- The present Constitution of Anguilla is a Schedule to the Anguilla Constitution Order 1982. The 1982 Order is the legal instrument signed by or on behalf of the Queen in Council. The 1982 Constitution is the contract approved by the people of
Anguillaand which sets out the terms on which they agree to be governed by the executive.
- The 1982 Order is very unsatisfactory, and it is to be hoped that the faults that appear in it will not be repeated. For example, it contains certain provisions that must be read in conjunction with the Constitution before the terms of the Constitution can be understood. The two documents have to be read side by side for certain provisions to be understood. This is perfectly sensible for a lawyer. It is not so for a layman. The Order contains provisions that do not even make sense.
- The Commission recommends that there should be no provision in the new Order placing a gloss or interpretation on any part of the Constitution: the Constitution should be self-contained, whole and entire.
- A suggested format for the Order is appended as Appendix 7.
- The Constitution of Anguilla presently lacks a Preamble. The Preamble should set out something about who the people of
Anguillaare, and what they expect of both their Government and of the British Government. Such a Preamble is an essential part of a modern Constitution. The Commission recommends that there should be a Preamble to the Constitution.
- Two persons have submitted draft Preambles. Neither one has been agreed by the Commission as suitable, principally due to the lack of public comment. The Commission recommends that there be a public competition to come up with an acceptable draft.
- Unlike the British Virgin Islands and the Cayman Islands,
Anguillaenjoys an advanced provision for the protection of fundamental rights and freedoms in Chapter 1 of the present Constitution. The issue of such a provision is therefore not as urgent as it is in those territories.
- The Commission considered the Model prepared by Mr Henry Steel for the
. A copy is appended hereto as Appendix 8. Mr Steel also supplied Explanatory Notes. A copy is found at Appendix 9. The Commission also considered the recommendations of the Montserrat, BVI, and Cayman Commissioners; the suggestions coming out of the town hall meetings held by the Constitutional Reform Committee during the period 2001-2003; and the various suggestions and comments made at public meetings, on radio and television, and in meetings with various NGOs, and on the Commission’s website during the period of the work of the Commission. Overseas Territories
- The Commission concluded that the Model was not suitable for adoption in
Anguillafor a number of reasons. First, the present Anguilla Constitution already has an advanced Chapter dealing with Fundamental Rights. Members see no reason to confuse citizens by recommending the adoption of an entirely new Chapter. Second, in the aftermath of the United Kingdom’s imposition of a law repealing offences relating to homosexual acts among men, there are in the Anguillian community doubts about the bona fides of those recommending the adoption of an entirely new Chapter: there are serious concerns that the urge to review the Human Rights aspects of the Constitution is prompted by a European desire to impose foreign and unacceptable social norms. The Model attempts to introduce “rights” that are objectionable to a majority of Anguillians. Examples are sections 10 [Protection of the Right to Marry]; and 12 [Protection of the Right to Education]. The Right to Marry appears to be worded in language intended to introduce a right for members of the same sex to marry each other, a notion which is objectionable to a majority. The Right to Education as proposed would impose an obligation to provide free primary education for the children of all persons living in Anguilla. That is a right that a majority would want to see extended only to Anguillians. Anguilla cannot afford to provide free education to the children of all the temporary residents of Anguilla. Third, there have been pleas made that both the present Constitution and the Model Draft are written in dense and incomprehensible language not suited to be understood by the man in the street. In this respect, the Model will do nothing to improve public appreciation and knowledge of the fundamental rights enjoyed by Anguillians; it is written in even denser and more incomprehensible language than the present Chapter 1. In the circumstances, the Commission recommends the rejection of the proposed draft Model Chapter on Fundamental Rights. All that is required is the amendment of a few of the sections of the present Chapter 1 to make them more reflective of modern norms and expectations.
- Similarly, the remainder of the Constitution, Chapters II to VII, does not need fundamental change, or replacement by a completely new form. The Commission will recommend that the other Chapters of the Constitution remain, but with the various amendments indicated. We now look at the various sections of the Constitution one by one.
- Section 1: Fundamental Rights and Freedoms of the Individual. There is no Preamble to the present Constitution. This section commences the Chapter. Strictly, its contents belong, if anywhere, in such a preamble, and the Commission recommends that the section not be reproduced in any new Chapter I.
