Sunday, September 09, 2007

Full Internal Self-Government



FULL INTERNAL SELF-GOVERNMENT

By Don Mitchell CBE QC,

Chairman of the Constitutional and Electoral Reform Commission, 2006

9 September 2007
Dame Dr Bernice Lake QC and other members of the Concerned Citizens Group on the Chief Minister’s Negotiating Team have raised this issue of “going for full internal self-government”.  They have argued that it is fundamental to their involvement with the Team.  Members of the Team have shown a willingness to embrace the proposal. I have objected to the proposal as a mere cliché, meaning it is not really helpful to our present exercise for constitutional advance.  On further reflection, I realize my objection is more fundamental.  I want to set out some of my thoughts here.
Full internal self-government in a British colonial context means having the people be responsible for all aspects of their government, save, traditionally, for security, defence, and diplomatic relations.  This was the constitutional relationship that we had when we were part of the Associated State of St Kitts, Nevis and Anguilla in 1967. 
Members of the CCG have argued that we cannot go to the British to negotiate unless we have settled the fundamental issue of the type of relationship that we want to have with them.  They have suggested that the issue must be spelled out clearly first.  Only then can we sensibly begin to design a Constitution that reflects our true needs.  They have urged that, short of independence, the only realistic constitutional situation for Anguilla is full internal self-government[1].  Their position, if I can paraphrase, is that the piecemeal approach in the Constitutional Commission's Report is flawed and needs to be abandoned.
The Hon Chief Minister was motivated to postpone the planned discussions with the British.  Not all of us were happy with this development.  Some of us have major reservations about the postponement.
Some members of the team have argued that we cannot begin to draft a new Constitution providing for full internal self-government unless we first put to the people the choices they have.  Do they want to remain a full British Colony?  Are they ready for full independence?  Or, would they want to advance to an intermediate stage of full internal self-government?  This, for shorthand, can be described as the Hon Eddie Baird’s position. 
Others on the Team have argued that since the government and the opposition are in favour of full internal self-government, and since the people have in the views reflected in the Constitutional Commission’s Report essentially expressed themselves in favour of this advance, it is appropriate that we draft a suitable Constitution and put it to the people in a referendum. This can be described as the Hon Hubert Hughes’ and the Hon Chief Minister’s position[2].  
Others have urged that we cannot proceed further unless we see separate draft Constitutions for Anguilla demonstrating all the features of the various options.  Only then will people begin to appreciate what the options are.   This can be described as the Rev Dr Niles’ position. 
All these different suggestions involve postponing the advances that were recommended by the Constitutional Commission’s Report.  This postponement may last for years.  This delay is not acceptable to some of us.
There are major problems with this idea of delaying constitutional advance until we have got full internal self-government enshrined in our Constitution.  There is no doubt that Anguillians are ready for full internal self-government.  That is what the Commission found.  That is reflected in the Commission’s Report.  What the Commission also found was that this advance will only be acceptable to the people if it is balanced by a complete plank of checks and balances on the powers of the government.  This condition or reservation was deep-seated and widespread, and came up in one forum of discussion after another.
Full internal self-government does not just mean more power in the hands of Ministers.  It also means that the people and their democratic institutions share power with Ministers in exchange for the British giving up their previous supervisory powers.  It means that we will no longer rely on the energy and courage of an individual Governor to restrain Ministers.  We have learned to our cost that does not work.   We will replace that failed system by an improved one of increased accountability and transparency on the part of Ministers. 
Full internal self-government does not only mean excluding the Governor from Cabinet.  It also means
  • Ministers having to expose their workings more to the people;
  • an independent Civil Service Commission, and Police Service Commission taking the place of the Governor’s discretion;
  • having a Freedom of Information Act so people can find out more easily what is going on;
  • putting in place anti-corruption and integrity legislation and institutions;
  • having an Ombudsman to help the people get justice when the administration behaves improperly;
  • making Cabinet meetings generally open to the public;
  • prohibiting sale of government land without a resolution of the House of Assembly;
  • making the Planning Committee independent of Ministerial over-rule, but with provisions for the citizen to appeal unreasonable decisions to an appeal tribunal and to the court;
  • entrenching the grant of work permits and Belonger certificates in professional boards and tribunals, and not subject to political influence. 
Without these checks and balances, full internal self-government could result in increased abuse of the people.  It has done so nearly everywhere else.
What is required is a trial period of effective internal self-government.  The Constitutional and Electoral Reform Commission Report recommends a series of reforms that place practical self-government in the hands of Ministers and other Commissions and institutions.  If it works for a period of time, then the people will almost certainly have developed sufficient confidence in our politicians.  They may then be ready to entrust them with the responsibilities that go with full internal self-government.
It is not that Anguillians are not ready for full internal self-government.  On the contrary, Anguillians consider that it is long overdue.  It is that the people are not sure that Ministers are ready for the responsibilities that full internal self-government will bring.  Anguillians have more reason to fear political abuse from their own Ministers than from British neglect or abuse.  That is one of the reasons why neither the people nor the Commissioners advanced the idea of proposing “full internal self-government” in the Report.  The Commissioners were satisfied that a majority of Anguillians want a reduction in the powers of the Governor, with more powers and responsibilities given to Ministers, but with checks and balances in place to ensure those powers are not abused. 
This last can be called Rev Cecil Weekes’ and Don Mitchell’s position.





[1]               It is fundamental to their argument that the British have promised, as seen in the contents of the Anguilla Act of 1981, that Anguilla would be encouraged to advance to full internal self-government.  Indeed, it is interesting that in its glossary of terms of terms relating to the islands of the Commonwealth Caribbean, the Library of Congress records that in the view of the Library at least, Anguilla was, as late as the year 1987, still an Associated State. 
[2]               This is what happened in Gibraltar in late 2006. 

