Proclaiming the King in Anguilla

 

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Can Parliament Impose Gay Marriage?

 

Kinisha Forbes and Kirsten Lettsome of the British Virgin Islands (BVI) are two brave women.  Anguilla seems to have none like them.  In 2011 they entered a civil partnership in the United Kingdom.  They were issued a marriage certificate once the UK’s same-sex couples law came into effect.  The couple are now back in the BVI.  They began a court action against the Attorney-General for a declaration that their marriage is valid under BVI law and that prohibiting same-sex marriage in the Territory is unconstitutional.

The BVI Christian Council applied to the Court to be added to the case as a third party so it could file briefs and argue against the claimants.  After initially allowing the Council to intervene, the judge has now struck them from the case, ruling that their application had no realistic prospect of success.  Besides, given the pressure on the court system in the BVI, it is important to make the best use of its resources.

The matter is complicated by two recent developments.  First, the Privy Council on 14 March 2022 in two appeals from Bermuda and the Cayman Islands ruled that the prohibitions on same-sex marriage in those two Territories were compliant with their Constitutions.  So, unless there is some major difference between the Constitutions of the BVI and those other two Territories, the precedents are against Ms Forbes and Ms Lettsome.

The second complication is the recent Private Member’s Bill laid in the House of Lords by Labour Party peer and gay-rights activist, Lord Michael Cashman.  The Bill seeks to make same-sex marriage lawful in all British Overseas Territories where it is currently unlawful.  That would include the BVI and Anguilla.

No one has asked for my opinion, but I am going to give it anyway.  The Privy Council has the power to pass any law it wishes for the Overseas Territories without being obliged to consult them.  However, all right-thinking Anguillians are opposed to the UK imposing domestic laws on the Overseas Territories without our express consent.  If we are really in a partnership for progress with the United Kingdom, such a unilateral step seems a little offensive.

If our Territories are backward in respecting human rights, someone among us needs to engage our people in a campaign of public information.  We must raise the levels of social consciousness and general education among our people.  It is our responsibility to encourage more liberal attitudes of live and let live.  It is not appropriate in the twenty-first century for Britain to dictate to us in this way, no matter how well-meaning the impulse was.

Additionally, it is for our gays and lesbians to agitate for their rights if they want them.  Freedom, democracy, and human rights cannot be taken for granted.  They must continually be fought for.  If our LGBTQ community came out of the closet and demanded equality, they would get it – albeit perhaps only after an almighty struggle.  If they prefer to keep silent, they will continue to be marginalised and discriminated against.

It is true that the UK has used legislation and Orders in Council in the past to amend our domestic law.  For example, within the last twenty-five years they decriminalised anal intercourse and abolished the death penalty in the Overseas Territories including Anguilla.  However, the difference there was that we asked them to do so.  They took this action at the request of our Heads of Government.  It was not unilaterally imposed on us.  The Minutes of the relevant Heads of Government meetings in London reveal that the Heads in effect told the FCO that they did not dare bring up these two reforms in their local parliaments.  The evangelicals and other extremists would raise a political storm.  It would create major problems if local politicians attempted to usher such Bills through the local Assemblies.

So, as a favour to, and at the request of, our Heads of Government, the FCO put the relevant Orders in Council before the Privy Council.  Once signed, anal intercourse became no longer a matter for the Criminal law, and the sentence of hanging was no longer available for a local court to impose.  There was no outcry from any of the Overseas Territories.  At our request, the Privy Council had intervened to assist us in two touchy matters we were afraid to address.

What is the source and origin of our backward attitude to gay marriage?  On what basis do the self-righteous among us fight so vehemently against our gay and lesbian brothers’ and sisters’ desire to have a normal family life?  The answer is that some of us in the British Overseas Territories are stuck in a time warp.  The barbaric moral rules of the Middle Eastern Bronze Age as adumbrated in the Old Testament Books are still taught in many of our third millennium churches and schools as God’s sacred word.  In many of our infant schools, “creationism” is taught instead of evolution of species.  Instead of elementary geology, our primary schools teach that God created the earth on 23 October, 4004 BCE.  At odd times during the day, our ears are assaulted on the airwaves by religious extremists preaching that Sodom and Gomorrah are about to rain down on us.

An apt response to these fanatics of the airwaves comes to mind.  It is an old one, but a good one.  It is worthy of repetition.  A reminder may even help to bring home that it is nonsense they are preaching:

Dear Evangelical Association,

Thank you for doing so much to educate people regarding God’s Law.  I have learned a great deal from you, and I try to share that knowledge with as many people as I can.  When someone tries to defend the homosexual lifestyle, for example, I simply remind him that Leviticus 18:22 clearly states it to be an abomination.  End of debate.

I do need some advice from you, however, regarding some of the specific laws and how to best follow them.

When I burn a bull on the altar as a sacrifice, I know it creates a pleasing odour for the Lord (Lev 1:9).  The problem is my neighbours.  They claim the odour is not pleasing to them.  Should I smite them?

I would like to sell my daughter into slavery, as sanctioned in Exodus 21:7.  In this day and age, what do you think would be a fair price for her?

I know that I am allowed no contact with a woman while she is in her period of menstrual uncleanliness (Lev 15:19-24).  The problem is, how do I tell?  I have tried asking, but most women take offense.

Lev 25:44 states that I may indeed possess slaves, both male and female, provided they are purchased from neighbouring nations.  A friend of mine claims that this applies to Kittitians but not St Martiners.  Can you clarify?  Why can’t I own a St Martiner?

I have a neighbour who insists on working on the Sabbath.  Exodus 35:2 clearly states he should be put to death.  Am I morally obligated to kill him myself?