- Section 2: Protection of Right to Life. Sub-section (1) as presently worded is out of date. Its wording precedes the abolition of the death penalty for murder in
Anguilla. To the extent that the death penalty still exists for such offences as treason or intentionally burning one of Her Majesty’s ships, it is archaic and should be abolished. During the review process the Commission received no representation that the penalty should be retained. The Commission recommends that the section should be amended to now read simply, “No person shall be deprived of his life intentionally.”
- Section 3: Protection of Right to Personal
. The present section is defective in that it does not provide that a person who is arrested is entitled to be told of his rights. It has been left to the courts to interpret this common-law entitlement. The Commission is satisfied that modern practice and a proper understanding of the practical application of this right requires that a person arrested is entitled immediately upon his arrest, and not after he has been brought to a police station, to be told of his rights. The Commission recommends that should be a new sub-section setting out this right in the clearest language. Liberty
- The present sub-section (3) provides that a person arrested shall be brought before a court “without delay.” This phrase is ambiguous and has caused much distress in the past. It is not the wording found in more advanced Commonwealth Caribbean Constitutions. “Without delay” should be replaced by “within forty eight hours” and the Commission so recommends.
- Section 4: Protection from Slavery and Forced Labour. During the review process no comment was received from the public and in our view the section does not require amendment.
- Section 5: Protection of Freedom of Movement. Section 5(3)(c) permits the House of Assembly to pass a law allowing for the arbitrary expulsion from
Anguillaof any non-Anguillian who is otherwise lawfully present on the island. This Act is the Undesirable Persons Expulsion Act. It permits the authorities to pick up any non-belonger and deport him or her from the island without any judicial process of any kind. While it is recognised that the authorities would prefer not to have to submit their deportation decisions to any scrutiny, the present procedure is inherently unjust and subject to possible abuse. The Commission recommends that the words “or expulsion” be removed from any future draft of the Constitution.
- Section 6: Protection from Inhuman Treatment. During the review process no comment was received from the public and in our view the section does not require amendment.
- Section 7: Protection from Deprivation of Property. The section is in the time-honoured language of such sections. The only improvement that might be made to it is to alter sub-section (1)(c) to provide that the compensation is required to be paid in cash. The Commission so recommends.
- Section 8: Protection from Arbitrary Search or Entry. During the review process no comment was received from the public and in our view the section does not require amendment.
- Section 9: Provisions to Secure Protection of Law. Sub-section (4)(a) permits a court blanket powers to exclude persons other than the parties to litigation from interlocutory civil proceedings, ie, Chamber hearings. It has been suggested to the Commission that many important issues of public interest are concluded in Chambers. The public should have a right to be present, particularly through the press, at such hearings unless there are other special circumstances that make it desirable for the hearing to be heard in camera. Sub-section (4)(c) permits a court to exclude members of the public from any proceeding where the court considers that publicity would prejudice the interests of justice, or in the interests of defence, public safety, public order, public morality, or the welfare of children. The Commission considers this provision more than adequate to permit the court in suitable Chambers hearings to exclude members of the public, including the press. The Commission recommends the deletion of sub-section (4)(a).
- Section 10: Protection of Freedom of Conscience. During the review process no comment was received from the public and in our view the section does not require amendment.
- Section 11: Protection of Freedom of Expression. During the review process no comment was received from the public and in our view the section does not require amendment.
- Section 12: Protection of Freedom of Assembly and Association. During the review process no comment was received from the public and in our view the section does not require amendment.
- Section 13: Protection from Discrimination on the Grounds of Race, etc. During the review process there was much discussion on Mr Henry Steel’s draft Model Chapter 1. In particular, there was a wide consensus that under no circumstances would the people of
Anguillaaccept any proposal to prevent discrimination on the grounds of sexual orientation. As a result, the section does not require amendment.
- Section 14. Derogations from Fundamental Rights and Freedoms under Emergency Laws. During the review process no comment was received from the public and in our view the section does not require amendment.
- Section 15: Protection of Persons Detained under Emergency Laws. During the review process no comment was received from the public and in our view the section does not require amendment.
