Presentation to FCO Team

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

Transhipment Project News

Thursday 31 October 2019 saw a political bombshell explode over Anguilla.  It was the “Transhipment” bombshell.

You may not remember the scandal even if you are elderly.  It happened many years ago (1998-1999) and was poorly reported in Anguilla.  Few of us are aware of the details of the scheme.  The most we learned at the time was that the beautiful new road from West End to the Blowing Point traffic light was built with transhipment money.  Chief Minister Hubert Hughes received wide political praise for this infrastructural improvement at the time.  To his credit, he subsequently distanced himself from the scheme that financed it.

The transhipment scheme involved diverting ships on their way from Brazil to Europe laden with aluminium ingots.  The ships barely paused outside Anguilla’s port on their way to their destinations, mainly in Italy.  The ships’ captains would prepare papers saying they had landed their cargo on Anguilla.  Anguillian customs officers would speed out to sea in their Customs boat to meet the ships.  Official Anguilla government receipts would be issued showing the full customs duty of 6% had been paid.  The organisers would claim back up to 50% of the customs duty as expenses.  Papers proving the full duty was paid in Anguilla would be issued.  This was all as agreed with the Anguilla government.  But, a refund of customs duty paid to an agent was not lawful under European Commission rules.

Anguilla asserted that the full amount of European duty was paid in Anguilla.  Anguilla was and is a British Overseas Territory.  When the cargo was landed in Europe, the shippers claimed the duty was already paid at a British Overseas Territory Port.  The cargo was supposed to be free of all further duty.  The Europeans fell for this for over a year.

Subsequently, the organisers rented the Old Factory shell building in the Long Path from Government.  They attempted a sugar transhipment scheme there.  They bagged sugar supposedly grown in Anguilla.  In fact, it was grown in Sudan.  This project was shut down after a relatively short period.

While it lasted, the lawyers made money.  The organisers made money.  The agents made money.  Even Anguilla’s customs made some revenue.  As proof, the West End road got built.  After an investigation, HM Customs reported to the Foreign and Commonwealth Office (“the FCO”) on 9 December 1998 that up to one third of Government’s revenue came from this one source.  But it did not last long.

Of course, the Europeans eventually discovered what was going on and protested.  The FCO stepped in and, after ten (10) shipments, stopped us from playing the game.

The Dutch lawyers who designed the scheme used both Anguilla and Curacao.  Many of those involved in the Curacao part of the scheme came to a sticky end.  The head of the FOL party, Anthony Godett, was convicted of fraud, when he was about to be named Prime Minister.  His sister Mirna was quickly substituted as PM.  Also convicted was Ben Komproe, the previous PM, who died after several weeks in prison.  Another convicted official, former Curacao Commissioner and later chief advisor to the PM, Nelson Monte, was convicted, among other things, of fraud.  No one in Anguilla was ever charged, far less convicted.

The Europeans claimed a refund of the lost duties from both the Netherlands and the United Kingdom.  These refused to pay the refund.  This caused the European Commission to begin the case in the European Court of Justice.  They won their case.  The Netherlands must now pay back over US$20 million.  The amount of money the UK must pay for Anguilla is not stated in the judgment.

Molly Quell has published the story of Britain being held responsible for Anguilla’s actions.  It is to be found in a 31 October 2019 issue of “The Courthouse News Service”:  https://www.courthousenews.com/uk-netherlands-found-liable-for-territories-failure-to-tax-exports/.  This is an official publication of the European Court of Justice.

The question we are all asking is, when Britain pays the money, will she take this assault on her treasure lying down?  Or, will she demand that Anguilla pay back the money?  After all, only we and our agents benefitted from it.  How will this court judgment affect Anguilla’s already excessive public debt burden?  What further taxes will we be called on to pay in order to meet it?

The Coming New Dispensation

The Government of Anguilla is about to negotiate a new Constitution for Anguilla.  The British negotiating team is arriving, according to the Premier, in mid-November.  They will confer with the Anguilla negotiating team.  They will agree a new Constitution that will affect the lives of all Anguillians for decades to come.  The question is, will Anguillians be kept apprised of the negotiations?  Or, will the administration negotiate a new Constitution in secrecy?  The latter is probable for three reasons.

