Questions are being asked. Concerns are being expressed. The failure to utilise the established procurement processes in relation to three significant national projects has recently evoked significant discussions. One question that has arisen is why is the Governor silent in the face of what some persons consider to be a clear violation of good governance principles. Rightly or wrongly many persons look to the Governor to take the lead in ensuring that good governance is practiced.
In an effort to gain a better understanding and appreciation of the Governor’s role in the administration of Anguilla’s affairs the Anguilla Constitution was reviewed and certain observations were made. Section 28 of the Constitution establishes the areas of authority of the Governor acting alone, and those areas in which the Governor must act in accordance with the advice of the Executive Council (in essence the Ministers).
“Governor to consult Council
28. (1) Subject to the provisions of this section and the next following section, the Governor shall consult with the Executive Council in the formulation of policy and in the exercise of all powers conferred upon him by this Constitution or by any other law for the time being in force in Anguilla and act in accordance with the advice of the Council.
(2) The Governor shall not be obliged to consult with nor act upon the advice of the Executive Council with respect to the following—
(a) any matter that in his opinion relates to defence, external affairs, international financial services or any directly related aspect of finance, or internal security, including the police;
(b) the appointment (including the appointment on promotion or transfer, appointment on contract and appointment to act in an office) of any person to any public office, the suspension, termination of employment, dismissal, or retirement of any public officer or taking of disciplinary action in respect of such an officer, the application to any public officer of the terms or conditions of employment of the public service (including salary scales, allowances, leave, passages or pensions) for which financial provision has been made;
(c) any power conferred upon him by this Constitution that he is empowered to exercise in his discretion or in pursuance of instructions given to him by Her Majesty;
(d) any power conferred by any law other than this Constitution that he is empowered or directed, either expressly or by necessary implication, by that or any other law to exercise without consulting the Council;
(e) any matter in which, in his judgment, the service of Her Majesty would sustain material prejudice thereby;
(f) where the matter to be decided is in his judgment too unimportant to require the advice of the Council; or
(g) where the urgency of the matter requires him to act before the Council can be consulted:”
Procurement appears to be one of those matters where the Governor must act in accordance with the advice of Executive Council. Section 29 of the Constitution does, however, allow the Governor, in certain circumstances, to act otherwise than in accordance with the advice of Executive Council.
“Governor’s reserved executive power
29. (1) In any case where the Governor is required by the last foregoing section to consult with the Executive Council, he may act otherwise than in accordance with the advice given him by the Council if in his opinion it would be inexpedient in the interests of public order or public faith to act in accordance with that advice:
Provided that he shall not so act against the advice of the Council without first obtaining the approval of a Secretary of State.
(2) Whenever the Governor acts otherwise than in accordance with the advice given to him by the Executive Council, any member of the Council may require that there be recorded in the minutes the grounds of any advice or opinion which he may have given on the question, and the Governor shall as soon as is practicable forward a copy of the resulting entry in the minutes to a Secretary of State.”
The Governor is allowed under section 29 of the Constitution to direct that a course of action for which elected officials has responsibility not be executed, if in her opinion it would be inexpedient in the interests of public order or public faith to follow that course. Is it therefore safe to conclude that the Governor has not found the non-application of the established procurement procedures to be unsuitable or inadvisable in the interests of public order or public faith?
