Saturday, July 16, 2016
Facing the Issues - TV Interview
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Saturday, May 21, 2016
Myth or History?
What
Value Myth Over History?
A
speech prepared for delivery at the May 2016 Anguilla Literary Festival[1]
There
is a question about history that has troubled me for years. The question is, which will serve us better
in striving to construct the Anguillian civilisation: fact or fantasy, history
or myth? Should we try to know our own
history in an accurate sense, or are we better off building on a mythology that
meets our present ideological and psychological needs?
The question arises because I regularly hear
Anguillians with a reputation as intellectuals, or at least as public speakers,
distorting incidents in Anguilla’s history.
Whenever that happens, I am tempted immediately to correct the
error. Then, as I realise how much the
audience is relishing the falsehood, I pause.
I ask the question, is there perhaps some value to the myth being
presented as history?
I start with some local mythologising. Every Saturday morning in Anguilla at 10:00
am, there is a popular radio talk-show on a local radio station. The programme begins with a presentation by an
African American lady on the psychologically damaging, long term effect on
Black US slaves of the vicious doctrine taught in the Willie Lynch speech. While the lady announcer relates what is, in
reality, no more than her promotion of the latest self-improvement book she is
selling, the panellists sit around the studio table, listening to their programme’s
introduction, looking solemn and sorrowful.
The American author’s breathless prose assures us that,
As a race of people, we will never
be physically free until we free ourselves mentally. It is about understanding that hundreds of
years ago, a system was designed, by Master, to build a Mental House of Slavery
that would control our ancestors and destroy our race from within. This system is no longer forced upon us;
therefore we voluntarily decide to live in Master’s House. If we come together, as a people, to stop
pulling each other down and start lifting each other up, we can create a new
system, build a New House, to reclaim our greatness, wealth, and success, to
become a united race of people.
As her narrative progresses, she summarises Willie
Lynch’s speech. He was a West Indian
slave-owner who was invited to the colony of Virginia in the year 1712 to teach
his divide-and-rule methods to slave owners there. The secret for assuring control over the ‘Negro’
for at least the next 300 years, he explained, was to take the differences
among the slaves and make them bigger.
He says,
I use fear, distrust,
and envy for control purposes. These
methods have worked on my modest plantation in the West Indies and it will work
throughout the South. Take this simple
little list of differences, and think about them. . . .
. . . You must pitch the old Black male vs. the young Black male, and the
young Black male against the old Black male.
You must use the dark-skin slaves vs. the light-skin slaves and the
light-skin slaves vs. the dark-skin slaves.
You must use the female vs. the male, and the male vs. the female. You must also have your white servants and
overseers distrust all Blacks, but it is necessary that your slaves trust and
depend on us. They must love, respect
and trust only us.
Black academics and historians have
conclusively established that the Willie Lynch speech is a hoax. There was no slave-owner known as William
Lynch in the West Indies during this period.
No credible historian has ever written about the Willie Lynch speech. None of the abolitionists of the anti-slavery
movement mention him or his alleged speech.
None of the tactics he outlines was important to slave-owners during the
eighteenth century. The divide-and-rule
tactics he espouses are completely different from the real divide-and-rule
tactics used by the slave-owners. The
terms “fool-proof” and “re-fuelling” in his alleged speech are twentieth
century terms that did not exist in the eighteenth or nineteenth
centuries. In 1712, there was no
geographical part of the American Colonies known as the South. The evidence suggests the Willie Lynch speech
was composed as recently as the year 1993.
Louis Farrakhan made it famous when he mentioned it in his 1995 Million
Man March speech.
Professor Manu Ampin, of Oakland, California,
a professor of Africana Studies, specialising in African and African American
history and culture, urges us to rely on first-hand research, instead of myth,
as the most effective weapon against the distortion of African history and
culture. Primary research, he urges, is
the best defence against urban legends and modern myths.[2]
As Professor Ampin so ably argues, we will
not solve our problems, and address the real issues confronting us, by adopting
half-baked urban legends. If there are people
who know that the Willie Lynch speech is fictional, yet continue to promote it
in order to sell books, or even to “wake us up”, then we should be very
suspicious of these people. They lack
integrity, they openly violate our trust, and they willingly lie to us in the
pursuit of their personal profit.
