Montserrat 7

It is accepted that Montserratians live in a country under threat by volcanic eruptions as well as hurricanes.  States of emergency may have to be declared from time to time.  The traditional constitutional provisions are well known, and have been tested in the courts.  There is no need to weaken the rights of the average Montserratian only because there is a risk of more natural disasters striking.

The draft Constitution would have the section 18 provision for protection of persons detained under emergency laws significantly curtail the rights of the detained person. 

There is no good reason why the family and the public should wait 10 days to be notified of the identities of persons detained.  It should be no more than 3 days. 

Nor is there any reason why persons should be able to be detained for up to 30 days without an appearance before the court.  This should be no more than 5 days. 

Nor is there any need for any other tribunal but the established courts of the island.  Except in a police state, the courts are the most reliable protector of the rights and freedoms of the citizen.

The evil does not stop there.  The draft states that if an independent tribunal recommends that a detainee be released, the authority that locked them up in the first place can ignore the Tribunal’s recommendation.  This provision would mean that the authority could ignore a decision of someone such as a judge appointed by the Chief Justice to preside over the tribunal.  This should be a frightening prospect.

This new provision vests draconian and dictatorial powers in the hands of the Governor and the police.  It is completely unacceptable in a modern Constitution of a British Overseas Territory in the West Indies.

Montserrat 6

The section 17 provision in the draft Constitution for declaring periods of public emergency is anti-democratic in that the Governor alone decides.  The section should provide as in the British Virgin Islands that he acts in declaring a state of emergency on the advice of Cabinet unless otherwise instructed by the Secretary of State.

That is not all.  There is a further whittling away of the rights of Montserratians in the section.  The traditional test for restricting the rights and freedoms of the individual is generally expressed as having to be “reasonably justifiable in a democratic society”.  However, in relation to the Governor’s emergency powers, the standard would be set considerably lower in the draft Constitution.  The new test would be “reasonably justifiable for dealing with the situation that exists.” 

The alteration of the test for justifying a declaration of a state of emergency is undesirable, particularly as that provision has been judicially reviewed in Montserrat.  One may infer that the reason for the watering down of the test is that it is designed to enable the Governor to act in a heavy-handed way in the future without his being accountable to the Courts. 

Such a deplorable development in a proposed Constitution for a British Overseas Territory is much to be regretted.

Montserrat 5

The FCO legal advisers propose to take away the right of public servants to express a political opinion.  This fundamental right is found in section 12 of the draft Constitution.  It is the provision for the protection of freedom of expression:  In colonial constitutions the fundamental right was traditionally constrained in relation to public servants.  The thinking was that if you are working for Government, you should not be permitted to come out and express views opposed to the Government of the day.

The way that the right has traditionally been curtailed is by placing in General Orders, the contractual document binding all public servants, a term prohibiting the public or private expression of any political opinion by any public servant.  This was so draconian and absolute a restriction of a fundamental right that it has long been the subject of interpretation by the courts. 

Restrictions on permanent secretaries and other confidential advisers of government ministers of their public expression of political views may be justifiable.  Ministers need to be confident that their highest advisers will not appear suddenly on a political platform betraying the confidences previously shared.  The same does not apply to the lower ranks of the public service.  It is generally understood in the West Indies today that a blanket ban on public expression of political views by the general mass of public servants is highly objectionable.

The earlier provision in the Constitution of Montserrat was that the prohibition on expressing a political opinion must be “reasonably justifiable in a democratic society”.  Such a wording has been held by the courts of the West Indies to make it illegal to restrict the lower ranks of the public service from expressing their political opinions. 

The draft Constitution proposes to remove the need for the prohibition to be reasonably justifiable in a democratic society.  It is to be replaced by a need for Government to show only that the restriction “is reasonably required for the purpose of ensuring the proper performance of their functions.”  This is clearly a lower threshold than previously.  And, the higher test has been removed without any explanation. 

The intention appears to be to water down the previously enjoyed right, with a view to making it easier to gag teachers and public servants through General Orders.  There is absolutely no justification for this proposed curtailment of this fundamental right of all Montserratians to freedom of expression.

