Legal Notes

By Alex Richardson

What is the Constitution?

In most modern societies, including Anguilla, there exists an identifiable document or group of documents known as the constitution, embodying the most important and fundamental rules which regulate the country’s system of government. The constitution is regarded as the supreme law of the land. The authority to make all other laws is derived from it, and it also confers on the various branches of the government the power to carry out their various functions. In less than a handful of countries, including Britain, the constitution does not exist as an actual written document, but instead is comprised of a collection of well established rules and conventions.

Anguilla’s constitution came into existence in 1982 (with amendments in 1990) following the island’s formal separation from St. Kitts-Nevis. It was a proud symbol of Anguilla’s newfound autonomy and a sign that we had taken a giant step along the road of political maturity. However, because Anguilla was still not a truly independent state but remained under Britain’s protection, it is important to note that Britain expressly reserved to itself the power to override the constitution and “make laws for the peace, order and good Government of Anguilla”. There is no doubt that this power would only be exercised in very exceptional circumstances, but nonetheless it constitutes a fetter on our self determination which will only be cast off when Anguilla chooses to become a sovereign nation.
The first few sections of the constitution deal with the protection of certain fundamental rights and freedoms, including the right to life, personal liberty, freedom of expression, freedom of association, and protection from discrimination. It then goes on to establish the office of Governor of Anguilla. The Governor is appointed by Her Majesty and is charged with administering the Government of Anguilla.
In parliamentary democracies such as Anguilla the constitution creates three organs or branches of Government, each with its own distinct powers and functions. They are the Executive, the Legislature and the Judiciary.
The Executive
This branch of our government is called the Executive Council and is roughly equivalent to the Cabinet in Britain. It is presided over by the Governor and also comprises the Deputy Governor, the Chief Minister and other ministers and the Attorney General. The Executive Council meets every Thursday morning at the Governor’s office to conduct Government business and decide on matters affecting Anguilla. Decisions are by consensus, but it should again be noted that the Governor can overrule a decision supported by other EXCO members where in his opinion it would be “inexpedient in the interests of public order or public faith” to do otherwise.
The Legislature
The legislative body in Anguilla is called the House of Assembly and comprises a Speaker, not less than seven elected members, two nominated members, and two ex-officio members, namely the Attorney General and the Deputy Governor. The main function of the House is to consider and pass laws for the good government of Anguilla.
The Judiciary
The constitution provides for the administration of justice by bringing Anguilla under the umbrella of the Eastern Caribbean Supreme Court which includes the High Court and the Court of Appeal. The court system is administered by judges and other officials such as magistrates.
In theory, each branch is supposed to be separate and independent from the others, a concept known as the “separation of powers”. This is for the purpose of establishing certain checks and balances, designed to prevent any abuse of power which might result from concentrating too much power in the hands of any one branch. Think of the mayhem which could result from the court system being controlled by Government ministers, or if those ministers could freely pass laws without the approval of the Legislature. In such situations the system of government degenerates into a mere dictatorship and the society is often plunged into a state of anarchy. Happily, most Anguillians would agree that the separation of powers works well in Anguilla, and that our democratic system of government is alive and well.
As shown by past events in Anguilla, it is only when the constitution (or indeed any law) is tried and tested in real life that any deficiencies or shortcomings are revealed. This is not a negative reflection on the framers of the constitution, because it would have been impossible for them to anticipate and provide for every single possibility. When such imperfections are brought to light, however, it signals that the time may be right to closely scrutinise this important document with a view to repairing any defects and indeed effecting improvements. The constitution should be a living document, a strong and healthy tree which grows and puts forth new shoots in perfect synchronisation with the development and maturing of the nation. Its health can only be maintained by lopping off any dead branches, lest they retard and stunt our country’s growth. We should therefore not hesitate to boldly tend and prune the constitution when there is clearly a need to do so.
Alex Richardson is a Partner in the law firm Richardson Sinel & Associates, P O Box 1474, NBA Corporate Building, The Valley, Anguilla, Tel: 264 498 5544, Fax: 264 498 5545, email: arichardson@sineltrust.com. He is also CEO of Sinel Trust Anguilla Limited.