A country’s Constitution is the highest legislative instrument available
to the elderly and others in the struggle to achieve “the ideal of a free human
being, free from fear and poverty.”
We rely on our Constitution to ensure that a legal framework is created
that enables each individual to enjoy their economic, social, and cultural
rights, as well as their civil and political rights. Each domestic law is subject to the
Constitution. It is one of the duties of
a Judge to declare that a law passed by the House of Assembly contravenes the
Constitution, and must be declared invalid, null, and void. If the Constitution does not hold true to this
aim, then no legal progress is safe, and unscrupulous politicians can corrupt
the system for the benefit of themselves, their families, and their friends,
and for the destruction and exploitation of persons they do not like.
It is
generally accepted in Anguilla that over the past 40 years of internal
self-government, successive Anguillian administrations have had difficulty in
living up to acceptable standards of good governance. The feeling here is that the political
directorate of Anguilla will need to prove their ability to adhere to rules of
accountability, transparency and integrity, before the majority of Anguillians
will agree to risk their lives and property in their unsupervised hands in an
independent state. A first step in this
direction would be to introduce into any new colonial-type Constitution a
number of institutions that, if adhered to, will tend to guarantee good
governance. Once this is satisfactorily
established over a period of time, Anguillians will be prepared to contemplate further
political advancement.
The recent Constitutional and Electoral
Commission of 2007, and the subsequent Committee of 2017, recommended several essential
checks and balances that are missing from our present Constitution, and that must
be successfully implemented before Anguillians are ready to discuss political
independence. Chief among these are
certain watch dog institutions. Both the
Government of Anguilla and the Opposition have accepted these recommendations. Some of the more important ones are the
Integrity Commission, the Register of Interests, the Freedom of Information
Commissioner, the Ombudsman, the Human Rights Commissioner, the safeguarding of
Public Assets, and the protection of Public Finance.
First is the inclusion
of an Integrity Commission in the
proposed new colonial-style Constitution.
The function of the Integrity Commission will be to promote integrity,
honesty, and good faith in public life. It
will publish a Code of Conduct for Persons in Public Life and
investigate any alleged failure to abide by the Code.
A Minister will automatically vacate his or her
office if the Integrity Commission determines that he or she has breached the Code
of Conduct for Persons in Public Life, subject of course to a right to
appeal to the High Court.[1]
A Minister who has not disclosed to the
Integrity Commission that either he or she, or a partnership or company in
which he or she is a member or director, is a party to any contract with the
Government will not be qualified to be elected to the Assembly.[2]
The seat of an elected member of the Assembly will
become vacant if he or she fails to file their Declaration of Interests as
required by section 98 of the Constitution.[3]
If an elected member is convicted by a court of
law in any country of an offence of dishonesty or immorality, they must
immediately cease to perform their functions as a member of the Assembly, and,
subject to their right of appeal, their seat in the Assembly shall become
vacant at the expiration of a period of thirty (30) days.[4]
Each elected member of the Assembly must
declare to the Integrity Commission such prescribed interests, assets, income,
and liabilities. These will be entered
in a public Register of Interests and published on the government website. Such declaration must be
renewed at least every twelve (12) months.[5]
The Speaker
and other members of the parliament will no longer be at liberty to fix their
own salaries and allowances. They are to
be paid such remuneration as is prescribed in an Act of Parliament. Parliament may not consider any measure to
increase their remuneration unless recommended by the Integrity Commission.[6]
Most importantly, the Integrity Commission must
make an annual Report to the House, which is to be published on the government
website.[7]
Perhaps the second
most important watchdog institution is the creation of a public Register of Interests to be
binding on all politicians.[8] Any public officer to whom the law applies
will be obliged to declare his or her interests, assets, income, and
liabilities on an annual basis. The
penalties for lying or concealing are not in the Constitution, but will be set
out in an Act, and are expected to include fines and imprisonment.
The obligation to declare interests and assets,
etc, will apply immediately to all members of the House of Assembly, and
subsequently to the holders of all other offices as may be prescribed. It is expected that this provision will be
extended to all Permanent Secretaries, Heads of Departments, and members of
public boards, committees, and commissions, of whom accountability,
transparency and integrity are demanded.
The law will set out the sanctions for failure
to comply. Failure of a Member of the
Assembly to declare their interests annually results in automatic loss of their
seat.[9]
At present in Anguilla, all information held by
any government department is confidential, and members of the public have no
right to see, for example, what information, however prejudicial and biased it
might be, is held on him or her in any government file. This will be changed when the Freedom of Information Commissioner is
appointed.[10] This is the officer who enforces the proposed
Freedom of Information Act.