Montserrat 4

The FCO proposes to have the Constitution of Montserrat permit the removal of trial by jury:  The wording of section 6 of the draft Constitution makes possible the removal of the right to trial by jury.  There is no suggestion that the people of Montserrat consider this new development either advisable or desirable.  This proposal may have been stimulated by recent failures in prosecution mainly of sexual cases.  Such failures, from what I have been told, spring from patent weaknesses in the prosecution’s cases, and not to any perversity of the jury.

This is not the only assault on the fundamental right of the people of Montserrat to the protection of law.  The same section 6 contains a provision contemplating abolition of the right to appeal from some or all convictions in the Magistrate’s Court.  Such a drastic curtailment of this fundamental right is inappropriate without thorough consultation with and support from the people of Montserrat, of which there is no evidence. 

Such a proposal is so offensive as to be incredible in a draft Constitution proposed by an FCO legal team.

Montserrat 3

The FCO proposes to weaken many of the fundamental rights of the Montserratian people.  We see this first in the section 5 fundamental right to protection from arbitrary arrest or detention.  This provision in the draft Constitution is very weak.  It does not provide for informing arrested persons promptly of their rights.  They need be told of the reason for their arrest only after they have been brought to the station. 

A person needs to know immediately he is arrested of the reason for his arrest.  This is so not least because he has a right to know whether he is being illegally arrested so that he can exercise his right to resist the arrest.

The version of the right in the draft is weakened by the provision that he is to be brought “promptly” before a judicial officer.  This provision is capable of abuse, particularly in view of the penchant of the police for arresting persons on a Friday afternoon, and then not bringing them before the Magistrate until the next sitting of the court.  They ought to be obliged to bring an arrested person before a judicial officer within 24 hours of the arrest.  They should bring him to the home of the Magistrate if necessary. 

This is, not least, so that the Magistrate can observe the arrested person for signs of physical abuse and to be able to give the necessary directions for a medical examination, and to consider bail.

Conservation

Conservation:  The twelfth, and final, exception to our fundamental right to own and hold property deals with the public interest issues of conservation and improvement.  The Constitution makes it legal for a law to be passed that takes away our property for so long only as may be necessary for the purpose of any examination, investigation, trial or inquiry. 

So, if the police find my gun stolen from my house being used in a crime, they can confiscate it for so long as is necessary for it to be used as an exhibit in the trial of the offender, but they cannot keep it after the trial.  They have to give it back to me after the trial. 

It is this exception that makes it legal for a planning law to provide for private land to be temporarily taken for the purpose of doing soil conservation on it.  If government sees that I am allowing my land to be eroded by water and I am not doing something to prevent the erosion, they can come in and construct a wall or other safety feature to stop the erosion, and I cannot complain, so long as it is done under a law that gives this power.  Of course, water erosion is not such a big problem in Anguilla, but you get the point. 

If the Agricultural Department has a law passed giving it the right to go into people's agricultural land and temporarily to take possession of it for the purpose of eradicating the hibiscus mealy bug if the owner refuses to do so himself, that would be legal under this exception.

Limitation

Limitation:  I hope that you have not lost track of our concern with section 7 of the Constitution, the fundamental right to own property.  We return to it now.  The eleventh exception to our right to hold our property relates to a law providing for limitation of actions.  As we all know, the Limitation Act says that if we are owed a debt, and we allow 7 years to pass without suing in court for it, the debt is extinguished.  If our neighbour encroaches on our land, and fences it in and claims it as his own, and we do not sue him, then after 12 years we lose the ownership of that land.  The Registered Land Act says so.  It says that in this way our neighbour acquires our land by “prescription”.  It is even worse in the case of a claim for damages for personal injury.  If I am injured by the careless driving of someone, and have to spend $100,000.00 in medical bills, then I have only 3 years from the date of the accident to sue.  If I wait until the 3 years have passed, then I have lost my right to claim compensation.

       There are two reasons advanced by lawyers justifying the concept of limitation of actions and acquisition of the property of another by prescription.  One is that there must be a time when disputes over ownership are brought to an end.  People are entitled to quietly enjoy their possession of property that they have held as their own for a number of years.  If I am claiming that my neighbour has wrongfully trespassed on my land and fenced a part of it off, then I must back up my claim by taking the matter to court promptly, or forever hold my peace.  Otherwise, quarrels might last for generations.  The second reason is that the matter must come to court while the witnesses to the facts are still alive and memories are fresh.  After 3 years have passed, who can accurately remember what exactly happened that day on the road when the car accident took place?

