Clergy Politicians

Constitutional Discussions 14: Ministers of Religion Disqualified to be Candidates. Section 37 of the Constitution sets out some disqualifications for running in elections as a candidate. One of them is if you are a Minister of Religion. This is a traditional disqualification. It exists in Britain. There is a historical reason. The church is represented in the British Parliament by the Bishops who are members of the House of Lords. The British take the view that it is unfair to give the church a second bite at the cherry by letting them run in politics as candidates for election to the House of Commons. We have no House of Lords in Anguilla. The Commission discussed this issue up and down the island. People wrote-in on the Commission’s website. Some sent emails to members of the Commission. Some turned out to public meetings. There were some Anguillians in favour of keeping the restriction. They thought that clergymen had an unfair advantage in being able to influence their congregation to vote in their favour. These were mainly the “professional politicians”. A large majority of Anguillians making representations to the Commission were in favour of getting rid of it. They thought it might be a positive influence to have someone in the Assembly who would bring a religious perspective to the Assembly’s deliberations. Most churches have members who support a cross-section of political views. Most persons making representations thought that it would be a disaster for a churchman to risk offending half of his congregation by campaigning in politics. For this reason, they thought it highly unlikely that a serving clergyman would risk offending a large portion of his congregation by running in elections.

The Commission accepted the view of the majority. At paragraph 87 of its Report, the Commission recommended that this disqualification be removed. Regrettably, the Members of the Assembly meeting in caucus at the Limestone Bay Café took a different view. They supported the minority in opposing Ministers of Religion running in politics.

They have fallen into error! It is difficult for us non-politicians to appreciate what it is they are afraid of.

Candidates' Residence

Constitutional Discussions 13: Residential Qualification for Candidates. Section 36 of the Constitution provides the qualifications for being a political candidate. You have to be an Anguillian Belonger. If you were not born in Anguilla, you have to be the child of a person born in Anguilla. In the latter case, you must qualify by residing in the island for at least three consecutive years immediately before nomination. If you were born here, you do not have to reside here to be nominated. That is how Osborne Fleming, Victor Banks, and Neil Rogers got nominated even though they were living and working overseas at the time. They had been born here.

The Commission took representations from many persons. Most agreed with keeping the qualification that you must be an Anguillian. More radically, most agreed that the residence qualification should apply equally, regardless of whether you were born here or not. The Commission went along with the majority view. It recommended at paragraph 82 of its Report that this qualification apply in future to all candidates.

Regretfully, the Members of the Assembly, meeting in caucus at the Limestone Bay Café, did not see eye to eye with the Commission. They preferred to keep it open for candidates who were born here to be free of a residence qualification. They would keep the provision as it presently is. They did not base this on any interviews with the public. They did not take a stand based on a different appreciation of what the Anguillians wanted. They simply had a personal preference.

That is not in this case, in my humble view, an adequate basis for differing from the recommendation!

Nominated Members

Constitutional Discussions 12: Nominated Members. The UK has its House of Lords. Antigua and Barbuda and Trinidad and Tobago have their Senate. This is an upper Chamber in what is called a “bi-cameral” parliamentary system. They have two chambers. We in Anguilla have one chamber, the House of Assembly. We have no House of Lords or Senate. Section 35 of the Constitution provides for two persons to be nominated to sit in the Assembly. One is to be nominated by the Governor on the advice of the Chief Minister, and the other after consulting the Chief Minister and the Leader of the Opposition. Nominated Members are, thus, not democratically elected members of the House. The official argument in their favour is that their presence provides an opportunity for non-political and independent views on issues to be expressed in the Assembly. Their true value is to provide an opportunity for patronage by the Chief Minister and Leader of the Opposition. They are sometimes appointed from among the party’s candidates who failed to gain their constituency, but whose views their party leader continues to value.

The members of the public who expressed a view on the subject were unanimously opposed to the system continuing. A majority want the Nominated Members to go. The principle objection was that it was anti-democratic. The subsidiary reason was that, with a much increased number of elected members, there is no longer any merit in the argument that the Assembly will benefit from views other than those of the elected politicians. Accordingly, at paragraph 79 of its Recommendations, the Commission urged their abolition.

Members of the Assembly disagree. They prefer to keep the Nominated Members, but without a vote and with a disqualification for persons who had failed at an election bid. The disadvantage of losing an opportunity for patronage, at the expense of the taxpayer, was not lost on the Members of the Assembly. They were all hot to keep alive this perk of office alive!