A friend of mine feels that even though eating lobster is an abomination (Lev 11:10), it is a lesser abomination than homosexuality.  I don’t agree.  Can you settle this?

Lev 21:20 states that I may not approach the altar of God if I have a defect in my sight.  I have to admit that I wear reading glasses.  Does my vision have to be 20/20, or is there some wiggle room here?

Most of my male friends get their hair trimmed, including the hair around their temples, even though this is expressly forbidden by Lev 19:27.  How should they die?

I know from Lev 11:8 that touching the skin of a dead pig makes me unclean, but may I still play football if I wear gloves?

My uncle has a farm.  He violates Lev 19:19 by planting two different crops in the same field, as does his wife by wearing garments made of two different kinds of thread (cotton/polyester blend).  He also tends to curse and blaspheme a lot.  Is it really necessary that we go to the trouble of getting the whole town together to stone them? (Lev 24:16).  Couldn’t we just burn them to death at a private family affair like we do with people who sleep with their in-laws? (Lev 20:14)

I know you have studied these things extensively, so I am confident you can help.

Thank you again for reminding us that God’s word is eternal and unchanging.

Our problem in Anguilla is that we jumped from the childish credulity of worshiping Bronze Age barbaric gods of circa 1350 BCE, revitalised by the Gospels and the Koran, into the electronic and digital age without having stopped off at the Enlightenment Period of the seventeenth and eighteenth centuries.

The enlightened among us must confront religious extremists whenever they stick their faces above the parapet.  We must oppose their twisted rantings for the sake of the mental health of our children and grandchildren, if for nothing else. 

The barbaric knifing of Salman Rushdie in New York at the command of the late Afghan Ayatollah is not peculiarly Muslim behaviour.  Christians among us in earlier centuries behaved in the same murderous way.  During the Reformation period in Europe (1500 to 1700 approximately), Catholics murdered millions of Protestants while Protestants murdered millions of Catholics in retaliation.  In the same way, for centuries the Sunni majority militants murdered Shia minority Muslims.

Most of us who were brought up Christian, Muslim, Hindu, Sikh, or Buddhist, have culturally evolved away from such madness.  Only Catholics, Baptists, Pentecostalists, and Suni Muslims are left today to wallow in ancient, murderous, religion-inspired hatreds.

Government of Anguilla Rental of Private Office Space

 

You may have heard the Premier’s answer to Mr Carlton Pickering Sr’s question at the last Government Press Conference.  He asked whether in this time of limited resources, government needed to rent so much private office space around The Valley.  He asked, would it not be a better use of public funds to limit occupation to government-owned premises.  I was struck by the Premier’s response.  He replied, in essence, that while he agreed with the sentiment, government could not give up the rentals at this time.  Government must keep a balance between the public good and private needs.

It would be wrong, he said, to bring those rental leases to an end when the private owners may have mortgages to repay.  Enough Anguillians have lost their properties to the banks when they were unable to pay their loan instalments.  Some of them, he suggested, need the rental money to put food on the table.  Government, he said, must consider these private needs alongside government’s duty to protect public monies.  But I question this stance.  Is it ever right to show such generosity to certain selected individuals when scarce public money is being spent?

Setting aside for a moment the important question of the ethics, even legality, of using public funds to benefit private individuals, let us look at the merits of the explanation he offered in relation to the specific rentals.

We start in the grounds of the government secretariat with the Hubert Hughes building.  Mr Hughes was a prominent Anguillian, for some forty years a Member of the House of Assembly, and a past Chief Minister.  The ground floor of his building is rented for the use of the Department of Social Development.  The floor above is rented for the Probation Department.  I suppose that it is possible, though unlikely, that the late Mr Hughes had a mortgage that is still unpaid.  But I would hardly call him a man who was short of resources.  His children are all grown up adults now, prominent in politics and business.  I am sure that they are all capable of maintaining themselves.  Besides, the building is right adjacent to the government Secretariat, a much sought-after location.  Mr Hughes’ building could probably be rented to private businesses for more than government is paying.  It would, in effect, be doing the family a favour to give notice and move to available government-owned spaces.

Then, there is the Wallblake House that the Catholic Church leased to the Ministry of Tourism some years ago.  Are we still paying the rent, and keeping up the insurance and maintenance of the building and grounds?  It must be an expensive exercise, especially when you consider that we do not use the building but have essentially abandoned it.

For many years, the Attorney-General’s Chambers have occupied extensive rental space in Mr Clement Ruan’s Caribbean Commercial Center.  Can they not be fitted into the old National Bank of Anguilla (NBA) building presently partially occupied by the Premier’s office and the Inland Revenue Department?  The Premier might appreciate having his lawyers’ offices close at hand.  The proximity would make advice on tricky situations easier to obtain.  Of course, the NBA building is not owned by government, so far as I know.  But I believe I heard they stopped paying rent on it to NBA’s Receiver.  Are they occupying it rent-free on some private arrangement that has not yet emerged from the fog of NBA’s liquidation?

Mr Clement Ruan also rents office space to the Ministry of Social Development.  Mr Ruan is one of the biggest businessmen in Anguillian commercial life.  I don’t think he has any need for government largess or generosity in renting office space from him.  I doubt he has a mortgage, and he is unlikely to have small children needing food on the table.  I can’t imagine he was pleased, if he heard the Premier, at being placed in the ranks of the needy in Anguilla.