Surely, it is now time for critical Anguillian thinkers to bury the African
American myth of the Willie Lynch speech and take a more mature, West Indian
approach, one more suited to our new Caribbean Civilisation.
There is another fictitious story that is regularly
heard on the radio, and at gatherings of Anguillians who discuss Anguilla’s
struggle to become self-sufficient and self-governing. That is the epic tale of the refusal of our
ancestral Anguillians, newly freed from slavery in 1834, to be forcibly removed
from Anguilla and deported, as the Chagos Islanders were, to the new colony of
British Guiana. We are assured of the
fact, by persons who appear to know, that the colonial authorities put pressure
on our forefathers. They were told they must
leave the drought-stricken and infertile land of Anguilla and emigrate to the
lush and welcoming fields of Demerara, Berbice and Essequibo. However, the stalwart Anguillians stoutly
resisted, refused to be moved, and clung patriotically to their beloved “rock”. As a result, we are informed, the British
were blocked in their plan to strip Anguilla of its black “indigenous”
inhabitants so that they could re-populate the island with the white,
unemployed and homeless of Britain.
As usual, this myth springs from a genuine
historical event. The records show that,
after the short-lived Apprenticeship Period ended slavery in Anguilla, some
three boat-loads of newly-freed Anguillians boarded ships and sailed to British
Guiana. The correspondence between the
Governor of the Leeward Islands and the Secretary of State in London reveals
that the Anguillians had been lured by promises of free land, to be given to
them if they would help to populate the supposedly uninhabited interior of
Guiana.[3] Far from encouraging the Anguillians to leave
their island, the colonial government was concerned at the Guianese attempt to
rob the Leeward Islands of much needed, newly-freed labour. The Governor in Antigua begs the Secretary of
State to register a protest with the Governor of British Guiana, and to demand
that he stop stealing Leeward Islands citizens.
And so, we read in the records that it was with
much relief that, some three years after they departed, the Governor of the
Leeward Islands reported to London that the majority of the emigrated
Anguillians had returned to their island, disenchanted with the snake-infested
conditions they met in the jungles of Guiana.
Each time I hear the story repeated,
questions flash through my mind. What
role does this myth of the valiant Anguillian resistance to the alleged British
effort to deport them to Guiana play in the development of a modern Anguillian
consciousness? What could be the agenda
of the persons who perpetuate this urban legend? Is it a foundation-part of the conspiracy
theory that the British are out to destroy Anguilla, as some suggest? Is it intended to drive us to self-hurting actions
that will damage our own long-term development interests? Is it a deliberate effort to drum up racist
discord against the British for political ends?
Or, is it a genuine misunderstanding of the historical record? And, is it a positive myth that will help
Anguillians to become stronger and more self-sufficient?
Maybe Barbados can teach us a lesson in
honest historical research. Barbados,
after all, is the centre of one of our great seats of learning, the Cave Hill
Campus of the University of the West Indies.
We all know the important place that “General Bussa” plays today in
Barbadian national consciousness. Which
educated West Indian does not know the tale of the heroic role that the slave
Bussa, a Ranger on Bayley’s Plantation, played in resisting the cruel system of
Barbadian slavery, resulting in his death at the hands of the white Barbadians
plantocracy in the Bussa Rebellion of 1816?
The only mention of Bussa in any contemporary
record is the Report of the Assembly on the Rebellion, published in
1818. It includes the testimony of five
slaves, only three of whom mention the slave Busso or Busssoe (never Bussa) as
one of the participants. There is
nothing in the contemporary record that suggests Busso was the leader of the
Rebellion. It is only in the narratives
written many years later that he begins to be given a prominent role in the
Rebellion.
