In part 1, I made the point that the root problem between the Governor and the Chief Minister is not personal, but rather a problem of the relationship betweenBritainandAnguilla, and the different agendas of the parties in that relationship. The problem is therefore much bigger than these two gentlemen, and bigger than the Governor’s Office and the Government. It involves at least the Foreign and Commonwealth Office inBritainand the people ofAnguilla. To be blunt, it is foolish and unwise for any Anguillians to think that the problem does not or will not affect them. Because it involves everyone of us, any resolution of the problem for going forward which is not a creative one, and which advances the national agenda, will negatively impact everyone of us. This is why the call for unity, wise decision-making, and prudent behaviour is so important and urgent.
This problem of colonial governance is not unique toAnguilla. It is being experienced in everyBritishCaribbeanOverseasTerritory. In some it is more naked and raw than in others, but they all experience it in a way not experienced in Bermuda orGibraltar.
Now in part 11, I wish to share with you how the colonial governance is expected to be carried out inAnguilla. I do this by examining the powers of the Governor as expressed in our constitution. Thanks to Mr. I Don Mitchell who did this analysis, thus saving me much tedious work:
The Powers of the Governor as Expressed in the Constitution
In a British Overseas Territory (BOT), such asAnguillais, the Governor has extensive power and functions. He exercises these without being obliged to act on the advice of any local person or authority inAnguilla. In many cases, he is not even required to consult with anyone inAnguillain the exercise of his powers. These powers are greatly in excess of those vested in the Governor-General of an independent country. Some of his powers under the Constitution are:
1. He may by proclamation declare a state of emergency suspending some of our constitutional rights: Section 17.
2. His powers are not limited to those set out in the Constitution. Her Majesty, meaning the Secretary of State, may assign to him any additional powers: Section 19 (2).
3. He exercises the executive authority of Her Majesty inAnguilla, save only where some law vests those functions in another person: Section 22.
4. He appoints the Chief Minister: Section 24.
5. He formulates policy and exercises power over matters of defense, external affairs, international financial services, and internal security, including the police without being obliged to consult with the Executive Council: Section 28 (2)(a).
6. He appoints, transfers, suspends, terminates, dismisses, or retires, public servants without being obliged to consult the Executive Council: Section 28(2)(b).
7. He is not obliged to consult the Executive Council on any instructions given to him by Her Majesty: Section 28(2)(c).
8. He is not obliged to consult the Executive Council on any power that a law either expressly or by necessary implication empowers him to exercise without consultation: Section 28(2)(d).
9. He is not obliged to consult the Executive Council on any matter that he considers the service of Her Majesty would sustain material prejudice thereby: Section 28(2)(e).
10. He is not obliged to consult the Executive Council on any matter that he considers is too unimportant to require the advice of Council: Section 28(2)(f).
11. He is not obliged to consult the Executive Council when he considers that the matter is too urgent to wait for consultation: Section 28(2)(g). Note that section 28(2) sets out the “reserved power” of the Governor. He is required by the proviso to the section to keep Council informed of any matter that he considers may involve the economic or financial interests of Anguilla in relation to paragraph (5) above. In matters of urgency referred to at paragraph (11) above, he must as soon as practicable inform the Executive Council (ExCo) of the measures he took and his reasons.
12. Wherever in the constitution the Governor is required to consult with ExCo, he may act other than in accordance with the advice given to him if, in his opinion, it is inexpedient in the interests of public order, or public faith to do so. He must first obtain the approval of a Secretary of State. He must share with the Secretary of State the minutes of the meeting which sets out the opinion of ExCo: Section 29.
13. He may summon any public officer to attend a meeting of ExCo when, in his opinion, the business renders that presence desirable: Section 31.
14. He Presides at, i.e., chairs, meeting of ExCo: Section 32.
15. He appoints all five members of Public Service Commission, two of them after consulting, but not being obliged to follow their advice, the public service staff association: Section 65.
16. He appoints public servants after consultation with the Public Service Commission, but he is not obliged to act on their advice. He consults the Chief Minister in the case of permanent secretaries or heads of department. He is not required to consult anyone when appointing the Deputy Governor, the Attorney – General or the Chief Auditor: Section: 66.
17. He appoints the Magistrate, Registrar of the High Court, Crown Counsel, and any other officer required to have a legal qualification, after consulting the Judicial Service Commission, but he is not required to act on their advice: Section 68.
18. He signs all dispositions of public land inAnguilla: Section 75.
19. He may grant a pardon to, or reduce the sentence of, any convicted person without consulting anyone: Section 76.
20. He may create any new office in the public service and fill the appointment to it: Section 77.
21. He may, in exercise of his power of discipline over the public service, subject to any law in force, for cause shown to his satisfaction, suspend, retire, or dismiss any public servant: Section 78.
This is what raw colonial governance looks like – a one man rule, with no accountability to the people for the conduct of their affairs. I assume that behind this is the thinking that since he is not elected or paid by the people ofAnguillahe is not answerable to them. If this is so, then what of the Deputy Governor and the Attorney General who are not elected by but paid by the people? And where does all this leave the Chief Minister who is both elected by the people and paid by them? Does this type of governance respect the principles of democracy? How much longer should this situation go on?
In the present 1982 constitution, the powers and responsibilities of the Chief Minister are no where defined as they are for the Governor. The term “Leader of Government Business” is used at times (perhaps borrowed from somewhere) but it is not found in our constitution. According to the constitution, the Chief Minister’s role is limited to giving advice to the Governor with respect to the appointment and assignment of responsibility to Ministers of Government and the Parliamentary Secretary, and who is to perform the Chief Minister’s functions if he is ill or absent fromAnguilla. But recent experience has taught that the Governor is not obliged to follow the Chief Minister’s advice. In addition, the Governor is to consult with the Chief Minister on a few other matters, but is free to use his discretion when making the decision. Is this acceptable, and can it be void of conflict?
One other point for now: The constitution is clear, “… the executive authority of Anguilla may be exercised on behalf of Her Majesty by the Governor either directly or through officers subordinate to him…” 22(2). In section 19(2) it reads: “For the purpose of administering the Government of Anguilla, the Governor shall have such powers and duties as are conferred or imposed upon him by this constitution or any other law and such other powers as Her Majesty may from time to time be pleased to assign to him”. The words coming after “law” are potentially dangerous, and constitute a real threat to democracy. In fact, they disregard democracy at the local level.
A written constitution should be complete, with no periodic supplements assigning other powers to the Governor.
Here then is the second aspect of the fundamental problem: the conflict between colonial governance, which denies any real authority and power to the elected representatives, and democratic governance which gives full authority to the elected representatives of the people to form the government of the people, to work for the people, and therefore answerable to the people. The difference between the two systems of governance is the real cause of the conflict. Personality, manner and style dictate how the conflict is played out, but they are not the cause.
Going forward, this aspect of the problem has to be addressed in the constitution. The reform process, now in progress, must ensure that the negative, outdated and inimical elements of colonial governance are removed and replaced by the creative elements of democratic governance. This calls for understanding, wisdom, unity and courage on the part of Anguillians, and on the part of Britain, honest dialogue in the spirit of partnership with Anguilla. The colonialism of the 18th and 19th centuries has no place in the 21st century. Only a United Anguilla for democracy and progress can achieve the change we deserve and desire.