The late Mr Roy Rogers was a past Speaker of the House of Assembly.  He was a prominent politician and a distinguished member of one of the elite business families of Anguilla.  He moved in the highest political and business circles.  I find it hard to believe that his family needs the rental money from WISE for his building next to the Princess Alexandra Hospital.  I can’t imagine they have any mortgage problem or difficulty putting food on the table.  Besides, now that the Secondary School is moving to its new premises in the Farrington, the old Comprehensive School classrooms in The Valley would be an ideal substitute for the Rogers building.  Is there any reason why the Department of Education could not find space in the old school building for WISE to occupy?

And does the Air and Sea Ports Authority have to continue to rent space from Mr Quincy Gumbs at the Fairplay Complex building?  Mr Gumbs is a well-known businessman and political consultant around town.  He has been a close adviser to one government after the other over the past forty years.  The office space in question is in a desirable location.  Would he not fill it immediately the Authority gave notice they were vacating?  We all expect that ASPA will give notice as soon as their new building at the port is completed.

The late Mr Albert Lake OBE was reputedly the richest man in Anguilla when he died some years ago.  The upper floors of his building on the other side of the road from the Albena Lake-Hodge Comprehensive School have for years been rented by the Education Department.  Now that the school is moving to its new building in the Farrington, it does not seem likely they will continue to require this space in The Valley.  No one can realistically suggest that Mr Lake’s family needs the government rental of this property to put food on the table.

When the Blowing Point Ferry Terminal and Police Station were destroyed by Hurricane Irma in 2017, government had to find temporary accommodation close to the port.  The heirs of the late “Big Jim” Romney came to the rescue with their building that the terminal presently occupies.  But now that construction of the new Ferry Terminal building is rapidly progressing, we would hope that government plans to move all their activities into the new building and give up the Romney building.

The idea that the Harrigan family needs the government rental money paid for the use by the Department of Youth and Culture of part of their Cannonball building is laughable.  They are one of the wealthiest of the elite families of Anguilla.  Members have long been prominent in politics and local business.  If Youth and Culture were relocated to some government office space, no one could believe that the family would be put to any hardship.

The Anguilla Development Board (ADB) has long rented other space in the Cannonball building.  This Board is part of the Ministry of Finance, and could easily, I imagine, be squeezed into the NBA building.  Besides, a few years ago the ADB had plans to build new office space on the open field to the south of the NBA carpark.  This is government land that has been designated for use by the ADB.  The new ADB building should be designed to be big enough, at little extra cost, to house other government offices.

The Babrow building behind the library has been occupied by the Environmental Health Department since Hurricane Irma.  I am sure that the family welcomed the business at the time, but there is a vast, new Public Health building that has just gone up next door.  I find it difficult to imagine that there is no plan to give notice to the Babrows and for Public Health to move to their own new building.

The Social Security Board is one of our wealthiest corporate citizens, banking millions of dollars, we are told.  Does the Department of Disaster Management really need to keep the Board in funds by paying rent to it?  And why does the Anguilla Civil Servants’ Pension office have to rent space in the same building?  It can’t be a very big office, probably no more than one or two staffers.  Both these Departments should rank no more than a desk each in the spacious new offices of the Department of Inland Revenue.

I wonder if the Premier might reconsider the explanation that he gave Mr Pickering.  Is it ever right to spend public resources to benefit private interests even if they have a mortgage to pay?  After all, whose side is government on, the masses or the elite?  If this matter were brought to the attention of the Chief Auditor, what would be his response, I wonder?  Might he question whether some of these rentals smack of cronyism?

Constitutional Reform Again

 

Constitutional and electoral reform is in the air again.  I heard the Minister on the radio some days ago promising that we should see the roll-out of Government’s new draft proposals that it intends to urge on the UK Foreign Commonwealth and Development Office (FCDO), within the next month or two.

When Government publishes the promised draft Constitution, I shall study it carefully.  Will it be a version of the constitutional abortion that the AUF Administration in 2019 presented to the FCDO team during the November negotiations?  Or will it accord with the 2017 draft that the Constitutional and Electoral Reform Committee presented to the Government of Anguilla (GOA)?  Or will it be based on the 2020 FCDO draft that they sent GOA shortly after the 2019 consultations but which Government concealed from us until early 2022?  It can be found on the government website.  It is based on our locally produced 2017 draft.  I suggest that whatever Government proposes, it must be consistent with, if not identical to, the FCDO draft.  I wonder why Governments like keeping us in the dark about these matters for so long!

I don’t blame you for not remembering what the previous Administration did in 2019 to ruin our 2017 proposals for constitutional reform.  So much time and so many traumatic events have occurred since them, that the memory is hidden under psychological scar tissue.  So, I’ll briefly remind you of the assault by the AUF administration on the original reform proposals.  Those 2017 proposals (set out in a draft Constitution, Elections Act, and Electoral Boundaries Commission Act, emerged from extensive public discussions in person, on several radio stations, and in widely published newspaper articles and papers, between 2000 and 2017.  The AUF administration presented to the FCDO in 2019 their changes to the 2017 proposals with no real attempt to explain their changes to us, far less to secure our agreement with them.  These changes gutted the Committee’s 2017 reforms.

Electoral reform was part of the mandate of the 2000 David Carty Committee, the 2006 Commission, and the 2017 Committee.  The resulting draft new Elections Act of 2017 was contained in the 2017 Report.  The AUF Administration succeeded in 2019 in persuading the FCDO, in effect, to help them sabotage the most vital electoral reform proposals.

The first insult to the 2017 electoral reforms was to remove the provision for regulating campaign financing.  The people wanted to bring an end to the old vote-buying system.  Each party was to prepare and publish a budget showing where its campaign financing is coming from and how it will be spent.  They will go to jail if they are found to have lied.