This exception to the constitutional right guaranteed by section 7 of the Constitution preserves the Limitation Act and makes it legal to extinguish our right to our property.  It could otherwise be argued that the whole idea of placing a time limit to our right to claim our property breaches our fundamental right to own property.  

Public health

Public health:  We are learning that our right to own property is not an absolute one.  The Constitution of Anguilla sets out a number of exceptions when it is permissible for a law to provide for our property to be taken away from us.  The tenth exception is when the property is in a dangerous state or injurious to health. 

We don't use asbestos in Anguilla in building, but it used to be common in some parts of the world.  If the Anguilla House of Assembly were to pass a planning law which outlawed the use of asbestos and provided that if we were ordered to take down an asbestos polluted house, and that, if we refused to do so, the Government could demolish the house and dispose of the waste, we would not be able to say that law was unconstitutional. 

We can appeal the decision, or we can get judicial review of the decision, if we say that it was not a fair or reasonable decision.  But, we cannot say that the law is unconstitutional, nor that the taking of the property was unconstitutional because it would have been passed for the protection of the health of ourselves and of the public.  The Constitution permits such a law as a public health exception to our fundamental right to own property.

Court orders

Court orders:  You may recall we are looking at our section 7 fundamental right to the enjoyment of personal property.  Government is prohibited from taking away our property except under a law which pays us prompt and adequate compensation.  We are now looking at the several exceptions listed in the section.

       Some of them were quite obscure to us.  The ninth exception is more familiar.  It says that it is not an unlawful deprivation of property if it is as a result of an order of the court.  That seems a little obvious.

           The court is there to settle disputes between citizen and citizen, and between citizens and the State.  If the court orders our property to be taken away from us, and we do not agree with that decision, then it is for us to appeal to the higher court, the Court of Appeal.  We cannot be heard to protest that the order of the court is unconstitutional.

Property rights

Trust property:  Before we broke on 27 June to take a look at the ethics and sustainability of government borrowing from the Social Security Fund to pay bills, we were looking at the constitutional exceptions to our fundamental right to own property.  We now turn back to the subject.  The eighth exception to our section 7 fundamental right is even more obscure than some of the earlier ones we looked at previously. 

The section says that I cannot complain if property is taken away from my possession when it is trust property being given to the person who has the better right to it.  Or, I may be an enemy alien in time of war, and my property is being confiscated.  Or, the administrator of persons or companies adjudged bankrupt, or insolvent, or of unsound mind, or deceased may be vesting the property in the name of the administrator. 

In none of these cases can I complain if what I consider my property is being taken away.  We all hope that we shall never meet someone with a better right to our property than we ourselves have.

Contracts

Contracts:  We are looking at our constitutional right to protection of property.  There are exceptions.  The seventh exception found in the 1982 Constitution of Anguilla has to deal with property being confiscated in contracts.   

      The Constitution says that any taking of possession, or acquisition of someone's property as part the agreement for a lease, tenancy, licence, mortgage, charge, bill of sale, pledge, or contract, is legal.  Basically, this can be understood as saying that if I have agreed to lose my property if I break a contract, then I cannot complain when this happens. 

Impounding

Impounding:  We are looking at the exceptions to the constitutional provision protecting private property.  We have looked at five of them.  The sixth exception will be more familiar than some of the others.  It is the provision that says that it is not an unlawful deprivation of property for a law to provide for the impounding of an animal found straying or trespassing.  Without the Public Pounds Act, it would be unlawful for any officer of the Agricultural Department to pick up my goats, when they are roaming loose and doing damage, and impounding them.  It is only legal to impound people's private property because the Constitution says so, and it is done under a law which was passed for the purpose.

      Which I suppose brings me to the story of the shoats. I have been asked how we West Indians can tell the difference between goats and sheep. Apparently our sheep, living in the tropics as they do, have no wool and are indistinguishable from goats to those of our visitors who live in northern climes.  I have had pleasure in clearing up the confusion.  I could have told about the goat's tail which sticks out horizontal to the ground, or sometimes sticks straight up.  The sheep's tail hangs down.  Or, I could have given instructions about how to jump on the animal, wrestle it to the ground, and look for cloven hooves.  Instead, I have explained that we don't have to distinguish them.  The two have long hybridised and now we have only shoats.  This information has been known to leave a big impression.

