[This is the second 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 2
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. Last week we looked at the element of “transparency” which is an essential characteristic for good governance. We continue now with the second element.
Accountability: The second area of checks and balances that promote good governance is that of accountability. Recognised devices exist, other than general elections every 5 years, to ensure that government is held accountable for its actions and omissions.
Ombudsman: The Complaints Commissioner is another name for the Ombudsman. Without an Ombudsman to call upon, the citizen must rely for enforcing his rights against an unfair or biased public officer on going to court. And, we all know how expensive and unsatisfactory that remedy can be.
Police Complaints Authority: We also need an independent Police Complaints Authority. Complaints by members of the public against the abusive or oppressive conduct of a police officer are usually heard and determined in private by the Commissioner of Police. Such a system does not make the police service accountable for the misdeeds of the odd rotten apple in the barrel, and leads to public distrust. Some progress is being made. Bermuda, Jamaica and St Lucia, among others, have introduced civilian oversight bodies for their police services. These are still deficient in that they may only make recommendations to the Commissioner who retains the primary duty to take disciplinary action against officers. While this has not been an entirely satisfactory a solution, what is certain is that it is no longer acceptable for complaints against police officers to be handled internally by the Commissioner of Police, and in secret, as presently occurs.
Human Rights Commissioner: Today, the citizen’s rights against administrative abuse can only be protected by the individual at great personal cost. It is time for our constitutions to provide the citizenry with a Human Rights Commissioner, sometimes called the Administrative Justice Board. This is a publicly funded institution which is authorised to bring an action on behalf of a citizen against any government agency for breach of the constitution or of the rules of natural justice.
Freedom of Information: In most of our countries, it is nearly impossible to obtain any information on the activities of any department of government, or to discover what files they hold on us. The administration is insulated from any notion of accountability to the public. Constitutionally mandated Freedom of Information Acts are long overdue. Under the new Anguilla constitutional proposals, the public will have a right, within reason, of access to all information held by public authorities. The Information Commissioner will receive complaints where copies of documents are refused, and will investigate, decide on, and report to the Assembly on compliance with the Act by public authorities. There is no surer mechanism for guaranteeing observance of the rules of natural justice than an effective FOI Act.
Public Accounts Committee: The Public Accounts Committee, or PAC, is the surest mechanism designed by our constitutions to enable members of the legislature to question and investigate the manner in which public officers have spent the monies voted to them by the legislature. The public purse is perhaps the most obvious area where accountability is essential. The PAC exists in theory in all of our constitutions, yet, due to lack of political will, and training and resources, it functions properly in few of our territories. Under the Anguilla constitutional proposals, the PAC will have power to summon witnesses to testify on oath in public hearings. The PAC must report to the Assembly, and if the Assembly adopts a report of the PAC and requests a minister to advise the Assembly on what action he has taken in respect of the report, the minister will have a constitutional deadline for responding.
[To be continued]
