Friday, November 20, 2009

Elections - 4. Candidates for Election

The Question for today is, “Who is qualified to be a candidate to contest an election to the House of Assembly in Anguilla?  The answer is to be found at sections 36 and 37 of the Constitution of Anguilla, 1982. 
Section 36 sets out the basic qualifications for election to be a member of the House of Assembly.  There are two types of persons who are qualified.  Both of them must share certain common qualifications.  First, they must be 21 years of age.  Second, they must be Belongers of Anguilla.  Third, they must be registered to vote in one of the 7 electoral districts in Anguilla.  And, fourth, both types must be domiciled in Anguilla. 
Domicile is often problematic, since it is a subjective thing.  You can easily prove you are resident in a country if you own or lease a property there and occasionally occupy it.  You can be resident in two or more countries at the same time if you have and occasionally occupy a home in each of them.  You can only be domiciled in one place at a time.  At common law, your domicile depends on your intention as to your permanent place of residence.
At common law, domicile is important for your personal status.  A divorce obtained by an Anguillian, who was married in Anguilla, in the Dominican Republic is not recognized in Anguilla unless one of the spouses was domiciled in the Dominican Republic.  If your form of marriage is legal in your country of domicile, then it does not matter if that form of marriage is not known in your country of residence, you are still considered legally married. 
We are all born with a domicile of origin, but we can change it if we move to another country with the intention of permanently residing there.  This is referred to as a domicile of choice.  A child takes the domicile of dependence of its parents, and a married woman at common law takes the domicile of her husband. 
The question of domicile raises so many questions because of its subjective nature at common law that many countries have enacted laws defining what domicile means, for example, for the purpose of imposing taxes.  But, in Anguilla the common law rules still apply, and there is no statutory definition of domicile.
Then, we come to consider the two types of persons who are qualified to be nominated and elected in Anguilla.  The first is a person who is 21 years of age, a Belonger of Anguilla, registered to vote, who was born in Anguilla, and is domiciled here at the date of nomination.  We might call these “born Anguillians”. 
The second type is a person who is 21 years of age, a belonger of Anguilla, registered to vote in Anguilla, and though born outside of Anguilla has resided in Anguilla for a period of not less than 3 years immediately before the date of nomination and is domiciled here at that date, and is the son or daughter of parents at least one of whom was born in Anguilla.  We might call these “first generation descendants of Anguillians.”
Note the difference in the requirement for residence.  A born Anguillian candidate does not have to be residing in Anguilla on the day of nomination for election.  A born Anguillian can be resident in the USA or St Thomas, for example, and can permit his or her name to be put up for election, and only needs to move back to Anguilla if elected.  On the other hand, a descendent of Anguillians cannot be nominated and elected unless he or she has been residing in Anguilla for a period of not less than 3 years immediately before the date of nomination.  But, both must be able to claim to be domiciled in Anguilla if a question is asked.
The essential characteristic you need to accept is that only persons with strong Anguillian connections by blood will be qualified to be elected.  This means that a Kittitian or Jamaican person, no matter how long he or she has lived in Anguilla, and becomes an Anguillian Belonger, will never be able to be elected to the House, no matter how popular he or she is with the voters.  The child of two Kittitian or Jamaican parents, who are belongers of Anguilla, where the child was born in Anguilla, but the parents were not, is also not qualified.  Only the grandchild of foreign born parents can be qualified to be elected.
Section 37 disqualifies certain Anguillians from being nominated or elected to membership of the House of Assembly.  Most of us are familiar with these disqualifications, as they commonly exist in many Commonwealth countries. 
The first category is a person who is by virtue of his own act under any acknowledgement of allegiance, obedience or adherence to a foreign power of state.  That essentially means any Anguillian who has taken out foreign citizenship is most likely disqualified.  I say only most likely, because it will be necessary for a person who brings an action to disqualify an elected candidate under this head of disqualification to prove that becoming naturalized as citizen of a foreign state as a matter of law placed that Anguillian under acknowledgement of allegiance, obedience, or adherence to the foreign power or state.  You might think it is obvious that if you become a naturalized American or Canadian, you have sworn allegiance to the USA or Canada.  But, the courts have held that it is not automatic.  It is necessary for the person complaining to bring evidence to prove such allegiance or adherence.
The second type of person who is disqualified is a Minister of Religion.  Who is a Minister of Religion?  The Constitution defines a Minister of Religion as either (a) any person in holy orders, or (b) any other person the functions of whose principal occupation include teaching or preaching in any congregation for religious worship.  In Christian churches “holy orders” are the special roles of bishop, priest and deacon, or the sacrament or rite by which candidates are ordained to those orders.  So, a Methodist Minister, or a Baptist pastor, or a Muslim Imam, are not in “holy orders.  But, they are caught by the second branch, if their principal occupation includes teaching or preaching in any congregation for religious worship.  It is probable that a completely retired Methodist Minister or Baptist Pastor or Muslim Imam, who, presumably, no longer teaches or preaches in a congregation, is not disqualified, and can be elected or nominated to Membership of the House of Assembly.
The third type of person who is disqualified is a person who holds or is acting in any “office of emolument” in the service of the Crown.  This means in ordinary language a civil servant or a public servant.  But, the expression is wide enough to include an Anguillian who is, for example, a public servant in another Commonwealth country of which the Queen is head of state, or serving in the armed forces of the United Kingdom.  It probably also includes an Anguillian who is a paid member of an official Commission.  A non-public servant who is a paid election officer, such as a returning officer, would be included.  It would include anyone who holds an office for which he or she has taken an oath of loyalty to the Queen, such as a judge or magistrate.  It does not include any “special adviser” who is appointed by the Chief Minister to be an adviser to government and who is paid by the government.  Nor does it include employees of statutory corporations such as Anglec or the Social Security Board.  These are companies set up by a law of the House of Assembly, and their employees are not legally included in the public service, are not usually subject to “General Orders”, and are privately engaged under a contract of employment.
The remaining categories of person who are disqualified for nominated or elected membership of the House are uncontroversial.  These include undischarged bankrupts, persons certified to be insane or of unsound mind in Anguilla, or under a sentence of death or of imprisonment for more than 12 months in any part of the world, or who has been disqualified by a court in Anguilla because of certain election offences committed by him or her. 
To summarise then, if you are insane and want to run as a candidate for election in Anguilla, make sure you were certified as being insane in a country other than Anguilla.  Foreign certified lunatics are not disqualified from running for election in Anguilla.  But, if you have been convicted and sentenced to a term of imprisonment in a foreign country, you can be nominated and elected only if the offence was for one which is not recognized in Anguilla.  So, if you are convicted and condemned to death in Iraq for not being of the Sunni Muslim faith, you are still able to be elected in Anguilla.  But, if you are convicted and sentenced to 5 years for burglary in New York, you cannot run as a candidate in Anguilla while serving the 5 years.   You have to wait until the term has been spent until you can allow your name to put forward for nomination to be elected in Anguilla.  Then, you won’t have to commit burglary again; we will give you the key to the public purse. 
For the procedure to be followed to nominate your candidate, see 7. Elections – Nominations.