In some countries, campaign financing legislation prohibits a political party from soliciting funds from the public.  Campaign financing laws limit each party’s spending only to the sum of money provided by government to each party.  That way, all parties are financially on the same footing.  You go to jail if you are found to have cheated.  The AUF’s draft Constitution completely omitted any mention of campaign financing.

Another 2017 provision that was left out without explanation was for the regular revision of the Voters List.  At present, there is continuous registration with no revision.  Once you get on the List, you can practically never be removed.  If you emigrate and remain away from Anguilla for forty years, you remain on the List.  The List is never cleaned up.  The Committee recommended it be revised every ten years after the usual decennial Census exercise.  The people demanded it.  They left it out.

Yet another provision that was omitted was to reform the Assembly by having thirteen elected seats instead of seven, to abolish the nominated members, and to remove the votes of the two ex-officio members.  They merely got rid of the nominated members.  The voters were supposed to be more fairly distributed among the constituencies as settled on by the Electoral Boundaries Commission, with nine more or less equal districts and four at-large seats.  In 2019, the AUF and the FCDO changed this without warning or discussion with us.  They imposed a rushed 2019 Amendment Constitution and an Elections Act that kept the same old unfairly populated seven constituencies, merely adding the four at large seats.  They omitted to abolish the position of Parliamentary Secretary, or to remove the voting power of the ex officio members, or to revise the boundaries.  They said it was too urgent to discuss.

This abortion of electoral reform missed the entire point of the exercise.  If it was designed to keep the incumbent party in office, it failed.  They lost the later 2020 elections.

Voters knew that the aim of the popular 2017 reform proposal was to ensure that Government would have six Ministers from the ranks of thirteen elected members of the Assembly.  With the proposed thirteen voting members distributed between six ministers, Government backbenchers, and the opposition, the six Ministers would never outnumber backbenchers plus the opposition.

Under the previous system, with four Ministers, a Parliamentary Secretary, and two ex officio members, (seven out of nine) ExCo dominated the Assembly.  The opposition hardly had a say in the deliberations.  The 2019 change to five Ministers, a Parliamentary Secretary, and two voting ex officio members (eight out of thirteen) did not alter the balance of control in the Assembly.  It was no reform at all.

Constitutional reform was the other part of the 2017 proposals to replace the 1982 Constitution.  What the AUF did in 2019 to amend the 1982 Constitution, just days before the general elections, was to cut the heart out of them.  And this without any explanation, save to assure us that the amendments were too “urgent” for further consultation.

What the FCDO did in 2019 in accepting the AUF’s betrayal of the 2017 constitutional and electoral reform proposals was to shore up ExCo’s domination of the Assembly.  With now five Ministers, two ex officio members, and a retained Parliamentary Secretary, ExCo controlled more than half of the thirteen voting members of the Assembly. 

An obvious omission made in the AUF’s 2019 Amendment Constitution was the Integrity Commission.  This watchdog institution was the most vital of the proposals for ensuring integrity, transparency, and accountability in Government going forward.  It may be obvious to us why the AUF omitted it without explanation, but we must insist it be put back in.  The FCDO’s draft 2020 Constitution now before us for discussion does so.

The 2017 public finance constitutional reforms were strongly resisted by the previous Administration.  In 2019, they circulated a paper claiming that these provisions were unnecessary as they were already present in existing laws.  In fact, they sprang from a draft Anguilla Public Finance 2015 Order in Council circulated by the FCO in that year.  This essentially proposed that Anguilla’s management of her public finances be turned over to a UK appointed official.  He would be empowered to cancel all ExCo decisions and repeal laws passed by the Assembly if he did not approve of them.  This caused an almighty stir in the community.  The FCDO backed off.

By 2015, because the Government of Anguilla had for so many decades been living beyond its means, its finances were in a disastrous state.  There were various statutes and Memoranda of Understanding with the FCDO that were designed to ensure that government spending was conducted in a regulated manner.  We never followed any of these statutes or agreements.  The FCDO must have been at its wits’ end.  That is why they wanted to impose on us by a 2015 Order in Council the rules we were supposed to be following.  To ensure the rules were followed, the control of our finances would be entirely placed in the hands of a UK administrator, superior even to the Governor.

What the 2017 Committee proposed was that we introduce the most important contents of the 2015 draft Order in Council into our Constitution.  We would, of course, omit the unacceptable provision that a UK bureaucrat could reverse decisions of our Cabinet and laws passed by our Assembly.

The idea behind our 2017 proposal was that if we imposed these financial management rules on ourselves through our Constitution, there would be no need for the UK to take our finances away from us.

Further, by our taking the financial management rules out of the previous long-ignored statutes and rules, and placing them in our Constitution, we would give the rules increased force.  Breach of them would be not only against a law but be unconstitutional.

It is essential that whatever our new Government proposes to the FCDO, it must be consistent with, if not identical to, the substance of the 2020 FCDO draft Constitution.  This draft came out of the negotiations conducted with the AUF’s negotiating team in November 2019.  Through this 2020 draft, the FCDO has redeemed itself from its earlier betrayal of us in 2019.  It accepts nearly every one of our 2017 proposals.  Only a few provisions remain to be resolved.  These are clearly marked in the FCDO draft and should be the only issues remaining for discussion.  None of them is particularly difficult.  Stay tuned.

