to be made available to the public on request.

What the FOI Act does is to alter the burden of proof.  The burden of proving that the matter requested should be kept confidential rests on the person who argues that it must be kept confidential.  The assumption is that the public has a right to all information kept by government.  You may ask for a copy of any document without having to give any reason why you want it.  If the information is not disclosed, a valid reason has to be given.  If the reason is unacceptable, you can appeal to the Commissioner of Information to make a ruling, and to enforce his ruling.  Senior administrators violently dislike and are strongly oppose the FOI.  It should be entrenched by putting its establishment in the Constitution to ensure it cannot easily be dismissed.

B(v)   Public Accounts Committee (PAC):  The PAC can be an effective mechanism to enable members of the Legislature to question and to investigate the manner in which public officers have spent the monies voted to them by the Legislature.  In Anguilla, no PAC has ever been appointed, far less functioned as it should.  In Anguilla the PAC is not established by the Constitution, but is mentioned only in the Assembly’s rules of procedure

B(vi)  Partnership with the British:  Some of the institutions suggested in this paper involve a transfer of power from the Governor to local institutions, eg, the independent Service Commissions.  There is need for more devolution by way of a new Constitution in preparation for eventual independence.  It is time that the Constitution provides that the Chief Minister, and not the Governor, chairs Cabinet meetings.  The appointment of a new Governor should be made by the FCO only after consultation with the Chief Minister and the Leader of the Opposition, who should have a right to see the curriculum vitae of the proposed appointee.  The size of Cabinet should be increased from the present 4 to at least 6 persons to take account of the increased burden of government.  The ex-officio members of Cabinet may remain in Cabinet meetings to advise, but they should have no vote.

The Governor must be required to consult with the Chief Minister on the use of his reserved powers.  The Governor should no longer have a power to refuse to assent to a Bill once passed by the House.  Nor should the Secretary of State have the power of disallowance of a Bill passed by the House of Assembly, save in strictly limited situations.  As a British Overseas Territory, Anguilla is a colony, and the British retain other effective mechanisms to reign in an outlaw or out of control government. 

Belonger status should not be defined by British citizenship, since so many Anguillians have had to renounce British citizenship to enjoy the privileges of the country where economic hardship has driven them to migrate temporarily.  Retaining British citizenship as a qualifier for public office deprives Anguilla of the services of these persons when they return home. 

Nominated Members of the House of Assembly should be done away with, as they are unelected and their presence is undemocratic.  Several of the seats in the House should be reserved for Members elected at large to reduce the number of small constituencies that can be bought by wealthy or influential politicians.  Campaign funding should be regulated by law so that politicians are compelled publish an audit on a regular basis.  Ex-officio Members may stay in the House to advise, but should have no vote. 

The number of elected Members should be increased to ensure there are more elected Members than Ministers in the House, and the House is no longer a mere committee of Cabinet (there are at present 7 elected members, 4 of whom are Cabinet Ministers).  With the proposed 6 Ministers that will require a House of at least 13 elected Members, only 2 more than the present number of 11 Members (including the 2 Nominated and the 2 Ex Officio Members).  

A vote of no confidence in a Chief Minister should take a simple majority instead of the present three-quarters.  This will help to ensure that a Premier cannot continue to rule with a minority government.  The present often ignored convention that such a motion should be given priority by the Speaker should be spelled out in the Constitution to ensure that the Speaker cannot at the Chief Minister’s request subvert the system.

The Police and the Public Service should be under independent Commissions and not the Governor. 

If the British really mean what they say about partnership, they must take these steps to prepare us for increased experience in self-government prior to our seeking full independence.  All of the above suggestions should be entrenched by placing them in a new Constitution and given several years to work before we consider a referendum for Independence.