One, the British Foreign and Commonwealth Office (“the FCO”) prefers secrecy as a matter of course.  They govern a colony with the least friction by concealing their hand until the last moment.  Two, Premier Victor Banks is notorious in Anguilla for keeping his people in the dark about his decisions.  He frequently admonishes his ministers, even in public, to keep quiet about what is going on.  Three, there is a long history of the Anguillian public being kept unaware about impending government changes.  Neither the British nor the local administration has ever kept the people informed of what changes are being made in the arrangements for their governance.  This modus operandi is not likely to change.

Those of us of a certain age remember the processes followed for bringing the 1976 and the 1982 Constitutions into effect.  In each case, it involved great secrecy and a minimum of Anguillian involvement.  The reason for this is clear.  So long as you don’t let Anguillians know in advance what is about to happen to them, they will be quiet as lambs.  Only let them know, and then you have a lot of explaining to do.  There was no Report published even at the conclusion of either set of previous negotiations.

The procedure for adopting the 1976 Constitution was notable.  At that time, Anguilla was still officially a part of the Associated State of St Kitts, Nevis and Anguilla.  Ronald Webster was Chief Minister of Anguilla.  He was happy to leave the negotiations with the FCO to Bernice Lake QC and Dr Billy Herbert, both constitutional law experts.  It was not difficult for them to work out with the lawyers at the FCO an Associated State type constitution for Anguilla.  After all, technically Anguilla was still a part of the Associated State, though being administered on a day-to-day basis directly from London.

An Associated State was one where the local administration was theoretically responsible for all local decisions of government.  Britain was responsible only for foreign affairs and defence.  That was the law under the West Indies Act of the British Parliament.  So, Anguilla’s 1976 Associated State Constitution was one that in theory gave us semi-independence.  That was not the preference of the FCO.  But they had no choice at that time.  They were bound by the West Indies Act.  They were anxious to change the regime to give the FCO more direct control of us and our affairs.

The chance came in February 1980 when the People’s Action Movement political party (“PAM”) won the general election in St Kitts and Nevis.  The Labour Party, from the time of Robert Bradshaw, had placed obstacles in the way of Anguilla’s separation.  PAM came to power on a platform promising independence for that two-island state.  Anguilla would return to Britain.  Dr Kennedy Simmonds, the leader of PAM, was the new Premier (February 1980 to July 1995).  Dr Billy Herbert, who lived part-time in Anguilla, was his legal adviser.  In Anguilla, Emile Gumbs was Chief Minister (February 1977 to May 1980).  He was succeeded by Ronald Webster (May 1980 to March 1984).  Webster’s legal adviser was the same Dr Billy Herbert.

In February 1980 when Dr Simmonds came to office, Lord Carrington was the UK Secretary of State for Foreign and Commonwealth Affairs (May 1979 to April 1982).  Carrington’s position was that so long as Anguilla was a dependency of Great Britain, then Anguilla’s existing Associated State Constitution was an anomaly.  It meant that the Anguillian government was free to get up to mischief, while Britain retained ultimate responsibility for covering any costs incurred.  It was preferable, from the British point of view, that, so long as Anguilla was a British dependency, British officials have full legal authority over the government of Anguilla.

Dr Simmonds was amenable to letting Anguilla go.  The previous three-island Associated State could be abolished.  He would take St Kitts and Nevis into full political independence.  These two were the last of the Associated States in the West Indies.  All the others had long gone independent.  Only the confusion with Anguilla was holding up independence for St Kitts-Nevis.  It was time to negotiate a new colonial Constitution for Anguilla while letting St Kitts-Nevis go.  The three administrations of St Kitts-Nevis, Anguilla, and the UK were agreed on this.

