Abuse of Office

On or about 1 October 2010, Anguillians learned that the Hon Chief Minister of Anguilla, Mr Hubert Hughes, had met with a noisy delegation outside his offices at the Government Secretariat in The Valley in Anguilla.  He had, we were told, addressed the demonstrators, expressing his support for their demands.  That evening, we were astonished to hear his voice on the evening news programme on Radio Anguilla angrily demanding the removal from office of the Registrar of Lands, and her deportation to her native Trinidad.  I was away in Saint Lucia at the time, but I was sent a recording of what he said.  What I knew about the circumstance behind the demonstration, and the Chief Minister’s reaction to it compelled me to write and to publish the following article on my Corruption Free Blog.  I reproduce it here as a lesson to my law students, and for the future: http://corruptionfreeanguilla.blogspot.com/2010/10/abuse-of-office.html

THE POWER OF PUBLIC OFFICE MUST NEVER BE USED TO PROMOTE PRIVATE INTERESTS

Though no money changes hands, the misuse of public office to promote private interests is one of the most insidious forms of corruption in public office that exists.

It has been said that most men enter national politics for only three reasons: love of money, hope for increased sexual opportunities, and the enjoyment of power.  These three primal forces are not necessarily evil in themselves.  They may even work on occasion for the public good. They may also be misused, and be corrupting influences.  What I have to write today involves an alleged case of the use of public power to promote a private interest.  You will decide if it is corrupt.

Many years ago, I had a professional involvement in the matter in question and have some personal knowledge about it.  There are some serious issues of principle that arise in these recent developments.  Assuming what I have heard to be essentially correct, I am forced to write about it.

In about the year 1982, the late Dr William V Herbert and I represented two contending families in a land dispute in the High Court.  I represented one family and Dr Herbert represented the others.  The land in question was situated in Long Bay Village in Anguilla.

Before the trial began Dr Herbert was appointed by the government of Dr Kennedy Simmonds to represent the newly independent Federation of St Kitts and Nevis at the UN and the OAS.  He was no longer able to appear in the High Court to represent parties in litigation.  The members of the family that had retained him were instructed to find another attorney to appear for them in court.

On the day set for the trial in the High Court, Mr Hubert Hughes, then out of the Assembly and out of government, appeared in court.  He told the trial Judge that he had been requested to speak for the family.  He asked the Judge to permit him to speak and to put questions to the witnesses.  The Judge told him and the family that it would be safer for them to retain an attorney.  She adjourned the case for a few days to give them a chance to find a new lawyer.

When the trial of the matter resumed, the family appeared again with Mr Hubert Hughes.  They insisted that they wanted him to represent them at the trial. The Judge sought my view.  I said I had no objection to his cross-examining my witnesses, but that the family would clearly be better off with an attorney especially as this was a complicated land dispute.  The family persisted in requesting that Mr Hughes represent them in the matter.

The trial proceeded, and the result was that the judge declared that the family represented by Mr Hughes was not the owner of the land, but the opposing family was.

The losing family appealed to the Court of Appeal and subsequently to the Privy Council, in both of which they lost.  Both they and my clients were by this time represented by other attorneys.  The losing family subsequently had an attorney file one or more new cases attempting to re-litigate the issues.  These cases were all dismissed.  The family that succeeded are registered in the Land Registry with title absolute to the lands in dispute.

The family represented by Mr Hughes has never accepted the finality of the judgment of the court.  They have continued to file case after case in the High Court.  They have done everything in their power to obstruct the successful family from enjoying the fruits of their judgment.  There have been violent demonstrations at Long Bay Village.  Cutlasses have been waved in the air.  Threats of death have been issued. Road construction and land development have been physically blocked.  Tens of thousands of dollars in legal costs have been wasted.

Mr Hughes is now, as of early this year, back in office as Chief Minister of Anguilla.  His Minister of Lands is from the West End and Long Bay area.  The Minister has reportedly admitted in a news broadcast that he is “an interested party”.

I now hear from my correspondent that the Registrar of Lands of Anguilla has recently been the object of abuse by both the losing family and the Hon Chief Minister.  The Chief Minister is said to have been on the radio yesterday chastising the Registrar of Lands for her conduct in relation to the performance of her duties in the Land Registry.  Those duties may be related to the registered title to the land in question. It is not clear, but she would appear to have been trying to act in conformity with the Order of the Court.  The losing family may have been attempting to coerce her to act contrary to the Order of the Court.  She may have been refusing to do so.  According to my informant, the Hon Chief Minister has now told the Registrar that she must recuse herself from further dealing with the matter as she is not competent.