- Section 16: Enforcement of Protective Provisions. Sub-section (1) provides that anyone who alleges that the Constitution has been, or is being contravened in relation to him may apply to the High Court for redress. In more modern
Caribbeanconstitutions the phrase “or is likely to be” is also to be found. It was agreed that the phrase “or is likely to be” be inserted after the phrase “or is being”.
- Sub-section (2) contains a proviso that the High Court may decline to exercise its powers if other means of redress existed. It has been argued by many persons that this proviso unnecessarily derogates from the right of a citizen to seek the enhanced protection of the court by way of an administrative or constitutional action. The Commission recommends that the proviso to sub-section (2) should be deleted.
- Section 17: Declaration of Emergency. Sub-section (1) provides that the Governor declares a state of emergency. Section 28(1) suggests that he does so in consultation with Cabinet and act in accordance with their advice. For the avoidance of any doubt, the Commission recommends that sub-section (1) expressly states “in consultation with Cabinet and acting on its advice”.
- Section 18. Interpretation and Savings. This section does not belong at the end of this Chapter. It should either be placed at the beginning of the Chapter or, where convenient, its provisions should be placed in the relevant section of the Constitution and the Commission so recommends.
- Section 19: The Governor. Representations have been made to the Commission that the Premier and the Leader of the Opposition should have the right to be consulted prior to the appointment of a Governor or Deputy Governor. The Commission considers this to be an essential means of facilitating good government and in keeping with the promise of partnership. The Commission recommends that the Constitution be amended to provide that the Premier and the Leader of the Opposition will be consulted prior to the appointment of a Governor or Deputy Governor.
- Section 19A: The Deputy Governor. The British government has indicated its intention in future to ensure that this office is filled by persons who are Anguillian. The
Anguillapublic has welcomed this development. It is appropriate that declared intent should not be left to chance implementation, but that it should be entrenched in the Constitution. this section should be amended to add a sub-section to that effect, and the Commission so recommends.
- Section 20: Acting Governor. This section merely provides for the appointment of an acting governor in the absence of the governor. During the review process no comments were received from the public and in our view does not require any amendment.
- Section 21: Governor’s Deputy. This section provides for the Governor to appoint a deputy in the absence of the Deputy Governor to act for him when he is ill or absent from the island. During the review process no comments were received from the public and in our view does not require any amendment.
- Section 22: Executive Authority for
Anguilla. This section provides that executive authority is vested in Her Majesty. During the review process no comments were received from the public and in our view does not require any amendment.
- Section 23: Executive Council. This section establishes the Executive Council. There is general consensus that the term “Executive Council” has become outmoded and the preferred term is “Cabinet”. The Commission recommends that the Constitution be amended to use the term Cabinet in place of Executive Council. In this Report, wherever it is necessary to refer to the Executive Council the alternative term “Cabinet” will be used.
- Name of Chief Minister. Further, there is general agreement that the leader of government, or “Chief Minister”, should in future be referred to as the “Premier” and the Commission so recommends. Whenever it is necessary to refer to the Chief Minister hereafter in this Report, the alternative term “Premier” will be used.
- Number of Ministers. This section of the Constitution presently provides that there should be no more than three Ministers besides the Premier. Of the present 7 elected members of the Assembly, 4 are members of Cabinet, and in addition one of the other members of the Assembly is appointed as Parliamentary Secretary with Ministerial responsibilities. In representations made to the Commission, there was consensus that there are too few Ministers to perform the functions of government efficiently, and that the maximum number of Ministers needs to be increased. Most have urged that they be increased to at least 5 besides the Premier. A few have argued that there needs to be at least 6 besides the Premier. The Commission has recommended that the size of the Assembly be increased from the present 7 elected persons to a total of 13 elected persons. The Commission recommends that the maximum number of Ministers besides the Premier be increased from 3 to 5, which, in an Assembly of 13, will leave 7 elected representatives who are non-Ministers. In the event that the number of Ministers is to be increased to 7 besides the Premier, the Assembly should consist of at least 15 elected members to ensure a proper balance.