Ownership of the island of Sombrero had vested in St Kitts since the year 1951 when it was transferred out of Tortola’s control.  The British Board of Trade (the “BoT”) paid the salaries and pensions of the Anguillian lighthouse-men.  The BoT was responsible for maintaining the light that shone the way to the Panama Canal and through the Anegada Passage.  These were major shipping lanes for British merchant shipping since early colonial times.  The BoT saw the opportunity to regain full legal control of Sombrero after St Kitts became independent.  Bringing Sombrero under British management was easy.  Transfer ownership to Anguilla.  Since St Kitts was going independent from Britain, it was appropriate for Britain to retain control of Sombrero through the agency of the British Overseas Territory of Anguilla.  The trick was to do the separation so that the Kittitian public were not alerted and given the chance to protest at their loss of territory.

The United Nations Convention on the Law of the Sea was then being negotiated.  Whoever owned Sombrero would acquire an additional 200 miles of exclusive economic zone.  Anguilla would benefit in fishing and mineral rights (if only potentially) from the acquisition of Sombrero.  In exchange for a generous separation payment, Dr Simmonds had no vested interest in continuing to own Sombrero.  The trick was done by silently including Sombrero in the definition of Anguilla in the 1982 Constitution.  It was omitted from the definition of St Kitts-Nevis in their Constitution.  So, Anguilla quietly acquired legal title to Sombrero.  There was no fanfare.  From the view of the British, Kittitian, and Anguillian administrations, public discussion would only have muddied the waters.

The bringing into effect of the 1982 colonial Constitution of Anguilla was shrouded in even more secrecy than the 1976 one.  Under it, Anguilla would lose all pretence of being responsible for her internal affairs.  The FCO, through its appointed Governor, would legally hold full power over the executive and the law-making functions.  He would appoint ministers from among the locally elected members of the House of Assembly to assist him in his duties.

The first the Anguillian public learned of an impending new Constitution was an announcement on the radio news bulletin less than one week before it came into effect (1 April, All Fools Day).  Secrecy was guaranteed.  There was then no internet, no social media, no newspaper, nothing but the government information service.  The government-owned Radio Anguilla was the only broadcasting station.  By the time a few Anguillians managed to acquire a copy of the Constitution and read it, it was already a fait accompli.

The omens are not good this time for transparency and public discussion about a new 2019 Constitution for Anguilla.  A few weeks ago, Premier Victor Banks made an announcement at a town hall meeting.  It was reported in a long article tucked away in the 4 October 2019 issue of “The Anguillian” newspaper.  He stated in effect that the British team is coming to negotiate our new Constitution in mid-November.  That was the first and only public announcement of this momentous development that any of us has heard of.  Most of the Anguilla negotiating team apparently consists of Government supporters.  They are tasked with negotiating a new Constitution to come into law by December 2019.

So far as I am aware, no opposition party has been invited to participate.  The lone independent member of the House, who serves as the Leader of the Opposition, will probably be invited as an outnumbered token.  One evangelical preacher will probably be included to argue against a fundamental right for gays and lesbians not to be discriminated against.

The FCO preference is always for negotiating with a wide-based local team.  But it is not realistic for us to imagine they will tell the Anguillians how to represent their own people.  They are not likely to repudiate a local negotiating team put forward by the Government as representing all Anguillians, just because they suspect it is biased and partisan.

The Anguillian and British teams will negotiate in confidence, if not sworn secrecy.  As in 1976 and 1982 we will wake up one day to discover we are governed under a new dispensation.  How close this will be to the recommendations made by the 2017 Report of the Constitutional and Electoral Reform Committee is anybody’s guess.  Personally, I think it will not be very close.  And, the point is we won’t know about it until it is done.

I give both the administration and the FCO due notice.  If they adopt this flawed process, it will not bode well for the peaceful administration of this Territory.  To restore order after a future administration comes into office, it will probably be necessary to negotiate the constitutional arrangements all over again.  That will be such a waste of precious time and effort.

Apologies to Lord Ahmad

Government published its draft new Constitution on its website on 24 September.  It is a perverse and distorted version of the original recommendation by the Constitutional and Electoral Reform Committee.