House of Assembly

Publishing the Order Paper.

On page 7 of Friday’s St Helena Independent you will find the Order Paper for that day’s session of their Legislative Council:

I have never before seen such a thing in an OT newspaper. Here in Anguilla is it rare for The Anguillian or The Herald to give any advance notice of a meeting of the House of Assembly, unless they are meeting for some boring ceremony. I have never known why. My hope that things would be different when David Carty became Speaker has not been rewarded.

Presumably Anguillian Order Papers are a State Secret!

Kor Realty Group

Viceroy Partying. Viceroy is having a party today, Friday, July 27^th, at 5:00 pm at the Viceroy Sales Centre on Meads Bay. I know they're allowed to have a party. It seems inappropriate for them to celebrate themselves given the events of the past month concerning them. Perhaps some of my readers would like to attend this event and maybe take some pictures. Send them to me. We can show all of Anguilla how they play while Anguilla (and the Indians) suffer. Meads Bay beach is a public beach. Will government officials be at the party?

Bradford Korzen, CEO and principal of the Kor Group, is reported to have been on Anguilla Tuesday and Wednesday of this week. He is said to have had a three hour meeting with the Chief Minister on Wednesday. If so, will the CM report on what was talked about?

Board Accountability

Making Board Members Accountable. I read an interesting article on the topic in the Cayman Observer. How many times have we wished we could sue a Board for wasting the public funds? Cayman Islanders think it is time to do something about it. They are discussing putting it in their Constitution!

The governing party has proposed that government should have a power to sanction Board members of Statutory Authorities and government companies deemed to have wasted public funds. Of course, it would be the next government that would bring charges. You would not sue your own Board member, no matter how incompetent and wasteful, would you? But, the previous governments’ appointees will be fair game. Better late than never!

Will such a development bring a damper on volunteers to Boards and committees? I hope so. Only serious people who understand the meaning of the phrase “public trust” should be allowed on a Board in the first place. Public funds are not meant to be a pork barrel to be put into the hands of political supporters for them to dig in to at will.

This initiative follows a series of damming reports by their Auditor General. Does our Auditor General publish damming reports? Does anyone in the public get to see his reports? I would love to know how we can get a copy of his last one. Is it not the sort of document that belongs on the new government website?

What is the use of having a provision in General Orders that any senior civil servant who wastes public funds can be made to repay it, if members of Boards and Statutory Authorities can waste even larger sums of money with impunity? Let us put a similar provision in our new Constitution!

Chagos Islands

July Update. The Chagos Support Association writes in its July Update that its members are deeply disappointed at the Foreign and Commonwealth Office’s decision to ask leave to Appeal to the House of Lords. This is their fourth appeal and justice delayed is justice denied. We expect better from a government who make a big issue of human rights.

The actual lodging of the appeal came at the very last possible moment and two days after the following letter appeared in the Guardian Newspaper:

“We applaud Gordon Brown's proposal to review uses of the royal prerogative and hope he won't let government lawyers undermine it. Within days, they could ask the Lords to deny the Chagos islanders their right to return to their homeland (Leaders, May 24). Under a bilateral agreement, the US maintains a base on Diego Garcia; but that is 150 miles to the south of the other islands of the Chagos archipelago. On May 23, the court of appeal struck down as unlawful the 2004 orders in council banning the Chagossians from their islands, calling them "an abuse of power". If this appeal proceeds, Mr Brown's administration will be attempting to govern the overseas territories without parliamentary oversight or the possibility of judicial review. After three defeats in the courts, why waste more money on losing an argument he says he doesn't believe in?”

This was signed by : Robert Bain (UK Chagos Support Assoc), Clive Baldwin (Minority Rights Group International), Dr. Vincent Cable MP, Jeremy Corbyn MP, Tam Dalyell, Geoffrey Fairhurst (Administrator, Ascencion 1999-2002), Andrew George MP, Richard Gifford (Solicitor for Chagossians), Baroness Ludford MEP, Don Mitchell QC (Anguilla), Bernice Olsson (Legislative Council, St. Helena), David Snoxell (High Commissioner to Mauritius 2000-2004), Lord David Steel, Mike Summers (Councillor, Falkland Islands), Caroline Yon JP (Ascension).