I am also told that the Chief Minister has made a public statement, broadcast on radio yesterday and today, describing the original court decision as a “tapestry of justice”, and that the Supreme Court itself must be investigated.

As any one of my A-Level law students can tell you, there are three branches of government: the legislature which makes laws, the executive which makes and administers government policy, and the judiciary which adjudicates on disputes between citizen and the state and citizen and citizen.  None of these branches is permitted to infringe on the jurisdiction of the other.  This is called the doctrine of the separation of powers. In modern political thinking this doctrine is considered a cornerstone of democracy and essential for the protection of our civil rights.

The only branch of government which is regularly investigated is the judiciary.  Every decision of a judge is subject to investigation.  This is called an appeal.  Even the appeal is subject to further investigation.  In this instant case the judge's decision was investigated by the Court of Appeal.  After investigation, the decision of the High Court in favour of the winning family was approved by the Court of Appeal.  The decision of the Court of Appeal was further investigated by the Privy Council.  The decision of the Court of Appeal was approved by the Privy Council.  There have already been repeated investigations of this decision of the High Court.  It is an impertinence to suggest that some other investigation is called for.  The same cannot be said for most decisions of the executive branch of government.

Under our system of government public servants are supposed to be insulated from political pressure.  This rule of non-political interference in the administration exists for the protection of the average citizen, who may otherwise be subject to victimisation.  I cannot understand how a Minister of Government could put pressure on a Registrar of Lands in Anguilla to recuse herself from performing her administrative duties.  Such a development would signify a low point in the government of our island.  I sincerely hope that our Chief Minister would never act unconstitutionally to instruct some other public servant to intervene and to change the registered titles to these areas of land.

It would be worrying if the Governor and Deputy Governor were to be seen to permit a Minister of Government to harass a senior public servant in the performance of her duties.  This is particularly so if she had been refusing to countenance the flouting of a longstanding and repeatedly upheld Order of the Court. Will they rise publicly and vociferously to the defence of the Registrar of Lands in this matter?  We are not holding our breath, only bating it.

I can only hope that I have been misinformed.  It would be bad enough if a Chief Minister were to be seen to be encouraging citizens to act in an illegal manner.  It would be a vicious blow against the principle of the Separation of Powers if a Chief Minister were to be thought to be encouraging a flouting of an Order of a Court.  It would be destructive of the Rule of Law for any Chief Minister or Prime Minister to be known to be disparaging the integrity of the Supreme Court itself.  More damaging, we in Anguilla would be demonstrating unfitness for any extension of the powers of internal self-government, as we have been demanding.

Who would be obliged to pay the substantial damages and costs that may eventually be awarded against the government if this fiasco is not brought to an immediate end?  We the people, of course.

A final question that we the members of the public might ask is, if these fears are justified, what, if anything, would the Anguilla Bar Association be prepared to do to defend the integrity and independence of our judicial branch of government, and to uphold the finality of an Order of the Court from an attack by a Minister of Government?

First published 2 October 2010

Republished 14 July 2015

Post script:  I am pleased to say that the Registrar of Lands stood her ground on the occasion, and refused the Chief Minister’s demands that she alter the title documents to the disputed lands.  The Governor and the Deputy Governor must have backed her decision to uphold the rule of law against the lawless demands of the Chief Minister, since she is still in office to this day as Registrar of Lands.  The Chief Minister and his political party lost office earlier this year after their 5-year term came to an end.  In fact, their political party lost every seat in the House of Assembly.

Origins: The State of Anguilla

ORIGINS: The State of Anguilla, AD 1998[1]

Cultural anthropologists recognise at least four categories of human society.  There is the band, the tribe, the chiefdom, and the state.  Let us look at each of these, and see if we can apply their characteristics to the island of Anguilla.  My aim in this little exercise is to explore how safe it is to invest your treasure in Anguilla.

The band.  The band was the earliest and tiniest society known to humankind.  The archaeological record shows that the band consisted typically of less than 100 people, mostly related by birth or marriage.  Typically, the band lacked a permanent, single place of residence.  Its land was used jointly by the whole group.  All able-bodied persons foraged for food.  There were none of the formal institutions we have in the modern state, such as laws, police or treaties.  With all members of the band related to both of any two quarrelling individuals, any fight was soon ended by the mediation of concerned onlookers.

