Anguilla's Prospects

We in the West Indies are screwed by this Covid-19 pandemic.

Most of our islands rely on tourism as the “engine that drives our economy”.  Well, tourism is dead for years to come.  Most of our airports and seaports are closed until further notice.  Even if we reopen our ports soon, the visitor won’t be able to arrive if his/her home ports are shut.  Even if you can get into our island, you will still have to be quarantined here for 14 days.  Fortunately, you can be self-quarantined in your hotel room.  But, when you get back home, most countries also require another 14-day quarantine.

Anyway, only a very desperate person would risk going on an aeroplane for the foreseeable future.  As for cruise ships, only the most reckless or ignorant and uninformed would take the suicidal risk of going on one for the next several years.  Cruise ships are presently banned from Caribbean ports, but if one is permitted entry, eg, for food and supplies, it is on condition that not one person lands.

Our hotels won’t re-open for another year or two.  There is no hope for the coming 2020-21 tourism season.  When the hotels open, there will be no guests arriving.  By, January 2021 all tourism workers will have been let go (most in Anguilla at least, are presently at home on at best half-pay).  The 2021-22 tourist season will not occur.

Our ministers have announced they will cut their salaries by 15% and all public servants by 10%.  What they have not announced is that within 12 months, the numbers of public servants will be cut by 50%.  Those who remain will serve at 50% of their present salaries.  With raging unemployment spreading in the community, I fear for the coming civil disturbances.

My amateur analysis predicts that 100% effective vaccinations will not be widely available for another two years.  Dr Fauci's eighteen months is pure optimism.  There will be little or no international travel during that time.  After that date, and until the disease is declared eradicated, airplanes will fly at one-third their capacity. Most non-legacy airlines such as Ryan Air, West Jet, and Virgin, will disappear.  On the surviving airlines, fares will be three or four times the present levels.  There will be very few airlines flying tourists to the West Indies for the next several years.

Hotel tourism will take at least another four or five years to begin to recover.  Cruise tourism will take another six or seven years.  Most hotels, guest houses, restaurants and water sports will soon be bankrupt and closed.  Internationally, the next two Olympics will be cancelled.  Football, cricket, baseball matches, and other sporting events locally and internationally will limit admittance by the public.

China will own and run Asia, Africa, South America and the Caribbean by the end of this pandemic.

Sea level rising will cause half the population of Bangladesh to attempt to emigrate to Copenhagen.

To me, it is as clear as the sky over a closed-down capital city.

Just be grateful that we of the 60s and 70s age-group grew up in the post-pill, pre-AIDS era.

Postponing Elections by Order in Council

The Anguilla (Coronavirus) (General Election Postponement) Order 2020 (the “2020 Order”), was made on 3 April by the Privy Council in London.  I understand it is being questioned in the Anguillian community.  Well, I have now read it, and these are my thoughts on it.

Anguilla is a colony of the United Kingdom.  We used to be semi-independent under the West Indies Act of 1967 and the St Kitts, Nevis, Anguilla Constitution made under it.  We were part of the Associated State of St Kitts, Nevis and Anguilla.  This status was designed to be a prelude to full independence. 

After Anguilla seceded from St Kitts-Nevis in 1967, the British undertook direct administration of us.  They sent in the army.  They invaded us in 1969 at the request of the St Kitts government.  The St Kitts administration thought Britain would force us back into their fold.  But instead the British promised us they would never oblige us to return to an administration we did not want.

They administered us, as they were legally obliged, under the limitations set out in the West Indies Act.  Anguilla theoretically remained a part of the Associated State until the British Parliament enacted the Anguilla Act 1980.  It was in this year that St Kitts-Nevis went into independence and gave up all claim to Anguilla.  The Anguilla Act made Anguilla a direct colony.  It permitted the British Government to rule us by Order in Council.  Section 1(2) of the Act provides:

(2) Her Majesty may by Order in Council make such provision as appears to Her expedient for and in connection with the government of Anguilla.

The first Order in Council made under the Anguilla Act was the Anguilla Constitution Order, 1982, (the “1982 Constitution”). The 1982 Constitution is a colonial Constitution.  It can be amended at any time by the British Government passing a new Order in Council.  This is what distinguishes our Constitution from the Constitution of an independent Commonwealth Caribbean Country.

Once Dominica or St Lucia gained their independence, the British Parliament no longer had the legal power to pass legislation for them.  The British Government cannot use an Order in Council to change any law in Dominica or St Lucia.

The Constitution of an independent nation is supreme.  No other law can alter or amend it.  The Constitution of a colony, by contrast, is a subordinate Constitution.  The Constitution of Anguilla is not the supreme law of Anguilla.  It binds only the Anguilla government and the Anguilla House of Assembly.  The British government and Parliament are not bound by it.  The British Parliament can make any law for Anguilla.  The British Government can make any Order in Council for Anguilla under the Anguilla Act.

The British are not strictly bound to seek our permission to extend an Order in Council to us.  They have promised us, by assurances given at various Joint Ministerial Conferences over the years, that they will not generally pass an Order in Council applying to us without consulting fully with us.  But they reserve the right to do so without our permission when they deem it necessary.