Samples

Samples:  We are looking at the exceptions to our fundamental right to enjoyment of private property set out at section 7 of the Constitution of Anguilla.  We have looked at four so far.

The fifth exception is very insignificant at this time in Anguilla.  The section says that it is not unconstitutional for the Government to take a piece of our property away for the purpose of sampling it.  So long as there is a law setting out how it is to be done.

So, suppose that the Public Health Department was to go to one of our hydroponic farms and take away a head of lettuce to test it to see if it was hygienic.  The owner might be able to sue the Government, claiming this was an unconstitutional deprivation of property.  And, so it would be, if it were not done under a law providing that taking of a sample was permitted.

Confiscation

Confiscation of property by the court.  We are looking at our fundamental right to own private property.  We have seen that there are exceptions when the right may be abrogated.  The first occurs when our property is acquired under a law that makes provision for compensation.  The second is when we are obliged to pay some of our money to government by way of taxes to cover the cost of public services. 

The third exception to the fundamental right set out in the Constitution is where a law provides a penalty for breach of the law.  If we commit an offence under the Criminal Code, and the judge or Magistrate fines us, we cannot complain that this is a confiscation of our property.  The Constitution clearly makes allowance for fines and penalties. 

The law can also impose a penalty which is collectible under civil process.  So, if we bring into Anguilla goods that are either prohibited or restricted under the Customs Act, such as imitation firearms or fireworks, we may find them being seized or forfeited in civil proceedings in the Magistrate’s Court.  We cannot then claim that our constitutional rights are being infringed.

Taxes

When our property rights cease to exist:  We are looking at our constitutionally protected property rights under the 1982 Anguilla Constitution.  We have seen that section 7 enshrines our fundamental right to the ownership of personal property.  The Constitution goes on to set out a number of exceptions to this protection of our property rights.  The first and most obvious one is where we are obliged by a law to satisfy any tax or rates.  If the House of Assembly passes a law that we must pay house tax, we cannot complain that this is a confiscation of our property.  In our case, we have the Valuation and Rating Act which sets out government's right to calculate our annual property tax.

So, in addition to the government’s right to have parliament pass a law to take away our property, with compensation, there is also a standing series of laws that impose taxes, licences, and rates on us.  We must pay them, or pay the penalty.  The Constitution says they are not an infringement of our rights.

Public purpose

When can our property be taken away from us without our consent?  We are looking at our section 7 constitutional guarantee of our property rights in Anguilla.  As usual with all these rights, there are exceptions.  The first exception that we have in Anguilla is where our land is taken away from us for a ‘public purpose’ under the provisions of the Land Acquisition Act.  Government can take away our property for any reason at all.  But, if they acquire our property under the Land Acquisition Act they must satisfy the conditions set out in that Act.  One of these conditions is that the land must be acquired for a public purpose.  There is nothing in principle stopping government passing a new law called The Acquisition of Property for Any Reason at all Act.  That would be in full compliance with our Constitution.

Property rights

Property rights:  The sixth of the fundamental rights enshrined in our 1982 Anguilla Constitution is the right to protection from deprivation of our property.  Section 7 of the Constitution provides that no interest in, or right that I may have, over any of my property, of any description, shall be compulsorily taken possession of, except by a law which says how I am going to get compensated for it. 

Under the Anguilla Constitution, there is no restriction that limits government to taking away our property only for a public purpose, as in the rest of the Caribbean.  In St Kitts or in Antigua, government can only compulsorily acquire private property if it is for a public purpose.  Not in Anguilla.  In St Kitts or in Antigua, government must declare so in the Resolution acquiring the property.  Here in Anguilla it is different.  Government can confiscate our property for any reason at all, eg, just because they do not like the way we look.  That is a little unusual in West Indian Constitutions.  Normally, government must have a public purpose in mind, and must say so in the Resolution introduced into the House of Assembly. 

