A
Review of Government’s Constitutional Reform Proposals as published on the
Government website on 24 September 2019
By
Don Mitchell (former chair of the Constitutional and Electoral Reform
Committee)
The
UK’s system of government is traditionally described as a “Constitutional
Monarchy.” In more recent years the UK’s constitution is said to feature “Parliamentary
Supremacy.” Cabinet is answerable to
Parliament. Even the Queen is subject to
ordinary legislation. After centuries of
strife it is now established that Parliament is the supreme branch of
government, with the judicial branch remaining independent and impartial.
By contrast, Anguilla’s system of government is
best described as a constitutional dictatorship. Under the 1981 Anguilla Act of the UK
Parliament, the UK government maintains a ‘nuclear option’ to rule Anguilla by an
Order in Council imposed without any discussion, far less consent by the
governed. The UK government may
intervene unilaterally in any aspect of the government of Anguilla. Additionally, the UK-appointed Governor,
Attorney-General and Deputy Governor sit in Executive Council and (in the case
of the latter two) in the Assembly with oversight and the right to intervene
whenever the Assembly appears to be diverging from Britain’s interests.
The Executive Council established by the 1982
Constitution of Anguilla (“the 1982 Constitution”) governs the people
without any oversight or need for further consultation of the people. Executive Council has total control of all policymaking
(and the execution and enforcement of those policies) by controlling the House of
Assembly (“the Assembly”). This control
is assured by the fact that the governing party always holds most of the seven
elected seats in the Assembly.
Additionally, the unelected Attorney-General and Deputy Governor sit in
the Assembly with a right to vote in support of government. The Assembly is subordinate both to the UK
Government and to the local Executive Council.
It takes orders from both.
The most recent example of cabinet dictatorship
is the present process of constitutional reform. On September 24 government published on its
website a new Constitution.[1] What was published is the draft contained in
the 2017 Constitutional and Electoral Reform Committee Report, (“the 2017
Report”).[2] Deletions and additions have been made to it without
any explanation making it difficult to follow.
Government has announced that there will be public consultations at the
Teachers’ Resource Center on 30 September and 1 and 10 October to which all
members of the public are invited. They have
given us less than 2 weeks to register our objections and comments on their new
draft Constitution. Then, they will send
it off to London with the good news that we all agree to it.
During the public consultations leading up to
the 2006 Constitutional and Electoral Reform Commission Report (“the
2006 Report”)[3]
and the subsequent 2017 Report, it became apparent that most Anguillans who
participated in the public discussions emphatically wanted to see an improvement
in the democratization of Anguilla. The
resulting two Reports contained dozens of proposals that, if enacted, would
achieve this end. These include, without
being exhaustive,
1.
Reducing the administration’s control over the
Assembly by (a) depriving ex-officio members of the Assembly of the right to
vote; (b) removing the undemocratic nominated members; (c) revising the
existing Voters List; (d) increasing the number of elected representatives in
the Assembly from the present seven (7) elected members to thirteen (13)
members;
2.
Increasing the size of the Assembly. Presently four (4) elected members of the
Assembly are also Executive Council Ministers.
The fifth is the Parliamentary Secretary or junior minister with
responsibility for assisting the Minister of Tourism. The sixth is a Ministerial Assistant with
responsibility for assisting the Minister of Home Affairs. That leaves only one of the seven elected members
of the legislature with no ministerial appointment. There is no one else to challenge legislative
initiatives introduced by the administration.
In such a system, the Assembly cannot be said to be of equal status, far
less superior to the Executive Council. The
result is that Anguilla is not a parliamentary democracy but truly a Cabinet
dictatorship.
3.
Strengthening the role of parliament by, among
other things (a) guaranteeing that the Public Accounts Committee (“the PAC”) can
function effectively by providing it with a budget and other resources; and (b)
establishing other Standing Committees of the Assembly. We have seen that after a short period of
activity, the PAC has been successfully shut down by government depriving it of
all resources needed to function.
4.
Improving public financial management standards
by taking the rules out of various Acts and entrenching them in the
Constitution.
While some of the Constitutional Reform
Proposals published by the Government of Anguilla on 24 September 2019 are
acceptable, others are more questionable.
In particular,
(a)
Section 35 (Executive Council) proposes to restore
the term “Executive Council”. The 2017
Report proposed abolishing the old colonial name Executive Council and replacing
it by the more modern name “Cabinet”.
There is no explanation given for this reversal.
(b)
The original recommended section 35 proposed
abolishing the right of the unelected Attorney-General and Deputy Governor to
vote in Cabinet. This provision has now been
removed. There is no explanation offered
for its removal.
(c)
Section 45 (Summoning of Cabinet and
transaction of business) unexpectedly restores the name “Cabinet”. It is preferable for the sake of consistency that
the term “Executive Council” should be replaced wherever it exists in this
draft.
