“Everyone knows that Laws bring the greatest benefits to mankind and that the honour and interest of everyone depend on the wisdom of the Laws, while humiliation, shame, iniquity and the loss of rights arise from the absence or insufficiency…The Law, whether it rewards or punishes, must be applied to everyone without exception.”
Qedamawi Haile Selassie

Most of the people I know do not like the courthouse but a very interesting and important proceeding took place in the Anguilla High Court on Monday 5th and Tuesday 6th May 2008.
Sadly, but not surprisingly, not many Anguillians were on hand to witness a proud moment of the judicial process at work to secure justice in the interest of the Anguillian public. Once again, in my mind, the issue of finding balance between self-interest and the public good raised its head as a reality to be confronted in the quest for good governance in Anguilla. I learnt quite a few things that day, including some legal jargon so lawyers reading this, please bear with me as you must when a layperson tries to translate legalese into everyday language.
The procedure was an application for leave for judicial review (not the review itself as I had initially thought) of the Government of Anguilla’s decision to relocate the captive dolphin facility at Sandy Point Beach in Blowing Point. While the Applicants all had an interest in how the facility was affecting their businesses and their lives, the matter was one of public interest because the new location was a Protected Beach, and the land behind it which the developers were planning to use for the commercial facilities had been acquired by the Government of Anguilla for public use and was designated as the site for a National Park. It was established quite early and clearly, that the focus of attention was not directly on the developers but on the government’s decision making processes and procedures and whether these had been engaged in properly. However, the developers’ lawyer was also present and requested permission to sit in as a “watching brief”, an observer who would follow the proceedings and intervene in her clients’ interest only as necessary and permissible.
Application for leave for judicial review is an application to the Court for permission to investigate whether the decisions made by the various government authorities were within the legal mandates of entities making them or whether extra-legal procedures had been used to make decisions in breach of the laws meant to govern development activity and protect public patrimony. The application for leave for judicial review is therefore a procedure to allow the Applicants to challenge to the Government of Anguilla on the basis of perceived procedural impropriety and failure to apply the available checks on the abuse of power. In an application for leave for judicial review, the applicants must convince the Court that they have an arguable case, that is, they must present evidence to show that they are not wasting the Court’s time with flippancy, that the applicants do have a right to make the claim and, in this case, that the public interest is at stake and that the public was not adequately and meaningfully consulted, all in pursuit of natural justice. If the presiding judge agrees that there is an arguable case, the full application for the review can then be made. On Monday, Madam Justice Janice George-Creque was so persuaded.
In this instance, the government’s intention may well have been to fast-track the decision-making process, but what is to be reviewed is whether, in so doing, there was a breach of government’s duty to act reasonably, fairly and justly. The authorities expected to have been involved in the decision-making process include the Department of Physical Planning’s Land Development Control Committee, the Building Board and the office of the Superintendent of Ports. In addition to the legislation governing Civil Rules and Procedures used to present the application for leave, the legislation with reference to the government’s decision-making process included the Beach Control Act (Protected Beach Order) and the Ports, Harbours and Piers Act.
Sufficient evidence was presented on Monday for the Court to decide that the Applicants did have an arguable case on the basis of the evidence which focused on issues of procedure as well as issues of location. A number of irregularities, inconsistencies and gaps were noted in the procedural aspects of the decision-making but what emerged was that the requisite license had not been obtained for use of the beach as prescribed by law and that the location of that particular beach placed it within the jurisdiction of the Superintendent of Ports, who seemed not to have been consulted at all. Both the Acts referred to impose criminal sanctions and penalties.
The evidence presented by the Applicants included official application forms and the statements of the business persons and residents affected by the presence of the dolphin facility in that location. Correspondence between the Physical Planning Department and stakeholders, such as the Anguilla National Trust and the Anguilla Tourist Board, was also presented. The latter indicated that insufficient time had been afforded for review and comment on the Environmental Impact Assessment of the development. It seemed as though the entire claim to have had public consultation was nothing more than a farce. With all these departures from what is expected to be a norm in a democratic society, and what is prescribed by law, it was pointed out that the development activity at the site was continuing apace and admitted by Counsel for the Government that no license or lease had been granted to Dolphin Discoveries. The applicants, therefore, on Monday afternoon placed another request before the Court, this time for interim relief, that is, a request for the Court to exercise its power to stop the work. Given the curiosities that had emerged, Her Ladyship decided to give careful review and consideration of the facts overnight, for a decision to be made on Tuesday.
By that time the entire matter had come to a point that made the government ridiculous. It seemed that the same government that somehow had permitted the development activity to take place illegally could be asked to stop the work. Justice George-Creque was very clear the next morning and summed up the case in a manner that a small child could understand. Essentially, it seemed to me that the Court had no choice but to exercise its power to grant interim relief by ordering that the work be ceased forthwith. I think everyone in the room not only knew but also felt that justice had been done.
In Anguilla, matters of Land, Planning and Environment are the remit of the Chief Minister’s Office, while matters of infrastructure fall under the auspices of what is now the Ministry of Communications, Infrastructure, Utilities, Housing, Agriculture and Fisheries. The left hand may not necessarily know what the right hand is doing and the traditional way has been to nod and wink when they each know that what the other is doing the wrong thing. This is what happens when people give their power to politicians and when we fail to monitor to ensure that the public service is operating in the public interest. Unfortunately, the Anguilla National Trust has been effectively robbed of any notion of being the public watchdog for sustainability and has safely ensconced itself in the realm of education. Both are necessary but one requires boldness not easily attained in a context of dependency – it is not easy to bite the hand that feeds you. Finally, there are too few individuals willing to go against the grain and to challenge poor developmental practice and this time there was a plea for a show of ‘local’ faces that made me squirm. I therefore turned up, at the risk of appearing to be a token black face in the room but it was a risk I took willingly with an understanding that if we do not mind our own business, others will mind it for us.
I end with an appeal to the education system, the community and the media for an assertive approach to civic education if the vision of full-internal self-government is to be realized with participation of the people in our own best interest.

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