The update continues, “We were overwhelmed by the number of supportive and encouraging messages in the wake of the FCO decision. One lady in Yorkshire said she was up to her ankles in water because of the floods but “at least my ankles are on my own land in my own country!” Another said, “The description of Diego Garcia by the American Services as the “Footprint of Freedom” should really be “the Bootprint of Brutality” because there are bootprints all over the bodies of the Chagosians where the British and Americans have stomped all over their Human Rights”.

Reading this report reminds us all that it is not only our Government and Opposition that are to be held suspect when it comes to constitutional reform. The British representatives are employed in a Department with a flawed reputation and history. They have their own agendas. We need to be sure of our principles before we begin treating with them. We need to be certain that our representatives are prepared to insist on matters of principle. If they go into the talks shooting from the hip like some Wild West gunslinger, they will bite the dust. Only persons of known integrity and principle can be trusted with such a responsibility. This is a time of great uncertainty and nervousness for all of us.

Postponed Talks

Interview with Ken Richards of the BBC. The Chief Minister appointed his negotiating team to meet with the British during the course of the week of Monday 2 July 2007. I first learned who they were when I met with other team members on Tuesday 17 July in our first planning session. Chief Minister Fleming made me sit next to him and act as spokesman for the Commission's recommendations. At this meeting, Dame Bernice Lake QC introduced our Ministers to the concept of “complete internal self-government”. They were quite taken with this phrase. The Chief Minister fell in love with it immediately. When our strategy meeting broke up that afternoon, it was with the determination to meet with the British on the following Monday morning to discuss full internal self-government.

As I drove away from the meeting, Bailiff Michael Fleming stepped forward from where he was lying in wait to serve me with a lawyer's letter threatening a lawsuit for libel if I did not tone down my criticisms of government ministers on this Blog!

By Thursday, two days later, the Chief Minister was announcing on radio that he had decided to hold a meeting of the House of Assembly on Monday morning. They would debate full internal self-government. Presumably, the British team were to be attentive observers and listeners. The first time I heard about this change of plan was when the Chief Minister announced it on radio.

By Friday morning, he had a new plan. I first heard it on radio again. He was announcing that he had decided to ask the Governor to completely postpone the meeting with the British. His new idea was for government to more thoroughly discuss the concept of “full internal self-government” with the Anguillian people. That morning the Concerned Citizens Movement led a demonstration on Government House demanding a referendum on any new Constitution. Over the weekend, I learned that the British team had been told to cancel their flight arrangements.

Thorough Anguillian consultation on measures for constitutional advancement is a good, indeed an essential, thing. The problem is that it should have started one year ago, immediately after the Report of the Constitutional Commission had been presented!

On Monday morning, I am sitting at home minding my business. The phone rings. It is well-known BBC "Caribbean Report" presenter Ken Richards. He is telephoning from London. Am I willing to talk about the circumstances surrounding the postponement of the constitutional talks with the British team? He had learned that this had been announced by the Chief Minister just two or three days before the team was due to arrive in Anguilla. It would have been extremely discourteous if it had been intentional. But, as I explained, it was only to be expected from a government made up of businessman-types, face-to-face talkers, apparent devotees of the ad-hoc system of government, men who appear to refuse to read a planning document, or able to study and adopt a strategy brief. Thank God for the postponement, I said, in effect. It might give government’s new advisers a chance to come up with a publicly acceptable programme for constitutional advancement.

To hear the broadcast, go to the Americas page of the BBC News website. In the right-hand column you will see the audio for “Caribbean Report”. Click on “Listen”. If you have the appropriate speakers, you should hear the interview. Or, if I have done it right, the last link should take you straight to the audio! [Sorry, late readers. By Tuesday evening BBC Caribbean Report had moved on to other stories. You will have to try to access the BBC archives.]

Do you think Bunton is capable of long-haul planning? Will he stick the course? Or, will he react to the next last person who speaks to him, as usual?

One of my concerns is that I do not know who the Chief Minister is now listening to. What will be his next announced “plan”? I learn he says that he is now a committed member of the Concerned Citizens Movement. No doubt, he will soon claim them as part of his new negotiating team.

No, I did not tell Ken Richards about all this confusion. It was too embarrassing to talk about it on the radio in front of millions of listeners!