After independence, and with the introduction
of a National Heroes system, there was an obvious need for there to be a
genuine Barbadian National Hero of the resistance to plantation slavery. The void was soon filled. Barbadians now enjoy several detailed,
completely made-up, biographical studies of this genuine hero of the two-day
Easter Rebellion: the plantation Ranger,
Bussoe. Out of the thinnest of
historical fact has blossomed an entire industry, circling profitably around a
mythic biography of the Right Excellent Bussa, National Hero. A large, imaginary statue of Bussa, broken
chains of slavery dangling from his wrists, exults in freedom in the centre of
the ABC Highway.[4] As a result of what we might call ‘this
little white lie’ about General Bussa, countless Barbadians feel prouder of
their heritage. No doubt, the Bussa myth
serves the admirable purpose of whipping up patriotic sentiment, and feelings
of pride and national identity. But, it
is not history.
I ask myself, what damage must this tale of
the fictitious “Bussa” do to the psychology of the objective black Barbadian intellectual
who bothers to do the research, and who must eventually realise that his feelings
of pride and self-worth have been constructed on a modern fabrication? Should he encourage this fraudulent strategy
for the development of a national consciousness, or should he insist on the truth? What torment must honest Barbadian academics
go through who are too terrified of political and social back-lash to speak out
against the promotion of this fiction as truth?
The problem of ‘white-washing’ history is not
unique to us in the West Indies. The British
are notorious for misusing their own history for national purposes. There is an interesting article by Simon
Akam, an Oxford-educated Reuter’s correspondent in Sierra Leone, in The New
Republic[5]
in which he explores the question, “Why
don’t the British teach their students about imperial history?” He points out that
There is no British Imperial
History 101, so to speak. As it is,
instruction of British history is wont to concentrate on “Hitler and the
Henrys”—World War II and the colourful Tudor monarchs of the late fifteenth and
sixteenth centuries, Henry VIII and his six wives first among them.
And,
he concludes that
The lacuna in the British
curriculum, the refusal to discuss imperialism in-depth, is not accidental. Rather, it reflects the fact that Britain as a
nation has not settled on its own view of its past.
Why is the history of the British Empire and
of British Colonialism cleaned up and bowdlerised in their High School
curriculum? Could the answer be that the
historical facts are too shameful? Would
the real truth about colonialism make British people cease to feel so proud of
their Britishness? Is the myth of the
decent British administrator bringing civilisation to the savage colonial a better
narrative for the present-day British soul?
Historian David Abraham urges that myths are
important to human civilisation.[6] Myths existed before art, before language or
the written word. The mythic cave
paintings of Lascaux in France and Alta Mira in Spain are over 30,000 years
old, created long before modern languages developed.
Myths have a role to play in human life and
imagination. Myths are undoubtedly
important for the growth of human civilisation.
Myths sprung up long before religion.
The stories in the Book of Genesis are a retelling of universal mythic
themes such as the Creation of the World, the first Man and Woman, Heaven and
Earth, the great Flood, Dragons and Serpents.
The great mythic themes were known before literature. All great works of literature are based upon
mythic themes or stories. Noah’s Ark,
Jonah and the Whale, Moby Dick, and even the movie Titanic, are all stories
about man’s struggle with the sea of the unconscious.
Myth was before philosophy and science. The same questions that religion used to ask,
our sciences now try to answer. Even
though we are now more enlightened and technological, we still need to feel
protected, warm, well-fed, happy, and doing good.
Could it be that feeling proud about
ourselves and our heritage is of such great importance for public wellbeing and
social cohesiveness, that it justifies tweaking the past, replacing the facts
with myth. Is there, then, a legitimate
role for myth in national consciousness?
Is there is a valid reason, in terms of national development, for
powerful myths to become more important than accurate history? The answer to the question I posed at the
beginning becomes clear. It is never
justifiable for myth to supplant historical fact.
This is the view of most serious academics
and historians. Sir Anthony Seldon,
Vice-Chancellor of the University of Buckingham, urges[7] that
History teaching should always be
honest, or it is merely propaganda by powerful interest groups. The history of the British Empire was not all
bad, and not all good. Understanding its
subtlety and its importance to British and world history is essential for every
single student.
Why does it matter what happened a long time
ago? Professor Penelope Cornfield of the
University of London has written[8] that
history is important because it is inescapable.
It connects things through time and encourages students to take the long
view of connections. All people are
living histories.
We speak languages we inherited from the
past. We live in societies with complex
cultures, traditions and religions that were not created on the spur of the
moment. We use technologies we have not
ourselves invented. Each individual is a
personal variant of an inherited genetic template, known as the genome, which
has evolved during the entire life-span of the human species.