When You Are Convicted

 

On 30th June, Minister Dee-Ann Kentish-Rogers resigned her position in Executive Council (ExCo) and crossed over to the other side of the Assembly.  Then, on 4th July, she re-joined ExCo.  She subsequently explained in the House of Assembly that she had a serious meeting with the Premier, who agreed to meet all her conditions for returning to her ministerial post.  The Premier having now met her concerns, she said, she was convinced that ExCo was where she could serve her people best.  This apparent flip-flop caused great consternation among the chattering classes.

The incident also spurred a weird malapropism that has filled the radio waves in recent weeks.  Her critics accuse her of failing to be convicted.  They want to say that, if she is convinced about something, she should act on her convictions.  Instead, they say she is not sufficiently convicted.  Commentator after commentator repeated the strange expression that she has failed to be convicted.  She was not convicted of anything.  When you are convicted, you go to jail.  You are convinced about something, and then you act on your convictions.  You aren’t convicted of it.

Let us look at how events developed.  At a public meeting in Rey Hill on 29th June, surreptitiously broadcast nation-wide on radio without her permission, Minister Kentish-Rogers was implored by family and friends to immediately resign from ExCo.  The following day, on 30th June, she resigned from the governing party and from government.  Later that day she explained in the Assembly, where she spoke from the opposition benches, that the prevailing message from her constituents was that they viewed her not resigning earlier as a betrayal.  She resigned, she said, because she was displeased with the manner in which the Premier handled the imposition of the tax.

Though she had just resigned her ministry, she nevertheless voted in favour of the GST Amendment Bill then before the Assembly.  Her explanation for her vote from the Opposition benches in favour of the government’s Bill was clearheaded.  No one paid attention to her explanation that the proposed amendments were designed to lighten the GST burden on the people of Anguilla.  So, she approved of the Amendment Bill.  When you think about it, it is inconceivable that the opposition could have voted against the Amendment Bill.  If they genuinely had any concern for the interests of the people, they would have voted in favour of lightening the load.

Her vote in favour of the GST Amendment Bill caused great consternation throughout the island.  Radio talk show hosts and commentators took the irrational view that her leaving government over the imposition of GST, and her subsequent vote in favour of the Amendment Bill, were inconsistent.  She was repeatedly accused of going against the wishes of her constituents that she should permanently resign.

Then, on 4th July she appeared in the Assembly, this time seated back on the government benches.  That same day, she released an audio-visual message explaining that she left ExCo because the path that was taken to implement the GST was not sensitive enough to the concerns of the public.  She had now decided to re-join the government based on the Premier’s promise to her to be more inclusive and her desire to ensure the people’s voice was given primacy in the decision-making process and that other means of economic development were pursued and explored.

Judging by their public statements, neither Minister Hodge nor Minister Kentish-Rogers resigned from government because of GST per se.  They both explained they resigned because they did not approve of the way the Premier handled the introduction of GST, not because of the principle of introducing GST.  Even some of the radio commentators declare to this day they are not opposed to GST.  They merely say this is not the right time to impose any new tax.

The public uproar in my view was a self-inflicted wound.  Government simply did not make enough of an effort to explain to the people why they were obliged to implement the GST they had been elected to get rid of.  It was the lack of any public relations effort to soften the blow that is to blame for the current disaffection in the community.  There is a long list of exemptions and zero-rated items in the supermarkets that they could have publicised.  Personally, I have no idea what the list is.  I have never seen such a list.  Government has taken no step to explain or publicise it.

Maybe the increased list of exemptions was posted on Facebook.  I don’t do Facebook.  I am exposed to news items on the radio, articles in the newspaper, posters in the Post Office, leaflets in my post office box, WhatsApp voice notes and texts, public meetings broadcast on radio, lectures at the Teachers’ Resource Centre, podcasts, and webinars.  Not one of these media was used to publicise the exemptions.  Yes, it is exhausting, but that is what the government’s public relations department is for.

One or two of those media alone would not do the job.  For such a controversial topic as imposing a 13% goods and services tax against wide-spread opposition, every method of communication called out to be used.  The rule should have been, say what you are going to tell them, then say it, then say what you have just told them – repeatedly, on one medium after the other.

They could have repeatedly hammered home to the public that if they did not implement the GST Act passed by the Assembly several months earlier, the previously agreed Caribbean Development Bank loan (which was conditional on us implementing GST), and which we desperately needed, would have been cancelled.  Continued British government financing (which had been negotiated and agreed in principle by the previous administration) of our recurrent and capital expenses would have come to an end.  Government would have collapsed.  They could have explained and detailed the efforts they were making to cut the cost of our top-heavy administration.  They could have explained in detail and repeatedly what the consequences of their abandoning the agreement over GST would be.  They did nothing of the sort but kept silent.

Now, don’t get me wrong.  I hold no brief for GST.  I have not studied the Act.  I have not even read it.  I am not in favour of it.  Nor am I opposed to it.  I am now retired and have stopped earning fees as a lawyer.  I have no need to familiarise myself with the intricacies of taxation.  I think, as previously explained in earlier articles, that the tax is a waste of time and effort and will do little to boost government’s revenue.

It is everyone’s duty to take every legal action to minimise your own tax burden.  You are not obliged to provide the Comptroller of Inland Revenue with a bigger shovel to dig deeper into your little savings pile or your earnings.  There are many ways to minimise or avoid the tax.

Now that inflation is a growing problem, we must all do our bit to reduce our expenditure.  I no longer buy good quality wines.  They are too expensive.  I buy rum instead and dilute it with lemonade made with my home-grown sour oranges.  I have put my dogs on a diet.  Instead of a full scoop of kibble, they must make do with half a scoop.  I patronise small businesses that do not impose GST.  If I am asked if I want a receipt for anything purchased with cash, I smile and decline.  What the shopkeepers do about recording those sales is their business, not mine.  Those little bits of paper clutter up my environment anyway.

