Government published its draft new Constitution on its website on 24 September. It is a perverse and distorted version of the original recommendation by the Constitutional and Electoral Reform Committee.
At the time of Government’s publication, they announced that there would be public consultations at the Teachers’ Resource Centre on 30 September and 1 and 10 October. All members of the public were invited to attend. They gave us just 2 weeks to register our objections and comments. Then, it appeared, they intended to send it off to London with the good news that we all agreed to it, so could it please be now signed into law by the Privy Council. There was no suggestion that the FCO was interested in speaking to the Opposition, far less the people, before bringing the new Constitution into effect.
A breath of fresh air, a point of light in the darkest tunnel of botched constitutional reform, has now appeared on the horizon. It is found in a speech of the Chief Minister (by now dubbed the Premier) on 30 September reported in the 4 October 2019 issue of “The Anguillian” newspaper at page 2:
Premier Banks disclosed that a number of technical officials from the Foreign and Commonwealth Office would be coming to Anguilla, in the middle of November, to participate in another round of public consultations. He said constitutions were very complicated documents with far-reaching implications, and certain elements of the constitution must be in sync with the laws on our books.
This is the first indication we have that the British were not entirely hoodwinked by Government into passing Government’s draft new Constitution. They would be coming to see for themselves what our attitude is to Government’s proposals for constitutional and electoral reform.
Three things need to be noted from the above announcement by Premier Banks.
1. He says that the British technical officers will be coming to participate in another round of public consultations. He must mean that the FCO’s lawyers are coming to Anguilla. He seems to be suggesting they will sit in on the existing two-week period for “public consultations.” That is hardly likely to be correct.
2. When the FCO visits an Overseas Territory to discuss constitutional reform, they constitute what in Anguilla’s case will be called something like “The Anguilla Constitutional Conference.” They expect their team to meet with a local team. They invariably demand that the local team consist of representatives of government and the Opposition.
The two teams meet across the table from each other. The FCO do not consider only the representations of Government’s team. They expect the local team to be fully briefed on local expectations for reform. The local team must be able to put forward the public’s expectations. The FCO team will have their own demands.
Their proposals for reform may include new matters that the local team has never considered before. They may, for example, be quite strong on rights issues that will be new to the locals. These will include freedom from discrimination in marriage, and the right to a clean environment, and to education.
3. The Premier seems to have been misled into believing that the new Constitution will need to be “in sync” with the 2019 Amendment Order. This is a mistake. The coming new Constitution will set aside the 1982 Constitution along with all amending Orders in Council. A similar suggestion was made by the Hon Minister of Home Affairs in the last meeting of the House of Assembly.
This error is our clue that the draft new Constitution published by Government on its website was not prepared by qualified legal draftspersons. These would know that there is no need for a new Act or Constitution to be “in sync” with a previous one. This is especially so when we are speaking about a previous amendment. These would know that a well-drafted new instrument sweeps aside all previous instruments. The lawmaker is not constrained by any earlier legal provision.
All the evidence indicates that the new Elections Act, the Anguillian Status Act, and the new Constitution on Government’s website were drafted by persons who are not experts in drafting legislation. We can hope and demand that the FCO will insist that they all be replaced with properly drafted instruments.
It appears that both Government and the Opposition underestimated Lord Ahmad and the Foreign and Commonwealth Office. It seems the UK officials recognise the need to consult with a representative body of Anguillians, not just a partisan incumbent Government, before making fundamental constitutional changes. This is what the FCO normally does.
Over the past months I have repeatedly accused Lord Ahmad of betraying Anguillians by ignoring the expected consultative procedure and going along with Government’s unilateral proposals. This accusation may have been true about the 2019 Amendment Order. It appears the FCO will do the right thing for the remainder of the reforms. For doubting Lord Ahmad’s integrity in insisting on this procedure, I personally owe him an apology.
Meanwhile, a great deal of damage has been done by the 2019 Amendment Order and the Elections Act 2019. But, if the FCO is now coming to Anguilla to meet with the Opposition as well as the Government to finalise a new Constitution, it is not too late to correct the errors.
Any new Constitution will set aside both the old Constitution and all amending Orders in Council. The opportunity to restore the integrity of the 2017 Report’s draft Constitution and its attendant draft Acts is there.
It is much to be hoped that the FCO will also insist that the missing Acts necessary for giving effect to the watchdog institutions be prepared and put in place immediately after the new Constitution comes into effect. These include (a) an Integrity Commission Act, (b) a Freedom of Information Act; (c) a Public Service Commission Act; (d) an Appointments Commission Act; (e) a Complaints Commissioner Act (or Ombudsman Act); (f) an Act for the Remuneration of the Speaker and the Members of the House of Assembly; and, (g) an Anguillian Status Commission Act.
The Constitution states that these provisions in the Constitution depend for their efficacy on the related Acts being passed into law. Accompanying these Acts would be the Regulations and other statutory instruments necessary to make the Acts work. Without them, no substantive reform will have been achieved.
Dr Ellis Webster, as leader of the biggest opposition political party, and his legal advisers should be invited. Mr Sutcliffe Hodge, as leader of the third party, and his legal advisers must be there. Mrs Pam Webster, as the Leader of the Official Opposition in the House of Assembly, and her legal advisers must be included. Without each of them being present at the table, no eventual solution will be acceptable.
If the FCO is wise, their team will insist that any proposed new Anguilla Constitution must be submitted to the people for their acceptance before the draft is signed into law. That is the only sure way to achieve a peaceful acceptance of what up to now has been a highly contentious and acrimonious process. That acceptance or otherwise can be easily shown in a yes/no referendum.