Monday, June 25, 2007

Health Authoritiy of Anguilla - Letter of Resignation

26 June 2007
Honourable Mr. Evans McNeil Rogers
Minister of Social Development
The Secretariat
Dear Mr. Rogers:
Based on previous discussions, your letter of 10th May 2007 and your various recent statements to Board members and individuals in the community, we note that your proposed intention to “reconfigure and/or re-constitute” the existing Board of the Health Authority of Anguilla (HAA) is outside the existing legal framework. Given, that as far as we are aware, this would be in contravention of the current legislation governing the HAA, we submit the following:
Per previous documentation, your procrastination and failure to replace the three Directors who completed their appointed terms on 31 December 2006 have meant that to date, the Board is without its full complement of seven members, in keeping with the requirements of the HAA Act.
Per our documented discussions and correspondence, this failure to replace the three Directors has seriously affected the efficient functioning of the Board and the HAA as a whole, as two of the retiring Directors represented the Medical and Nursing expertise mandated by the Act. Denying the Board the critical expertise of these professionals meant that the supporting Board Committees responsible for monitoring Medical, Patient Care and Nursing have been negatively affected. It also demonstrated a reckless lack of commitment to the functioning of the health services, as well as disregard for the four remaining members who were required to devote extra energy and time to ensure the efficient functioning of the HAA.
We wish to reiterate that your acknowledged awareness of this situation and your continued laissez-faire approach are alarming for the future of Health Services. Your conduct and lack of support for the HAA, as outlined in our letter of 7 February 2007, have demonstrated your divergence, not only from the Government’s established plan for health, but also a disregard for the legislation which governs the HAA, the National Strategic Health Plan and the Annual Services Agreements between the Ministry of Health and the HAA. It is only logical that if there is to be a divergence from the above, such changes should be communicated to the Board and all the stakeholders. To date we have not been privy to such information.
We fear that the current situation that you have deliberately orchestrated to undermine and sabotage the effectiveness of the Board is unfortunate. Such actions have only served to destabilise the HAA and needlessly put the achievements of the past three and a half years at risk, as well as negate the hard work and efforts of the Ministry in advancing reform in the health sector in years prior.
While the HAA is still in its infancy stages, given the enormity of the task which loomed before us in January of 2004, the current and past management and staff, Board and Committees have undoubtedly worked tirelessly to achieve significant impact on the modernization and improvement of the health system in Anguilla.
The noteworthy contributions, which we have summarized in the attached appendix have included not only overseeing the smooth transfer of responsibility for managing the health services from under the public service domain to the Health Authority; but also the continued restructuring and expansion of the primary and secondary services, improved patient care and goodwill as reflected in the positive feedback received from client/patient satisfaction surveys and testimonials.
Additionally, we feel that the move towards a performance-driven organization, improving the standard of care to internationally acceptable levels through the pursuit and award of health systems accreditation with the Canadian Council on Health Services Accreditation, have not only provided tremendous success for the health reform system on the island, but have also attracted the respect of international agencies such as Pan American Health Organisation/World Health Organisation (PAHO/WHO) – CPC and CARICAD; and paved the way for Anguilla’s designation as a model for public sector reform in the Caribbean and a contractual engagement by PAHO/WHO-CPC Office to facilitate a pilot project of mentorship in health systems accreditation in other parts of the region.
Indeed, the Anguilla Health sector reform experience is now seen as a regional and international bench mark. We feel that that is something about which you, your colleagues and all Anguillians can be justly proud. We hasten to point out that these accomplishments have been achieved with less funding for the health services under the HAA.
While you and other members of your Government have acknowledged and praised the Authority’s achievements, it is unfortunate that you as Minister of Health appear not to be sincere. Rather than supporting the Authority, as noted in our previous communication, you saw it fit to expend some EC$100,000.00 of the limited social development budget to replicate work that had already been done (and in some cases, already being implemented) by the HAA, using local, regional and international expertise. This is even more disconcerting coming at a time when the HAA reforms have allowed it to gain the confidence of the private sector as demonstrated in the partnerships to fund critical projects.
Mr. Rogers, the health reform process on Anguilla has been blessed with an unwavering and unusually high level of commitment from a number of individuals in the public and private sector, who have laboured to successfully lay the basis for taking our health services to new and higher levels. As professionals, we are grateful for the opportunity afforded us to serve our island home and be part of this national process. We have remained steadfast in our commitment to the collaborated effort in ensuring that the people of Anguilla receive the best in the health care in accordance with the established goals and objectives, but this accomplishment can only be sustained with careful long term planning and the respect and cooperation of all the partners.
Our experiences under your tenure as Minister of Health point to what we perceive to be a fundamental divergence on the principle/concept of health sector reform, which, according to the 2000 Manifesto of the Anguilla United Front, was intended to create an “autonomous mechanism of health services provision, to ensure that they are as free as possible from political interference.” We are of the view that such a body implements the Ministry’s policies in accordance with predetermined standards such as are outlined in the National Strategic Health Plan and the Annual Services Agreements. Your actions and statements point to a regression to a body which implements policy under the direction of the Minister where the independence of the Board is not respected.
We understand that you desire to replace the existing Board and it is apparent that under the current legislation, there are no grounds for you to accomplish this in the arbitrary and divisive manner in which you are currently engaging. Our cooperation is therefore critical for you to achieve your personal agenda and consequently, rather than subject this now regionally acclaimed organization to such acrimony, in accordance with Section 10(1) of the Health Authority of Anguilla Act, we regrettably submit our resignation as members of the Board of Directors of the Health Authority with immediate effect.
This en masse resignation is unfortunate, as the HAA was created with a deliberate attempt to ensure continuity, for all the obvious reasons. Your stated and implied disrespect for the work of your predecessors, has unfortunately, blinded you in this regard. We submit our resignations in an effort to shield the HAA from the current negativity and with the hope that your vision for health will be effectively communicated to the new Board, your Ministry and your Government, for despite our attempts to have you clearly verbalize the plan to which you allude, it remains an unarticulated construct of your mind.
We thank you, the Government of Anguilla and former Minister of Health, Mr. Eric Reid for the opportunity to serve our country and wish the Health Authority continued growth and development.
Respectfully,
______________________ __________________
Dr. Phyllis Fleming-Banks Mr. Fabian Proctor
Chairperson Deputy Chairperson