At the time of Government’s publication, they announced that there would be public consultations at the Teachers’ Resource Centre on 30 September and 1 and 10 October.  All members of the public were invited to attend.  They gave us just 2 weeks to register our objections and comments.  Then, it appeared, they intended to send it off to London with the good news that we all agreed to it, so could it please be now signed into law by the Privy Council.  There was no suggestion that the FCO was interested in speaking to the Opposition, far less the people, before bringing the new Constitution into effect.

A breath of fresh air, a point of light in the darkest tunnel of botched constitutional reform, has now appeared on the horizon.  It is found in a speech of the Chief Minister (by now dubbed the Premier) on 30 September reported in the 4 October 2019 issue of “The Anguillian” newspaper at page 2:

Premier Banks disclosed that a number of technical officials from the Foreign and Commonwealth Office would be coming to Anguilla, in the middle of November, to participate in another round of public consultations.  He said constitutions were very complicated documents with far-reaching implications, and certain elements of the constitution must be in sync with the laws on our books.

This is the first indication we have that the British were not entirely hoodwinked by Government into passing Government’s draft new Constitution.  They would be coming to see for themselves what our attitude is to Government’s proposals for constitutional and electoral reform.

Three things need to be noted from the above announcement by Premier Banks.

1.   He says that the British technical officers will be coming to participate in another round of public consultations.  He must mean that the FCO’s lawyers are coming to Anguilla.  He seems to be suggesting they will sit in on the existing two-week period for “public consultations.”  That is hardly likely to be correct.

2.   When the FCO visits an Overseas Territory to discuss constitutional reform, they constitute what in Anguilla’s case will be called something like “The Anguilla Constitutional Conference.”  They expect their negotiating team to meet with a local negotiating team.  They invariably demand that the local team consist of representatives of government and the Opposition.

The two teams meet across the table from each other to negotiate.  The FCO do not consider only the representations of Government’s team.  They expect the local team to be fully briefed on local expectations for reform.  The local team must be able to put forward the public’s expectations.  The FCO team will have their own demands. 

Their proposals for reform may include new matters that the local team has never considered before.  They may, for example, be quite strong on rights issues that will be new to the locals.  These will include freedom from discrimination in marriage, and the right to a clean environment, and to education.  Yes, they will want gays and lesbians to have the right to marry.  This is because that right is now recognised everywhere as the fundamental right not to be discriminated against on the basis of one’s sexuality.

3.   The Premier seems to have been misled into believing that the new Constitution will need to be “in sync” with the 2019 Amendment Order.  This is a mistake.  The coming new Constitution will set aside the 1982 Constitution along with all amending Orders in Council.  A similar erroneous suggestion was made by the Hon Minister of Home Affairs in the last meeting of the House of Assembly.

This error is our clue that the draft new Constitution published by Government on its website was not prepared by qualified legal draftspersons.  These would know that there is no need for a new Act or Constitution to be “in sync” with a previous one.  This is especially so when we are speaking about a previous amendment.  These would know that a well-drafted new instrument sweeps aside all previous instruments.  The lawmaker is not constrained by any earlier legal provision, particularly an amendment to an instrument that is being replaced.

All the evidence indicates that the new Elections Act, the Anguillian Status Commission Act, and the new Constitution on Government’s website were drafted by persons who are not experts in drafting legislation.  We can hope and demand that the FCO will insist that they all be replaced with properly drafted instruments.

It appears that both Government and the Opposition underestimated Lord Ahmad and the Foreign and Commonwealth Office.  It seems the UK officials recognise the need to consult with a representative body of Anguillians, not just a partisan incumbent Government, before making fundamental constitutional changes.  This is what the FCO normally does. 

Over the past months I have repeatedly accused Lord Ahmad of betraying Anguillians by ignoring the expected consultative procedure and going along with Government’s unilateral proposals.  This accusation may have been true about the 2019 Amendment Order.  It appears the FCO will do the right thing for the remainder of the reforms.  For doubting Lord Ahmad’s integrity in insisting on this procedure, I personally owe him an apology.