All human beings are thought to have lived in bands until about 40,000 years ago.  Indeed, most people lived in bands as recently as 11,000 years ago, ie, at the end of the last Ice Age.  Our closest animal relatives, the gorillas and chimpanzees, still live in bands.  The band was the political, economic and social organization that we inherited from millions of years of evolutionary history.  Today, bands of humans are found only in remote parts of New Guinea and Amazonia.  The majority of us have moved on.

The tribe.  Improved technology for extracting food allowed some bands of hunter-gatherers to settle in permanent dwellings in resource-rich areas.  This led to the second stage of human development.  As shown by archaeological evidence, tribal organization emerged 13,000 years ago in the Middle East.  At that time climate change and improved technology combined to permit abundant harvests of wild cereals.  Tribes began to form.  The tribe differed from the band mainly in being larger than the band.  The tribe typically consisted of hundreds rather than dozens of people.  The tribe usually had no fixed settlement.  Like the band, the tribe lacked a bureaucracy, police force and taxes.  Every able-bodied adult, including the “big man”, participated in growing, gathering or hunting for food.  Full-time craft specialists were lacking.  Most of the independent tribes, who until recently occupied much of New Guinea, Melanesia and Amazonia, have now been subordinated into nation states.  Beginning several thousand years ago, most tribes evolved into the next stage of human civilization, the chiefdom.

The chiefdom.  The third stage of human political development is the chiefdom.  Chiefdoms first emerged in the Fertile Crescent by 5,500 BC, and by 1,000 BC in Mesoamerican and the Andes.  The chiefdom consisted typically of several thousand people.  One person, the head-chief, exercised a monopoly on the right to use force.  The food surplus generated by the commoner went to feed various sub-chiefs, their families, bureaucrats and the craft specialists who made the canoes or adzes, or worked as bird-catchers or tattooists.  While tribes and bands relied on reciprocal exchanges of gifts, chiefdoms developed a new system termed a redistributive economy.  The head-chief would receive surplus food from every farmer, and then he would either throw a feast for everybody, or else give it out again gradually in the months between harvests.  Most chiefdoms have now evolved into the modern state.  It is arguable that the chiefdom continues to exist only in what are called dictatorships.

The state.  We know from the archaeological record that the final stage, the state, began to arise in about 3,700 BC in Mesopotamia.  In Mesoamerican the date for the state is about 300 BC, while in West Africa it was about 1,000 BC.  Typically, the population of a state usually exceeds 50,000 persons.  Initially, the paramount chief’s location became the state’s capital city.  A city differs from a village in its monumental public works, palaces, and government buildings, accumulation of capital from tribute or taxes paid, and concentrations of people other than food-gatherers.  Economic specialization is more extreme in the state.  Food is produced by specialist groups of farmers, herdsmen, fishermen, and gardeners, instead of by generalists who do a bit of everything as in bands and tribes.

Even small states have more complex bureaucracies than large chiefdoms.  In a state, internal conflict resolution is formalized by the establishment of laws, a judiciary and police.  With such a large population, the onlookers to a quarrel or fight were unlikely to be related to both parties.  They were, therefore, unlikely to mediate to prevent violence.  Binding rules of conduct, or laws, began to develop.  In a state, the laws are written.  Many early states had literate societies.  In both Mesopotamia and Mesoamerica writing was developed at about the same time as the formation of states.  By contrast no chiefdom developed writing.  The state is organised on political and territorial lines.  By contrast, bands, tribes and simple chiefdoms are defined by kinship.  State bureaucrats are selected at least partly on the basis of training and merit, not on the basis of kinship, as in a chiefdom.

Anguilla.  In Anguilla almost everyone is related to everyone else.  A second-generation US- or UK-born of Anguillian ancestry is welcomed back as “one of us”.  The highest compliment is to be called a “son of the soil”.  An unrelated resident, no matter how long he has lived in Anguilla, will likely always be considered a foreigner.  Kinship, not citizenship, is the dominant determinant for acceptance into the Anguillian community.  Few of the big chiefs or the sub-chiefs will have completed a secondary education and be qualified to be described as being able to read and write.  These are the familiar characteristics of the tribe or band.

Hunter-gathering is a characteristic of the band.  With a stretch of the imagination one can consider that there are nomadic bands of Anguillians pursuing hunter-gathering existences in the forests and savannahs of Perth Amboy, New Jersey, and Slough, England.  Locally, foraging activities are carried out, often with semi-official encouragement, in the freezers and store-rooms of foreign owned restaurants and hotels in Anguilla.