_______________ _____________________
Mr. John Gumbs Miss Vernette Richardson
Director Director
Cc. Executive Council, HAA Board Committee Members

HAA SUMMARY HIGHLIGHTS
Significant Achievements (2004 – 2007)
1. Smooth transition and stable operating health environment, evidenced by high staff turnout (75% +) to general staff meetings and participation in annual Recognition and Awards programme.
2. Improved patient care – no post natal deaths, many trauma cases alive today due to care provided within the first 24 hours,
3. Move towards a performance driven organization. Thirteen successsful Quarterly Reviews with developing confidence among Managers in the management of health programs and budgets.
4. Award of prestigious health system accreditation by Canadian Council of Health Services Accreditation.
5. Best practice for health sector reform. Case Study documentation by CARICAD as model for public sector reform in the Caribbean.
6. Contractual engagement by PAHO/WHO-CPC Office to facilitate pilot project of mentorship in health systems accreditation. Participating countries include St. Vincent and the Grenadines, St. Kitts and Nevis and St. Lucia.
7. Positive feedback from clients on satisfaction surveys – improved environment of care, quality and taste of meals and medical and nursing care.
8. Client/patient satisfaction with quality of care of dental services provided.
9. Restructuring of Primary Health Care to health districts providing walk-in clinics, maternal and child health, pharmaceutical services, specialist clinics by appointment, home visiting and screening.
10. Twenty-four (24) hour accident and emergency operations with a Doctor on site at hospital.
11. Established agreement with HIMA-San Pablo of Puerto Rico for the provision of tertiary care and emergency evacuation.
12. Substantial reduction in complaints about clinical care. All written complaints are acknowledged and addressed by Executive Management or one of the standing Board Committees.
13. Reduction of waiting times at Accident and Emergency department.
14. Greater emphasis on day surgery.
15. Staff development and training including –
a. Recertification of EMT’s by Washington D.C. Fire Services;
b. Basic Cardiac Life Support (BCLS) training for doctors, nurses and EMT’s.
c. Certification of A&E doctors in Advance Cardiac Life support (ACLS);
d. Attachments for Ward Managers at Princess Margaret Hospital in Dominica;
e. Implementation of online continuing education for medical staff, Dental Assistants and Physiotherapist Assistant.
f. 2-staff awarded fellowships for Care of the Elderly in Jamaica (6-months);
g. Recruitment and training of Infection Control Nurse
h. Psychiatric training for additional Nurse and three aides in preparation for opening of Psychiatric Ward.
i. Ward Manager pursuing degree in hospital administration in U.K.;
j. X-ray Technician pursuing training in radiology in USA
k. Employee pursuing Health Administration in UK
l. On going Customer Service training for staff;
m. On going Managerial development training for managers;
Continued recruitment of Anguillian health professionals from abroad.
Resolution of issues surrounding the transfer of health services and assets which prevented the completion of audits and the consequent implementation of audits.
Service Expansion/Projects
  1. Expansion of Diagnostic Imaging Services to include CT and Ultrasound. Reports will be read and reported by off-site Radiologist through tele-radiology.
  1. Expansion of Dental Services with the installation of an additional dental chair with appropriate staffing. (This will reduce waiting times for appointments and address walk-ins, emergencies and expansion of school health programme).
  1. Commissioning of Recovery Room / Stabilization Unit (ICU) to strengthen the health infrastructure. This will improve the management of trauma and other life saving medical conditions.
  1. Visiting Specialist Clinics in Urology and Endocrinology
  1. Completion of Maternity Wing
  1. Completion of Psychiatric Wing and recruitment of visiting and eventually a full-time Psychiatrist.
  1. Establishment of Health Endowment Fund within the Anguilla Community foundation
  1. Forging a partnership with the private sector to support the funding of the Authority as demonstrated in the organization of the HAA Golf Classic, (which to date has raised some US$30,000.00 for the Authority).
  1. HAA sponsored Talk Show “Health Matters” for increased communication with and feedback from the public.
Areas For Improvement
1. Collections performance. While there has been some improvement, it is noted that this requires a culture change.
2. Improved customer relations and interactions with patient by front line staff and care-givers.
3. Development of primary care services in the Western Health District. There is need for a polyclinic in this area that provides for an expansion of services to address the local and tourism needs.
4. Major upgrade to Princess Alexandra Hospital – expansion of accident and emergency, conversion of open wards to more private and semi-private accommodation, installation of second operation theatre, expansion of pharmacy,
5. Dialysis services – new facility required
6. Major infrastructure upgrade required to Dental unit at the Valley


Wednesday, June 20, 2007

Don at Scilly Cay

This is what happens when Don goes to the beach. He starts to talk all kinds of stupidness to boatmen. Then, a friend with a digital camera starts filming:

Not a soul on the boat could understand what we were talking about. He was trying to persuade me to go to the Ministers of Government and convince them of the error of their ways. I was explaining to him that I had no influence. I was insisting that he should go and do all the convincing. Nothing seemed to work. He was not persuaded. Nor was I. Stalemate. Nothing was concluded. Still, it gives a flavour of life here on the island. video