- Ex-officio Members. The Constitution provides that there shall be two ex-officio members of Cabinet, the Deputy Governor and the Attorney-General. There have been recommendations made to the Commission to exclude these officers from Cabinet as they are not elected and it is anti-democratic for them to continue to sit and vote in Cabinet. However, the Commission is persuaded by the arguments of Ministers that they value the advice of these officers at Cabinet meetings and that they should remain, especially as they do not normally vote at Cabinet meetings. The Commission recommends that they stay as ex-officio members of Cabinet, but without vote, and that the Constitution should say so.
- Section 24: Appointment of Ministers. This section and section 25 when read together provide that the Governor appoints as Premier the person who commands the support of a majority of the elected members of the Assembly. There is no limitation to this power. The section does not say that it only applies after a general election. Nor is this a reasonable interpretation of the section. Some persons making representations to the Commission appear to be confused as to whether this power of appointment applies when the Premier resigns or dies in office. They have suggested that there is an ambiguity and that the Constitution is silent on the point. They have even suggested that a proper interpretation of the two sections when read together is that they require that the Governor call a general election whenever the Premier dies or otherwise vacates his office. Although the Commission does not believe that there is any ambiguity in the present provision, for the avoidance of any doubt, the Commission recommends that section 24(1) be amended by the addition of words that will ensure that all readers of the Constitution can be in no doubt that the Governor has the discretion whether or not to call a general election on the death or resignation of the Premier, based on his assessment of whether there is a person in the Assembly who commands majority support, eg, by adding the words, “whether after a general election or at any time thereafter if it shall become necessary,” after the words “acting in his discretion”.
- Governor’s Discretion to Appoint the Premier. Some persons have represented that at no time subsequent to the immediate aftermath of a general election should the Governor have any discretion to appoint a new Premier; that, whatever the Constitution presently says, it should in future be made clear that if the Premier dies or otherwise vacates his office the Governor shall be obliged to call general elections. The argument is based on a call for increased democracy and an assumption that it is the people who elect the Premier and his government and that, when they fall, for whatever reason, it is only the people who should have any say in who the new Premier and his government is to be. The consequences of such a constitutional provision will be far-reaching, eg, the Premier would be deprived of his present discretion to resign early and to permit his chosen successor to serve in office for the remaining period of the existing term. Also, if the Premier were to die a short while after a general election, the people would have to be put through the trauma of general elections even though the majority of the elected Members of the Assembly have a leader they are prepared to support. The Commission is not satisfied that so radical a change in the present constitutional arrangements is desirable and does not recommend this proposed change.
- Section 24A: Appointment of Parliamentary Secretary. This provision was made at a time when Cabinet was very limited in size and it was thought necessary to share the burden of office of Minister with a fifth elected member. With the increase in size of Cabinet from 4 to 6 as recommended above, the Commission doubts that this provision is necessary, and recommends its removal from the Constitution.
- Section 25: Tenure of Office of Members. Section 25 consists of four sub-sections. It deals with the different circumstances in which the office of Minister is vacated.
- Vote of No Confidence. Sub-section (1) provides for the Governor to be obliged to call a general election in the event of a vote of no-confidence succeeding in the House of Assembly. A two-thirds vote is required for such a motion to succeed.
- It has been recommended to the Commission by several persons that when Cabinet Ministers join in a vote of no confidence in their own government, they betray the Premier who selected them for appointment, and their action should automatically trigger a general election as sub-section (1) presently provides. This principle, it is argued, applies equally to back-benchers who have probably won their seat by the support of their party leader. However, the Commission is persuaded by the contrary view that it is essential for Ministers and members of the Assembly to be free to act on their conscience and to join in a vote of no confidence if they consider it proper to do so, and for the Governor, acting in his discretion as the Constitution prior to 1982 previously provided, to have the choice of either calling a general election or appointing some other person commanding the majority support of the Assembly to be the Premier, and the Commission so recommends.
- A majority of persons making representations to the Commission on the effect of sub-section (1) were of the view that if a Government has lost the support of the majority of the Assembly there was no reason why that Government should not fall. That is, a vote of no-confidence should succeed on a vote of a simple majority. This view accords with that of the Commission which recommends that the requirement should be amended to a simple majority.
- Sub-sections (2), (3), and (4) deal with the vacating of the office of Premier and Minister in various circumstances. No representations have been made to the Commission for any alteration and none is recommended.
