One of the first lessons in Public Law at the Albena Lake-Hodge Comprehensive School deals with the topic of “ultra vires”. Students learn that ultra vires is a Latin term meaning, “acting in excess of or outside of one’s powers or area of authority.”
In public law, an action of a government authority (including the House of Assembly) is ultra vires, null and void, when the authority does not have the power to perform that action. The court has the duty in appropriate circumstances to declare an action of a Government agency, even an Act of the House of Assembly, ultra vires the Constitution. When the Assembly passes an Act purporting to give someone the power to do something which the Constitution gave to someone else, the court can declare the Act ultra vires, null and void.
Some years ago, Anguillian Dr Cuthwin Lake was employed by the Government of Antigua and Barbuda as Medical Superintendent of the Holberton Hospital. Under the Constitution, only the Public Service Commission had the power to hire or to fire a public servant employed in Antigua. Despite this, Prime Minister Lester Bird terminated Dr Lake’s employment. Dr Lake sued. The court had no difficulty in ruling that the termination was unlawful, and he was restored.
Section 80 of the Anguilla Constitution gives the Anguilla Status Commission the power to grant Anguilla status to a person who meets certain qualifications. The Constitution does not give the power to anyone else. Only the Commission can perform those functions.
Recently there appeared on the government website a new Bill for an Anguilla Status Act. Government appears to want to bring this Bill into effect swiftly, before the upcoming elections. The Bill seems to have been prepared very hurriedly.
The Commission consists of a Chairperson, the PS Immigration; the Chief Immigration Office; the A-G; and two members appointed by the Minister (one after consulting the Leader of the Opposition). This is a body that is top-heavy with members of the administration. They are subject to the biases of the administration. Additionally, the Minister has the power to remove any of the two non-government members for any reason or for no reason at all. They have no security of tenure and are subject to pressure if they wish to keep their position. There is nothing independent about this Commission.
Section 6 of the Bill says that, in accordance with the Constitution, the Commission is responsible for granting Anguillian status and issuing certificates of Anguillian status, etc. No one else but the Commission has the power to issue any certificate relating to Anguillian status.
But, section 5 of the Bill provides that, where the Chairperson of the Anguilla Status Commission is satisfied that an applicant is an Anguillian, the Chairperson may issue that person with a “general certificate of Anguillian status.” There is no explanation what a “general” certificate is, or in what way it differs from a certificate from the Commission. There is no explanation how the Assembly gave the Chairperson the power to issue the certificate.
Then, at section 7 there is an even stranger provision. It reads that “on payment of the prescribed fee the Chief Immigration Officer may, by letter, certify at any time that a person is an Anguillian.” This conflicts with section 6 which says only the Commission may grant a certificate. These types of discretionary and unsupervised powers given to bureaucrats are always open to oppressive behaviour.
There are other questionable provisions in this Bill. So, the long title of the Bill says that it provides “for Anguillian status as established by the Anguilla Constitution (Amendment) Order, 2019” (“the Amendment Order”). This is legal nonsense. It is the 1982 Constitution “as amended” that provides for Anguillian status. The Amendment Order merely amends the Constitution. Equally oddly, the Bill defines the Constitution of Anguilla as being the Amendment Order, which again is legal nonsense. The Amendment Order has no standing on its own.
Section 2 creates a new definition of domicile. It provides that, “Notwithstanding any law to the contrary, domicile is satisfied if the applicant demonstrates to the satisfaction of the Commission that he or she has made Anguilla their permanent abode.” This is a definition of domicile that is unknown to law. There are several types of domicile, starting when we are born with our “domicile of origin”. This is followed by our “domicile of choice”. Domicile in the general law is a mixture of fact, history, background and intent. It is not determined by any one factor such as where your permanent abode is. This definition narrows the stream of persons otherwise qualified at law to enjoy Anguillian status. I have searched the Constitution to see where it gave the Assembly the power to create a limited meaning of domicile for the purpose of Anguillian status. I have not been able to find it.
Section 5 gives the Chief Immigration Officer power to filter out applications for Anguillian status before sending those he approves of to the Commission. Only if the Chief Immigration Officer considers that an applicant may be an Anguillian, is the Chief Immigration Officer obliged to forward the file to the chairperson of the Commission. The Constitution has already decided that only the Commission can certify who is an Anguillian. One might not be an Anguillian until the Commission considers that he is so. Note that in case of error or abuse, there is no power of appeal. There is not even a right to be heard or to be represented by counsel before the Chief Immigration Officer decides in private not to pass on the file to the Commission.
Section 8 of the Act gives the Commission power to withdraw Anguillian status in certain circumstances. However, the section states they have a discretion whether to conduct a hearing before deciding to withdraw the status. The natural meaning is that the Commission is not bound to give the person affected by their decision an opportunity to be heard. This provision conflicts with our natural justice right to be heard whenever a government agency proposes to take away a status, licence or certificate we hold. As every Anguillian high school law student knows, the right is referred to as the “audi alterem partem” rule, or the requirement to hear the other party before taking away his rights. This draft Bill offends against not only the language of the Constitution but against the rules of natural justice.
Section 13(2) of the Bill is perhaps the most offensive section in the entire Act. It provides that, “Any decision [of] the Commission shall be final and conclusive and shall not be called in question before any court of law.” This is what lawyers call an “ouster clause.” It attempts to oust or set aside the jurisdiction of the court to intervene in the case of oppressive behaviour of the Commission. So, not only can he not appeal the decision but he has no right to have representations made on his behalf before a decision is made. Let the Commission try telling any judge who receives a claim that the Commission acted in breach of the rules of natural justice, or contrary to a provision of the Constitution, that the court’s jurisdiction has been ousted by section 13(2). Any high school law student will be able to tell you the likely outcome.
We are all Anguillians now. In case you ever need to prove it urgently, I hope you are on the good side of the Chief Immigration Officer, the PS Immigration, and the A-G. Otherwise, if this law goes through without thorough vetting, you may be in for a rough ride.