Thursday, March 15, 2007

40 Years of the Eastern Caribbean Supreme Court - A Personal View

When I began my practice of law in the year 1971, the Eastern Caribbean Supreme Court was a mere four years old:  a toddler.  Today, at age 40 years, it is fast approaching middle age.  What are some of the changes that have taken place during that time?  My talk tonight on this question will revolve around a very personal view of this history.  It will reflect my own interests and concerns.  I do not pretend that it will be a scholarly study of the really important developments that have taken place and of the changes that have occurred.
First, I must remind us of some of the background.  With the break-up of the West Indies Federation in 1962, the ‘Little 8’, as the Leeward and Windward Islands[1] were known, reverted for a few years to colonial status.  By the year 1967, Britain had agreed with them on an intermediate status:  not colonies, but not yet fully independent.   This was known as ‘Associated Status’.  Each island became an Associated State.[2]  Her Majesty was pleased, following the Indian precedent, to confer upon us written Constitutions.  Enshrined in these constitutions was our Bill of Rights, or a recitation of our Fundamental Rights.  Associated Status was not to last long.  Independence soon followed for 6 of the larger island colonies.  Grenada was the first to go into independence in 1974.  Closely following was Dominica in 1978, St Lucia and St Vincent and the Grenadines in 1979, Antigua-Barbuda in 1981, and St Kitts-Nevis in 1983.  Today, even the 3 remaining British Overseas Territories of Montserrat, Anguilla and the Virgin Islands[3] enjoy written Constitutions.  Members of the public and the media, not to forget to mention lawyers and judges, are now grown up in an understanding of what it means to be governed by a written Constitution.  It has not been a steady passage over those 40 years.
The Eastern Caribbean Supreme Court, as we now know it, began life in the year 1967 as the West Indies Associated States Supreme Court.[4]  Its predecessors were the Court of Appeal of the Windward Islands and Leeward Islands[5] and the Supreme Court of the Windward Islands and Leeward Islands.[6]  The Chief Justice of this earlier Court of Appeal was assisted by two puisne judges from the High Court.  Magisterial appeals were heard by two judges, often both from the High Court.[7]  Only appeals from High Court decisions went to the full bench of three judges.
The first Chief Justice of the West Indies Associated States Supreme Court in 1967 was Allen M Lewis of St Lucia.[8]  He was now assisted by two appointed Justices of Appeal.  The first two were Justices Keith Gordon of St Lucia[9] and Percy Lewis of St Vincent.[10]  The first judges of the High Court were Elwyn St Bernard of Grenada, Allan Louisy of St Lucia, Eric Bishop of Barbados, Eardley Glasgow of St Vincent, and Neville Peterkin of St Lucia.[11]  I had the privilege of appearing before all of them at one time or another.  These judges are famous among lawyers over a certain age.  We remember them with affection.
We can get a feel for who the leading lawyers of the day were by looking at their names in the West Indian Reports.  These are our publications of judgments of the Court of Appeal, and occasionally of our High Courts.  The names of the lawyers who appear in each case are listed.  Among the prominent Antigua practitioners who have now passed away, we first find mention in 1959 of the late Claude Earle Francis,[12] Egbert Ewart Harney,[13] Wilfred E Jacobs,[14] and Cosmos OR Phillips;[15] J Rowan Henry first appears[16] in 1964; and Cecil E Hewlett in 1967.[17]  Among the old-timers of the Antigua bar who are still with us, Louis Lockhart first appears[18] in 1959, Sydney Christian in 1968,[19] and Bernice Lake in 1970.[20]  Ken Allen appears[21] for the first time in 1964, and John Kelsick in 1969.[22]  The last two both practice mainly in Montserrat.
When you look through the West Indian Reports you are struck by the fact that the Judges of both the High Court and of the Court of Appeal were from the beginning all West Indians.  In earlier years there used to be British colonial judges.  But, for many years now, our judges have been West Indians.
There is a story best told by Joseph Archibald about the last of the old colonial British judges,[23] who served in St Kitts.  The judge had a great fondness for his brandy.  He called it his medicine.  He was accustomed to have his Registrar take a small flask into court with him.  At intervals throughout the day, he would ask for a little of his ‘medicine’.  A particular murder trial went on into the night before the jury reached a verdict.  Frank Henville of St Kitts was prosecuting.  The judge had frequent sips of his ‘medicine’.  By the time the jury came back, he needed assistance from two police officers to get up to his bench.  The jury returned a verdict of Guilty of Murder.  The judge turned to the prosecutor and solemnly put on his black cap.  Then, he said,
Frank Henville, the jury has found you guilty of the most heinous crime of murder.  It is now my sad duty to pronounce the only sentence which this court can impose on you.
By this time, as you can imagine, Frank Henville was literally shaking in his boots.  I can tell this joke on him because he was my uncle.  The Registrar had to quickly signal the two officers to help the judge from his seat and carry him back to his Chambers.  He returned the following morning to impose the sentence on the right person.  He was the last of the old colonial English judges appointed to our courts.
The first two Constitutional cases to be reported from the Associated States are both found in Volume 10 of the West Indian Reports.  They are the applications of Pearnell Charles[24] and Dr William Herbert[25] for bail.  They both arose out of the State of Emergency imposed on 30 May during the Anguilla Revolution of 1967.  The Charles case was an application for a writ of habeas corpus.  He had been arrested under a section of the Emergency Powers Regulations 1967 which permitted the Governor[26] to detain him.  He applied for the issue of a writ of habeas corpus.  The High Court refused the application, holding that the 1967 Regulations were a law enacted by the legislature authorising the taking of such measures.  It went to the Court of Appeal.  The appeal raised the question of the validity of the detention order having regard to the fundamental right to personal liberty guaranteed by section 3[27] of the Constitution.  Allen Lewis CJ gave the principal judgment of the Court of Appeal.  He held that the Regulations offended against section 3 of the Constitution and, accordingly, the detention order in respect of the appellant was invalid and his detention unlawful.  The appeal was allowed,[28] and it was ordered that a writ of habeas corpus was to issue, that the applicant be forthwith discharged, and the respondents to pay his costs.[29]  In this case, while the High Court was willing to uphold a restrictive and anti-democratic law, the Court of Appeal was more generous in its interpretation of the Constitution.