Understanding the linkages between the past
and the present is absolutely basic for an appreciation of the condition of
being human. The study of the past is
essential for rooting people in time.
People who feel themselves to be rootless live rootless lives. Some of us, unfortunately, lacking a sense of
roots, grow up with a weak or troubled sense of our own placing. The result has been the rise of the gangs and
the taking up of guns that we see in our towns and villages today.
The only cure for ignorance is
education. The Anguilla Public Library’s
radio jingle that “Reading is fun-damental” must take root, so that the next
generation of Anguillians will pay more attention to learning the facts and
avoiding the half-truths and untruths that our present generation seem to enjoy
so much. There is, in my submission,
nothing intellectual or excellent in the promotion of historical myth.
It is only by encouraging in Anguilla the
writing and publishing of poetry, plays, novels and academic texts that an
intellectual tradition will be established in Anguilla. The founders and promoters of this Anguilla
Literary Festival are to be congratulated for leading the way in this effort. This celebration of local authorship, and the
enjoyment of regional and international art and literature, introduces into our
community an urging for the supremacy of intellectual excellence.
[1] A
speech prepared for the delivery at the May 2016 Anguilla Literary Festival,
but not delivered when I realised it was too long. I gave a summary instead.
[3] CO.239/56,
Despatch No 61/71 of 28 November 1838. Sir William Colebrooke, Governor of the
Leeward Islands, to Lord John Russel, Secretary of State.
CO.239/55, Despatch No 40/2040 of
10 July 1839: Colebrooke to Lord Russel.
CO.239/59, Despatch No 34/1620 of
15 July 1840: Colebrooke to Lord Russel.
CO.239/59, Despatch No 35/1624 of
18 July 1840: Colebrooke to Lord Russel.
CO.407/6, folio 184, 23 January
1840: Lord Russel to Colebrooke.
Monday, May 16, 2016
Ruddock v R
R v Jogee [2016] UKSC 8
Ruddock v R [2016] UKPC 7
That Julian Knowles QC of the UK is a brilliant barrister there
can be no doubt. He regularly appears in
death penalty cases in the Courts of Appeal of the West Indies, and is
well-known to the barristers and judges of the region. His arguments usually prevail. I don’t know Felicity Gerry QC, but she and
the other senior British barristers in these appeals are probably just as
brilliant.
They persuaded the Privy Council to reverse
itself on a long-held principle of law.
That is what they did in this case, a murder appeal from Jamaica: http://www.bailii.org/uk/cases/UKSC/2016/8.html The video of Lord
Hughes’ delivery of the judgment is here: https://www.supremecourt.uk/watch/uksc-2015-0015/judgment.html It is even more
spectacular that the decision in this Privy Council case has been delivered jointly
with an English decision in the Supreme Court of the United Kingdom.
Ever since as a first-year law student in
1968 I attended Lord Kenny’s Criminal Law lectures in the Great Hall at Lincoln’s
Inn, I have known that it is a fundamental principle of the criminal law that an
accessory is as guilty as the principal to the commission of the offence.
That principle of the common law was later extended,
in what has been called the rule in Chan
Wing-Siu v R [1985] AC 168, or the doctrine of parasitic accessory
liability. This reads that:
if
two people set out to commit an offence (crime A), and in the course of that
joint enterprise one of them (D1) commits another offence (crime B), the second
person (D2) is guilty as an accessory to crime B if he had foreseen the
possibility that D1 might act as he did. D2’s foresight of that possibility
plus his continuation in the enterprise to commit crime A were held sufficient
in law to bring crime B within the scope of the conduct for which he is
criminally liable, whether or not he intended it.
In both the English case of Jogee and the
Jamaican case of Ruddock, the appellants were convicted of murder after
directions on parasitic accessory liability to the above effect.
In Jogee’s case, he and a friend named Hirsi
spent the evening of 9 June 2011 taking drink and cocaine, becoming
increasingly intoxicated and aggressive.