First, let us be sure we understand what the 2020 Order did.  If, and when, it comes into effect, it will temporarily disapply section 64 of the Constitution.  Sections 63 and 64 of the Anguilla Constitution govern the calling of general elections.  They provide:

Prorogation and dissolution

63. (1) . . .

(2) The Governor, acting after consultation with the Chief Minister, may at any time, by Proclamation published in the Official Gazette, dissolve the Assembly.

(3) The Governor shall dissolve the Assembly at the expiration of five years from the date when the Assembly first meets after any general election unless it has been sooner dissolved.

General elections

64. There shall be a general election at such time within two months after every dissolution of the Assembly as the Governor shall by Proclamation appoint.

The scheme of the original 1982 Constitution is clear.  The Premier can at any time during his five-year term of office ask the Governor to dissolve the Assembly and call general elections.  If he wants to seek a new mandate early, he can call for new elections after a year or two.  The Governor is not obliged to follow his wishes.  He may act on his request, or he may decline to.  There are long standing conventions that guide a Governor (and his employer, the Foreign and Commonwealth Office), as to when to do as the Premier asks, and when to refuse.

One is that, if the Premier requests a dissolution of the Assembly a short time after the previous general elections, the Governor may refuse.  He may be reluctant to put the people through another bruising political campaign so soon after the last.  On the other hand, if elections are just around the corner, the Governor will probably let the Premier have his way.

The Premier can wait out his full term of five years.  If he does not ask the Governor to dissolve the Assembly, the Governor must do so on the fifth anniversary of the first sitting of the House of Assembly after the last general elections.

The present Assembly held its first sitting after the last general elections on 11 May 2015.  So, applying the above rules, if the Premier does not call for an earlier dissolution, the Governor is obliged to do so by 10 May 2020.  Once the Assembly is dissolved, the Governor must cause the general elections to be held at any time within the following two months, ie, by 10 July at the latest.  That date of 10 July was the deadline facing the Premier when Covid-19 caused the World Health Organisation on March 12 to announce that we were facing a pandemic.

In the face of this disease spreading to all corners of the earth, and three diagnosed imported cases in Anguilla, the administration decided to shut down the island.  The ports were closed, and we were instructed to practise social distancing, frequent handwashing, and near total self-isolating in our houses.  Mass meetings, including church attendance, were banned.  In such circumstances, including the possibility that health conditions would not improve before the 10 July date, the obvious question arose, what to do about the coming general elections.

By early March, the administration decided to postpone the elections.  The official reason given was to preserve public health.  People could not be asked to take the risk of standing in long lines to cast their vote.  Other factors came in to play.  If US ports remain closed to international travel in July, the present administration would not be able to bring in the vast numbers of off-island supporters it relies on to win elections.

At the time of the 2015 elections, the population of Anguilla was about 13,000 souls.  A significant proportion of any country’s population consists of children.  Children can’t vote.  Yet, there were 10,908 registered voters on the Voters List, just short of the total resident population.  A significant proportion of these voters must reside outside of Anguilla.  With our system of continuing voter registration, the present number on the Voters List in 2020 will be thousands more.

The Opposition has long argued that many of these registered voters were never qualified to be put on the Voters List.  They were put there over time by influential politicians who, under the lax rules that prevailed in previous years, persuaded the elections officers to add their foreign-resident supporters to the List.  These are persons who can be depended to vote for their sponsor if their trip to Anguilla is paid for.

For decades, people have commented on the multiple planeloads of supporters of the present administration who are flown into the island from overseas shortly before each general election is held.  We know they are coming in to vote for their party representative.  The present administration is the only party organization on the island with the financial resources to be able to fly in large numbers of persons to vote every five years.

Local belief has it that the flu, of which Covid-19 is a variety, usually dies back in the summer, and is most virulent during the autumn, winter and spring.  It was common talk during February and March of this year that the administration would do everything it could to postpone the general elections until the late summer.  This, it was argued, was felt by the administration to be essential if there was to be any chance of US airports being open.

So, it was inevitable that the administration would seek a way to postpone the looming elections.  The question was, how to do it?  There are only two ways.  First, to proceed locally under the Emergency Powers Act, RSA E045, or, second, through British action by using an Order in Council.

The administration has power to postpone elections if a state of emergency exists.  Section 14 of the Anguilla Constitution permits the Governor to declare that a state of emergency exists.  The section reads:

Derogations from fundamental rights and freedoms under emergency powers

14. Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of section 3 or section 13 of this Constitution to the extent that the law authorises the taking during any period of public emergency of measures that are reasonably justifiable for dealing with the situation that exists in Anguilla during that period.

Under section 14, even our fundamental rights can be suspended.

Section 17 of the Constitution sets out how the Governor declares a period of public emergency.  It reads:

Declaration of emergency

17. (1) The Governor may, by Proclamation which shall be published in the Official Gazette, declare that a state of emergency exists for the purposes of this Chapter.