I wish Ms Kentish-Rogers only the best in her Ministry of Education.  I know she has sacrificed everything for the good of her community.  Not many persons know that she has given up her government-supplied vehicle for use by the refuge for abused women and girls.  She is the only Minister I know of to be using her own transport.  She has incurred the wrath of her immediate family in her effort to complete her programme for education.  So much for the charge that she has no care for the welfare of her people and is motivated by a selfish need to preserve her salary income.

I know that she is driven to distraction by the crisis in our education plant.  The new High School was supposed to be handed over to government by the contractor in May.  I hear it is still incomplete.  All work on it has stopped.  She is speaking about appealing to the public for volunteers to try to get it ready for the coming school term in September.  No doubt, if only she can get the school opened, she will be satisfied and can rest for a while.  But she is not going to abandon her teachers and their students now, no matter how much pressure her family and friends put on her to join Kyle in solitary splendour on the opposition bench.

The Premier does not need advice from me.  But my free advice to him is to remember to keep his promise to her, whatever it was.

Abandoned Estates in Anguilla

 

God has his work cut out for him in Anguilla.  And what connection does God have with estates in Anguilla, you ask.  I’ll tell you.  But first a little background will help.

I am not certain how much land in Anguilla is without a living registered owner.  But there is a lot of it.  Shortly after I came to live and work in Anguilla in 1976, I estimated it to be over half of all properties.  Indeed, before the Cadastral surveyors came here in 1974, most land was without a titleholder.  This became evident as the registration process enfolded.  If you have read hundreds of land dispute records, as I have, you would come to the same conclusion.

The Cadastral surveyors divided the island up into several Sections.  Each Section was divided into Blocks.  And each Block was divided up into Parcels.  Every inch of land was surveyed and given a Parcel number.

The surveyors methodically went through the island Block by Block.  They called on anyone who claimed an interest in any Parcel of land in a particular Block to be present at a location on a day and time, and to make their claim.  If any claim was contested, a Hearing took place.  The surveyors made a Decision on the dispute.  If anyone was offended by a Decision, they could appeal to an appeal tribunal.  That tribunal listened to the evidence and made a Decision.  Anyone offended could appeal to the High Court, then the Court of Appeal, then the Privy Council.  I know of only one dispute that went the whole way up.

Very few of the persons who made a claim in 1974 held a title deed to their land.  For most, there was no title document of any kind.  Most claimed as an heir through a Will, or by showing a receipt for a purchase.  Persons who held a deed were registered as owning their Parcel “absolutely”, an unchallengeable and the best title there is.  Persons who had only a Will, or a receipt, or a letter, or a claim by long possession, were registered as having “provisional title”.  After a period of years, twenty as I recall, they could go to the Registrar of Lands and apply to perfect their title by changing it to “absolute”.  Land held by provisional title was not considered marketable, as the registered owner might encounter someone else with a better claim, and find the land taken away.

Most land in Anguilla was registered during the Cadastral registration process of 1974 in the name of “the heirs of” the last person with a title deed or other apparently valid claim to own the land.  Such land could not be dealt with by the heirs until they appointed someone to apply to the High Court for Letters of Administration to the estate of the deceased owner.

Such an application traditionally required a lawyer.  Most Anguillians objected to paying legal fees, claiming they were too high.  In those days, there was little money in circulation or in savings to pay even minimal legal fees, far less the death duties.  And there were no lawyers residing in Anguilla.  All lawyers who practised in Anguilla lived in Antigua, St Kitts, or Tortola, merely visiting from time to time.

Persons began to congregate around the doors of the Registrar of the Supreme Court, who handled the administration of court process, demanding their right to apply on their own without a lawyer.  By 1978, the Registrar became overwhelmed with the work and the responsibility.  In particular, the Registrar was conscious that he should not be advising litigants on their court procedures.  He might even be accused of assisting someone in defrauding the rightful heirs of their estate.

In due course, the House of Assembly acted.  Death duties were formally abolished to make administration and distribution less expensive.  The Registrar was legally authorised to assist in preparing the application to the court for a grant of Letters of Administration.  All such applications were readily granted, since it was the same Registrar who approved the applications.  During my tenure, the court granted many hundreds of such applications in this way.  This process continues to this day.  The government earns a fee of 1% of the value of the estate for the use of its Registrar in providing this private legal service.

However, there was a hitch.  Not all Administrators were honest.  Not many of them sought or took legal advice on how to properly perform their duties as Administrator.  In some cases, they were representing the estates of persons who had died hundreds of years previously.  After so many decades, it was difficult to be accurate in determining who exactly were the persons who were entitled to make a claim on the estate.  Many rightful heirs were cheated.

Mainly, the Administrators did their best in administering their responsibilities.  Their best did not always equate to doing the job properly or even at all.  Many Administrators died without having completed, or even begun, the administration.  This necessitated one of the heirs starting all over again with a new application to the Court.  A great deal of land in Anguilla lies afflicted by this blight.

So, you ask, what exactly is an Administrator expected to do?  It is important to know that an Administrator is a trustee.  Trustees bear a great responsibility.  And there are severe penalties for failing to perform those responsibilities properly.

One of the documents that a prospective Administrator must sign is a Bond.  This Bond is an agreement to pay into Court an amount of up to twice the value of the estate to compensate the heirs for any losses that a maladministration may cause.  And it must be co-signed by two sureties who promise that in case the Administrator fails to pay up, they will pay the amount of the Bond into court.  That is an awesome responsibility and liability.  It is difficult and embarrassing to call on friends or family to sign a Bond for you that may involve them in losses of millions of dollars.  An executor appointed under a Will does not require a Bond.  That is another reason why you are advised not to die without leaving a Will.

