“Cockroach Got No Call In Fowl Nest”

Congratulations are in order to the Leader of the Opposition, the Hon. Evans McNiel Rogers and the Elected Representative for Island Harbour, the Hon. Othlyn Vanterpool for their powerful presentations in the House of Assembly particularly during the debate on the Cap Juluca, Memorandum of Understanding. They were articulate and passionate in putting the issues that concerned them and which should concern all of us very clearly in perspective.

And while I must applaud the Government for bringing the MOU to the House so speedily --- the Members of the Opposition also deserve praise for their willingness to cooperate by debating a document that they had seen less than two days before. Despite that disadvantage the Opposition clearly demonstrated that they had a better grasp of the content of the MOU than many of the Members of the House on the Government side.

The Chief Minister admitted, seemingly with pride, that he had delegated the negotiations of the MOU to the most junior members of his Government. And it was apparent from his comments during the debates that at best he barely skimmed through the document. In fact there is a widely held view that he did not read the document at all.

This latter view point grew in credibility as the debate progressed because the Parliamentary Secretary seemed to be the only one prepared to respond to questions from the Opposition and on many occasions could not even find the section of the MOU required to make his point. On at least one occasion he never found the section --- obviously because it was not there in the first instance.

It was instructive to witness, live on camera, the Parliamentary Secretary fabricating and subsequently believing his own lies. He did this on the sensitive issue of service charge. Kindly follow the steps:

1. Firstly, he suggests that the past Government was not looking out for the interests of the workers so it did not include any mention of service charge in the MOA.

2. His face then lights up because he believes he is on to a good thing and so he then develops that suggestion even further by saying that not only did the past Government neglect to mention service charge in the MOA but it was in fact their intention to abolish service charge all together.

3. He then gets all excited with this fabrication and carries on about how “poor” workers were disadvantaged and how he is able to empathize with them because he worked for sixteen years in the hotel industry where service charge is so vital to their survival.

4. He now thinks he is on a roll and reveals that the past Government had a plan that if they had won the election they would do away with service charge for the workers at Cap Juluca completely.

5. He has now fully convinced himself that it is a fact that the past Government planned to do away with service charge --- so now he moves in for the kill. He declares in triumph: “The AUM Government stepped in just in time and saved the day for the “poor” workers at Cap Juluca!”

I have taken the time to go through the foregoing because it is characteristic of the way both the Parliamentary Secretary and his father, the Chief Minister continue to extrapolate from fiction to “fact” in an effort to create positive images about themselves. And they become more convincing as they go along because it appears that they end up believing their own fabrications. As I observed the Parliamentary Secretary as he went through that metamorphosis --- it was obvious that when he started out he had no idea where it would end up. He simply wanted to make the point that his Government had included mention of service charge in the MOU because they had the interests of the workers at heart. However, he became more animated as this latest masterpiece of deception evolved.

Shakespeare wrote: “there is no art to find the mind’s construction in the face” but it was obvious from the facial expressions of the Elected Member for East End that he was drinking in everything this father and son team put together. I almost fell off my chair when I heard him say and I quote: “this MOU is a living document”. No doubt he was fully brainwashed into believing the spurious definition concocted by the Chief Minister to give the impression that there is a substantive difference between an MOA and an MOU.

It is time for credible members of the legal community to explain that both documents are legally binding in the same way --- and whether we use the term understanding or agreement the document will govern the relationship between the Government of Anguilla and the Developer for the entire period of the lease. But even if the MOU were not “legally binding” what value would that hold for the Government of Anguilla or the Developer if they were signatories to a document which carried no weight. It is ridiculous for the Chief Minister to pride himself on signing a document that does not protect and preserve the rights and interests of Anguillians who he claims to love so much.

But it is the hypocrisy of the entire episode that deserves comment. Here we have a Government claiming on the basis of this new MOU that it has saved the workers and stakeholders in Cap Juluca. First of all Cap Juluca was already saved and doing well from the time the past Government was able to negotiate a feasible agreement with the owners which took into account the unique and historic circumstances of the property, the interest of workers and other stakeholders. In fact, in the letter to the Chief Minister from the CEO of Cap Juluca on July 31st, 2010 states: “Cap Juluca is not asking for anything new. We merely need an unequivocal commitment to the MOA from your government either as originally agreed in 2009, or with the changes we agreed in June 2010, to be able to raise the capital we need to pay our employees and to pay our bills”. Simply put: give us what we agreed to and leave us alone to sort out our affairs!