As an example, in the now suspended Turks and Caicos Constitution, government could only take away private property where the acquisition “is necessary in the interests of defence, public safety, public order, public morality, public health, town and country planning, or the development or using of the property will promote the public benefit or the economic well-being of the community”.  There is no such limitation in the Anguilla Constitution.  Fortunately, this draconian power in the Anguilla Constitution has never, to my knowledge, been misused.

There are a couple of conditions under the Anguilla Constitution that government must satisfy before they can compulsorily acquire our property in Anguilla.  First, they must do it under a law.  Second, that law must require the prompt payment of adequate compensation.  The law must say how the compensation is to be given, and must prescribe the manner of enforcing the right to any such compensation.   

You may think that is quite a mouthful.  What it means is that Government can take away our property for any reason once they do it under a law, but Government must pay compensation for it.   

           And, when we are talking about property, it is important for you to realise that we are not just talking about land.  We are talking about all kinds of property.  I well remember one case a few years ago when an Anguillian teacher had deductions made from her salary that she had not agreed to be made.  She very bravely took government to Court.  The Court ruled that Government had to pay her back, because this amounted to a compulsory and illegal taking of her 'property' without her consent.

Caning

 Corporal punishment in school:  I find it regrettable that concern for very deserving human rights has now gone so far as to make it dangerous for the principals of our High Schools in the West Indies to order canings of delinquent students.  A caning from time to time of the worst offenders in school has always had a very salutary effect on maintaining discipline.  A couple of raps across the knuckles, or a belting across the bottom is just as salutary.  I do not know about you, but I never suffered any harm to my body or soul from all the canings I got as a school child.  So far as I can remember, I got six strokes from the pesi cane on my backside most Monday mornings for five years for refusing to play boring sports on weekends.  The caning is meant less to modify behaviour than to teach a lesson.  The caning did not make me want to play sports.  It was not intended to convert me to be a sports lover.  What I learned from my regular weekly canings was that there are consequences for breaking the rules.  The caning merely said that if you disobey a direct order from the Sports Master, there are going to be painful consequences.  If a child puts his hand in the fire on the stove he gets burned and never does it again.  A valuable lesson for life is learned.  Caning is a cheap, effective and instantaneous form of teaching.  Today it is banned, and there is no effective suitable alternative available in school. 

Nowadays, school children are taught, by the absence of pain and suffering for wrongdoing, that there are no consequences for breaking the rules.  The result is chaos in schools and in society.  We have to have police security at all our school gates to confiscate the knives and guns, and we have to send students to the hospital suffering from wounds and injuries.  The child psychologists who have corrupted our education system in this way have a great deal to answer for.  It is due to their teaching that so many of our students can hardly read and write and have no self-discipline. 

I do not consider a caning in school of a delinquent schoolboy to be in breach of the child's human rights.  Nor do I believe such a caning to be inhuman treatment.  There are many worse things that happen to school children that they survive and move on from.  This includes sexual abuse and drunken maltreatment by their fathers, uncles and brothers.  Such home conditions affect a significant percentage of our school children, yet no one does anything about it.  The perpetrators continue to attend church every Sunday and are accepted as prominent and distinguished members of our society.

I include, as an equally unacceptable form of child abuse, the fact that most of our Primary School children in Anguilla arrive in the High School unable to read or write. 

This aversion to a healthy, harmless and effective form of corporal punishment is the most degenerate of the modern norms of European culture that we are being told we must emulate, or be in breach of the European Convention on Human Rights.

Flogging

Cat-o-nine tails:  While we are dealing with torture and cruel and inhuman punishment, we might look at floggings.  There was an interesting case in St Vincent that occurred about ten years ago.  A man was in prison serving time on conviction of a very serious offence.  His son was serving time as well, in the same prison.  One day, the convict father saw a warder beating his convict son.  He lost his temper and struck the warder with a piece of two-by-four wood.  The warder was knocked unconscious. 

Now, that was a serious offence.  The Superintendent of Prisons could have brought the matter to the attention of the police and had charges brought against the prisoner.  The magistrate would have dealt with the prisoner.  Or, he could have brought charges himself before the Visiting Justices.  They could have ordered a number of penalties against the convict.  These included ordering strokes with the cat-o-nine tails.  The cat-o-nine is a cruel whip.  It has nine lengths of leather studded at the ends with pieces of metal.  It is designed to cut into the skin and cause bleeding besides just pain. At this time, it was available only as a punishment to be ordered by the Visiting Justices against particularly violent prisoner.

