Books about Anguilla


Thursday, 4 November 2010


Let me take this opportunity to offer my heartfelt condolences to the people of Barbados on the passing of their distinguished Prime Minister, the Right Honourable David Thompson. I must also wish them all well --- as they strive to recover from the ravages of Hurricane Tomas, an experience that I shared since I happened to be in Barbados at that time. I have been told that the Honourable Chief Minister was also in Barbados, however, unlike him it took me several days to get back to Anguilla as a result of the many flight cancellations and delays.

My happiness to be finally back in Anguilla was soon dulled by the irksome monotone of the Chief Minister on the car radio as he struggled through what sounded like a written press statement explaining his reasons for returning to Anguilla so urgently on Sunday. I was impressed by his readiness to respond to a letter from the FCO (Foreign & Commonwealth Office) by flying in from Barbados to fly out again when his Senior Staff could have easily supplied all the documentation requested from the files in the Ministry of Finance. Ironically, he was not so cooperative in supplying information to the FCO Minister on a personal request. In fact he openly stated that he was not going to respond.

Since he came to Office the Chief Minister has been talking about the transshipment operation in Anguilla in an effort to suggest that there are grounds for investigation with regards the manner in which the operations took place in Anguilla, particularly, on the local government level. He continues to pursue this on any forum where he can find an entrance to make slanted accusations of corruption. When I listened to his radio broadcast, I was very anxious to get a copy of the correspondence from the FCO that was sent to him and which prompted his urgent return to Anguilla. His comments were very “ill-advised”, because not having the shelter of the House of Assembly on this occasion, he made some very libelous statements regarding departments of Government which imply corrupt practices by officers who worked there at the time. In particular, he made the statement that “the treasury continued to mismanage these funds despite warnings from the Permanent Secretary” and he proceeded to imply that over US$100,000 was missing from each trip also claiming that this continued for a total of eleven trips. This computes to a total of US$1.1 million.

While I will deal with his direct references to me through the judicial system with more resolve than I have in the past, I am very upset about his reckless and unfounded accusations of the diligent and hardworking staff in the Ministry of Finance, the Treasury and Customs. These officers have not been found to have mismanaged anything in connection with transshipment --- they have simply done their jobs following the directions from Executive Council and the approval of the relevant authorities. It is patently unfair that in an effort to make a political point that is totally unrelated to the request from the FCO for the Chief Minister to so readily attack innocent officials in the public service many who have already retired.

There is absolutely no truth to the statement that funds have been missing or mismanaged and the several investigations by the Her Majesty’s Customs & Excise UK (HMC&E UK) and later the EU Mission to Anguilla on Transshipment in May 2003 did not reveal any such situations. In fact, during the EU-OCT Forum in Bonaire in 2002, former Governor of Anguilla, Mr. Peter Johnstone during his intervention stated that whatever difference of interpretation may exist on the matter of past transshipments “I can assure the Commission that past transshipments from Anguilla to the EC did not involve any theft, fraud or deceit.” On every occasion the Government of Anguilla have been extremely cooperative with any request by qualified external agencies to look in the operations of transshipment on Anguilla. In fact, we have been the main presenters amongst the OCT’s on all aspects of this issue in the European Commission.

Before I go on to speak to the specific issues raised in the letter to the Chief Minister and what they mean --- let me speak to the statement made by the Chief Minister that a company in which I was a fifty percent owner, namely, Superior Sanitary Supplies was the agent for the vessel doing the transshipment. I find it extremely curious that the Chief Minister should persist in this lie knowing full well that the HM Custom & Excise investigation states clearly, in describing their account of the actions taken by the Anguilla Customs Service in relation to the OCT shipments, that Trans-Atlantic Shipping Ltd was the agent for the vessels. This is recorded in section 3. 2. where the procedure is described as follows:

• “Customs are informed of the impending arrival of a vessel by the Anguillian shipping agent, Trans-Atlantic Shipping Ltd., who then lodge import entries for each importer. Trans-Atlantic Shipping Ltd. act on behalf of Gearbulk Ltd, the owner of the vessel.

• When the vessel arrives in Anguillian territorial waters (these extend for 3 miles) she is boarded by Police and Customs Officers, together with a representative from Trans-Atlantic Shipping. The Master of the vessel and the Customs Officer boarding the vessel then sign a ship position report stating the vessels exact position within Anguillian territorial waters. In addition, a “Statement of Facts” is completed and signed by the shipping agent, the Master of the vessel and the Officer boarding the vessel. This documents various times including the time the vessel dropped and weighed anchor. This documentation exists for all OCT transshipment vessels.

• The cargo is inspected by the Customs Officer, who, when satisfied, radios ashore where the import entries are then cleared. ‘The Comptroller of Customs’ stated that clearance only takes place once he has received confirmation from the Bank of Anguilla that the full amount of duty has been deposited into the Government’s consolidated fund.

• Following the departure of the vessel from Anguilla, Export Certificates were presented to Customs and returned to Corbis Trading Ltd. ‘The Comptroller of Customs’ stated that the Customs Department do not manage the consolidated fund and therefore it would be impossible for his department to make payments in respect of these OCT transshipments.”