In Anguilla, reading and writing skills have been substituted by watching moving pictures on small screens.  No one in Anguilla reads, is a familiar boast.  Laws and regulations, the characteristic of the modern state, are regularly ignored by the locals, even if strictly enforced on the foreigner living among us.  So, building regulations and planning rules are applied selectively and mainly to foreigners.  Planning laws and Regulations are seldom applied to Belongers, and never to the chiefs.  When a copy of the rules is requested, the usual explanation given is that the rules have not been written down, but that they are binding when applied.  Thus, in Anguilla today we find many of the characteristics of the early band or tribe.

In other respects, the island shows signs of being a chieftainship.  Certainly, the size of the population is too small to justify its being considered a state.  The big-chief syndrome replaces the rule of law.  Decisions of the Executive Council, the Court and the Legislature are frustrated with impunity by the will of any strong chief or sub-chief.  To obtain a Licence, obeisance must be paid, and tribute laid at the feet of one or more sub-chief, to personally placate him and acknowledge his authority.  Gifts for such licences and permits ensure their swift processing.  So, the Work Permit for every foreign worker must be personally approved by the Minister.  Traditionally, in Anguilla such Work Permits are not granted on the basis of any regulation or principle, but arbitrarily on the basis of favour and personal whim.  Once granted, the Permit must be renewed annually through a solicitation procedure designed to debase and degrade the less-fortunate applicant.  Some government agencies and private enterprises apply rules and regulations not on the basis of law, but on the basis of kinship or personal instructions from an important chief.  Certificates that should be issued as of right are sometimes inexplicably held up until word comes from “above”.

Until 40 years ago, Anguilla had no Legislature, Executive or real Judiciary.  The High Court that sat in Anguilla was considered foreign, as the judge came from overseas, and its decisions disrespected.  Few major governmental edifices existed.  Subsistence agriculture was the dominant economic activity.  Smuggling provided a variety of food and drink, and substituted for a successful cash crop.

Today, our principal economic activity can be seen as a variation on the once-honourable occupation of wrecking.  The lanterns on the coconut trees that once lured treasure-laden ships onto the reefs for pillaging have been replaced by the visits of overseas investors.  The investor is expected to attend on various local island chieftains.  They then invite the visitor to bring some of his capital to the island.  They hint at full cooperation, duty-free concessions, and untaxed profits.  Once the investor has been committed, every effort is turned to forestalling his project as long as possible from becoming a profitable concern.  Further tribute in one form or another paid to the chieftain may once again smooth the way.  Local observers joke that the island’s airport seems to have been deliberately constructed so that the arriving bright-eyed prospective investor can have no eye contact with the departing, frustrated and bankrupt investor.

A large, successful, foreign-owned hotel is not always an unmitigated blessing in the eyes of the local chief who in the first place induced the investor to put it there.  It could become a competing centre of power and influence that puts the chief in a quandary.  Loss of influence or control might become threatening.  If and when this happens, the investor is held responsible for every problem.  He is subdued and gently humiliated by finding crucial permits, licences and exemptions arbitrarily refused.  This clever, age-old tactic effectively keeps the investor constantly off-balance, duly submissive, cooperative, and gushing with tribute.

To mix and change the metaphor some more, the elite (in local dialect “the Executive Committee”) exploits the labour of the imported slaves (recipients of work permits) and the wealth, skills and talents of captured foes (code-named “investors”) who labour in the fields to construct public monuments and palaces (dubbed “hotels”) to the honour, glory and fame of the chieftain.

The hunter-gatherers of a generation ago who foraged in the arid fields of pigeon peas, Indian corn, and sweet potatoes, or harpooned fish on the reef, to keep body and soul together, have been succeeded by their children.  The crop has now changed to ‘plane-loads of tourists who arrive annually with the change of the season.  Once here they are expertly cultivated and cropped.  Suspicion of these visiting foreign possessors of a different culture, and with bottomless pockets, is encouraged by the chiefs and would-be chiefs alike.  In this way the chiefs coerce their tribesmen to maintain them in their high positions of exploitation.

In light of all the above, it is clear that Anguilla is principally a chieftainship.  We still have a long way to go before we can be called a modern state, ruled by law rather than by men.

28 July 1998

Revised 8 August 2014

Revised 3 June 2017

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[1]       This article was first published in Anguilla Life Magazine to commemorate the occasion when the island’s Chief Minister visited a foreign-owned hotel, which had recently fired a member of staff caught stealing from the kitchen.  By threatening to withhold work permits required for foreign management, he successfully “persuaded” the hotel owner to return the larcenous member of kitchen staff to happy employment in the kitchen.  This instance of bad governance instead of being condemned was hailed by the Chief Minister and his followers as evidence of his great patriotism, leadership, and love of his people.