They got into a violent argument with the deceased at his girlfriend’s residence. Jogee was brandishing a bottle, striking a
car in the road with it, and shouting encouragement to Hirsi. It was Hirsi who stabbed and killed the
deceased with a knife he picked up at the premises. The jury convicted Jogee after a standard
Chang Wing-Siu direction on the liability of an accessory.
In the Ruddock appeal, his co-defendant,
Hudson, pleaded guilty to the murder of a deceased taxi-driver on the beach at
White House in St James in Jamaica on 30 June 2007 in the course of robbing him
of his Toyota station wagon. Ruddock
admitted to the police that he had helped tie the deceased’s feet in the course
of the robbery. He denied that he had participated
in Hudson’s later murder of the deceased by slitting his throat with a ratchet
knife.
The trial judge directed the jury that the
prosecution had to prove that each of Hudson and Ruddock shared a common
intention to commit “the offence”. That common intention included a situation in
which “the defendant, whose case you are
considering, knew that there was a real possibility that the other defendant
might have a particular intention and with that knowledge, nevertheless, went
on to take part in it.” He did not
tell the jury that if they were sure that Ruddock was a party to carrying out
the robbery, it did not automatically follow that he was also party to the murder
of the deceased. That question required
separate and further consideration. Instead,
the jury accepted the standard parasitic accessory direction given by the
judge, and convicted Ruddock of the murder as an accessory.
The Crown argued that even if the Chan Wing-Siu principle
was wrong, it should be a matter for the legislatures to decide whether to make
any change in the law. The principle was
in place in England and Wales, and in other common law jurisdictions such as
Jamaica, for 30 years.
After a detailed analysis of the law on accessories, Lord
Hughes, with whom the other judges agreed, starting at paragraph [79], decided
that the principle was wrong and that the Board must reverse it. He asserted at paragraph [85] that the
doctrine was a common law one and it was proper for the courts to correct any
error in it.
Before the Supreme Court/Privy Council,
counsel for the Crown accepted on behalf of the prosecution that if the court
concluded that the Chan Wing-Siu principle was wrong, the appeals must be
allowed. The court had no difficulty in
the Jogee appeal in deciding that the appeal must be dismissed. In the Ruddock case, they invited the
parties’ written submissions as to the advice which they should humbly tender
to Her Majesty regarding the disposal of the appeal. The judgment in the Ruddock appeal is thus an
interlocutory one in the sense that it is a preliminary one to the final
delivery of the advice which the Board will tender to the Queen.
At paragraph [3] of the judgment, Lord
Hughes nonchalantly notes that “The
two appeals, Jogee in the Supreme Court and Ruddock in the Judicial Committee
of the Privy Council, were heard together.”
Having read the scholarly and detailed
analysis contained in the joint judgment, no one can take any issue with the
law there set out, nor with the conclusions of law arrived at. My problem is with the forum, or the court
itself. I have difficulty seeing how the
UK Supreme Court comes to be delivering a final English judgment jointly with a
Privy Council judgment, interlocutory though it might be.
In this case, one bench of judges heard
argument on two appeals, one to the Supreme Court from the English Court of
Appeal and the other to the Privy Council from the Jamaican Court of Appeal. They then delivered one judgment. The only concession offered by Lord Hughes to
the constitutional requirements occurs when in dealing with the Ruddock facts
and argument he switches his language in the judgment to refer to himself and
the panel he was part of as the Board of the Privy Council.
I never saw or heard of such a thing
before. The West Indies do not share the
Supreme Court with the United Kingdom.
The Supreme Court is a UK court, while the Privy Council is a Jamaican
court. Amazingly, there has not been a
stutter of protest at what in my view is an extraordinary act of constitutional
impropriety from the Bar anywhere in the Caribbean that I have read of.
The only explanation there can be is that
everyone here is as stunned at this development as I am.
10 May 2016
Don
Mitchell CBE QC
Article
originally written for the publication ‘West Indian Lawyers’
Sunday, May 15, 2016
ECCB Agreement Amendment
The ECCB
(Amendment of Schedule) Order, 2016
[1] Prior to the
invention of our EC dollar in 1965, and since 1935, the name of our currency
was the “BWI dollar”. Then, our islands entered
into the Eastern Caribbean Currency Agreement. This established the Eastern Caribbean
Currency Authority (ECCA), with headquarters in Barbados. ECCA was authorised to issue the new EC
dollar. Barbados withdrew from the
Currency Union in 1972. Our governments
decided to move ECCA’s headquarters to St Kitts. Gradually, most of our countries became
independent. The name BWI dollar seemed
obsolete. The name was changed to the
“EC dollar”.