The Superintendent in this case did not bother to report the matter to the police.  He did not bother to report it to the Visiting Justices.  He decided to try the case himself.  He had no power under the law to do.  He heard the evidence.  Then he convicted the prisoner.  Then he sentenced him to receive several lashes with the cat-o-nine tails.  The sentence was carried out the same day.  The prisoner was then locked in solitary confinement for over a year.  He was shackled all the time.  He was only allowed out of his cell for one hour every day during that year. 

When he was released finally from solitary confinement, the scars on his back were quite noticeable, as you will imagine.  He made a complaint to Victor Cuffee, a lawyer who was the head of the Human Rights Committee of St Vincent and the Grenadines.  Mr Cuffee brought a case for the convict before the High Court.  He asked the court to find that the flogging with the cat-o-nine tails had been unconstitutional. 

Of course, the Prison Superintendent never had any power to sentence a prisoner to be flogged.  That power was only given to the Visiting Justices.  The High Court declared that the use of the cat-o-nine tails in this case had been unconstitutional.  The court found that a flogging with a cat-o-nine tails, even when authorised by the Prison Act, would be in breach of the fundamental human right not to be subjected to inhuman treatment. 

So, the cat-o-nine tails whip was abolished in St Vincent and the Grenadines, and is not in use any more. 

The High Court and the Court of Appeal awarded damages against the government for the unlawful flogging of the convict.

Torture

Freedom from inhuman treatment:  We are looking at our fundamental rights under the 1982 Anguilla Constitution.  The fifth of these rights is the right to be protected from inhuman treatment.

You may well think that this is a pretty obvious human right.  No one in the West Indies today can be put to the rack for their religion or to collect a confession.  It is generally accepted today that torture is an unreliable means of obtaining useful information.  However, torture has throughout history been used as a means of terrorising populations or specific communities.  

 Franz Fanon, in “Les Damnees de la Terre”, reports that the French in Algeria used ‘preventative torture’ on entirely innocent people to stop them doing anything in the future.  Although claiming to use torture in order to save lives, the French colonial regime killed between 1-1.5 million Algerians in the process.   

The Red Cross has estimated that 80% of detainees held by US Army forces at Abu Ghraib in Iraq were the ‘wrong people’.  Yet, the US Army in recent years with approval from the highest levels has approved torture of these detainees in support of the ‘war on terror’.

Besides these obvious examples of illegal torture, there are some West Indian nuances that you may find interesting.  A few years ago, two murderers in Jamaica, Pratt and Morgan, took the government to court.  They had been convicted and sentenced to death by hanging.  They had appealed their sentence to the Jamaican Court of Appeal, and lost.  They appealed to the Privy Council and lost.  They now appealed to the Inter-American Court of Human Rights.  Jamaica was a signatory to the Inter-American Court of Human Rights Agreement.  The prisoners had meanwhile spent nearly fourteen years on death row, waiting to be executed.  Of course, they had been filing appeal after appeal, which had resulted in the long delay in the carrying out of the sentence. 

They filed a case in the High Court claiming that the delay in government hanging them had subjected them to many years of dread and fear that amounted to cruel and inhuman punishment.  Note, they were not saying that the death penalty was cruel and inhuman punishment.  Their claim was that the long delay in carrying out the sentence, the long wait on death row, was what was cruel and inhuman. 

The High Court in Jamaica laughed at the convicts and threw out the case.  They appealed to the Court of Appeal, and lost.  The case reached right up to the Privy Council in London.  They succeeded in having the Privy Council hold that their sentence amounted to cruel and inhuman punishment.  The Privy Council ruled that if the government cannot for any reason execute a murderer within five years of his conviction, then the sentence must be commuted to life imprisonment.  This ruling applies to all Commonwealth countries in the West Indies and elsewhere.  To keep someone on death row for longer than that period of time, the court ruled, will constitute cruel and inhuman treatment.  That is now the law throughout the West Indies.  It is not very relevant to us in Anguilla, since the penalty of hanging for murder in Anguilla was long ago abolished.  The only penalty for murder now in Anguilla is life imprisonment. 

Still, you may agree that it is useful to have a Supreme Court looking out for instances of cruel and inhuman treatment.