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.