Members at Large

Constitutional Discussions 11: Members at Large. Section 35 of the Constitution provides for there to be not less than seven elected representatives. It does not fix the number of elected members. The Elections Act provides for seven members. The Act could be amended to provide for any number greater than seven without amending the Constitution. The Constitution does not say how they are to be elected. The Act says they are elected on the first past the post system. This is the classic Westminster-style system of representation. We could change to a system of proportional representation without changing the Constitution.

Members at large are members who are elected by the entire island. They do not represent a particular constituency. Each party puts up a slate of candidates. Those with the most votes are declared to have won a seat in the Assembly. The system became popular in the Leeward Islands when Montserrat was devastated in 1994 by the Soufriere Volcano. People were dispersed throughout the island. The constituency system was thrown into ruins. All their Montserrat candidates have been elected at large since. The Virgin Islands has introduced several members at large into their system. The present Chief Minister, Dr Orlando Smith, is an at large candidate of his party. The system has obvious advantages and disadvantage. A candidate at large is not required to buy the votes of his constituents. It is practically impossible to do so across the entire country. He does not depend on having more cousins in his village than the other candidates to ensure his victory. He runs on merit alone.

The Commission accepted what appeared to be the general consensus among members of the public that there ought to be nine constituency representatives and four members at large. That formula appeared to represent the aspirations of the average Anguillian for an improvement in standards in the Assembly. This was its recommendation at paragraph 76 of its Report. It would mean amending the Elections Act to provide accordingly. Members of the Assembly in their discussions in caucus at the Limestone Bay Café did not agree. They thought that there should be nine constituencies, but only two members at large. They would reduce the total number of elected members from the Commission’s recommended thirteen to a total of eleven.

That is not in keeping with the hopes of the average thinking Anguillian. Maybe, the Members of the Assembly are superstitious about the number thirteen?

Demonstration

Concerned Citizens March.

On Friday 20 July an almost unprecedented incident took place. Anguillians have been dormant for years. No one dares to take part in any demonstration. Jobs are at stake. Fear of victimization is rampant. But, Friday was different. There was a public march. It was called by the Concerned Citizens Movement.

There were two issues at stake. They were both included in one petition. The petition was taken by a crowd of demonstrators from The Valley to the Governor’s residence at Government House at Old Ta. I estimate some 200 person participated. The petition concerned two separate issues. A pity really. I would have marched in support of one, but not the other.

One issue was that of suspicion of corruption at the highest levels of government. Why have our Ministers permitted the US company, Viceroy, to take over so many different areas of land?

The inviolable rule has been that no developer has been permitted to control more than one project. That rule has lasted for decades. All governments obeyed it. No one developer would be permitted to control our government and our economy.

But, we have just woken up to the realization that Viceroy controls three different areas of the island. And, they are negotiating for more. The people were determined to express their displeasure and to say to our government, No more. The petition went further and demanded an enquiry into the relationship that has built up between these developers and our government ministers.

That was one issue that I would have signed with pleasure. With conviction. With earnestness. That is an issue that every Anguillian should feel deeply ashamed towards our government about. If that had been the only issue, I would have been there in the marching crowd.

The second issue was to do with the Constitution. It was a demand for a referendum to approve any new Constitution. I happen to have a deep-seated and irreversible aversion to referendums. They are poisonous plants. They are not, and never have been, anywhere in the world, at any time in history, a way of finding out the people’s attitude to an issue. They have always been used by the people as an indicator as to how they feel about the government. A referendum always ends up being a popularity vote on the government. It is never an expression of opinion on the issue contained in the referendum. That is the only reason I was not in the march.

I am firmly convinced that other methods must be used to educate the people and find out their feelings about the issues involved in the Constitution. A referendum urged by a popular government will always return a yes vote. A referendum urged by an unpopular government will always return a no vote.

If the present government of Anguilla put the issue of whether or not God exists to the vote today, and urged people to vote yes, the result would be that most people would vote that God does not exist. Even though that is the opposite of what they truly believe.

The protest march ended peacefully. The police did a good job of controlling traffic and facilitating the demonstration. It was proof that the system that requires demonstrators to get police permission for a march can work well. Congratulations to all concerned. Even though I do not approve of the main purpose of the petition: the referendum.

Enlarging Assembly

Constitutional Discussions 10: Increasing the Number of Members of the House of Assembly. There are seven elected members in the Anguilla House of Assembly. There are four non-elected members. They are the Nominated and the Ex-officio Members. Seven elected representatives to debate all aspects of Anguilla’s life and problems! Most of them are not great speakers. Some of them are not great thinkers. Very few of the important issues get aired in Anguilla’s House of Assembly. We all listen on our radios to the broadcast debates. We come away frustrated, knowing each time that it was another opportunity missed.