But as usual the Chief Minister and some of his colleagues continued posturing until they forced the CEO of Cap Juluca to send them an ultimatum that they were helpless to confront. And what does the Chief Minister do? He delegates two inexperienced members of his Government to negotiate with this seasoned developer on an MOA that he claimed during his campaign was the worst document ever negotiated by a Government. One can only surmise that again as usual he was protecting himself so as not to take blame if they came up with a bad document. And true to form he tried to escape some of the blame in the end.

These naïve negotiators boasted about their achievements in the MOU. I will list the main ones they highlighted and comment on them briefly on as follows:

• They added the words “and employee service charge” to the sentences ending “accommodation tax”. While this may have psychological or cosmetic value --- service charge is already enshrined in the Fair Labour Standards Act under section 27. It has never been mentioned in any MOA or MOU including the one the Chief Minister signed with Cuisinart. In fact, mentioning it specifically could convey the implication that where it is not mentioned in other MOA/MOU’s it does not apply.

• They added a section that requires the developer to pay interest of 7.5% per annum on tax payments that are more than 30 days overdue. The fact is that the Financial Administration and Audit Act provides for any one owing moneys to the Government of Anguilla to pay an interest of 12% per annum from the date when it becomes due and payable. In effect, the inexperienced negotiators have reduced the amount of interest payable by Cap Juluca by more than one-third. This means that they have made Government worse off than the law provides in the case of interest on overdue accounts.

• They replaced the wording in the sections of the MOU dealing with duty concessions to reflect the same provisions in other MOA’s as they apply to both local and foreign developers. But while the wording is changed the effect remains the same as in the 2009 MOA.

• They mentioned that the developer is now taking responsibility for roads and the development and financing of the National Park. These are all one-time expenditures. Furthermore, in the case of the National Park as I will discuss later we have lost so much more including the protection of our heritage.

These are not exhaustive but they show how inexperienced negotiators can destroy their advantage. In this context, I must of necessity touch on the two areas where they failed miserably to protect the interest of the people of Anguilla.

The “tender foot” negotiators in their “self-proclaimed wisdom” saw it fit to remove wholesale the entire section on Government participation in the Project. An option that was valid through to February 28th, 2013. This gave the Government and local private investors the opportunity to acquire up to a 20% ownership interest in Cap Juluca on prearranged terms already enshrined in the 2009 MOA. So in effect all the benefits that would come to the project will be shared with Anguilla and Anguillians, that is, a 20% interest in any benefits that may accrue. Again I almost fell off my chair for a second time when the Elected Member for East End said: “the reason why we took it out was because the Government of Anguilla did not have the money to pay for it any way --- and in any case the benefits would only go to the same elite and select few not the masses of Anguillians”. This statement caused the Parliamentary Secretary to shake his head in an obvious show of approval.

But the “rookie” negotiators took the “boobie prize” with their decision to reduce the National Park from eighty-four acres to five acres. The past Government had secured this as an important contribution to heritage preservation in the western part of the island. That benefit was secured through tough negotiations not only with the owners of Cap Juluca but with the owners of Tenemos as well. Imagine our chagrin when we realized that not only was the National Park reduced to five acres --- but was sandwiched between the Cap Juluca Development pods at the eastern and western parts of the Cove Beach lands.

It was pathetic to see the Parliamentary Secretary, in response to a direct question from the Leader of the Opposition on this issue, pretending to look for the seventy-two acres of pond lands that he claimed was not taken out of Anguillian control, knowing full well that the entire section on Cove Pond lands was removed from the MOA. In the end the Opposition was effective in pressuring the Government to amend that section. However, that amendment still falls short of what could be considered acceptable. Hopefully, further pressure could extract more favourable arrangements.

To be quite frank, comments and discussions on the National Park provisions in the MOU will require a dedicated column. Perhaps several columns! Discussions about the conditional agreement for removal underwater rocks up to 100 feet from the shoreline send out alarms. And even the idea of the National Park being built by the developer, with special considerations for guests of Cap Juluca, demand additional thought. We are extremely fortunate to have a well-meaning developer in this case so that further improvements may still be possible. However, such discussions must involve mutual respect and understanding rather than “bullying”.

I am certain that these issues will continue to be the subject of much conversation on several fora. It is my view that we lost many long-term benefits in these negotiations and that we would have been a superior position if we had at least stuck to the June 2010 agreements. I remain happy about one thing, that is, that the jobs, business opportunities and Government revenues have been maintained despite the recklessness and brinkmanship of the Chief Minister and some of his colleagues. I sincerely hope that the Chief Minister would have learned a useful lesson from this exercise and I am sure he will recall an oft-repeated adage among persons even older than he is. Heck! One of my grandchildren said it to me the other day: “Cockroach got no call in fowl nest!”

Victor F. Banks
Sachasses Estate
August 17, 2010