- Section 26: Performance of Functions of Chief Minister in Certain Events. This section authorises the Governor to appoint any Minister to perform the functions of the Premier in his absence from
Anguillaor illness. The Governor is required to make the appointment acting on the advice of the Premier unless it is impracticable. This post can be described as that of Acting Premier.
- Deputy Premier. There is no provision in the section or elsewhere in the Constitution for the post of Deputy Premier. Representations have been made to the Commission that the Constitution should provide for such a post. That would permit the Premier to nominate the person who will normally act for him in his illness or absence. The Commission is of the view that this add certainty to the Constitution, and the Commission recommends that the section be amended to provide for the post of Deputy Premier.
- Section 27: Assignment of Responsibilities to Ministers. Sub-section (1) of this section provides for the Governor acting in accordance with the advice of the Premier to appoint Ministers. No representations have been made to the Commission for any change to this sub-section.
- Sub-section (2) empowers the Governor to call for any official papers available to a Minister, presumably with a view to overseeing the Minister’s performance of his duties. While this sub-section (2) provision for gubernatorial oversight of a Minister’s performance might have been useful in the early days of Ministerial government in Anguilla, it is to be doubted whether it is properly to be located in a modern
’s Constitution. The Commission recommends the removal of sub-section (2). British Overseas Territory
- Section 28: Governor to Consult Council. Sub-section (1) of this section requires the Governor to consult with and act in accordance with the advice of Cabinet on the formulation of policy and the exercise of all powers conferred on him by law and the Constitution. No representations have been made to the Commission for its alteration. The Commission considers that it is an appropriate provision and does not require amendment.
- Reserved Powers. Sub-section (2) provides that the Governor shall not be obliged to consult with Cabinet nor act on their advice in any matter relating to
- It has been submitted to the Commission that while it may be proper for the Governor not to be required to act on the advice of Cabinet in any of these sub-section (2) reserved matters, it is no longer appropriate for Ministers of Government to learn about these matters by reading about them in the newspaper or hearing a press release on the radio as presently happens. The Commission recommends that the democratic process be strengthened by requiring the Governor to consult with the Cabinet or the Premier as appropriate on all reserved matters, subject to the provisions made below.
- Ouster of Court. Sub-section (3) provides that the question whether the Governor has exercised a function either with the advice of or after consultation with any person shall not be enquired into in any court. The person whom the Governor is normally required to consult is the Premier or his Cabinet. On occasion there is provision for the Governor to act on the advice of a Secretary of State. There has been no representation made to the Commission that any alteration should be made to the provision relating to consultation with the Secretary of State. By contrast, no one consulted by the Commission defended the retaining of this clause ousting jurisdiction of the court to enquire whether the Governor had in fact consulted with or acted on the advice of Cabinet or the Premier or other local entity with whom he may be required to consult. It was the majority view among the persons making representations on this sub-section that this provision is undemocratic, and should be removed in so far as it relates to local consultation. The Commission recommends that the ouster clause should be retained only in relation to consultation with the Secretary of State.
- Governor’s Responsibility for Administration of Reserved Powers and Public Service. Sub-sections (4), (5) and (6) provide that the Governor shall be responsible for the conduct of government business and the administration of any Department of government with respect to the matters set out in paragraphs (a) and (b) of sub-section (2) as set out above. In practical terms, this means the International Financial Services Department, the Public Administration, and the Royal Anguilla Police Force.
- International Financial Services. So far as the International Financial Services industry is concerned, this is the second most important industry in
Anguillaafter Tourism. In the year 1990, the regulation and administration of the industry was taken away from the local Ministry of Finance and vested in the Governor in the aftermath of the international financial scandal involving BCCI. Since then, an adequate regulatory framework has been put in place in Anguilla. The industry is now regulated and supervised by an independent Financial Services Commission established by law. A host of new laws providing for standards to be kept and creating a multitude of regulations and related offences has been put in place to ensure that the industry is properly run. In the unlikely event that it may once again become necessary for HMG to take over direct responsibility for this industry, the power to do so always remains by the use of a Statutory Instrument. It was generally agreed by all persons consulted by the Commission, except the Governor’s Office, that there was no longer any justification for this area to remain one of the Governor’s responsibilities. The Commission recommends that responsibility for the administration of international financial services be removed from the Governor’s portfolio.