(C)    Transparency.  The third key element of good governance is transparency.  It is the lack of transparency in our system of government that causes so many of our Ministers’ actions to be wrongfully categorised as corrupt.  The obvious solution is to institute systems that increase transparency.  These include (i) the appointment of civil servants, teachers and the police by independent Service Commissions; (ii) the exercise of the prerogative of mercy by a locally appointed Mercy Committee; (iii) the regular revision of electoral boundaries by an independent Boundaries Commission; (iv) the opening up Cabinet Meetings and government committee meetings to the press; (v) instituting the regular publication of annual departmental reports; (vi) holding post-Cabinet press conferences; and (vii) providing for the appointment of a Director of Public Prosecutions (DPP).

C(i)    Service Commissions:  In Anguilla, all appointments to the public service, the teaching service, and the police service, are in the hands of one person, the Governor.  He consults with a Public Service Commission (PSC), but need not follow its recommendations.  The thinking is that this mechanism guarantees the independence of the civil service and protects public officers from political interference.  To put all public service appointments in the hands of an FCO functionary who may be advised behind the scenes by those cronies that he and his superiors may have selected, is not an acceptable alternative to an independent and professional PSC.  In any view, arbitrary one-man rule can never in any circumstances be an improvement in good governance.

The public is unlikely to accept that there is transparency and fairness in public service appointments unless such appointments and related matters are constitutionally placed in the hands of a local, professional, and independent PSC, governed by the appropriate laws and regulations and trained in the exercise of their functions.

C(ii)   Mercy Committee: The Governor has the constitutional power to pardon convicted persons without any local Mercy Committee to advise him on what to do about early releases from prison.  A foreign diplomat would be unlikely to have first-hand knowledge about who deserves to have his sentence shortened or commuted.  He must rely on the advice of some unknown advisers lurking in the darkness around him.  This is a most unsatisfactory state of affairs.  This power ought to be exercised by a Mercy Committee with the Governor as Chairman.

C(iii)  Boundaries Commission: There has been no alteration to the electoral boundaries for several decades.  Some of the political constituencies are a small fraction of the size of others.  Good governance demands that our people have more or less equal representation in the House of Assembly.  There is no reason why the modern practice of having the electoral boundaries re-examined after every population census should not be required by the Constitution to equally apply in Anguilla.

C(iv)  Open Meetings: Open meetings legislation allows public access to government meetings and ensures that their decisions are transparent and publicised.  The old, discredited practice of hiding every decision and action of a department of government is not conducive to good governance.  In California, any decision not made in open meeting is voidable in a court of law.  A similar provision could be made for Anguilla now, but putting it in the Constitution ensures it cannot be discontinued at whim.  The Constitution should contain a clause requiring all governmental meetings such as those of the Building Board and the Land Development Committee to be open to the press and public.

C(v)   Departmental Reports:  Departments are generally expected to publish annual reports for laying before the House of Assembly.  This requirement was strictly enforced during the earlier colonial period.  The practice seems to have fallen into disuse in recent decades.

The departments will deny that they have stopped reporting.  They will claim that they do submit their reports to their Ministers.  That is not the issue.  The question is are they published, or are they kept secret?  Members of the House of Assembly ought to be more vigilant in insisting that Ministers expose the workings of their Ministries and Departments to the people.  Governors and Deputy Governors should insist on publication.  It would help ensure good governance if the Constitution mentioned the requirement.

C(vi)  Cabinet Press Conferences:  Cabinet meetings should be opened up to the public whenever possible.  At the very least, post-cabinet press conferences should be regularly and diligently held so that the public may be informed as to decisions taken in the public interest.

C(vii) Director of Public Prosecutions (DPP):  It is not acceptable for the Attorney-General to be the prosecutor in all serious charges tried in the criminal assizes.  In Anguilla, the A-G also sits in Cabinet and rubs shoulder with the Governor and his Ministers.  It is generally accepted that it is not in the interests of good governance to have the prosecutorial arm of government under the control of a Cabinet member.  Such a state of affairs offends against the doctrine of the separation of powers.