One of the responsibilities of an Administrator is to divide up the estate and distribute it to the beneficiaries within the Administrator’s Year.  The Administrator’s Year can, if there is sufficient excuse, be extended for up to three calendar years.  Any longer than that can be actionable misbehaviour.

If the Administrator does not diligently progress the distribution within three years, he is liable to be sued, ordered to compensate the heirs for any losses they suffer, and have the Grant of Letters of Administration taken away and given to someone else.  In Anguilla, few disappointed heirs take the trouble to enforce their rights through such court action.  This is understandable as the defaulting Administrator is usually a brother or sister or a close cousin.

The more normal remedy is the usual Anguillian one.  The suffering heir lifts his face to heaven, extends his arms upwards, rolls his eyes, and exclaims, “Me boy, I leaving he to God.  I leaving he to God.”  Very few Anguillians take the trouble of defending their rights through a court remedy.

So, how does an Administrator avoid this heavenly imprecation?  The first rule is to make sure to get competent legal advice.  A lawyer will be able to guide the Administrator through all the hoops and stumbling blocks in the way forward.

The main rule that an Administrator will be warned to follow is to involve the other heirs as much as possible in the process.  Do not divide up the estate without the prior approval of the family, or at least after consulting them.  Either call them to regular meetings to discuss progress, or if this is not practical, write them with updates on a regular basis.  A lack of communication is the root cause of most suspicions and distrust.

If the heirs do not agree to come up with their share of the administration expenses, set aside an area of land, say a half-acre, to be sold to meet the expenses.  The expenses are numerous.  The application to the court costs over a thousand dollars.  The survey can be several hundred dollars per acre.  The lawyer’s fee will be a percentage of the value of the estate.  There may be arrears of property tax to be paid.  Fortunately, there are no death duties.

In my time, the lawyer’s fee was typically 2% of the value.  Government charges 1% for the Registrar’s office preparing the application.  So, 2% is not much when one considers the amount of work that must be done to guide the Administrator through the process.  The Registrar gives no such advice.  Suspicion can be avoided by performing the simple duty of regularly accounting in writing to the heirs on all monies received and all bills paid.  It is the Administrator’s duty to do this anyway.

Given the large number of Anguillian estates that are still unadministered after more than forty years, it is amazing that there are not more lawsuits against Administrators.  All I can assume is that God is very busy trying to sort out these Administrators.  This is a heavy burden to place on the shoulders of the good Lord.

If the Administrator appears either to have abandoned the task he volunteered for, or to be squandering the estate, or to be defrauding the other heirs, they should not hesitate to consult their lawyer and have a stiff letter written to the Administrator.  If the letter does not get immediate compliance, then the heirs must pool their resources and file a claim in the High Court.  The Administrator or his Sureties will have to pay up the legal costs at the end of the day.  God best helps those who help themselves.

Suicide by GST

When the autopsy comes to be performed on the body of the current APM administration, the ultimate cause of death will be disputed.  The favoured view among local forensic experts will be that it was the betrayal of the party’s promise to the people that, if they were elected, they would reject the previous administration’s commitment in principle to enacting a Goods and Services Tax (GST).  There is much merit there.

A minority view will be that it was the Premier’s failure to choose the alternative, to reduce the cost of government, that led to its decease.  There is a lot of merit in that view.  It reflects widespread demand for cost cutting.

But what it misses is that any administration attempting to slim down government would incur the wrath of a plump and entitled public service to such an extent that they would be blocked at every turn.  A slimmed-down, enraged public service could and would bring down any Anguillian government.

In practical terms, the proximate cause of death is likely to be that government could not make the quorum requirement of nine members to be present in the Assembly (two-thirds of thirteen).  One minister has resigned and gone over to the opposition benches in the Assembly.  Government now has eight seats in the Assembly (six elected plus two ex officio) compared with the opposition’s five seats.  When time on the 2022 budget runs out early in 2023, if the opposition boycotts the Assembly, and if the ruling party cannot muster nine members present, the governor will be obliged to dismiss the government and call general elections.  That is instant death.

The fiscal issue behind the introduction of GST was the need to fill a gap of some EC$22 million between tax receipts and recurrent expenditure.  Our government’s borrowing to pay salaries grows greater year after year.  We have been lucky to have benefitted from gifts from the British taxpayer to the extent of hundreds of millions of dollars.  To solve the budgetary dilemma, the choice the Foreign Commonwealth and Development Office (FCDO) gave us was stark.  Either you raise that sum in additional taxes or cut that amount of fat from the cost of government.

The crucial moment came the day after winning the general elections on 29 June 2020.  It seems the Governor must have explained to the new Premier that salaries were due to be paid the following day for the month, and there was no money in the Treasury.  The Premier must have been in a quandary.  However, the Governor would have explained, there was a solution.  Endorse the previous administration’s promise repeatedly made to the FCDO and all your worries are over:  Agree to pass the AUF’s GST without delay and implement it, and the FCDO would make a gift of another EC$100 million to pay public service salaries for nearly a year.  By the end of the first year after GST you should be able to raise enough revenue to continue paying your bloated public service salaries.  At $22 million a year, that injection of money would be two-thirds of the monthly public service salary bill of $5 million for ten months.  It was tempting.

