It was confirmed by the Governor’s Office on Tuesday, January 24, that the legal opinion of Mr. Anthony Astaphan, S.C. ofDominica,on reductions from the salaries of public servants, had been received by the Anguilla Government.
On December 16, 2011, the Executive Council authorised the Attorney General’s Chambers, on behalf of the Anguilla Government, to seek legal advice from Mr. Astaphan about the implications of discontinuing the deferred payments to public servants and other Government officials. In other words, to make the reductions permanent instead of temporary. EXCO approved the payment of US$10,000 to Mr. Astaphan.
The matter arose from deductions from public servants’ salaries made by both the previous and present Governments of Anguilla, as a means of reducing expenditure due to the island’s difficult financial situation.
A copy of Mr. Astaphan’s opinion, dated January 5, has come to the attention of The Anguillian and is being reported on to some extent for the information of the public.Mr. Astaphan began his report by pointing out two caveats. One is that he had considerable difficulty with a ‘permanent’ reduction. He is of the view that “a more constitutionally viable approach would before an Act to reduce salaries and other emoluments for a period of two or three years. This would include provisions for consultations or amendments to allow the House of Assembly to either extend, reduce or modify the period of reduction as financial circumstances permit or at all. The second caveat concerns pensions. The provisions of sections 69 to 71 make it constitutionally impossible for the House of Assembly to unilaterally reduce pension rights or entitlements.”
He pointed out that subject to the above caveats, there was a need to make a comparison with an Act in Dominica which was successfully upheld. It was noted that inDominicaandBarbadosthere was constitutional protection whereby the salaries of certain persons, like Judges and Ambassadors, cannot be cut. In the Anguillian constitutional context, however, no protection of salaries is afforded to any category of workers, butwhile the Government is free to reduce salaries, it cannot do so arbitrarily.
Mr. Astaphan suggested that personnel from the Department of Public Administration and the Ministry of Finance should “meet soon to prepare a comprehensive paper on the country’s fiscal circumstances and projections, if any, for further deterioration unless urgent cost and expenditure measures are implemented, for submission to and approval by the Governor and House of Assembly.”
He stated that the paper should include data and any available reports on the present financial situation; the deteriorating conditions and increasing deficit; the public service costs to the Government; the other measures which the Government intends to put in place; the extent and duration of the reduction of the wage and other emoluments; and terms of the proposed legislation.
“As soon as this is completed and approved by the House, the Attorney General should prepare a draft Public Service and Fiscal Reduction Bill,” Astaphan stated. “This Bill should be circulated to all of the public service unions and officers for review, counter proposals if any and possible agreement. A specific time for discussions and/or agreement should be made clear. In all of this it is imperative that the Financial Secretary and Finance be able to establish the public interest need for this reduction of salaries and emoluments.”
Mr. Astaphan further pointed out that: “It is imperative that the Government of Anguilla do not rely only on reduction of the salary and other emoluments of its public servants and officers. It must be shown that the intended legislation is part of a bona fide attempt by the Government to reduce its overall expenditure and growing deficit. In other words, the Government intends to cut back on other expenditure across the board including that related to the Governor, Members of the House and Ministers.
“Also, it will be useful and important if the Government has, and can rely on, reports and recommendations from the Ministry of Finance, the Eastern Caribbean Central Bank, the World Bank or the IMF or some other similar institution. Once these recommendations are considered by the local authorities they will go a long way in supporting the critical, public interest factors required to justify the legislation and preserve the Act from constitutional attack.”
It is believed that Mr. Astaphan’s 24-page legal opinion is being studied by the Attorney General’s Chambers for presentation to the Executive Council which authorised the referral of the matter to the Dominica-based Counsel.