An early example of the liberating effect of the court is to be found in both the High Court and the Court of Appeal decisions in the case of Marguerite Brisbane and her television set.[30]  In September 1967, St Kitts was still smarting under the emergency created by the Anguilla Revolution of May in that year.  The St Kitts government was concerned that TV sets might be used by its citizens to acquire information that was not in accordance with the permitted version of events that were being broadcast by the State controlled radio.  TV sets were required to be imported by licence, but none were being issued.[31]  Baggage and private effects were exempted.[32]  Mrs Brisbane, on a trip to Montserrat, acquired a TV set.  She brought it into St Kitts as her personal baggage.  It was confiscated as having been imported without a licence.  She appealed to the High Court for a ruling whether it was exempt as being her private baggage.  The Attorney-General argued that ‘baggage’ meant such articles of necessity or personal convenience as are usually carried by passengers for their personal use.  He submitted that a TV set could not be baggage and was, in fact, an item of furniture.  Justice Glasgow in a reserved judgment ruled that it was “baggage and private effects” and, accordingly, exempt.  The sole ground of appeal was “that the learned judge was wrong in law in finding that the TV set was part of Mrs Brisbane’s baggage.”  The Court of Appeal upheld Justice Glasgow’s decision.  The Chief Justice agreed that the TV set fell within the meaning of “baggage and personal effects”, and could accordingly be imported without a licence.
Other cases arising out of the Anguilla Revolution, and the resulting state of emergency in St Kitts, include the freedom of information and freedom of movement cases of Michael Powell and Warren Thomas.[33]  By this time, the High Court was beginning to flex its constitutional muscle in protecting the rights of citizens.  The muscle was in these early days but poorly developed, and the ball was frequently dropped.  This was a case where Justice Glasgow declared that a law which required police permission for all meetings and gathering of persons except for genuine religious assemblies was unconstitutional.  It was the beginning of many forensic contests between the two trial-greats of St Kitts of the time, Dr William V Herbert and Lee Llewellyn Moore.  Lee argued that as the charges had been brought the day before the Constitution came into effect, the Constitution did not apply to the defendants.  He also argued that the Constitution guaranteed the right to assemble freely, and that the impugned law only restrained the right to assemble freely in a public place.  The Constitution, he argued, did not guarantee the right to assemble freely in a public place, it only guaranteed the right to assemble freely.  Lee often took extremely authoritarian positions in his legal arguments.  More often than not, Billy’s more libertarian arguments won the day.  They did not entirely do so on this occasion.  Justice Glasgow decided that the impugned law did contravene the Constitution, but that did not affect the offences charged against the defendants as they were committed before the Constitution came into effect.  So, it was a Pyrrhic victory.  He partly won the case, but still lost his freedom.  Not a satisfactory outcome for anyone.
The Powell and Thomas case also demonstrates the extremely narrow attitude adopted by our judges at the time when it came to the types of legal authorities they would permit to be cited before them.  Then, our courts only recognised English cases, and, reluctantly at first, West Indian cases.  The report notes[34] that Lee Moore had to seek the court’s permission, which he received, before he could refer the court to the learning in a number of cases on the Constitution of India.[35]  Contrast that with today, when an attorney can refer the court to any learning that might help the court.
Our court has gone a long way from the situation revealed by the 1968 High Court decision in the case of Marie Dib of Dominica.[36]  Mrs Dib was the 73 year-old widow of Ayub Dib, who had been a Lebanese merchant of some substance in Roseau.  When he died in 1963, Mrs Dib was entitled under his will to certain properties and an interest in his business in Dominica.  She was illiterate.  She was only able to sign her name.  Mrs Dib gave Mr Karam a general power of attorney.  She handed over control of her financial affairs to him.  He collected rents.  He compromised law suits.  He put up her property for sale.  He got her to sign deeds transferring her property to him allegedly for cash.  In fact, no money was paid.  The following year, she sued for the recovery of her properties.  She claimed that she had signed the transfer documents under a mistake as to their nature.  She had understood that they related to the rental of the properties and the management of the business.  She claimed that Mr Karam had abused her confidence in him and had influenced her to sign documents that were injurious to her.  She claimed that he took an undue and unconscientious advantage of her.  He denied her allegations of fraud and of undue influence.  He claimed that the sale to him had been made on her proposal.  The documents had been read and explained to her by the solicitor who prepared them.  She had signed with full knowledge of their contents and as her voluntary act.  Quite amazingly, in my view, the High Court found that Mr Karam had taken no advantage of his position or of the confidence reposed in him, and that the transactions were entered into in perfect good faith and after full disclosure.  The Court of Appeal happily reversed the High Court.  Sir Allen Lewis and Keith Gordon JA delivered substantive judgments.  They agreed that the appeal must succeed, and the transfers would not be allowed to stand.  These were early days in the development of trust law in the ECSC.
