Did you know that the first Chapter of our 1982 constitution – after many exceptions to “freedoms” – concludes by describing how civil rights may be suspended in a state of public emergency? Here goes…
Section 14: Derogations from fundamental rights and freedoms under emergency powers
This Section asserts, “Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of section 3 or section 13 of this Constitution to the extent that the law authorises the taking during any period of public emergency of measures that are reasonably justifiable for dealing with the situation that exists in Anguilla during that period.” [1] That’s it.
Section 15: Protection of persons detained under emergency laws – Protection??
In a “public emergency” and with only “reasonable” criteria, we all risk imprisonment without recourse.
It states, “When a person is detained by virtue of any such law as is referred to in section 14 of this Constitution the following provisions shall apply, that is to say—he shall, as soon as reasonably practicable and in any case not more than four days after the commencement of his detention, be furnished with a statement in writing in a language that he understands specifying in detail the grounds upon which he is detained; not more than fourteen days after the commencement of his detention, a notification shall be published in the Official Gazette stating that he has been detained and giving particulars of the provision of law under which his detention is authorised; not more than one month after the commencement of his detention and thereafter during his detention at intervals of not more than six months, his case shall be reviewed by an independent and impartial tribunal established by law … he shall be afforded reasonable facilities to consult a legal representative of his own choice who shall be permitted to make representations to the tribunal appointed for the review of the case of the detained person; and at the hearing of his case … he shall be permitted to appear in person or by a legal representative of his own choice.”[1]
But wait. Subsection (2) continues, “On any review by a tribunal in pursuance of this section of the case of a detained person, the tribunal may make recommendations concerning the necessity or expediency of continuing his detention to the authority by which it was ordered but, unless it is otherwise provided by law, that authority shall not be obliged to act in accordance with any such recommendations.”[1]
And a potentially innocent person without means to pay for a lawyer could be left in prison… for life? The Section concludes, “(3) Nothing contained in subsection (1)(d) or subsection (1)(e) of this section shall be construed as entitling a person to legal representation at public expense.” [1]
Section 16: Enforcement of protective provisions
Next, Section 16 asserts that anyone who thinks their rights have been denied as enshrined in “…sections 2 to 15 (inclusive) of this Constitution…(or, … if any other person alleges such a contravention in relation to the detained person), then…that person may apply to the High Court for redress.” [1]But such “protection” is without meaning for anyone without means.
This section continues, “The High Court shall have original jurisdiction” over claims to such rights, but “…Provided that the High Court may decline to exercise its powers under this subsection if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law.” Good luck with redress without resources. And “any court (other than the Court of Appeal, the High Court or a court martial)” may “…refer the question to the High Court unless, in his opinion, the raising of the question is merely frivolous or vexatious.” [1] Subsections 4 to 6 then describe escalation to the Legislature and the Chief Justice. Really? With such alarming rules for detention during a public emergency, the committee should “decline” to retain Sections 15 and 16, full stop. We deserve the same rights and due process as given to anyone arrested at any time, all the time.
Section 17: Declaration of emergency
Section 17 says, “The Governor may, by Proclamation… in the Official Gazette, declare that a state of emergency exists for the purposes of this Chapter.” [1] The Governor may revoke the state of emergency in the same manner, but without further declaration, it would expire in 90 days. Detained? Good luck.
Section 18: Interpretation and savings
The final Section defines various terms, including citizenship, which was amended in 2019. The public emergency definition includes the UK being at war. Let us pray that NATO won’t go to war with Venezuela to help its largest member.
…and GST? More Laws Leaving the People in Purgatory
While the General Services Tax Act exposes us to 26 imprisonment penalties, they are specified from 3 months to 2 years without such infinite discretion. Whereas excess “input tax” is carried for 3 tax periods before allowing claims. Two months hence – or 10 days after an audit “if later” – the refund must offset any other taxes before proceeding (=5 months). But, if the “Comptroller fails to pay a refund of tax relating to an excess” it attracts 1% interest per month, until the refund is made.[2] The refund may as well be detained in a state of emergency.
Part 10 gives 90 days to object (=8 months), and the Comptroller has 90 more to consider it (=11 months). If the claim “succeeds” – the refund is due in 30 days (=1 year) – but, if “not refunded before the expiry of 30 days…” it accrues interest without limit. Note: if objecting to a GST assessment, 50% of the disputed amount must be paid, followed by 90 days for consideration.[2]
These times add up to 12 months from excess tax payment – while the Comptroller has the option to merely accrue 1% simple monthly interest. But, an appeal is allowed at 15 months, and the Comptroller has 90 days to object or be presumed to do so. If the Appeals Tribunal awards a refund, it would accrue interest after 30 days if not paid, approaching 19 months. But within 90 days thereafter, it may be appealed to the High Court. With an unknown length of review, if the Court awards a refund as the matter continues over 2 years, it would again merely accrue interest after 30 days if still not paid! [2]
Remember, one requires means for such rights to be meaningful. Section 42 is clear: “The burden of proving that an assessment is excessive or that a decision of the Comptroller is wrong is on the person objecting to the assessment or decision.” [2] How many legal bills (plus 13% GST!) would be more than the refund in question to “succeed” in getting what is rightfully owed? If ever.
Protections vs. Purgatory?
The public emergency sections about Constitutional “freedoms” and “protections” are appalling. They describe how an innocent person mistakenly detained in such circumstances could languish indefinitely. And…The General Services Tax Act vests powers to legally withhold excess tax payments – indefinitely!
Making the People plead for review or consideration reflects a pattern of disrespect, whether trapped in prison, or capriciously withholding capital while merely accruing interest, putting business liquidity, jobs, and the stability of the tax base at risk. We must stop electing leaders who pass such oppressive laws and fail to replace false “freedoms” with real rights, year after year.
So. Will Anguilla set new global standards for all democracies with this Constitutional review? And… Will our revised constitution have real “protections” from indefinite detention and funds retention in laws like the General Services Tax (GST) Act, even as they reflect “legal” overreach, right now?
Repeal GST – and pass a balanced budget bill. Now.
This article reflects issues raised on July 5, 2021, at the House Select Committee on GST Public Hearing.
[1] The Anguilla Constitution Order 1982; [2] General Services Act, 2025.