Political considerations should never affect the enforcement of the criminal law.  Prosecutions of serious criminal charges should be separate and independent of government.  This is achieved by entrenching the DPP in the Constitution and guaranteeing that his actions are to be performed without interference from anybody.  

When the rebelling colonists in the Thirteen Mainland Colonies in America contemplated an independence Constitution, their leaders placed “checks and balances” in it to guarantee their freedom.  So, the President nominates a Supreme Court Justice to fill a vacancy in the highest level of the judiciary.  But only the Senate Judiciary Committee can confirm his appointment.  The President nominates a Secretary of State to the Cabinet.  But only the Senate can approve this appointment to the highest level of the executive branch of government.  Sometimes, these checks and balances frustrate a President in achieving his goals.  But the fathers of the American Constitution considered this a reasonable price to pay to ensure that there could never be a dictatorship in the United States. 

We deserve our own constitutional checks and balances to guarantee good governance when independence comes, as it inevitably must.  We must prove to ourselves that we can run a transparent and democratic government by a transfer of some of the present powers of the Governor to local institutions, prior to advancing to independence.  These must be put in place in a new Constitution, and they must be shown to function effectively, before there is any referendum on independence. 

Further debate in Anguilla will reveal what other mechanisms than the ones I have set out above are considered equally vital.

I look forward to discussing these ideas with you at any time you should desire to do so.

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Mr Webster’s Reply, Published in the Anguillian Newspaper of 11 July 2014

Let me first thank you for your letter to me of 14 May, which I have read with great interest.

I agree with you that our peoples’ distrust of governors and politicians is so great that they must be protected by including in our next Constitution all of the watchdog institutions you recommend.  While our older generations of politicians are discredited, I have confidence that a new generation will come who will rise above petty name calling and political intrigue.  They are the ones I am depending on to take the government of this island to the next level.  Anguilla definitely needs a change in every sense of the word, politically, socially, and culturally, to name a few.  We need to strengthen the reins, not tighten them.

In 1969 we were in a plight.  We had a mandate granted by referendum to change the government of the Associated State of St Kitts, Nevis and Anguilla to one of an independent republic.  The British intervention of that year changed the plans, until we are now back to full colonial status.  Over the intervening period of time, that has served a purpose.  Now we need to move from youth to adulthood.  We have to continue the struggle, for the benefit of the history and people of Anguilla who are still growing up.

Since 1980 we have had no explanation from the British government on what we ought to do from here on.  They signed an Order in Council in 1982 between us and them as an agreement, but with only them signing it.  We are now at a stalemate.  I want us to move away from that situation, and for us to discuss with an open mind what is needed for our protection and our progress in the future.

Now that we are about to have new elections, it is important that we at least have an idea of what is actually needed for us to progress politically.  We can remain a dependent territory if we want that.  We cannot go back to the old Constitution of 1976.  We have passed that. We do not want the British to sit and feel that we are not going to develop politically.  We are ready to open a new chapter.  We need to go beyond the 1982 Constitution.  It is antiquated’.  We need to pick up from where we stopped in 1969.  We want to move on from where we are now and where we were before, not stand still.

There must be no doubt about what we want or where we want to go. We have to progress up the hill.  There must be a continuation of the struggle, not an acceptance of the status quo.  Any new Constitution short of independence must be just a new chapter to get us to where we want to go.  I want to make sure that whatever is done, the British Government understands we still remain the Queen‘s loyal subjects so long as she wants us.  But, we will one day have to decide for ourselves where we go from here. We need a new Constitution that takes us forward. Full political independence is the ultimate aim for a future day.

Yours sincerely,

J Ronald Webster

Cc: HE the Governor, Ms Christina Scott

Hon Hubert Hughes, Chief Minister

Mr Victor Banks, Political Leader of the AUF

Hon McNiel Rogers, Leader of the Opposition

Hon Edison Baird, Independent

Ms Palmavon Webster, Independent

Rev Dr Clifton Niles,

Mr Sutcliffe Hodge

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