Government’s
Draft Constitution for Anguilla of 11 November 2019
Presentation to FCO Team by Don Mitchell, CBE, QC,
The
various sections in the latest version of Government’s draft online Constitution
which appear to be problematic in relation to both the democratisation process
and the effort to improve public standards are:[1]
(1) Section 14A will expressly limit the right to
marry to a man and a woman. Same-sex
marriage will be prohibited. It is my opinion
that such a limitation is morally wrong.
Concepts of fairness, equality and freedom from discrimination lean to
affording the right to all of us, including our gays and lesbians.
(2) The original section 30(2) provided that when
the Premier and the Leader of the Opposition do not agree on three (3) names
for appointment to the office of Deputy Governor, all applications should be
forwarded to the Secretary of State.
This has been altered to provide that all names shall be forwarded to
the Governor for his decision. This is
an error in that it is the Secretary of State and not the Governor who makes
the decision. The Secretary of State may
well consult with the Governor, but it is not the Governor who makes the
decision.
(3) Section 35 now provides for a minimum of five
(5) ministers of government. There is no
guarantee that the number will be increased to the recommended six (6). The minimum should be six (6)
with a transitional provision to cover the period before the Electoral
Boundaries Commission does its work.
This has become necessary since the Amendment Order in Council and
the Elections Act of earlier this year.
(4) Section 42(1)(a) gives the Governor
responsibility for external affairs, “subject to subsection (4)”.
Subsection (3) gives the Governor power to delegate certain matters of
external affairs and internal security.
Both
the original section 42(4) and the Government’s proposed amendment are in error
in providing for the Governor to delegate to a Minister responsibility “notwithstanding
anything in subsection (3)” for the conduct of external affairs including,
(d) tourism and tourism-related matters;
(e) taxation and the regulation of finance
and financial services; and . . .
None of tourism, tourism-related matters,
taxation or the regulation of finance and financial services, is a matter of
external affairs. They are intrinsically internal affairs.
All
matters of public finance are governed by Chapter 10 which contains mandatory
standards and procedures that must be followed by Government.
Financial
services are to be the responsibility of the Financial Services Commission, a
constitutional body with independence of both the Governor and the political
directorate. This is the preferred way
to ensure independence of such important services. Any attempt to bring financial services under
ministerial control exposes Anguilla to the risk of corruption and
mismanagement.
Paragraphs
(d) and (e) have no business being in subsection (4). They should be deleted.
(5) The
proposed revision of section 53 reduces the minimum number of elected members
of the Assembly to eleven (11). The
minimum should be thirteen (13) with a transitional provision to cover the
period before the proposed Electoral Boundaries Commission does its work. This has become necessary since the Amendment
Order in Council and the Elections Act of earlier this year.
(6) The
proposed revision of section 54 removes the qualification (for election to the
House of Assembly), for a person born in Anguilla, of residence in Anguilla for
three (3) years prior to nomination. A
majority of Anguillians thought this was an important qualification to ensure
candidates are familiar with Anguillian society and rules.
(7) The
revised version of section 65, which deals with the “Right to vote at
elections”, bears a note that it is “under consideration in relation to
residence requirements”. The
original section was carefully drafted to ensure that only Anguillians
ordinarily resident in Anguilla would be qualified to vote.
There are
presently thousands of persons who have never been resident in Anguilla, or who
have long emigrated from Anguilla, to be found on the Voters List. Under present rules they can never be removed
from the List until they have died.
A new Enumeration
Year was proposed at subsection (4) to clean up the List. Government has without explanation removed
from both the Constitution and the recent new Elections Act any
provision relating to a new Enumeration Year.
The AUF Administration appears to be insisting on retaining the present
questionable List.
(8) It is unclear what the purpose of the proposed
new section 65A is. Its main purpose
appears to be to revive the old prohibition against returning officers voting (because
their presence was required at the polling station throughout election day). The new section 68 extends to all election
officers the opportunity to take advantage of advance polling. That is the reason that the prohibition was
originally recommended to be removed.