Meanwhile, a great deal of damage has been done by the 2019 Amendment Order and the Elections Act 2019.  But, if the FCO is now coming to Anguilla to meet with the Opposition as well as the Government to finalise a new Constitution, it is not too late to correct the errors.

Any new Constitution will set aside both the old Constitution and all amending Orders in Council.  The opportunity to restore the integrity of the 2017 Report’s draft Constitution and its attendant draft Acts is there. 

It is much to be hoped that the FCO will also insist that the missing Acts necessary for giving effect to the watchdog institutions be prepared and put in place immediately after the new Constitution comes into effect.  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; and, (g) an Anguillian Status Commission Act.

The Constitution states that these provisions in the Constitution depend for their efficacy on the related Acts being passed into law.  Accompanying these Acts would be the Regulations and other statutory instruments necessary to make the Acts work.  Without them, no substantive reform will have been achieved.

Dr Ellis Webster, as leader of the biggest opposition political party, and his team including his legal advisers, should be invited.  Mr Sutcliffe Hodge, as leader of the third party, and his advisers must be there.  Mrs Pam Webster, as the Leader of the Official Opposition in the House of Assembly, and her advisers must be included.  Without each of them being present at the table, no eventual solution will be acceptable.

If the FCO is wise, their team will insist that any proposed new Anguilla Constitution that is negotiated 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 contentious and acrimonious process.  That acceptance or otherwise can be easily shown in a yes/no referendum.

Trump and Anguilla

One of the more bizarre Anguillian news events of the past few weeks involved US President Donald Trump.

On 23 August, a well-known US journalist, author, historian, and public speaker by the name of Paul Street wrote a tongue in cheek article on his Blog.  The article is a satire on Donald Trump’s style of international diplomacy by tweet.  It is headlined, “Trump Threatens Anguilla with Thermonuclear Liquidation.”

Some weeks earlier, a US tourist in Anguilla was charged with the manslaughter of a local hotel worker.  The story made the TV news in the USA.  Paul Street imagines an angry Trump tweeting in support of the US tourist, “They won’t be happy, The Anguillians, when their little ‘nation’ gets turned into a steaming pile of radioactive ash.”

He imagines Trump thinking “The Aguinados or whatever the Hell they call themselves are not capable of holding a fair trial for some rich white guy they probably hate just because he’s an American who worked hard for his money.”

He then imagines Trump warning, “If Agwala doesn’t drop this, a lot of people could die.  What have they got on Agwano, 10,000 people or something like that? . . . I don’t want to wipe out 10,000 people, even if they don’t belong there in their first place.  I really don’t.  But I can do it and I will if I have to.”

Anguillians don’t do sarcasm, or satire, very well.  We sometimes fail to appreciate literary allusions and figures of speech for what they are.  No matter how preposterous, we think they are factual pronouncements.  As a result of this trait, we are gullible to a fault, something our politicians use to their advantage.  Perhaps that is the reason most of our poets’ work does not progress as it should.  The poetic mind is foreign to Anguilla.  Good Anguillian fiction is too often the preserve of the non-natives among us.  If it is fiction, we may often assume that it must be worthless.  This is an aspect of Anguillian culture that needs explaining.

Literal interpretation of a satirical essay may have its roots in Anguilla's history with the island’s Baptist Church faith and tradition.  The Anguillian version of the Baptist religion is of the fundamentalist sort.  Our Churchgoers belong to the US Bible-belt variety of Christianity.  We attend churches with such titles as ‘Church of God’ and ‘Seventh Day Adventist.’  These are typical made-in-America devoted evangelicals.

In the 1920s, unemployed Anguillian men sought work among the US-owned sugar-cane plantations of Cuba and the Dominican Republic.  The plantation owners mainly followed the Protestant Christian religions of the southern states of the US where they came from.  The Anguillian workers brought their new-fangled religions back when they returned home.  The sleepy, old Anglican and Methodist churches were pushed into second place.  The shiny, new US Protestant fundamentalist denominations caught root and flourished.