The Agreement
[2] In 1981, the
Organisation of Eastern Caribbean States (the OECS) came into existence with
the signing of the Treaty of Basseterre in St Kitts. The following year, 1982, in Trinidad, most
of our OECS governments[1]
signed the Eastern Caribbean Central Bank Agreement (the ECCB Agreement)
bringing an end to the old ECCA. The
ECCB Agreement established the Eastern Caribbean Central Bank (the ECCB) with
its headquarters in St Kitts. Anguilla
signed up and became a full member in 1987.
The Act
[3] As every
High School CAPE Law student knows, a treaty is not a law. A treaty may be a source of a law. A treaty or convention is an agreement which
may be binding on governments among themselves, but it does not affect you or
me. To make it a part of the law of the
country, an Act of parliament to that effect must be passed by the local
legislature.
[4] In 1983, though
Anguilla was not yet a full member of the Currency Union, our House of Assembly
passed the ECCB Agreement Act, 1983.[2]
This enactment made the ECCB Agreement a part
of our law. The Act is a very short one.
It consists of just 6 brief sections.
The bulk of the Act is taken up by the ECCB Agreement. This is set out as a Schedule to the
Act. Section 2 of the Act provides that
the Agreement is to have the force of law in Anguilla.
[5] There is
provision in the Agreement and in the Act for the members of the Currency Union
to amend the Agreement. Section 4 of the
Act lays down the procedure to be followed.
The section says that, once the Agreement is amended by the governments,
the Governor must bring the amendment into law in Anguilla by signing an Order
published in the Official Gazette. As
the Constitution provides,[3]
once the Executive Council (Anguilla’s Cabinet) agrees to take a step,
and the Governor is named in the relevant law as the official who must sign,
then the Governor must sign it for and on behalf of the Government of Anguilla. It is the act of the government, not a
personal act of the Governor.
[6] The senior
policy making body of the ECCB consists of the Monetary Council. This is made up of the eight Ministers of
Finance of the participating governments.[4] Given this management structure, there is
always a risk of paralysis. An action
that the ECCB might propose for the benefit of one member might be vetoed by another
member. In late 2007, our sub-region was
seriously affected by the world-wide banking crisis. The ECCB found itself powerless to intervene
in the banking crisis in the way a central bank is expected. It soon became apparent that the ECCB was
ineffective in acting as a lender of last resort for any member country that
might get into difficulty. Change in our
system of banking supervision was desperately needed. The Central Bank sought advice from the World
Bank and the International Monetary Fund on the reforms that had to be made.
[7] In 2012 the
Basel Committee on Banking Supervision issued new Core Principles for
Effective Banking Supervision. These
Core Principles are the minimum standards by which the prudential regulation
and supervision of banks and banking systems around the world are judged. There are in all 29 Core Principles[5]
for effective banking supervision.[6]
[8] The first of
them is that there must be a suitable legal framework for banking
supervision. A properly established
Central Bank must be empowered to license banks, conduct ongoing supervision,
address compliance with laws, and take timely corrective action to address
safety and soundness concerns. At the
time of the financial crisis, the local Ministers of Finance were the licensing
authority for banks of the sub-region, not the Central Bank. Our Central Bank, the ECCB, failed the first
of the Core Principles.
[9] The second
Core Principle covers the independence and legal protection required for all
Central Banks. For a Central Bank to be
recognised as effective, it must possess independence and autonomy. Local law must provide protection for the
Central Bank and its staff against lawsuits for actions taken while discharging
their duties. No person should be permitted
to bring a lawsuit which can block a Central Bank in carrying out its banking
supervision.
