Discrimination

Constitutional Discussions 4: Discrimination. One of the fundamental human rights dealt with in the 1982 Constitution of Anguilla is protection from discrimination. Section 13 enshrines the right. It does not cover every kind of discrimination. It applies to discrimination on the grounds of race, place of origin, political opinion, colour, creed or sex. We will all remember the pride of the National Council of Women when they got the prohibition against discrimination on the grounds of sex included in the Constitution for the first time in the 1990 revision. That was the amendment which made it illegal to pay a woman in Anguilla less than a man for doing the same job. Before that, there were several ways in which the law in Anguilla discriminated against women.

There are exceptions to the right to be protected from discrimination. The Constitution mentions three. The first is numbered (4)(a). It permits us to pass a law discriminating against non-belongers. That is what makes it legal for us to prohibit non-belongers from owning land in Anguilla without a licence. If we did not have this exception, it might be illegal to pass a law discriminating against non-Anguillians who want to purchase property in Anguilla. The second exception is numbered (4)(b). It relates to what is called the “personal law”. This means matters such as adoption, marriage, divorce, burial, devolution of property on death, or other like matters. I cannot think of a good example at the moment. But, this is the exception that would permit us to make a law prohibiting a Christian from adopting a Muslim, or a white family from adopting a black child. We do not do any of this. I am only making up examples of what could be permitted. The third exception is numbered (4)(c). It allows us to discriminate in taxation. That is what makes it legal for us to tax a non-belonger differently from an Anguillian. Without this exception, the Aliens Landholding Licence tax might be challenged as being discriminatory.

The Members of the House of Assembly suggested a fourth exception to be numbered (4)(d). It would add the words, “for the provision of services in favour of Anguillians”. They wanted to make it legal to pass a law discriminating in favour of Anguillians in the provision of services. The problem they were discussing is what is to happen in the future, for example, if Indian contract labour parents begin to demand schools for their children. If we refused might we face the risk of discriminating in the provision of educational services on the basis of race, place of origin, or colour? What if our hospital is inundated by immigrant labour coming with medical problems? Can we make a rule that only Anguillans can get subsidised treatment, and all others must pay the full economic cost. Without this exception, it might be discriminatory for medical services to be provided at one rate for Anguillians and another rate for non-Anguillians.

I do not have a problem with that amendment to the Commission’s recommendations. What about you?

Property

Constitutional Discussions 3: Protection of Property. Section 7 of the Constitution protects our fundamental right not to be deprived of our property. It says that no interest in or right over any property of any description shall be compulsorily acquired except under a law which prescribes how you are to be compensated. The Commission in its Report of 25 August recommended that the section be amended to provide that the compensation is required to be paid in cash.

The problem that was being addressed is that the Constitution says that your property can only be taken away from you under the provisions of a law that prescribes how you are to be compensated. But, it does not say that you have to be compensated in cash. There have been times, in other parts of the Commonwealth, when governments have tried to compensate landowners by giving them bonds redeemable in 20 years. Others have tried to force alternative land on you. Courts have tended to hold that “compensation” means compensation in cash or its equivalent.

Members of the House of Assembly discussed this recommendation. It was the second time that they came up with a variation on the recommendations made by the Commission. They suggested another word. They took the view that “cash” was too restrictive. A wire transfer is not cash. A bank draft is not cash. A bank manager’s cheque is not cash. But, these are all as good as cash. They thought that the word “money” was a better word than “cash”. They came up with this suggestion in order to make the recommendation of the Commission more effective, more workable.

I do not have a problem with that. I am happy to accept their alternative suggestion.

Bail

Constitutional Discussions 2: The Right to Bail. The Report of the Constitutional and Electoral Reform Commission has been published and in the public domain since 25 August 2006. It can be read and downloaded to your computer from the government website. Its contents have been discussed on innumerable radio talk shows and in the press. Public meetings have been held throughout the island to give those interested an opportunity to attend and present their views. These meetings were not very well attended. Constitutions are a dry subject and of interest only to a few persons. Many more persons listened to the discussions as they were broadcast live on radio. The recommendations should be well known to you by now. So, I am not going to go through them all one by one.

Members of the House of Assembly met in caucus at Limestone Bay Café. Present were the elected members, the nominated members, and the ex-officio members. I had the honour of being asked by the Chief Minister to lead the members in their discussions. They debated the recommendations. I took notes of what they had to say. At the end of the meetings, I circulated them with a list of their views as they diverged from the views of the Commission. I have a copy of those notes. I am going to use them to discuss with you, my readers, the views of the members of the House of Assembly. At no time have I been asked to keep these notes private. In any event, the views they record have been expressed from time to time in public by members of the House of Assembly. This was particularly true at the public meetings called by the Chief Minister. Various persons criticised the variations introduced by the Members of the Assembly. Some of the suggested variations caused quite heated debates. Let us now begin to look at some of them.