Since then, many Anguillians are taught, from the time we can walk, that the Bible, particularly the Old Testament, is literally true.  When Joshua commanded the sun to stand still so his forces could conquer Jericho, that is historical truth being expounded.  Maybe, the argument goes, in those ancient days the sun really did go around the earth.

God made the Earth on 14 October 4115 BC, or 6,119 years ago, according to the numbered dates in the Biblical text.  The fossil record is evidence of the one great flood.  When Moses parted the Red Sea to allow the Israelites to escape from Pharaoh’s forces, the sea really did stand still until they were all safe.  There is, in the eyes of the Anguillian pastors and their flocks, nothing but the literal truth in the story. 

A people who literally interpret all they read may understand Jonathan Swift’s “A Modest Proposal” to be a recommendation for cannibalism.  The decision to be a person of faith is deeply personal.  Seeing biblical stories through the eyes of faith is a time-honoured choice.  But this does not mean that all stories are literally true. 

With a mindset narrowed and constricted in this way, the average Anguillian could not reasonably be expected to read Paul Street’s article other than as a factual narrative of Donald Trump’s threats to Anguilla.

We fail to see any humour in the piece about Trump’s style of government.  Comments posted at the foot of the article are mainly from Anguillians.  High school teachers posted in the comments section of Mr Street’s article emotional objections to Donald Trump’s threats as relayed by him.  One writes, “I can’t believe the British Government will sit by and allow this fool to threaten our beautiful island . . . I can’t express anymore the anger I am feeling.”

A prominent politician (and part-time Baptist preacher) spent nearly three hours live on radio condemning Trump’s threats.  He asked the British government to position battleships around Anguilla if they had any true commitment to the safety of the island’s people.  Prayers for the island’s deliverance were offered up at Sunday church services.  We all held our collective breath and waited for the bomb.

Anguillian Status Commission

One of the first lessons in the Public Law course at the Albena Lake-Hodge Comprehensive School deals with the topic of “ultra vires”.  Students learn that ultra vires is a Latin term meaning, “acting in excess of or outside of one's powers or area of authority.”

In public law, an action of a government authority (including the House of Assembly) is ultra vires, null and void, when the authority does not have the power to perform that action.  The court has the duty in appropriate circumstances to declare an action of a Government agency, even an Act of the House of Assembly, ultra vires the Constitution.  When the Assembly passes an Act purporting to give someone the power to do something which the Constitution gave to someone else, the court can declare the Act ultra vires, null and void.

Some years ago, Anguillian Dr Cuthwin Lake was employed by the Government of Antigua and Barbuda as Medical Superintendent of the Holberton Hospital.  Under the Constitution, only the Public Service Commission had the power to hire or to fire a public servant employed in Antigua.  Despite this, Prime Minister Lester Bird terminated Dr Lake’s employment.  Dr Lake sued.  The court had no difficulty in ruling that the termination was unlawful, and he was restored.

Section 80 of the Anguilla Constitution gives the Anguillian Status Commission the power to grant Anguillian status to a person who meets certain qualifications.  The Constitution does not give the power to anyone else.  Only the Commission can perform those functions.

Recently there appeared on the government website a new Bill for an Anguillian Status Act.  Government appears to want to bring this Bill into effect swiftly, before the upcoming elections.  The Bill seems to have been prepared very hurriedly.

The Commission consists of a Chairperson, the PS Immigration; the Chief Immigration Office; the A-G; and two members appointed by the Minister (one after consulting the Leader of the Opposition).  This is a body that is top-heavy with members of the administration.  They are subject to the biases of the administration.  Additionally, the Minister has the power to remove any of the two non-government members for any reason or for no reason at all.  They have no security of tenure and are subject to pressure if they wish to keep their position.  There is nothing independent about this Commission.

Section 6 of the Bill says that, in accordance with the Constitution, the Commission is responsible for granting Anguillian status and issuing certificates of Anguillian status, etc.  No one else but the Commission has the power to issue any certificate relating to Anguillian status.