For the unaware onlooker, it is important to explain that the new administration had won over the voters and succeeded in the 2020 general elections mainly by promising that, if they were elected to office, they would get rid of the AUF’s GST on day one.  To accept the governor’s suggestion would therefore be to betray the main plank of the legislative platform on which the successful party had campaigned.  On the other hand, to refuse the governor’s suggestion would be to leave the public service unpaid at the end of the month, that is in one day’s time.

The public service, consisting of over 2,000 persons, if you include contract and non-establishment workers, constitute the largest group of the approximately 6,000-person work force in Anguilla.  They are a powerful body, with which no government wants to tangle.  The public service is completely insulated from the political class.  It is illegal for any politician to discipline any member of the public service.

Among Anguillians, the public service is almost universally despised.  This dislike does not extend to those few public servants who provide a real public service: nurses, doctors, teachers, social workers, police and fire service, prison officers, etc.  Many of the others provide little or no real service.  They sit smugly in their airconditioned offices, enjoying their perks.

The public administration department justifies its existence by recruiting every week more and more useless secretaries and clerks.  There are on average, I estimate, five of them doing the job of one.  Ministers, Permanent Secretaries, and other important officials vie among themselves as to who can get their most unemployable cousin appointed to a plush public service job.

During the period 2020-2021, the ports were closed.  Tourists were barred.  The entire island was in Covid-19 lockdown.  People were forbidden under penalty of imprisonment to leave their homes.  Passenger traffic was closed for some eighteen months.  Even after we reopened, permission to enter the island was required for another year. 

As businesses collapsed island-wide, many hundreds of private sector employees were let go without pay or even the promise of reemployment once the lockdown was over.  The Social Service Fund was raided to pay unemployment benefits.  Meanwhile, the public service continued to receive their full salaries and allowances.  There was no need to provide most public services since the public could not access government offices.  Public anger was exploding.

It was at this critical moment that the new administration came to office.  When the Governor gave the new Premier the choice, either accept the AUF-agreed GST deal or cut expenses, the Premier might have remembered and acted on his promise to the people who elected him.

He could have refused to sign the offered MOU and gone back to consult the public.  He could have told the governor to send home some or all the public service while he put the two options to the public.  That was the type of change from the way the previous administration handled decision-making that the public were expecting.

He could have explained to the people that after the double whammy of Hurricane Irma, which destroyed the island’s infrastructure in 2017, and the Covid-19 eighteen-month lockdown of the island’s economy during 2020-2021, the previous administration had no choice but to accept imposing the demanded increased taxation in exchange for UK aid to rebuild the island.

He could have better explained that the previous administration agreed to impose GST only after every expert they consulted recommended it as the best option for the island’s sustainability.  He could have explained that the best option was to accept the cards he had been dealt so that he could pay the public service.  We desperately needed the offered $100 million.

Or, he could have put the other option, which was to slash the widely believed to be bloated public service.  If it seemed the majority view was that he should not accept the offered money, he would have been free to demand a savage cost-cutting exercise.  This option was and is popular, and if the Premier accepted it, he would have basked in the popular gaze.  He would have been praised for listening to the people.

Anguilla’s public service would not tamely accept mass lay-offs, cancellation of travel and allowances, garaging of the fleet of vehicles, switching off government offices’ lights at night, and disconnection of all office air conditioners.  They would retaliate.

In the general elections that would have followed the inevitable public service-led fall of the government, his party would likely have been re-elected with an increased majority.  The opposition would have had no platform to stand on.  He would have shown himself to be true to his principles, and to have performed the one act that his followers wanted most of all:  to be rid of the burden of a perceived bloated public service which was causing them to pay, and pay, and pay.

Instead of taking his dilemma to the people, he concealed it.  He took the resolute view that he had been elected to govern.  He made finding the solution to the crisis his burden alone.  In hindsight, this was counterproductive.  This was his mistake.  For months he said not a word.  When the realisation sunk in that he had, without any explanation to the people, without any attempt to sell his decision to his many followers, silently betrayed his election promise to them, all his political capital instantly drained away.  He should have realised it would be political suicide for him to quietly drop his election promise and agree to go along with the AUF-agreed GST.  His self-confidence would be wilfully misconstrued by his enemies as a lack of interest in the views of the public.  He would be described by some of the more malicious of them as having no care for the welfare of the people.  No later amount of fiddling with the AUF’s GST details (for example, increasing the number of exceptions) would succeed in protecting him from the charge of betraying his supporters.

I forecast that imposing GST on uninformed and uncooperative Anguillian consumers of goods and services will not result in any great increase in revenue.  Given the history, culture, and character of Anguillians, the GST will be widely evaded.  So many of us will avoid collecting or paying the new tax that its effect on revenue will be minimal.  Bills that were previously paid in cheques that can be easily traced will now be paid in cash.  Bills that were previously paid in cash will now be paid in barter of goods and services.  Other than in the bigger supermarkets, few cash sales will be receipted or recorded.  It will be normal for businesses to keep two sets of accounts.  Few will declare their true income to the Statistics Office or to the Inland Revenue Department.

But these are criminal offences, you will say.  You should know that never in the history of Anguilla has a single tax dodger been prosecuted.  There is no member of the Inland Revenue Department experienced in enforcing tax offences.  There is not a single police officer or other investigator who has ever entered a business-place to check on its accounts.  There is not one government lawyer who has prosecuted a tax offender.  Everyone in Anguilla is related.  Enforcement will be a joke.

Government has not been able to collect the millions of dollars of Accommodation Tax owed.  Property Tax is several decades old.  The Chief Auditor tells us that no more than 40% of it is collected.  If we do not collect the present taxes, why should anyone expect that we are going to enforce collection of a new one now?