(9) Section 66 of the original draft Constitution,
which provides for laws as to elections, has been altered without explanation to
remove a constitutional requirement for the regulation of campaign
financing. This is a retrograde
proposal. The newly passed Elections
Act also excludes it. Anguillians are
agreed that the present system of unregulated spending on election campaigns is
an encouragement to bad behaviour. This
reform is part of the effort to improve standards in public life. Removing from the Constitution even the
possibility of introducing constitutionally protected campaign financing
regulation into our election laws 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 would be problematic. The new Elections Act needs to be
amended or replaced.
(10)
Section
67 deals with elected members. One of
the principal reforms originally proposed is that the House of Assembly should
consist of nine (9) district representatives and four (4) members elected at
large, resulting in a total of thirteen (13) elected 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. Government now proposes
to amend the original section 67 to remove the provision for Anguilla to be
divided into a minimum of nine (9) electoral districts, and to retain, at least
for the present, the existing seven (7) as the minimum number. While it is appreciated that the wording
permits the future expansion of the Assembly, it is felt that it would be
preferable for the wording to reflect the recommended minimum of nine (9) districts
with a transitional provision.
(11)
Chapter
9 concerns institutions protecting good governance. This is the principal measure for ensuring
high standards in public life. The Chapter
heading in the Government draft bears a note that “the number and types of
commissions and commissioners have not yet been agreed.” It would be regrettable if there was any
reduction in the number and types of Commissions or Commissioners. The original draft of the Constitution
already gives flexibility in suitable cases for combinations to be made.
(12)
Section
93 provides for the Financial Services Commission. The original draft was in error in providing
that the Commission would have “such specific functions and powers and a
board to be appointed by the Governor all as may be set out in a law.” There are not intended to be any directors
separate from the members of the Commission.
The members of the Commission will take the place of the previous
members of the Board of Directors. In
order to ensure independence from political interference, the section should
provide for the Chair of the Commission and the four other members to be
appointed by the Governor without any requirement to consult with anyone. Section 102 contains the general provisions
regarding Commissions.
(13)
Section
99 dealing with Anguillian status appears to have been extensively revised, but
it is unclear what changes have been proposed.
(14)
Section
109 contains a note to the effect that the section is “Under review to
determine whether Electoral Commission is preferable.” The section as originally drafted provides
for the Supervisor of Elections to be given protection from political
interference by placing him/her and his/her officers under the direct
supervision of the Governor. It is that
separation from political influence that is the objective. If it is agreed that in addition to the role
of the Governor, there is benefit in providing for an independent Electoral
Commission, that would be unobjectionable other than that it would be adding
belt to braces.
(15)
Section
111 (dealing with the need for disclosure to the Assembly of any proposal to
dispose of or deal in public assets) bears a note that it is still “under
review”. This provision was viewed
as important by many Anguillians, and it would be regrettable if it was limited
in any way.
(16)
Chapter
10 deals with Public Finance. It is a concern
that the Chapter heading in the Government draft Constitution bears a note that
the Chapter is still “under review”.
The Chapter was originally designed to be a principal tool for ensuring
high standards in matters of public finance.
The
Chapter is important in its entirety. The whole point of Chapter 10 is,
(i)
to
improve standards of public life in the area of public finance;
(ii)
to
take the present rules for the management of the public finances out of common
legislation such as the Financial Administration and Audit Act, and the Fiscal
Responsibility Act, and enshrine them in a Constitution. The present Acts are,
according to the Chief Auditor, routinely ignored, and
(iii)
to
introduce into the Constitution most of the provisions of the originally
UK-proposed draft Anguilla Public Finance Order 2015. As a result of negotiations between the FCO
and Government, this was never brought into effect as an Order in Council. Any attempt to weaken Chapter 10 is to be
strenuously opposed.
It is much to be hoped that as part of this
reform exercise, the FCO will ensure that the Acts and supporting regulations necessary
for giving effect to the Chapter 9 watchdog institutions be prepared and put in
place immediately after the new Constitution comes into effect. This is essential if there is to be any
improvement in standards of public life in Anguilla. 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; (g) an Anguillian
Status Commission Act; an Electoral Boundaries Commission Act; and a
new Elections Act.
These provisions in the Constitution depend for
their efficacy on the related Acts and Regulations being passed into law. Without them, no substantive reform will have
been achieved either by merely mentioning them in the Constitution or by
enacting inadequate versions.
18
November 2019