[10] That does not
mean that the Central Bank is immune from liability. If a citizen is harmed as a result of any wrongful
action taken by the Central Bank, he may still file a lawsuit. If he has suffered loss, he will be entitled
to be paid damages or compensation. But
he cannot get an injunction that will stop the Central Bank from carrying out
its supervisory functions. It was evident
to the international banking community that our Central Bank had no such powers
or protection under the existing Agreement and local legislation. Our Central Bank failed the second of the
Core Principles. The ECCB simply did not
meet the basic standards expected of a Central Bank.
[11] The Monetary
Council received and considered a number of reports[7]
and recommendations from consultants.
These were hired to advise on steps needed to upgrade the ECCB. It was imperative the ECCB should pass the
Basel Committee’s tests for effective banking supervision. Finally, the Monetary Council agreed to a
number of reforms.
[12] In sum, our
governments agreed to take eleven steps to bring our Currency Union up to
international standards.[8] Among the first of the reforms agreed was the
need to amend the ECCB Agreement to give the Central Bank the power to
intervene and take necessary action to prevent the collapse of a failing bank
and to restructure its business and capital base. Other steps included replacement of the
outdated Banking Act with a modern Banking Act to reflect the new
banking regime. The new Banking Act was
passed by our House of Assembly and became law with the Governor’s assent on 18
April 2016.
The Amended Agreement
[13] At its 81st
meeting on 24 February 2015, the Monetary Council agreed that legislative and
regulatory reforms were needed to protect the ECCU banking sector. Then-Chief Minister, Hubert Hughes, signed up
to the Eastern Caribbean Central Bank Agreement (Amendment), 2015 on
behalf of Anguilla. This amendment to
the Agreement would not become part of our law until an Order was signed by the
Governor incorporating it into our law as provided in the ECCB Agreement Act.[9]
The Amendment Order
[14] On 22 April
2016, Anguilla’s Governor duly signed the ECCB Agreement (Amendment of
Schedule) Order, 2016.[10] By this legislative act, the Governor, as
authorised both by our House of Assembly in the provision of section 4 of the
ECCB Agreement Act, and by the Executive Council led by Chief Minister Victor
Banks, duly brought into law the Amended Agreement signed the year before by
Chief Minister Hughes.[11]
Conclusion
[15] Anguillians
should be proud that we have finally, if belatedly, shown ourselves to be
supportive of the new regulatory standards which the international banking
community expects of our banking sector.
We were previously viewed as wild-west bankers, not subject to proper
regulation by an enabled Central Bank.
We cannot be viewed in this light any longer. We now conform to international standards. Our banking sector can stand equal with the
rest of the world.
[1]
Not Anguilla, whose membership was
still vetoed by the St Kitts Government.
[2]
Revised Statutes of Anguilla, c E5.
[3]
Section 28 of the Anguilla
Constitution Order, 1982.
[4]
The current members of the Monetary
Council are described here: http://www.eccb-centralbank.org/About/monetary.asp
[5]
Previously 25 in number.
[6]
Which I have previously detailed in
an article you can read at: http://donmitchellcbeqc.blogspot.com/search/label/Core%20Principles
[8]
I have described these 11 essential
steps in an article on my website which you can read here: http://donmitchellcbeqc.blogspot.com/2015/11/banking-reform-in-anguilla-2015.html
[9]
The Hubert Hughes administration
published the Amendment to the Agreement in February 2015 before the general
elections which brought the Victor Banks administration to power. It can be seen on the Government of Anguilla
website here: http://www.gov.ai/documents/ag/ECCBLIB-678364-v1-ECCB_Agreement_Amendment_2015_-_Final_Version.pdf
[10]
Local Statutory Instrument No 20/2016.
[11]
What is not clear is what motivated
then-Chief Minister Hubert Hughes to attempt to pass the very same amendment to
the Agreement into law on 25 October 2013 using the incorrect procedure of
rushing an Amendment Act through the House of Assembly with all three
readings taking place on the same day in the absence of the three Opposition
members and the Ex-officio members of the House. No one in Anguilla seems to know if the Governor
ever contributed to the debacle by assenting to the Act. The story is related in The Anguillian
Newspaper here: http://theanguillian.com/2013/11/opposition-asks-governor-not-to-sign-acts-says-house-sat-without-a-quorum/
The level of incompetence demonstrated
by the then Attorney-General’s chambers in drafting and approving this law and
procedure is nothing short of astonishing.
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