But, section 5 of the Bill provides that, where the Chairperson of the Anguillian Status Commission is satisfied that an applicant is an Anguillian, the Chairperson may issue that person with a “general certificate of Anguillian status.”  There is no explanation what a “general” certificate is, or in what way it differs from a certificate from the Commission.  There is no explanation how the Assembly gave the Chairperson the power to issue the certificate.

Then, at section 7 there is an even stranger provision.  It reads that “on payment of the prescribed fee the Chief Immigration Officer may, by letter, certify at any time that a person is an Anguillian.”  This conflicts with section 6 which says only the Commission may grant a certificate.  These types of discretionary and unsupervised powers given to bureaucrats are always open to oppressive behaviour.

There are other questionable provisions in this Bill.  So, the long title of the Bill says that it provides “for Anguillian status as established by the Anguilla Constitution (Amendment) Order, 2019” (“the Amendment Order”).  This is legal nonsense.  It is the 1982 Constitution “as amended” that provides for Anguillian status.  The Amendment Order merely amends the Constitution.  Equally oddly, the Bill defines the Constitution of Anguilla as being the Amendment Order, which again is legal nonsense.  The Amendment Order has no standing on its own.

Section 2 creates a new definition of domicile.  It provides that, “Notwithstanding any law to the contrary, domicile is satisfied if the applicant demonstrates to the satisfaction of the Commission that he or she has made Anguilla their permanent abode.”  This is a definition of domicile that is unknown to law.  There are several types of domicile, starting when we are born with our “domicile of origin”.  This is followed by our “domicile of choice”.  Domicile in the general law is a mixture of fact, history, background and intent.  It is not determined by any one factor such as where your permanent abode is.  This definition narrows the stream of persons otherwise qualified at law to enjoy Anguillian status.  I have searched the Constitution to see where it gave the Assembly the power to create a limited meaning of domicile for the purpose of Anguillian status.  I have not been able to find it.

Section 5 gives the Chief Immigration Officer power to filter out applications for Anguillian status before sending those he approves of to the Commission.  Only if the Chief Immigration Officer considers that an applicant may be an Anguillian, is the Chief Immigration Officer obliged to forward the file to the chairperson of the Commission.  The Constitution has already decided that only the Commission can certify who is an Anguillian.  One might not be an Anguillian until the Commission considers that he is so.  Note that in case of error or abuse, there is no power of appeal.  There is not even a right to be heard or to be represented by counsel before the Chief Immigration Officer decides in private not to pass on the file to the Commission.

Section 8 of the Act gives the Commission power to withdraw Anguillian status in certain circumstances.  However, the section states they have a discretion whether to conduct a hearing before deciding to withdraw the status.  The natural meaning is that the Commission is not bound to give the person affected by their decision an opportunity to be heard.  This provision conflicts with our natural justice right to be heard whenever a government agency proposes to take away a status, licence or certificate we hold.  As every Anguillian high school law student knows, the right is referred to as the “audi alterem partem” rule, or the requirement to hear the other party before taking away his rights.  This draft Bill offends against not only the language of the Constitution but against the rules of natural justice.

Section 13(2) of the Bill is perhaps the most offensive section in the entire Act.  It provides that, “Any decision [of] the Commission shall be final and conclusive and shall not be called in question before any court of law.”  This is what lawyers call an “ouster clause.”  It attempts to oust or set aside the jurisdiction of the court to intervene in the case of oppressive behaviour of the Commission.  So, not only can he not appeal the decision, but he has no right to have representations made on his behalf before a decision is made.  Let the Commission try telling any judge who receives a claim that the Commission acted in breach of the rules of natural justice, or contrary to a provision of the Constitution, that the court’s jurisdiction has been ousted by section 13(2).  Any high school law student will be able to tell you the likely outcome.

We are all Anguillians now.  In case you ever need to prove it urgently, I hope you are on the good side of the Chief Immigration Officer, the PS Home Affairs, and the A-G.  Otherwise, if this law goes through without thorough vetting, you may be in for a rough ride.