I have quoted this entire section from the report of the investigation carried out by HM Customs & Excise into the OCT shipment transactions to provide the background for the following key points in addition to the important point that the agent for the vessels was not a company in which I was involved. Firstly, the agent for the vessel makes arrangements for its visit and submits the import duty entries; secondly, the vessel carrying the goods is anchored in Anguillian waters and boarded by the relevant authorities and a representative of the agent; fourthly, the goods are inspected by Customs and cleared after the entire amount of duty is paid into the consolidated fund, and; finally the export certificates are endorsed by customs.

The report was done on the request of the FCO with the full agreement of the GOA and when they arrived they met in an extraordinary meeting of Executive Council where the GOA confirmed that there would be “complete transparency” and full cooperation with the inquiries. In the circumstances GOA expected that the findings of the report would be discussed before it was sent to the EU Commission. Nevertheless, it was sent to the Commission where it was further circulated to EU Member States without the GOA being given the opportunity to respond. GOA made the point in protest that this did not conform to the provisions of the OCT Decision 91/ 482 regarding administrative cooperation.

The final outcome was that a number of Member States “latched on” to the section that concluded “the direct link between the rate of payment under the contract and the size of each consignment, the existence of a unique export shipping allowance and the change in the invoicing system after the first few shipments all suggest that the operation of the system was, in substance, designed to refund duty”. It was on this basis that Italian, Dutch and Belgium Customs decided not to accept Export certificates (EXP’s) issued by the Government of Anguilla contending that they were invalid because of the conclusion in the HM C&E report that it constituted a “refund of duty.”

This is the background to the letter that the Chief Minister received from the FCO. It appears that Italy was the only Member State that pursued this matter to the European Court and received a judgment in its favour against the transshipment operations through Anguilla in 1998-99. This is a matter that began in 2002 and which continued to be a difference of opinion between the OCT’s involved in transshipment; individual member states and EU Commission regarding the meaning of the term “refund of duty” in the context of the Article 101 (2) of the EU/OCT arrangement which provides that “Products not originating in the OCT but which are in free circulation in an OCT and are re-exported as such to the Community shall be accepted for import into the Community free of customs duties and taxes having equivalent effect”. The proviso being that duty is paid that is equivalent to or more than the revenue collected by EU Customs Services; the goods have not been subject to an exemption or refund in whole or in part, and; they are accompanied by an Export Certificate (EXP).

On receiving a copy of the letter that the Chief Minister received from the FCO, I realized that they were simply requesting information regarding the transshipment operations in 1998 and 1999. This information would assist them in determining whether the ruling by the European Court supporting the claim by Italian authorities for a refund of lost resources is justified. Nowhere does the letter go into any matters related to any kind of mismanagement or missing funds. This is just another attempt by the Chief Minister to malign persons for his own political aggrandizement. Let me quote the part of the correspondence where the Chief Minister’s support is being sought. “The UK Government has not yet responded formally to this decision and we have asked for evidence to support the claim. Her Majesty’s Revenue and Customs in the UK are reviewing the documentation sent by the European Commission to support their decision. We are also in contact with the UK Representative in Brussels. In order to establish that the claim is justified, it would be helpful if you could provide us, via the Governor’s Office, with any documentation regarding the transshipment of aluminium in Anguilla in 1999, when you were Chief Minister.”

The situation being described here is a technical one. There are no accusations being made by the FCO about any wrong doing on the part of Anguillian officials or anyone else. This is simply a continuation of a battle we have been fighting for many years with the Commission and in particular EU member states who do not have any Overseas Territories to benefit from transshipment. We have also been encouraging the UK Government to support us effectively on these issues and we have in fact been getting very positive support from them especially since 2002. In fact recent UK Representatives in Brussels assigned to the OT’s had provided much needed technical assistance for our efforts to get approval for a new transshipment proposal and to deal with the residual issues, including the matter with the Italian authorities, now being discussed. The approach the Chief Minister is adopting may get him some political mileage but the matter of the technical arguments underpinning the ruling in favour of granting a refund must be contested in the context of the purpose and intent of Article 102 (2) of the EU-OCT Decision and the correct interpretation of its provisions.

The Chief Minister as he gleefully makes these accusations must reflect that it was his Government that benefitted from some US$ 42 million in transshipment revenues in 1998 and 1999. And that this revenue was the source of the surplus he boasts of having left when he lost the Government in 2000. In this challenging period he should also be trying to win the assistance of the FCO in dealing with the worse case scenario in the matter. There may even be the possibility of negotiating directly with the Italian authorities to get some leniency should all else fail.

Finally, may I admonish the Chief Minister that it is unwise to believe that his continued attempts to denigrate my character will cause me to wilt or go away. As the late great Honourable Robert Nesta “Bob” Marley wrote so eloquently in the Jamaican vernacular: “You ah gon tired fi see me face!”

Victor F. Banks
Sachasses Estate
November 2, 2010

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