One obvious way to improve the House is to increase the number of its members. There are other statistical arguments. The size of the Anguilla House was fixed in the 1970s. The population of Anguilla did not then exceed 6,000 souls. We are now nearer to 12,000. On that basis there is ground to suggest that the size of the House should be doubled. Elsewhere, the Commission has recommended that the two Nominated Members should be abolished. The Commission also recommended that the two ex-officio members, the Deputy Governor and the Attorney-General, should continue to be allowed to be present and to express their views, but should be deprived of the right to vote. That leaves seven voting members in the Assembly. For that reason, the number of members calls out to be increased.

During the public discussions, representations were made that the Assembly should be increased to as many as 21 elected representatives. Others wanted 15 representatives to ensure proper discussion and debate of the issues. One or two suggested leaving it at the present 11 voting members. The Commission, however, went with the majority. At paragraph 74 of its Report, it recommended that the House be increased to a total of 13 elected representatives. They were to be made up of nine from constituencies and four elected at large. That would amount to an increase of only two from the present 11 voting members of the Assembly.

Members of the Assembly disagreed. They are happy with an increase of only four, to a total of eleven elected representatives. That falls below most of the recommendations and representations made to the Commission during its research and discussions. It would not meet the expectations and aspirations of any part of the Anguillian public. It has no substance or merit, in my humble view.

Just my opinion.

Cabinet Meetings

Constitutional Discussions 9: Cabinet Meetings. The UK has an “unwritten” Constitution. Citizens of the UK cannot rely on a document called a Constitution. That does not mean they do not have a Constitution. They have a highly developed Constitution. It consists of various separate laws and parts of laws, and, more importantly, various conventions and practices that are as fundamental and as binding as if they had been written in a document. Anguilla, like most of our West Indies, has a democracy that is very new. Adult suffrage only dates back to the 1950s. We have very few conventions. Where they exist, they are not yet well established. We cannot rely on our leaders to always do the right thing. It is important to put down in writing some of the rules that in other, more developed, countries they keep as conventions.

One of these important rules is that Cabinet must meet frequently to discuss the affairs of government. The practice in Anguilla is for the meeting to take place at the Governor’s office every Thursday morning. The Governor sends out the notice and in theory has the power to set the Agenda. The Commission recommended at paragraph 67 of its Report that the section be amended. Anguillians would prefer our Constitution to provide for regular weekly meetings of a Cabinet, to be summoned by the Premier, and with the obligation that he must do so if two or more Ministers require it.

Members of the Assembly disagreed. They prefer to leave the provision as it is. They are happy for the Governor to be responsible for summoning Cabinet meetings.

God alone knows why!

Parliamentary Secretary

Constitutional Discussions 8: Parliamentary Secretary. The post of Parliamentary Secretary was invented in 1990. It is a sort of “junior minister”. It is a form of patronage. It exists for the Chief Minister to be able to give a high salaried executive position to a party supporter who will be of ministerial rank, but not have the right to attend Cabinet meetings. It is a relatively new invention in the Anguilla Constitution. Sir Emile Gumbs, who was Chief Minister at the time, wanted it to reward David Carty. David was our first Parliamentary Secretary.

When the government bench in the House of Assembly is limited to four members, with the other three elected members in opposition, it has been used to reward a non-elected party supporter with a sort of junior minister position. In this respect, it is essentially anti-democratic. It permits a non-elected person to be given the rank of Minister. When there are five elected members sitting on the government side in the House of Assembly, it permits the Chief Minister to reward the fifth party-supporter. He can give the elected non-minister a salaried position as a reward or substitute for not being a Minister. That is the role presently being played by Albert Hughes. Its main utility has been to ease the work-load of one of the Ministers. The Chief Minister can spin off some of his work onto a junior minister who does not hold Cabinet rank. It is a sort of safety valve. It is needed because of the shortage of Ministers.

Representations made to the Commission revealed that the majority of Anguillians who had a view on the subject, took the position that this office was now redundant. It was demeaning to the office holder. In future anyone who the Chief Minister wanted to make a Minister must have been elected to the House. Never again should he be able to appoint a non-elected member to hold such high executive office. Now that the Commission was recommending that Cabinet increase from four elected members of the Assembly to six, there was no justification for keeping the position of Parliamentary Secretary. The Commission recommended at paragraph 42 of its Report that the post be abolished.