The Ben Jones case[37] coming out of Grenada in 1968 was another example of the narrow and restricted way in which the High Courts of that early period exercised the jurisdiction given by our Constitutions to protect our freedoms.  In that case, Ben Jones was an unsuccessful candidate in general elections in Grenada.  He was appointed to the Senate by the Governor.  Successful members of our parliaments are notoriously reluctant to see candidates who have not succeeded entering parliament in whatever capacity.  There have been other similar cases in our region.  The members of the successful party objected to Jones’ nomination.  They were supported by the President of the Senate.  The President ruled that Mr Jones was not qualified to be sworn as a Senator.  Jones brought a case in the High Court.  Section 37 of the 1967 Grenada Constitution[38] gave the High Court jurisdiction to determine whether any person had been validly appointed a Senator.  The section said[39] that the legislature might provide for the powers, practice and procedure of the High Court in relation to any such application.  No such provision had been made by the legislature.  The legislature had not set out the powers, practice and procedure of the High Court. But, then, it had not constrained them either.  Section 103 is the section that grants the High Court the general power to give citizens the widest relief for breaches of the Constitution.  The wide powers of the court under this section expressly[40] did not apply to questions of appointment to the Senate under section 37.  Ben Jones came before the High Court seeking a declaration and various orders that would have compelled the President to swear him in.  The President’s counsel argued that the High Court’s ordinary powers and remedies did not apply.  The court was a special court established by the Constitution.  As such, it only had such powers as the legislature gave it.  As the legislature had not given the High Court any powers, it had none.  The High Court judge agreed.  He decided that the High Court’s ordinary powers and remedies did not apply as the court was a special court established by the Constitution and only had such powers as the legislature gave it.  But, as the legislature had not given the High Court any powers, it had none.  The court could only answer the question put to it.  Ben Jones had been validly appointed a Senator.  But, the court could not grant him any relief.  Respectfully, I do not agree with that interpretation.  I would hope that it would not be repeated today.  Section 103 does not give the High Court jurisdiction to hear section 37 questions.  It is section 37 that gives the jurisdiction.[41]  It sets out certain rules of practice and procedure.[42]  It then gives the legislature the power to regulate the powers, practice and procedure of the High Court.  It does not follow that until the legislature does so, the court is powerless.  The section does not say, nor in my view does it inevitably follow, that if the legislature fails to make provision then the Court has no power to grant relief.  In my view, this case is one of the early examples of the initial timidity of our courts in protecting the rights and freedoms of our citizens under the Constitution.
The test of constitutional validity of legislation and executive conduct was first crafted in 1973 by Percy Lewis CJ [Ag] in the Antigua Times[43] case.  He it was who first laid down that:
There is a presumption of constitutionality of impugned legislation, the viability of which must be weighed as follows:-
Once a prima facie case is made out by the applicant that the legislation or the executive conduct violates a fundamental right, then there is a burden on the State to show that the legislation or the executive policy or conduct comes within the permissible limits allowed by the Constitution, and that its enactment or implementation was reasonably required.
The doctrine of proportionality that he laid down in that case was temporarily set back by the decision of the Privy Council.  But, it has at last triumphed in the DeFreitas case,[44] the Antigua Observer case,[45] the John Benjamin case,[46] and Brown v Stott.[47]
We have had our share of judges who have taken shelter under silly technicalities in order to avoid possibly embarrassing the government.  We have come quite a long way since the days of the decision of our Court of Appeal in Tim Hector’s case.[48]  All Antiguans will remember that that case was one in which Hector and the Outlet Newspaper were charged with an offence of “printing of false statements likely to undermine public confidence in the conduct of public affairs”.  Justice Albert Matthew had declared that those words[49] were unconstitutional.  The Chief-Justice held that he was wrong, and his fellow Justices of Appeal agreed with him.  That reactionary decision was happily corrected by the Privy Council.[50]  Lord Bridge of Harwich in delivering the opinion of the Board said,[51]
In a free and democratic society it is almost too obvious to need stating that those who hold office in government and who are responsible for public administration must always be open to criticism.  Any attempt to stifle or fetter such criticism amounts to political censorship of the most insidious and objectionable kind.  At the same time it is no less obvious that the very purpose of criticism levelled at those who have the conduct of public affairs by their political opponents is to undermine public confidence in their stewardship and to persuade the electorate that the opponents would make a better job of it than those presently holding office.  In the light of these considerations their Lordships cannot help viewing a statutory provision which criminalises statements likely to undermine public confidence in the conduct of public affairs with the utmost suspicion.
Nor can we be proud of the 1990 St Vincent High Court decision in Egerton Richards’ case.[52]  There the judge threw out for mere technical breaches a very serious constitutional issue of great public importance.  It concerned whether the Governor had the right to appoint opposition senators when the government had won all the seats at an election.  We can be confident that our High Court Judges would today be very reluctant to shy away from coming to a decision in such an important matter.
The more recent decision of the Court of Appeal in Anguilla in John Benjamin’s case was undoubtedly a temporary setback to the progress that our courts have made.  Government had closed down a popular call-in programme on the island’s sole government-owned radio station, because of criticism on it of government action.  In the High Court, Adrian Saunders J [as he then was] had ruled that Government’s action was unconstitutional.  It was a contravention of the Applicants’ right to freedom of expression guaranteed and enshrined in the Constitution. He called it an arbitrary or capricious withdrawal of a platform which had been made available by the government.  The members of the Court of Appeal were persuaded to set aside his orders.  They rejected the argument that a radio station could be a public place where there was a right to express views.  They held that, on the contrary, it was "property which is not by tradition or designation a forum for public communication."  Fortunately, the Privy Council was able to restore Justice Saunders’ original decision.  They held that he had been entitled and right to find here that there had been a contravention of Mr Benjamin’s rights to freedom of speech and expression protected by the Constitution.