The first divergence from the recommendations of the Commission was at paragraph 13 of the Report. The Constitution provides at section 3(3) that any person who is arrested on suspicion of having committed or being about to commit a crime, and who is not released, shall be brought “without delay” before a court. It is not that you are entitled to bail after 48 hours. It is only that the police cannot keep you locked up indefinitely without bail. They must bring you before a Magistrate after 48 hours. There may be good reasons why you should not be released on bail. You may run away. You may go back to commit an offence immediately you are released. You may be a homicidal maniac who is a danger to the community if released. Let the Magistrate decide. Experience all over the world has shown that it is safer to let a judicial officer decide who should be bailed and who should not.

The Commission recommended that the phrase “without delay” should be replaced by “within 48 hours”. It is no use having a right to bail, if you can be detained until some police officer decides that it is convenient to take you to the Magistrate to apply for bail. The members of the Assembly disagreed, and decided that they would prefer to leave it as it is. They were not convinced by the argument of the Commission that the phrase “without delay” was ambiguous. They were not convinced that it has caused much distress in the past. Nor were they impressed by the argument that the more advanced Constitutions of the West Indies have gone in this direction. The independent West Indian constitutions like that for Antigua and Barbuda provide for you to be brought before the court within 48 hours. In South Africa it is “not later than 48 hours after arrest”. In Canada it is 24 hours. In the UK it is “as soon as practicable, and not later than the first sitting after charge”.

Can somebody explain to me why lower human rights standards should apply to us?

Anguilla's Team

Constitutional Discussions 1: Anguilla’s Team. No, I do not know who the members of Anguilla’s team (for the upcoming negotiations with the British) are. No doubt, they are not yet finalized. We shall all learn who they are in due course. What I did was to respond to my invitation. I confirmed to Mr Foster Rogers, the Chief Minister’s Permanent Secretary, that I would be honoured to serve as invited. I met with him. Mr Rogers confirmed to me that the Chief Minister was preparing for the British.

First, he has asked the Attorney-General to prepare a report for him on the likely reaction of the British to the recommendations of the Commission. He wants to know which of our recommendations will be only a formality, and which ones we will have to fight for. That is a good start. It is not a difficult job. It only means going through the constitutions of TCI and BVI to see what amendments the British have recently agreed to. Anything that was good enough for them is good enough for us. Not that we intend to play catch-up. But, it is always good to know what has gone on before.

Second, he intends to hold a number of planning sessions before the British arrive. He is well aware of the need to have the whole team quoting from the same textbook. That makes me feel much better.

Starting with the next post, I intend to do something the members of the House of Assembly should have done. Since they have been too reticent and modest to do it for themselves, I will presume to speak for them. They held a number of caucuses, as I believe our US cousins call them. They met several times at Limestone Bay Café and went through the Report of the Constitutional and Electoral Commission. They came up with some new suggestions for constitutional reform for themselves. They are not secret. The members have spoken about them previously at meetings they held to discuss the Report. They just have not come out formally and expressed themselves on the forum that belongs to them and where the public expect to hear them: The House of Assembly. So, I will itemize the new ideas they came up with. We shall look at them one by one. I will tell you what I think of them.

I am sure the members of the House would like to hear from you as well. After all, they are speaking on your behalf, aren’t they?

This exercise will have the additional benefit of letting them, and the British, know unambiguously and in advance the sort of role that I am going to play in these discussions.

UK Relations

Foreign Affairs Committee. The Foreign Affairs Committee (FAC) of the UK House of Commons is one of the key structures to ensure accountability in the Westminster system of parliamentary democracy. It plays an important role in monitoring the policies and performance of the Foreign and Commonwealth Office.

It has just been announced that the FAC will begin a comprehensive inquiry into all 14 of the British Overseas Territories in November. It will be looking at security and standards of governance, transparency and accountability, the role of governors, the regulation of the financial sector, the work of the Overseas Territories Consultative Council, procedures for the amendment of constitutions, human rights, the application of international treaties and conventions and agreements to the Overseas Territories, and relations between the Territories and the UK Parliament.

Anyone can volunteer to submit evidence to the FAC, either orally or in writing. The FAC can request or send for UK government officials to attend sittings of the committee to answer questions. The FAC can also consult any individual or organization on issues relevant to their inquiry. The committee decides what use to make of any information it receives. For more information on submitting evidence, visit the committee's website.

Deputy Governor Mark Capes of Bermuda has been quoted as saying, “In the course of conducting such an inquiry, we would expect the FAC to visit one or more of the Overseas Territories but that is entirely a matter for the FAC to decide.” It is not yet known if the review will see members of the committee wanting to visit Anguilla.

This announcement comes just a few weeks after the FCO reissued a 2003 paper giving guidance on good governance in the Overseas Territories.