- Regulation of International Financial Services. It is generally agreed that
Anguillabenefits internationally from the Governor’s power of regulation of the industry. It is to our advantage to be able to claim that the industry is subject to a higher supervision than can be provided locally. The Governor’s power to regulate is in practice carried out by the Financial Services Commission.
- Financial Services Commission. By the Financial Services Commission Act the House of Assembly of Anguilla established the Financial Services Commission (FSC) to regulate the financial services industry. The members of the FSC are appointed by the Governor and they report to the Governor. It is desirable that the Governor’s office continue to be seen to be responsible for this regulation. The FSC is however not presently recognised under the Constitution. It was generally agreed that the FSC ought to be given constitutional recognition. The Commission recommends that the Constitution be amended to make provision for the FSC and for its governing law.
- Public Administration Department. While the Public Administration Department is notionally under the direct control of the Governor, in practice this responsibility has for many years been delegated to the Deputy Governor. There is a Public Service Commission, but its role under the Constitution and the enabling Act is purely advisory. The question has arisen whether the Governor should continue to exercise a notionally sole role in the management of the public administration. The consensus is that it should not. There is no one who has made a representation to the Commission that the public administration should be placed under the control of a Minister. The choice has been between the Deputy Governor and a strengthened Public Service Commission. The role in the public administration of the Deputy Governor takes on added significance when it is remembered that the Commission has recommended that the Constitution should state that the office of the Deputy Governor should be filled by an Anguillian. Constitutional authority for the public service should be vested in the Deputy Governor with him being required to act on the advice of a much strengthened Public Service Commission, and the Commission so recommends.
AnguillaPolice Force. In so far as the police are concerned, the consensus is that a greater effort should be made to improve local responsibility for security and policing. No representations have been made to the Commission for control of the police to be removed from the Governor and turned over to a Minister. It was the view of persons making representations that other mechanisms be found for Anguillian institutions to become more involved in maintaining high standards in the police service. Some of these are dealt with below.
- Police Complaints Authority. It is the general consensus among Anguillians making representations concerning the police that it is no longer acceptable or even effective for the Governor alone to be responsible for the police. It is frequently alleged that complaints against the police are not attended to. Allegations of inefficiencies and improper conduct are not adequately dealt with under the present complaints mechanisms. The Commission understands that efforts are being made to improve the situation in the police force. There has been a recent announcement that an independent complaints body is soon to be put in place. The Commission recommends that the Constitution be amended to provide for an independent Police Complaints Authority to be established by law with the power to summon witnesses and to take evidence on oath and to make binding recommendations.
- Police Service Commission. The Constitution does not provide for a Police Service Commission. The Commission has received representations that it is time for the office of Governor to share some of the responsibilities for internal security and the police with local institutions. One mechanism favoured by many of the persons making representations to the Commission is the establishment of a Police Service Commission with the Governor being required to act on their recommendations, and the Commission so recommends.
- Section 29: Governor’s Reserved Executive Power. This section provides that when the Governor is required to consult with Cabinet and he decides to act contrary to the advice given, he must first obtain the approval of a Secretary of State. He must ensure that the Secretary of State has the benefit of the advice given by Cabinet. During the review process no representations were received from the public and in our view there is nothing that needs to be changed in this section.
- Section 30: Oaths to Be Taken by Members. During the review process no comment was received from the public and in our view the section does not require amendment.
- Section 31: Summoning of Persons to Council. This section permits the Governor to summon any public officer to a Cabinet meeting, when, in his opinion, the presence of that officer is desirable. Representations have been made to the Commission that it is more likely that the Ministers may need a particular officer present at a Cabinet meeting. There is a perceived problem in having the Governor be the sole person to decide whether a person should be summoned. The problem will correct itself if the Commission’s recommendation in dealing with section 33 (that the Governor cease to sit as Chairman of Cabinet meetings) is implemented. In the event that the Governor remains as chair of Cabinet meetings, the Commission recommends that the section be amended to delete the words and punctuation “, in his opinion,” to make it clear that Cabinet may require the presence of any public officer that Cabinet considers desirable.