Undoubtedly, one of the High Court decisions that the court can feel proud about is the decision of Albert Redhead J in the Barbuda Council case.[53]  All Antiguans will be familiar with the case.  In 1992, Ephraim Georges J had granted an injunction against a sand mining company from taking sand from a beach in Barbuda.  The Minister of Agriculture in the Government of Antigua arranged with the officers of the sand mining company for the company’s trucks and bulldozers to be rented to the government.  The Minister hired the drivers, and the mining continued.  The trucks the Minister had rented from the sand mining company delivered the sand to the company at the barges drawn up on the beach.  The Barbuda Council applied to Justice Redhead in the High Court for the Minister and those involved in the continuing mining to be committed for contempt of court.  The Minister was completely unrepentant.  He argued that he did not have to obey the injunction as it had not been served on him personally.  He argued that Ministers of the Crown cannot be proceeded against for contempt of court, even if they give and break a personal undertaking to the court.  Justice Redhead rejected all the Minister’s excuses.  He held that once the Minister knew of the injunction and its terms, as the Minister did in this case, and once he aided and abetted the mining company in breaching the terms of the injunction, as he did in this case, he was guilty of contempt.  He found the Minister’s actions to be a gross interference with the order of the Court, a challenge to the independence of the court, and an affront to the rule of law.  He sentenced the Minister and the company officials to one month’s imprisonment.  It is no fault of the court, or of Antigua and Barbuda’s legal system, that the Governor General was persuaded by the government to grant a full pardon the same day.
There was a time, not so long ago, when judges all over the Commonwealth were universally held in high esteem.  And, they were comfortable with their status.  As Lord Hewart humorously put it to the guests assembled at the Lord Mayor’s banquet in London in 1936:[54]
His Majesty’s judges are satisfied with the almost universal admiration in which they are held.
Similarly, Lord Devlin suggested in 1979 that:
The English judiciary is popularly treated as a national institution . . . and, like the navy, tends to be admired to excess.
Lord Donaldson, a former Master of the Rolls, summed up the commonly held view of judges and accountability with this statement:
The essence of my job is that I am responsible to the law and to my conscience and to no one else.
This attitude extended to and was shared throughout the West Indies.  This has all changed over the years.  Our judiciary is now much more open to criticism.  Judges are no longer sacrosanct.  Especially since our judges have been asked to interpret the Constitution, and to rule on governmental action, there has been increased public attention to the work that judges do.  When an important case is tried, there is hardly a newspaper that does not carry a story on it.  The call-in radio programmes sometimes seethe with comment, pro and con.  In my view, this is a healthy development.  It reflects the changing role that the courts play in a modern society.  This has happened not only in our society.  John Mortimer, the English lawyer and writer wrote of the United Kingdom,
Many years ago, when I first took up the law, proceedings in court were shrouded in myth.  In those days the country at large believed that trial invariably came to the right conclusion, that police officers told nothing but the truth, and that judges were miraculously conceived and were born unencumbered with the usual human luggage of preconceived ideas, knee-jerk reactions, prejudices, failures of the imagination, inability to admit mistakes, or pure bloody-mindedness.
These myths have now, no doubt to the regret of many members of the legal profession, gone the way of witchcraft and the Flat Earth Society.  Trials have, despite energetic whitewashing by appeal tribunals, been shown to have gone horribly wrong.  Police evidence is now taken by juries with large helpings of salt.  And the pronouncements of some judges, before and since retirement, have gone beyond endearing eccentricity to give some cause for alarm.
But, as the Rt Hon Beverley McLachlin, Chief Justice of Canada, put it,[55] if judges are more and more the subject of critical scrutiny, the truth is that the public has never held our judiciary in higher esteem.  This is proved by the fact that it turns to the judiciary more and more for the resolution of its problems.  It is not so much agreement with the court’s decisions, but a result of faith in the judicial process.  Our people appear to share a profound belief that when other institutions fail, one can count on the fairness of the courts.
Those of us who have been around the courts for many years have observed that the courts are going through change on several fronts.  Not so long ago, it was thought that it was the House of Assembly that made the law, and it was for the judge to apply it to the case, and that was the entire story.  It is now realised that it is not so simple.  From time immemorial, judges have interpreted and incrementally changed the law.  The judge is obliged to play the role of law-developer in resolving disputes fairly.  This role has now dramatically expanded.  Judges are now obliged, given the increasing scope of disputes that are brought before them, to develop the law in the domain of social policy.  The increasing awareness of human rights helps drives this process.  When our citizens bring issues of wrongful deprivation of property, liberty, or freedom of movement, before the court, then our judges, unqualified as they are, are forced to venture into the area of social policy.  When our legislatures are reluctant to deal with pressing social issues such as women’s rights and family property, then the courts are, whether they like it or not, obliged to resolve these issues.  Judges are called on to be ever more sensitive to a broad range of social concerns.  The ivory tower no longer suffices as the residence of choice for judges.  At the same time, the judge must strive for objectivity.  It requires both an act of imagination and an attitude of ‘active humility’.  Fortunately, we can be confident that our judges of the Eastern Caribbean Supreme Court, both at first instance and in the Court of Appeal, are equal to the task.
A Speech delivered at the Multipurpose Cultural Centre, Perry Bay, Antigua, on Thursday 15 March 2007. 


