15 March, 2010
Not that I am a constitutional expert. Far from it. When I served as a judge, many of my judgements were reversed on appeal. So, take this my opinion with the grain of salt it undoubtedly deserves.
In my opinion, when the government of
Anguilla negotiates a Memorandum of Understanding or a Memorandum of Agreement [they both mean the same thing] with a developer, which agreement requires a change of the law, this agreement is not binding until the House of Assembly changes the law. The agreement does not bind future governments. It certainly does not bind the House of Assembly. No Executive Council represents the House of Assembly or can speak on its behalf. The House of Assembly is the law making body of the country. The House of Assembly is free to completely ignore or to repudiate any agreement entered into by the government of the day. It is the duty of the government to present any agreement they have made and which is subject to approval of the House of Assembly to the House to give it the validity of law. If government fails to present the agreement to the House for approval, the agreement is worthless. When the law says that only the House of Assembly can agree to something, any agreement by the government is subject to agreement by the House of Assembly.
The Customs Act is such a law. No exemption from customs duty under the Customs Act has effect, except it is passed by the House of Assembly. Only the House can ratify an exemption from customs duty. One of our major criticisms of the last government was that they made agreements for exemption from Customs Duty that had not been approved by the House of Assembly. Executive Council has no authority to approve exemption from customs duty, unless they get it approved by the House of Assembly. At most, Executive Council can agree to move a Resolution in the House of Assembly to exempt a developer from customs duty.
Our new government is subject to any decision made by the House of Assembly. If the present House should repudiate any previous government’s MOU with Cap Juluca or with Flag Luxury Resorts, or the with Viceroy, which may have been approved by the last Executive Council, but not approve by the previous House of Assembly, then these MOUs or MOAs are worth nothing.
If the present House of Assembly votes to repudiate any Memorandum or Agreement or any Memorandum of Understanding, not approved previously by the House of Assembly, then they are dust.
So sayeth the soothsayer, Don.