Government
published its draft
new Constitution on its website on 24 September. It is a perverse and distorted version of the
original recommendation by the Constitutional and Electoral Reform Committee.
At the time of Government’s publication, they
announced that there would be public consultations at the Teachers’ Resource
Centre on 30 September and 1 and 10 October.
All members of the public were invited to attend. They gave us just 2 weeks to register our
objections and comments. Then, it
appeared, they intended to send it off to London with the good news that we all
agreed to it, so could it please be now signed into law by the Privy
Council. There was no suggestion that
the FCO was interested in speaking to the Opposition, far less the people,
before bringing the new Constitution into effect.
A breath of fresh air, a point
of light in the darkest tunnel of botched constitutional reform, has now
appeared on the horizon. It is found in
a speech of the Chief Minister (by now dubbed the Premier) on 30 September
reported in the 4 October 2019 issue of “The Anguillian” newspaper at page 2:
Premier Banks disclosed that a number of technical officials from
the Foreign and Commonwealth Office would be coming to Anguilla, in the middle
of November, to participate in another round of public consultations. He said constitutions were very complicated
documents with far-reaching implications, and certain elements of the
constitution must be in sync with the laws on our books.
This is the first indication we have that the
British were not entirely hoodwinked by Government into passing Government’s draft
new Constitution. They would be coming
to see for themselves what our attitude is to Government’s proposals for
constitutional and electoral reform.
Three things need to be noted from the above
announcement by Premier Banks.
1.
He
says that the British technical officers will be coming to participate in
another round of public consultations. He
must mean that the FCO’s lawyers are coming to Anguilla. He seems to be suggesting they will sit in on
the existing two-week period for “public consultations.” That is hardly likely to be correct.
2.
When
the FCO visits an Overseas Territory to discuss constitutional reform, they
constitute what in Anguilla’s case will be called something like “The
Anguilla Constitutional Conference.”
They expect their negotiating team to meet with a local negotiating team. They invariably demand that the local team
consist of representatives of government and the Opposition.
The two teams meet across the table from each
other to negotiate. The FCO do not
consider only the representations of Government’s team. They expect the local team to be fully briefed
on local expectations for reform. The
local team must be able to put forward the public’s expectations. The FCO team will have their own demands.
Their proposals for reform may include new
matters that the local team has never considered before. They may, for example, be quite strong on
rights issues that will be new to the locals.
These will include freedom from discrimination in marriage, and the right
to a clean environment, and to education.
Yes, they will want gays and lesbians to have the right to marry. This is because that right is now recognised
everywhere as the fundamental right not to be discriminated against on the basis
of one’s sexuality.
3.
The
Premier seems to have been misled into believing that the new Constitution will
need to be “in sync” with the 2019 Amendment Order. This is a mistake. The coming new Constitution will set aside
the 1982 Constitution along with all amending Orders in Council. A similar erroneous suggestion was made by
the Hon Minister of Home Affairs in the last meeting of the House of Assembly.
This error is our clue that the draft new
Constitution published by Government on its website was not prepared by
qualified legal draftspersons. These
would know that there is no need for a new Act or Constitution to be “in
sync” with a previous one. This is
especially so when we are speaking about a previous amendment. These would know that a well-drafted new
instrument sweeps aside all previous instruments. The lawmaker is not constrained by any
earlier legal provision, particularly an amendment to an instrument that is
being replaced.
All the evidence indicates that the new Elections
Act, the Anguillian Status Commission Act, and the new Constitution
on Government’s website were drafted by persons who are not experts in drafting
legislation. We can hope and demand that
the FCO will insist that they all be replaced with properly drafted
instruments.
It appears that both Government and the
Opposition underestimated Lord Ahmad and the Foreign and Commonwealth
Office. It seems the UK officials
recognise the need to consult with a representative body of Anguillians, not
just a partisan incumbent Government, before making fundamental constitutional
changes. This is what the FCO normally
does.
Over the past months I have repeatedly accused Lord
Ahmad of betraying Anguillians by ignoring the expected consultative procedure
and going along with Government’s unilateral proposals. This accusation may have been true about the
2019 Amendment Order. It appears the FCO
will do the right thing for the remainder of the reforms. For doubting Lord Ahmad’s integrity in
insisting on this procedure, I personally owe him an apology.
Meanwhile, a great deal of damage has been done
by the 2019 Amendment Order and the Elections Act 2019. But, if the FCO is now coming to Anguilla to
meet with the Opposition as well as the Government to finalise a new
Constitution, it is not too late to correct the errors.
Any new Constitution will set aside both the
old Constitution and all amending Orders in Council. The opportunity to restore the integrity of
the 2017 Report’s draft Constitution and its attendant draft Acts is
there.
It is much to be hoped that the FCO will also
insist that the missing Acts necessary for giving effect to the watchdog
institutions be prepared and put in place immediately after the new
Constitution comes into effect. These
include (a) an Integrity Commission Act, (b) a Freedom of Information
Act; (c) a Public Service Commission Act; (d) an Appointments
Commission Act; (e) a Complaints Commissioner Act (or Ombudsman
Act); (f) an Act for the Remuneration of the Speaker and the Members of the
House of Assembly; and, (g) an Anguillian Status Commission Act.
The Constitution states that these provisions in
the Constitution depend for their efficacy on the related Acts being passed
into law. Accompanying these Acts would
be the Regulations and other statutory instruments necessary to make the Acts
work. Without them, no substantive
reform will have been achieved.
Dr Ellis Webster, as leader of the biggest
opposition political party, and his team including his legal advisers, should
be invited. Mr Sutcliffe Hodge, as
leader of the third party, and his advisers must be there. Mrs Pam Webster, as the Leader of the
Official Opposition in the House of Assembly, and her advisers must be included. Without each of them being present at the
table, no eventual solution will be acceptable.
If the FCO is wise, their team will insist that
any proposed new Anguilla Constitution that is negotiated must be submitted to
the people for their acceptance before the draft is signed into law. That is the only sure way to achieve a
peaceful acceptance of what up to now has been a highly contentious and
acrimonious process. That acceptance or
otherwise can be easily shown in a yes/no referendum.