[1]       The term Little 8 included Barbados, but not the Virgin Islands. The latter opted not to participate in the West Indies Federation, believing that its future lay in association with the USVI.
[2]       Well, not quite each island.  Anguilla and Nevis were dependencies of St Kitts, until Anguilla broke away in a bloodless armed revolution in 1967, while Barbuda was and remains a dependency of Antigua.
[3]       The Virgin Islands is the historically correct designation of Tortola, Virgin Gorda et al.  It is St Thomas, St Croix and St John that are the “United States Virgin Islands”.  The Virgin Islands with increasing frequency over the years began to be referred to as the “British Virgin Islands.”
[4]       By virtue of the West Indies Associated States Supreme Court Order, SI 1967 No 223.
[5]       Established by the Windward Islands and Leeward Islands (Courts) Order in Council, SI 1959 No 2197, which came into force on 1 January 1960.
[6]       The high court in Antigua and Barbuda was then described as the “Supreme Court of the Leeward Islands and Windward Islands (Antigua Circuit)”, for example.  See: Catherine Herbert v R (1959) 1 WIR, 470; and John Bramble v R (1959) 1 WIR, 473; and R v Maynes (1959) 1 WIR, 368.
[7]       See, for example, the decision in Watts v COP (1967) 10 WIR, 530 where the appeal was heard by AM Lewis CJ and St Bernard J; or Spencer v Superintendent of Police (1967) 10 WIR, 541, where the appeal was heard in the High Court of Antigua by Louisy J and Berridge J (Ag).
[8]       Knighted the following year, and officially styled to as Sir Allen Montgomery Lewis.  His biography and those of various other Chief Justices can be found on the ECSC website at http://www.eccourts.org/aboutecsc/history.html
[9]       These island origins I have inserted from memory, and one or more of them may be mistaken.  My apologies to any one who is offended by an error.
[10]     See the first reported judgment of the court in Lesmond v R (No 1), (1967) 10 WIR, 252, a murder appeal from St Lucia.
[11]     See the lists of the judges of the various courts in 1967 at page vi of 9 WIR.
[12]     Who first appears in Bramble v R (1959) 1 WIR, 473.
[13]     Who first appears in Joseph v R (1959) 1 WIR, 365.
[14]     Who first appears in the Joseph case supra.
[15]     Who first appears in the Joseph case supra.
[16]     Who first appears in Crown Attorney v Mercer (1964) 6 WIR, 354.
[17]     Who first appears in Babb v Half Moon Bay Ltd (1967) 12 WIR, 294.
[18]     Who first appears in Martin v Greenaway (1959) 3 WIR, 439.
[19]     In Margetson v A-G (1968) 12 WIR, 469.
[20]     Dame Bernice Lake QC, as she is now more correctly styled, first appears in the West Indian Reports in the case of Joseph v Lockhart (1970) 14 WIR, 444.
[21]     In Agard v Asst Sup of Police (1964) 7 WIR, 245.
[22]     In Wade v Chief of Police (1969) 14 WIR, 173.
[23]     Properly, Dr Joseph Archibald QC, of Tortola.
[24]     Charles v Phillips and Sealey (1967) 10 WIR, 423.
[25]     Herbert v Phillips and Sealey (1967) 10 WIR, 435.
[26]     Sir Fred A Phillips, the first respondent.
[27]     3(1). No person shall be deprived of his personal liberty save as may be authorised by law in any of the following cases . . .”
[28]     The decisions turned principally on whether the Leeward Islands (Emergency Powers) Order in Council 1959 was “a law enacted by the legislature”, and whether it was an “existing law” for the purposes of the transitional provisions of the Constitution. 
[29]     Charles F Henville QC, Crawford with him, appeared for the Charles, while Malcolm Butt QC of Trinidad, Frederick Kelsick, Jenner Armour and Earl Francis appeared for Dr William Herbert.  JS Archibald, Senior Crown Counsel, appeared for the respondents.
[30]     Reported as A-G of St Christopher Nevis Anguilla v Brisbane (1968) 11 WIR, 525.
[31]     By section 3 of the External Trade Ordinance.
[32]     By section 4.
[33]     Chief of Police v Powell and Thomas (1968) 12 WIR, 403. 
[34]     At page 410.
[35]     These included Keshavan Madhava Menon v The State of Bombay (5) (1951) reported at p.2 of Basu’s Cases on the Constitution of India, 1950-1951; and Chiranjut Lal Chowdhury v The Union of India and Others (6) reported at p.18.
[36]     Dib v Karam (1968) 11 WIR, 499.
[37]     Reported as Jones v Gibbs and Knight (The Attorney-General Intervening) (1968) 12 WIR, 311.
[38]     Grenada Constitution Order 1967 (SI 1967 No 227).
[39]     At section 37(5).
[40]     By section 37(7) which said, “Nothing in this section shall confer jurisdiction on the High Court to hear or determine any such question as is referred to in s.37 of this Constitution.”
[41]     In s.37(1) when it says, “The High Court shall have jurisdiction to hear and determine any question whether (a) any person has been validly appointed as a Senator; . . .”
[42]     For example at s.37(2) where it says that an application to the High Court “may be made by any person registered in a constituency as a voter in elections of members of the House of Representatives or by the Attorney General . . . and if it is made by a person other than the Attorney-General, the Attorney-General may intervene and may then appear or be represented in the proceedings.”
[43]     Antigua Times v A-G in the Court of Appeal, cited by Dame Bernice V Lake QC in her 2003 address: ‘Prioritizing Socio-Economic Issues and Democratization in the Caribbean’ which is to be found at: http://cavehill.uwi.edu/bnccde/antigua/conference/papers/lake.html;  and see her address to the Fifth Annual Caribbean Media Conference on ‘The Caribbean Court of Justice: Public Confidence and the Role of the Media’ which can be read at http://www.caribbeancourtofjustice.org/papersandarticles/ccj-lake.pdf.
[44]     DeFreitas v A-G, Civil Appeal 42 of 1997, Antigua and Barbuda. [Unreported]
[45]     Observer Publications Ltd v Matthew et al [2001] UKPC 11.
[46]     Benjamin and Others v Minister of Information [2001] UKPC, 8; [2001] 4 LRC, 272; [2001] 1 WIR, 1040.
[47]     Brown v Stott [2003] 1 AC, 681; [2001] 2 WLR, 817; [2001] 2 All ER, 97.
[48]     A-G v Tim Hector (1987) 40 WIR, 135.
[49]     Under the Public Order Act 1972 as amended by the Public Order Amendment Act 1976.
[50]     Hector v A-G (1990) 37 WIR, 216.
[51]     At p.219.
[52]     Richards v A-G, No 484/1989, St Vincent. [Unreported]
[53]     Barbuda Council v A-G et al, Suit No 456 of 1988, Antigua & Barbuda.  [Unreported decision of Redhead J on 10 September 1993]
[54]     The following quotations and observations are taken from the remarks of the Rt Hon Beverly McLachlin PC on Judicial Accountability, presented at the Law and Parliament Conference, Ottawa, November 2, 2006, and which can be found at http://www.scc-csc.gc.ca/aboutcourt/judges/speeches/Ju_Resp_e.asp
[55]     In her remarks at the Fourth Worldwide Common Law Judicial Conference on ‘The Role of Judges in Modern Society’, May 5, 2001 found at http://www.scc-csc.gc.ca/aboutcourt/judges/speeches/role-of-judges_e.asp