(2) A declaration of emergency may at any time be revoked by the Governor, by Proclamation which shall be published in the Official Gazette, and, unless sooner revoked, shall, without prejudice to the making of a further declaration in like manner, expire at the expiration of ninety days from the date on which it was made.

So, a state of emergency exists only for a period of ninety days unless the Governor makes another order extending it.

Unlike, say, the United States, a state of emergency is not declared to permit federal funds to be spent on state needs and expenses.  A state of emergency under our Constitution is not declared because a disaster has occurred and there is a need for vast sums of money.  A state of emergency is declared only when there is a need to suspend part or all of the Constitution to permit the administration to take some action that would otherwise be unconstitutional.

The law that has been passed in Anguilla governing the declaration of a state of emergency is the Emergency Powers Act, RSA E045.  This Act regulates declarations of periods of emergency under section 17 of the Constitution.  It authorises the Governor, in case for example, of a pestilence to declare that a state of emergency exists because of a flu pandemic that threatens the health of the public if they should gather together in crowds, such as exist around the polling stations on election day.  In such circumstances, he could legally declare the elections postponed to a later date.

The second way to postpone elections legally is by asking the British government to create an Order in Council postponing the elections.  This procedure is a little more hazardous for the local administration.  You can never tell what the British may insist on putting into the Order.  By comparison, you control what the Governor is asked to declare in case of a public emergency.

In the event, the British were persuaded to pass the 2020 Order.  It is not yet in force.  Section 1(4) provides:

(4) This Order comes into force on such day as the Governor, acting in his or her discretion, may appoint by proclamation in the Official Gazette.

The commencement date has been left hanging.  The Order will come into force only if the Governor by Proclamation declares it to be in force.

Section 2 is the operative section.  It is quite short.  It provides:

2.— (1) Paragraphs (2) and (3) apply in relation to the first general election in Anguilla following the commencement of this Order.

(2) Section 64 of the Constitution (General elections) does not apply.

(3) The Governor shall, acting in his or her discretion, by proclamation published in the Official Gazette, appoint a date for the holding of the first general election to the Assembly following the commencement of this Order, and such date shall be not later than four months after the dissolution of the Assembly.

The implications are clear.  First, the Constitution has not been permanently amended.  It is amended only in relation to the date for the next general election if, and when, the Governor brings the 2020 Order into force. 

Second, at that point, the timetable found in section 64 of the Constitution will not apply.  That is the section which provides that the elections must be at such time within two months after every dissolution of the Assembly as the Governor shall by Proclamation appoint.

Third, the time is extended to four months after the dissolution of the Assembly.  Section 63 still applies.  So, if the administration does not advise the Governor to dissolve the Assembly at an earlier date, the Governor must dissolve the Assembly on 10 May, as previously explained.  However, the present Administration may continue to operate for another four months instead of the previous two.  That means that at the latest, the next general election must be by 9 September.

The question that is taxing everyone’s mind is why did the administration prefer an Order in Council over a declaration of a state of emergency.  There are several possible reasons.  The first is that such a declaration might be damaging to the tourist industry.  Travel agents will not be inclined to send their customers to a country living under a state of emergency.  Tourism is Anguilla’s main industry.  Everything must be done to avoid damaging it.

The second has to do with local politics.  The administration must be aware that, once the original date of 10 May passes with no case of Covid-19 in Anguilla, though it continues overseas, complaints will begin to be made that the elections were unnecessarily postponed.  There is a risk of serious civil discontent.  If the state of emergency continues past 10 May, the administration will not be able to avoid blame for the postponement.  On the other hand, if the delay was caused by an external force, it is easier for the Administration to shrug off blame.  The administration will be able to say, “We did not do it.  The British did.  Go, take your complaint to the British.”  On such transparent tricks and gimmicks elections in Anguilla are fought and won.

I conclude by pointing out what in my opinion is bad about this Order in Council.  The British Foreign and Commonwealth Office (the FCO) has responsibility for ensuring our good governance.  The FCO has repeatedly assured us that they will not tinker with our Constitution without first ensuring that the people have been consulted.  Except in the most extreme circumstance, eg, matters of national security, no Order in Council should be extended to Anguilla without prior consultation.  The FCO Ministers have repeatedly promised this to us at Joint Ministerial Conferences over the years.  We have an expectation that this rule or principle will be religiously followed.  The people of Anguilla were not consulted by either our administration or the FCO prior to this instrument being signed.  The fact that it was requested by our government is not a substitute for the promised prior consultation with the people.

One might argue that this interference with the Constitution was so minor that it does not deserve quarrelling with.  That is not the point.  If we allow our administration without protest from us to negotiate with the FCO behind our backs to alter our Constitution without prior discussion with us, then a precedent is set.  We will find it difficult in the future to complain when more substantial changes are made without consulting us.  There was no urgency that required this Order to be made without consultation.  The elections are months away.  The fact that the Opposition appears to have colluded with the administration in orchestrating this attack on our expectation of a right to prior consultation adds insult to injury. 

Is it only me who has forebodings of bad intentions on the way?  I have a premonition of more dangerous and unexpected constitutional changes around the corner.  The risk is that they will be made, and we will only learn about them after they have come into effect.