(d)
Also, the section bears a marginal note that
subsection (2) “should be reviewed to ensure there is no conflict” with the Anguilla
Constitution (Amendment) Order 2019 made in April 2019 (“the April 2019
Order”). It is not clear what this can
mean. The intention of the original 2017
Report was to replace the 1982 Constitution with a new Constitution. The intervening April 2019 Order was a
transitional Order. It was an amendment
to the 1982 Constitution. When a
principal Order, eg, the 1982 Constitution, is replaced, all amending Orders will
fall away with it. Thus, there can be no
conflict between the new Constitution and the old Constitution or any amendment
to the old Constitution.
(e)
Section 54 (Qualifications for elected
membership) has been amended to remove the proposed requirement for three (3) years’
residence before a person is qualified to be elected. Under the 1982 Constitution there was no
residence requirement. During the
consultation process, it was apparent that Anguillians thought that there
should be some period of residence before a person could be nominated for
election. There is no explanation
offered for this deletion.
(f)
Section 65 (Qualification of voters) has been substantially
amended. In addition, there is a
marginal note referring to other amendments introduced by the earlier 2019
Order, which appears again to suggest that the 2019 Order will continue to
co-exist with the proposed new Constitution.
As earlier explained, there should be only one Constitution. All references to the 2019 Order should be
removed.
(g)
The original proposal that any new Elections
Act should include provisions for the regulation of campaign funding has
been removed without any explanation.
Anguillians are agreed that the present system of unregulated spending
on election campaigns is an encouragement to bad behaviour. Removing from the Constitution even the
possibility of introducing campaign funding regulation is a retrograde step. It is not in accordance with the thrust of
the new Constitution to promote higher standards of public life than presently
exist. Without such constitutional
protection, any stand-alone statute will be problematic.
(h)
Section 67 (Elected Members) has been amended
to remove the provision for Anguilla to be divided into nine (9) electoral
districts. It proposes to retain the
present seven (7) as the minimum number.
One of the principal reforms originally proposed was that the Assembly
should consist of nine (9) district representatives and four (4) members elected
at large, resulting in a total of thirteen (13) members. Not only would this increase in numbers
encourage deeper debate on legislative proposals, it would ensure that with a
Cabinet of six (6) members, the Assembly would not be dominated by members of
the Executive. With the recommended abolition
of the Parliamentary Secretary, and the removal of the vote of the ex-officio
members, an Assembly of thirteen (13) elected members would always consist of a
body where the executive members of the Assembly were in the minority, thus
promoting parliamentary sovereignty. One
notes with some concern that not only is it proposed to retain the Parliamentary
Secretary, but the Assembly may continue to consist of a mere seven (7) elected
members. There is no explanation offered
for this retrograde proposal.
Additionally, it seems clear that the recommendation for a Boundaries
Commission to divide Anguilla into nine (9) approximately equal districts has
been dropped without any explanation. A
stand-alone statute enabling boundaries re-districting without constitutional
protection is problematic.
(i)
Section 99 (Anguillian Status) has been substantially
amended. There is no explanation offered
for any of the amendments.
(j)
Chapter 10 (Public Finance) is stated to be
still under review by the Committee of the Whole House. The whole point of Chapter 10 is (a) to take
the present rules for the management of the public finances set out in the Financial
Administration and Audit Act and other Acts, and (b) to enshrine the
proposed draft Anguilla Public Finance Order 2015 (the draft 2015 Order)
which, as a result of negotiations with the Anguilla government, was never
brought into effect as an Order in Council.
Anguillians want the draft 2015 Order given constitutional effect for
the proper management of our public finances.
(k)
The Chief Auditor has never been able to issue
an unqualified audit opinion on Anguilla’s public accounts. Typically, in his report on the 2013 accounts
he complains,
“Section 43 of the Act states that the
Minister of finance may, by advance warrant under his or her hand, authorize
the Accountant General to make advances from the Consolidated Fund . . . Advances made in 2013 were not authorized by
the Minister of Finance. I therefore
qualify my audit opinion as advances were not authorized in the manner required
by the Act.”[4]
His Certificate which prefaces the 2013 Audit
Report consists of four (4) pages of similar complaints about the ways in which
the Act and other financial regulations are flouted.
(l)
It was the view of the majority of those
participating in the public consultations that led up to the 2006 Report and
the 2017 Report that the statutory financial regulations were being ignored
with impunity by the relevant officials of the government of Anguilla, as
described by the Chief Auditor. There is
a need to give those regulations the status of constitutional provisions. Any attempt to weaken Chapter 10 should be
strenuously opposed by all concerned Anguillians.
The alterations complained of above constitute
serious threats to the efforts made in the 2017 Report to reduce Anguilla’s
democracy deficit. Unless we make our
disapproval of these anti-democratic changes felt both locally and
internationally in the short period for review given to us, there is nothing to
stop the government from trying to persuade the Foreign and Commonwealth Office
that we are in complete approval of the constitutional and electoral reform
proposals put forward by government.
If I were 16 years old, I would go on strike
from school and sit outside the Premier’s office every day with a placard
reading, “No to the Government’s new Constitution” until they agreed to restore
the people’s version.