Additionally, the UK National Audit Office is carrying out a review of the effectiveness of the FCO’s work in relation to the Territories. A report is expected later this year.

In Bermuda, members of the opposition are calling for a Commission of Inquiry to investigate allegations of corruption now circling around the heads of the Premier and other members of government. They have welcomed this initiative of the FAC as another tool in helping the locals to clean up government in their island. It will at the least ensure increased transparency regarding recent developments in that island.

Environmental Impact

Island Development Threshold. The Land Development Control Committee recently asked the Anguilla National Trust to provide comments on an application for outline planning permission by the proprietors of the Conch Bay Development. They intend to build a golf course, resort and residences on Block 78913B Parcel 100 and Block 79013 Parcel 126. The Trust replied in writing on 30 June 2007. It is an interesting document to read. It contains many revelations. These particularly relate to weaknesses in government’s processes and procedures. There are some ominous warnings in the document. Under the heading Additional Questions and Concerns we read:

While the GoA has not yet carried out an assessment to determine what is the development threshold of the island or whether or not the island has reached this point, the LDCC has an obligation to ensure that such an action be taken from the perspective of managing and pacing the development of the island. The ANT has serious concerns about the rate and pace of the island’s development and urges the LDCC to request the relevant agencies in collaboration with the EXCO to conduct an assessment to determine the development saturation point of the island. Such a tool will only serve to protect the island and justify the LDCC’s actions as we continue to grow at extremely rapid paces.

What to make of this warning? Has our island reached its development threshold? Will further unrestrained construction of mega-resorts stretch the island’s infrastructure beyond the breaking point? Will the Land Development Control Committee take the hint, and carry out the needed studies? Will we see any positive reaction to this warning from the Trust?

Your guess is as good as mine.

Constitutional Reform

Anguilla’s Future. I had by now nearly given up on it. But, on Friday afternoon I got my letter. Friday was 6 July, though the letter was dated 4 July. It read:

Dear Justice Mitchell,

Re: Constitutional Discussions

Please be advised that the Government of Anguilla has nominated you to be a member of the Anguilla team for the first round of Constitutional discussions with the British in Anguilla on 23 July 2007, and the second round of discussions in London.

I should be grateful, on behalf of Government, if you would confirm your willingness to participate in these discussions.

The Chief Minister’s Office will be in contact with you as to the time and venue of the meetings.

Yours sincerely,

(sd) M Foster Rogers
Permanent Secretary
Chief Minister’s Office

Well, what do you make of this? I will tell you what first struck me. One, it is very late. I would have thought that the Chief Minster would have chosen his team months ago. But, maybe it is just me who was a late addition, and the others have been in position and preparing themselves for the discussions. It could be that it is just me who does not know what is going on. Two, he does not tell me who the other team members are. I would want Dame Dr Bernice Lake to be a member. I would really like her to be the lead member of the team, but I would settle for her being just a member. I am not happy being a member is she is not a member. I would want Lolita Richardson to be a member. She is very annoying to some persons, but she has the right ideas when it comes to the Constitution of Anguilla. I would want Joyce Kentish, the president of the Bar, to be a member. She will bring the perspective of a senior, active legal practitioner to the discussions. But, I have no idea if there is a single non-government lawyer besides me who has been invited to be a member. Three, the letter does not tell me about any preparations that are to be made to get ready for the visit of the British team. I do not know what the team is going to be negotiating.

The House of Assembly has not yet met to debate the recommendations of the Commission and to put on record their own conclusions and wishes. I would have thought that this was an essential prerequisite for any meeting with the British to take place. There have been private meetings between the government and the opposition representatives in the House. I was present at some of them. But, I do not count private meetings as being of any importance or significance. It is only the commitment made in public meetings that members of the Anguillian public are interested in.

Are the politicians going to adopt wholeheartedly the recommendations of the Constitutional and Electoral Reform Commission? Are they going to improve on its recommendations? Or, are they going to dilute and fritter away the recommendations?

Are there going to be practice sessions, so that our team might be ready for the most outrageous pontifications of the UK team?

Who is doing the research into what has been adopted in the other territories, so we know which of our recommendations are mere formalities, and which others are going to take very hard and determined argument to push through?

Do we have an agreed agenda, a bottom line below which we will not venture?

Who is going to give the signal for us to walk out of the negotiations if the British are unreasonable?

What is to be the signal? Will it be a tug on the collar, or a fist pounding on the table?

All these matters have to be discussed and agreed!

This is not a joke. I am very serious. Taking part in these negotiations unprepared, like a bunch of amateurs, could be the worst betrayal of Anguilla. Taking part with a well-rehearsed team, who are all reading from the same script, could be a triumph for Anguilla.

What would you recommend I do in the circumstances in response to this invitation? Please let me have your views promptly. Although the Chief Minister’s office took a long time to invite me, they probably require a response from me pretty soon.