Government’s
Draft New Constitution for Anguilla of 10 November 2019
Presentation
by Don Mitchell, CBE, QC, former chair of the Constitutional and Electoral
Reform Committee, to the Foreign and Commonwealth Office Negotiating Team (“the
FCO team”)
On
10 November 2019 the Government of Anguilla published on its website its proposals
for a draft new Constitution for Anguilla. This
new draft drops several earlier Government proposals for amendment, and it
introduces new ones. At no time has any
effort been made by Government to explain to the people of Anguilla the changes
that are proposed.
The FCO team begins consultations with
Anguillians on Monday 18 November 2019. Few
persons will have had an opportunity to study Government’s new draft Constitution
prior to the start of negotiations.
It is regrettable that Government made no
effort to constitute a national “negotiating team” until 14 November, four days
before the meetings with the FCO team begin.
This is an impossible timetable for a disparate group of people to meet.
I therefore submit these preliminary
observations for the assistance of persons who will engage in these negotiations. I apologise in advance for any errors or
omissions that may be discovered. This
is due in part to the hurried preparation of this presentation.
The framers of the 2017 Report
to Government (“the 2017 Report”) attempted to reflect
public concerns in the draft Constitution and supporting legislation they
produced. These concerns were that the
Constitution and other legislation need to be updated to increase and improve
accountability, transparency and integrity in the public affairs of Anguilla. The two main public demands for
constitutional and electoral reform were improving democracy and improving standards
in public life.
Improving Democracy: The Anguillian
public is insistent that constitutional steps be taken to reduce the “democracy
deficit” so evident in the constitutional and electoral laws and procedures in
Anguilla. These deficits are detailed in
both the 2006 and the 2017 Reports of the Constitutional and Electoral Reform
Commission and Constitutional and Electoral Reform Committee. The 2017 Report contains dozens of proposals
that, if enacted, will contribute to this end.
The recently enacted Elections Act, 2019 (the 2019 Act) omits three of
the most sincerely desired and widely welcomed reforms to our election
procedure originally included in the draft Constitution that formed part of the
2017 Report. These omissions were:
(1) the revision of the Voters’ List, widely perceived to be
stuffed with unqualified voters, by holding a new enumeration exercise,
(2) increasing the number of districts or constituencies from
seven (7) to nine (9); and
(3) introducing campaign financing regulation.
Anguillians urge that the opportunity should be
taken to restore them in any new Constitution for Anguilla. The accompanying Elections Act 2019,
passed recently and which omits these provisions, should be revised. Government’s defective Anguillian Status
Commission Bill, recently published on its website, must be properly re-drafted
before it is enacted.
While some of the Government-proposed changes
to the draft Constitution recommended by the Constitutional and Electoral
Reform Committee contained in its 2017 Report are acceptable, others are more
questionable.
Improving
Standards: The
second main thrust of the 2017 Report was to insist on putting binding
procedures in place to raise the perceived present low standard of integrity in
public life. The lack of any effective
institution of good governance in Anguilla (besides the costly one of recourse
to the Court) is felt to be a major contributor to our failure in past decades
to develop high standards of governance in public life. An important aspect of these proposed reforms
is the strengthening of provisions for the management of public finances.
Any proposed new Anguilla Constitution that is
negotiated with the FCO team must be submitted to the people for their
acceptance before the draft is signed into law.
That is the only sure way to achieve a peaceful acceptance of what up to
now has been a highly unsatisfactory and acrimonious process. That acceptance or otherwise of the new
Constitution can be easily shown by a yes/no referendum.
I now deal seriatim with the various sections
in the Government’s draft Constitution which appear to be problematic in
relation to both the democratisation process and the effort to improve public
standards:
(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) 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.
(3) The proposed alteration to section 42(1)(a) is
in error in giving the Governor responsibility for foreign affairs “except
for taxation and the regulation of finance and financial services”. Taxation and the regulation of finance and
financial services are not matters of external affairs. They are intrinsically internal affairs. In any event, the original
draft did not give the Governor responsibility for finance or financial
services. 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.
(4) 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.
(5) The
proposed revision of section 54 removes the qualification (for election to the
House of Assembly) 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.
(6) There is
a concern that 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 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
fraudulent List.
(7) 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.
(8) 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 (Elected Members) to remove the provision for Anguilla to be divided
into a minimum of nine (9) electoral districts.
It proposes 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.
(9) 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.
(10)
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.
(11)
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
(12)
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.
14
November 2019