This provision will give to all members of the
public a right, within reason, of access to all information held by public
authorities.
The Freedom of Information Commissioner will
receive complaints and will investigate, decide on, and report on compliance by
public authorities.
At present, whenever a member of the public is
treated arbitrarily or unfairly by a public servant, or is discriminated
against or is victimised, there is no clear procedure for making a
complaint. This will be changed with the
constitutional appointment of a Complaints
Commissioner, otherwise known as the Ombudsman.[11]
This officer will have the power to investigate
all complaints against the conduct of a public officer and to make
recommendations and publish reports on his or her findings. It will be a great saving to members of the
public if they can get relief from prejudicial conduct by the administration
without being obliged to take a complaint to court.
At present, an Anguillian can complain to the
High Court whenever one of his or her civil or human rights is infringed by
government. This is a very time
consuming and expensive process. The new
Constitution makes provision for a Human Rights Commissioner to be
appointed to protect a citizen’s rights when they allege they have been
breached.[12]
The powers and duties of the Human Rights
Commissioner will be set out in a law, and will include various matters such as
promoting conciliation with respect to disputes; issuing guidance for dealing
with complaints; and preparing Reports to the House of Assembly. All Reports are to be published.
The Human Rights Commissioner does not have the
power to bring a lawsuit on behalf of a citizen, but Commonwealth experience
has shown that usually an adverse Report by the Commissioner will be sufficient
to get compliance. If government does
not act on the Commissioner’s Report, a private lawsuit may be necessary, but a
court will be greatly influenced by the Report and will be able to inflict
heavy penalties.
A frequent cause of public complaint surrounds
the abuse by government or a minister of Public Assets. At present there is no remedy available to
the citizen when there is corruption in dealing with some asset of
government. This will be changed under
the new Constitution. In future, any
dealing in government lands in excess of one acre will require approval by the
Assembly. The protection applies not
only to Crown land, but also to any mineral, or fishing, or other public asset.
At present, there are several Acts of
parliament that try to protect the Public
Finance. It is generally felt that these statutory
provisions are frequently ignored, and there is no remedy available to a
publicly minded citizen to enforce them.
The deliberate ignoring of the public finance rules by
governments over the past decades has caused the Chief Auditor to be critical
of Anguilla’s public accounts.[13] We have never in the history of Anguilla’s
public accounts received a clean audit report.
The new Constitution will enforce fiscal responsibility by placing in
the Constitution the various rules that have up to now been found only in
pieces of toothless common legislation.
At present, there is no way for a publicly minded citizen to enforce the
finance laws and regulations. The new
Constitution will correct this weakness by placing the statutory rules in the
Constitution. Our Constitutions are made
by the British Privy Council, not by our local House of Assembly. This will mean that in future the public
finance rules cannot be watered down by politicians passing an amendment to a
local statute, and any member of the public will be able to enforce the rules
by a court action when there is evidence the rules are being breached.
What, you may ask does all this have to do with
the
struggle for the full realization of the Rights of Older Persons? As the Inter American
Convention on Protecting the Rights of Older Persons puts it, “Bearing in mind that, pursuant to
the Universal Declaration of Human Rights and the American Convention on Human
Rights, the ideal of a free human being, free from fear and poverty, can only
be achieved if conditions are created that enable each individual to enjoy
their economic, social, and cultural rights, as well as their civil and
political rights.”
No Convention that “Reaffirms that all human rights and
fundamental freedoms are universal, indivisible, interdependent, and
interrelated, as well as the obligation to eliminate all forms of
discrimination, in particular, discrimination for reasons of age” is legally enforceable under
Anguillian law. If the rights of the
elderly are to be truly enforced, it will be necessary to act under either a
domestic law or under the Constitution.
With the inclusion in the Constitution of the various watchdog
institutions designed to introduce and enforce accountability, integrity, and
transparency, the elderly, and their representatives, will for the first time
have a dependable, inexpensive, and binding assurance that their complaints
will no longer be made up against a stone wall.
These watchdogs can bite.
A presentation by Retired Justice Don Mitchell
CBE at a Webinar organised by the University of St Martin and Sint Maarten on
Saturday 26 February 2022 on the topic: “Seniors’ Rights in St Martin, Sint
Maarten, and Anguilla.”