The members of the House of Assembly meeting in caucus at the Limestone Bay Café took a different view. They agreed that they would prefer to keep the position, but to call it “Junior Minister”. They gave no reason. The only one that occurs to me is based on the reality of politics. Chief Ministers, like Presidents, require as much patronage as they can get to reward supporters. This is just one more tool to reward party stalwarts at the expense of the public purse. If that is the real reason, it is just not good enough. Six ministers with Cabinet rank will do us quite nicely for the foreseeable future. There will be no need for a Junior Minister.

Cabinet

Constitutional Discussions 7: Cabinet. At present, section 23 of the Constitution provides for an Executive Council, or Cabinet, consisting of the Chief Minister, or Premier, three Ministers, and the Deputy Governor and Attorney-General. It is widely accepted on the island that the number of Ministers is too low.

The Minister of Finance can hardly be expected to attend all the local, regional, and international meetings and functions related to that Ministry and still find time to be in office. It is even more unreasonable to expect him to function full-time as a Minister of Tourism, and to attend all the tourism activities that a properly functioning Minister of Tourism is expected to attend.

Similarly, the Minister of Education cannot be an efficient and effective Minister of Health. Nor can the Chief Minister and Minister of Home Affairs and Labour also perform effectively as Minister of Lands.

We have to have more Ministers. The Commission heard several different representations from the public. We took into account the fact that burdensome as the various Ministries are now, the weight of office will grow in the coming years as Anguilla continues to develop at breakneck speed. We came down on the number six. That is, there should be a Premier and five Ministers. Even if there is a little leeway now in that we can do with one fewer Minister, we thought we should fix the maximum at six. The Premier could always appoint only five. He is not obliged to fill the maximum number if he does not think it necessary. The Constitution we put in place today will almost certainly be the one we are working with in ten years time.

Members of the House of Assembly did not agree. They were of the view that the job could be done with a Premier and four Ministers. The government members agreed with the opposition members that they prefer the new Constitution to say that the maximum number of Ministers, including the Premier, be five.

I still cannot for the life of me see how they could make such a mistake. It makes no sense at all.

Sued

Letter Before Action. Well, I have got my first lawyer’s letter. It is odd to be on the receiving end of a process I have used so often before. There is always a first time for anything. This is what the letter said.

Re: Weblog – Corruption-Free Anguilla dated July 4, 2007 under Title “Confusion”

We act for and on behalf of the following Ministers of the Government of Anguilla in their personal capacity with respect to the captioned matter.

(1) The Honourable Mr Evans McNeil Rogers, Minister of Social Services

(2) The Honourable Mr Kenneth Harrigan, Minister of Infrastructure, Communications, Utility and Housing

(3) The Honourable Mr Victor Banks, Minister of Finance

(4) The Honourable Mr Osborne Fleming, Chief Minister

We are instructed that on the 4 July 2007 you made and published or caused to be published and distributed on your weblog, found at the following internet address http://corruptionfreeanguilla.blogspot.com, under the heading “Confusion” certain statements, in particular at paragraph 4, which are defamatory against the Ministers.

The Ministers have no objection to fair and honest criticism, but they are not prepared to remain indifferent to such libelous allegations on their personal character as you have made.

We are therefore instructed to demand that you immediately

(1) make and cause to be published a full and unqualified apology for and withdrawal of, the imputations contained on your said weblog, such apology to be published at your own expense on your said weblog and in The Anguillian (the form of such apology to be approved by us);

(2) give an undertaking not to continue the publication of said statements contained under the heading referred to, or publish any similar statements of or concerning the Ministers;

(3) make an offer for damages; and

(4) indemnify the Ministers with respect to such legal costs as they have incurred thus far.

Failing a satisfactory reply within (7) days from receipt of this letter our instructions are to take the necessary legal action against you.

Please be guided accordingly.

Yours faithfully,

Keithley Lake & Associates

(sd) Keithley FT Lake

Attorney-at-Law

I am taking advice from my attorneys as to the best way to respond. Stay tuned for the latest developments.

