[This is the third of five parts of a speech delivered at the Continuing Legal Education Seminar of the OECS Bar Council Meeting arranged by the Anguilla Bar Association at La Vue Hotel on 2 December 2016]
Part 3
We are considering what alterations need to be made to our constitutional system if we the people are to have confidence in our governmental arrangements. In the last two weeks we looked at the elements of “transparency” and “accountability” which are essential for good governance. We continue now with the third element.
Transparency: The third key element of good governance is transparency. It is the lack of transparency in our systems of government that causes so many of our ministers’ actions to be suspect. Most politicians do not seek public office solely to engage in making back-room deals and accepting under-the-table packages, contrary to popular opinion. Voluntarily introducing mechanisms and techniques that guarantee transparency would give the self-confident politician the tools to demonstrate his honesty, effectiveness and integrity.
There are various proven systems that we can put in place designed to increase transparency. Let us look at some of them.
Mercy Committee: In most of our territories, the Governor, or some other member of the executive, has the constitutional power, without any public involvement, to decide on early release from prison. In some cases, the Prime Minister can do it on a whim. This is a most unsatisfactory state of affairs. This function is best performed by a Mercy Committee.
Boundaries Commission: Independent, politically balanced Boundaries Commissions are essential for guaranteeing public confidence in our election system. There is no reason why the modern practice of having the electoral boundaries re-examined after every population census should not apply universally.
Voters List: In Anguilla, it is generally agreed that there is a need to clean up the Voters List to remove all persons who may be wrongfully on it. As it is practically impossible under our law, in the absence of death, to remove a person from the Voters List once he is on it, even if he has moved away from Anguilla for many years, periodic enumerations will be necessary to ensure the List is kept relevant. At present, under our system of continuous registration of voters, the practice is for politicians or their agents to submit to the Registration Officer bundles of applications for registration. No vetting actually takes place before the busy electoral officer registers them. Under our electoral reform proposals, applicants for registration will be required to appear in person at the office of the Supervisor of Elections, who is mandated to require the applicant for registration to prove that he is qualified to be registered.
Public Service Commission: Unless all appointments to the public service are constitutionally placed in the hands of professional Public Service Commissions, governed by appropriate laws and regulations, trained in the exercise of their functions, and insulated from political interference, there will be no public confidence in the independence and integrity of the public service. Police officers should no longer be appointed at the sole discretion of the Commissioner of Police. Appointments up to the rank of Inspector will be made by the Deputy Governor, who is the head of the Public Service, on the advice of the Police Service Commission. Appointments above the rank of Inspector will be made by the Governor acting on the advice of the Police Service Commission, and after approval by the National Security Commission, which for Anguilla will be a new institution intended to advise the Governor on matters relating to internal security.
Open Meetings: Open Meetings legislation allows public access to government meetings, and ensures that their decisions are transparent and publicised. There is no reason why the constitution should not contain a clause requiring all governmental meetings such as those of Building Boards, Land Development Committees, Boards of Governors of Schools and Hospitals, and Cabinet itself, to be open to the press and public, within reason. The old, discredited practice, probably deriving from an outdated British Official Secrets Act, of hiding every decision and action of a department of government under the cloak of secrecy has proven itself not to be conducive to good governance.
Annual Reports: Government departments demonstrate transparency by regularly publishing reports on their activities. Departments are generally expected to publish Annual Departmental Reports and for the Minister to lay them before the legislature. This requirement was strictly enforced during the earlier colonial period, but seems to have fallen into disuse in many of our territories. These reports, even when they are prepared, seldom reach the public eye. They should be insisted on, and required to be published on government websites for the public to have access to them at will.
Post-Cabinet Press Conferences: Cabinet decisions taken on our behalf are our business, not the private business of government. Obligatory and regular Post-Cabinet Press Conferences would increase knowledge of, and encourage public confidence in, the functioning of government. If a common sense approach to transparent government is ineffective, then the constitution should mandate that Cabinet meetings are opened up to the public whenever possible.
Term Limits: Too many of our Premiers and Prime Ministers develop over time a God-delusion, and, worse, a sense of entitlement and ownership of the country. If their party continues to be elected to office beyond two terms, and they automatically become the head of government again and again, the result is an invariable deterioration in their performance and integrity. The Americans have cured this defect by instituting a maximum two-term limit for the President. We can benefit from this salutary provision by placing it in our constitutions.
Power of Recall: Elected representatives, particularly after they are appointed Ministers, sometimes lose their awareness that the public placed confidence in their promise to serve. A power of recall of an elected representative would serve as a reminder of his vulnerability if he is seen to betray the confidence of the public. The new Anguilla proposal contains a power of recall of a member of the Assembly.
Declaration of Interests: Additionally, within one month of the coming into effect of the new constitution each member of the Assembly will be required to file his declaration of interests, and to file it annually thereafter, failing which his seat in the Assembly will be declared vacated. If he is reluctant to publish his and his family’s assets, then he should not offer himself for public service.
Disqualification to Be Elected: By a constitutional provision, conviction of any offence of dishonesty or immorality will result in a Member’s automatic vacation of his seat in the Assembly, and disqualification for life. Additionally, there will be an automatic vacation of his seat in the Assembly if an elected member, which includes a Minister, breaches the Code of Ethics for Persons in Public Life.
Referendum: There is widespread agreement in Anguilla that the constitution ought to provide for Government to be able to seek the approval of the Anguillian public by way of a referendum on important initiatives. Additionally, there will be a provision to enable the people to initiate a referendum. Calling for such a referendum will require a petition to Cabinet signed by 25% of the electorate, and the result of the referendum will be binding on the government and the Assembly, once more than 50% of those voting support the question.
Standing Committees: A further constitutional check on an unrestrained executive will be the powers of the Standing Committees of the Assembly. There are required to be at least an Appropriations Committee and a Public Accounts Committee. They will have the power to summon any Minister or public officer to answer questions and to provide information and documents on oath in public hearings. The Standing Committees are to be chaired by the Opposition, are to report to the Assembly, and their Reports are to be published.
Motion of No Confidence: Another restriction on abuse of the powers of the executive is that the constitution will provide that a Motion of No Confidence must be dealt with within one month.
Fixed Date Elections: A fixed date for general elections is another widely supported constitutional precaution against abuse of the electoral system by a Prime Minister who has become more conscious of his power and privilege than of his promise to serve the public good. More and more Commonwealth Countries are adopting this provision, and we have recommended it for Anguilla’s new constitution.
Campaign Financing: Campaign financing is an area of political life that is the cause of much suspicion and speculation as to misconduct by some business persons and candidates for election. The draft new Anguilla Constitution proposes that campaign finances will be required to be audited and published. Political parties will be required to keep a strict account of all donations and contributions, whether in cash or in kind and whether made to or on behalf of the party or of the candidate. The name and address of every donor of $5,000 or more must be recorded. It is proposed that the Supervisor of Elections will impose a penalty of $2,000 per day on any party which fails to comply with the requirement to keep accounts and to file an audited report. Until the report is filed, or the penalty paid, a candidate who has been returned as a member shall be temporarily disqualified from membership of the Assembly.
[To be continued]