Acting Governor

Constitutional Discussions 6: The Executive. Sections 20 and 21 of the Constitution deal with the appointment of an acting governor and a governor’s deputy when the governor is absent. The governor appoints who he wants. At paragraphs 32 and 33 of their Report, the Commission made no recommendations for alteration. We figured that was the business of the governor and the British government. It was nothing to do with us.

Members of the House of Assembly had a different view. They took the position that there ought to be some local involvement in who should act temporarily when the governor was absent. They felt the Premier should be consulted. They agreed among themselves that they would prefer to see both the appointment of an acting governor and a governor’s deputy required to be after consultation with the Premier. They were not suggesting that the Premier should have a veto power. They were not recommending that it should say that the governor should act “on the advice of” the Premier. They want the Premier only to be consulted.

Personally, I have no problem with this suggestion. It contributes to an increase in local participation in government. It allows the Premier to discuss which Permanent Secretary ought to be given a turn at being acting governor. It is a democracy credit rather than a democracy deficit. I am all in favour of it.

Redress

Constitutional Discussions 5: Other Means of Redress. When one of your fundamental rights is infringed by government, you can take the matter to court. You can bring a case under section 16 of the Constitution. This says that you may apply to the High Court for redress. Usually, this is for a declaration and damages. That does not stop you from bring a case of a different kind. For example, section 3 of the Constitution protects your right to personal liberty. This fundamental right is universally recognised in all the Constitutions of our West Indies. You will find it in Antigua and in St Kitts, and in Grenada and in St Vincent. In all these islands, you can only be deprived of your liberty in accordance with the law. A police officer might illegally lock you up in a prison cell for a week. He might “throw away the key”. He might beat you about the head with a folded telephone directory at his leisure. You could apply to the court for a declaration that your fundamental right to your personal liberty has been infringed. You could claim and be awarded damages for this breach and for the injuries which resulted. Alternatively, you could bring an ordinary court action. You could sue the officer and the government. You would claim damages for the torts of wrongful arrest and for assault and battery. You have a choice as to how to come to court.

Section 16 gives the High Court the jurisdiction to hear a case brought for infringement of your rights. A problem arises with the proviso to subsection (2). A proviso is a sentence which begins, “Provided that . . .” This one says, “Provided that the High Court may decline to exercise its powers under this subsection if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law.” This proviso has caused confusion up and down the West Indies. In some islands, the lawyers prefer to take every breach of the Constitution to court. In other islands, the lawyers prefer to find any alternative claim they can instead of coming under the Constitution. In some islands, the judges like to give priority to Constitutional actions. In other islands, the judges run away from Constitutional actions. There is no consistency.

We in Anguilla might get accustomed to bringing cases for breach of the Constitution to court. Our present judge might encourage that by dealing promptly with such cases. Then, after a few years, another judge might be assigned to Anguilla. This judge might not like constitutional cases. The A-G’s Chambers soon find out the preference of the new judge. The A-G will know what to do to get a well deserved constitutional case dismissed. He will point out to the judge that “alternative means of redress” exist. The judge will throw out your case and tell you to start over and come again under the ordinary law. What a waste of time and money! How distressing it is not to be sure that you can come to the High Court when your Constitutional rights have been infringed! It is you who should have the choice how to come before the Court. There are times when your lawyer might advise you to bring a Constitutional action. There are other times when she might advise you to bring an ordinary action. It should not depend on the mood of the judge or the character of the Attorney-General whether your Constitutional action will be allowed to proceed.

The Commission therefore recommended, at paragraph 27 of their Report, that the proviso should be removed in its entirety. That would oblige a court to deal with your deserving Constitutional action, regardless if you could have sued for something else. This is not a novel suggestion. The proviso has caused so many problems that it has been removed from the Constitutions of other jurisdictions. I no longer have my notes with me on this point. Perhaps some lawyer would like to remind us which countries have done this? It was very regrettable in my view when the members of the House of Assembly persuaded themselves in their meeting at Limestone Bay Café that they would not support this recommendation. They preferred to keep the Constitution as it is, with the confusing proviso!

A pox on their houses, you might say. Let them wait until they want to bring a Constitutional case and the judge tells them their case is dismissed because they could have brought an ordinary lawsuit! The problem is that we cannot wait until then. It is you or me who might want to bring a case. We will not be sure whether to sue in one way, or whether we must sue in another. Neither will our lawyer know what to do!

I can only hope that the visiting British team will not give us any problem just because the Members of the Assembly did not support this recommendation.