(2011)
Occasional papers on the self-determination/decolonisation process
Dame Bernice Lake
DGGN, Q.C. BA Hons, LLB (Lond) Hon.LLD UWI
Eminent jurist Dame Bernice Lake, QC passed away in 2011. Before making her mark in constitutional law and human rights, Dame Bernice had a budding career in the diplomatic service for the West Indies Federation. After its collapse she pursued studies in law and began a distinguished career spanning more than 40 years. Dame Bernice was the first woman in the Eastern Caribbean and the first University of the West Indies graduate to be bestowed the distinguished title of Queens Counsel. In 1975, she was the chief architect of the Anguilla constitution.
Dame Bernice was also part of the team that framed Antigua and Barbuda’s constitution in 1981.The Antigua and Barbuda government bestowed a knighthood on Dame Bernice in 2004 for her contribution to the legal field, her stance on women’s issues, civil and political rights, and personal integrity. Three years later she was awarded an Honourary Doctorate of Law Degree from her alma mater, The University of the West Indies.
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8th Annual Walter G. Hodge Memorial Lecture
Throughout the region, which we know as the Eastern Caribbean States, there is a shared evolution from the classification of colonial territory to that of emergent democratic nation states. That process has been evolutionary rather than revolutionary, and, for that reason, our sense of nationalism is not as frenzied and fanatical as those nation states who have come through the cauldron and crucible of armed conflict with their colonial masters.
Starting with the “Closer Union Conferences” of the 1950’s, the United Kingdom played mid-wife to the birth of the new nation known as The Federation of the West Indies. In the context of the racial riots in Nottinghill, England, and the rising tide of the Civil Rights Movement in the United States, it was the hope and expectation that this new nation would give to the world an example of a harmonious, racially mixed society in which peaceful co-existence of the races was to serve as an exemplary model.
As Professor Harlowe of Oxford, a devotee of the new Caribbean nationalism, expressed it, the West Indies was uniquely poised to bring racial leadership to the world, as the Caribbean in its culture and way of life was neither African nor European but uniquely Caribbean.
But when in 1960 Jamaica, by referendum opted out of the Federation, and Eric Williams of Trinidad made his famous pronouncement that “One from Ten leaves Nought,” the Federation quickly unravelled, as Guyana left, as did Barbados. Those laudable aspirations for the Caribbean role as a front-runner on the international scene came crashing down, as the Big Units went their merry way to Independence, and Britain and the “Little Eight” were left casting about for a peg upon which to hang the political and constitutional destiny of Antigua, Dominica, Grenada, St. Lucia, St. Vincent, St. Christopher Nevis, Anguilla, Montserrat, and the British Virgin Islands.
Each unit of the “Little Eight” was regarded as too small to be viable as an independent nation; they could not be cast together as an independent nation, as the “Federal Fatigue Syndrome” had set in, and there was a dearth of trust and confidence on all sides. And so Britain took down from the constitutional shelves the concept of Associated Statehood, which had originally been designed for Malta. It would afford an opportunity to practice the art of self-rule without being thrown to the wolves on the international scene in matters of defence and external affairs. The British Virgin Islands, with their historical association with Britain but strong economic ties with the USA and its currency, would carve out its own destiny, as did Montserrat.
And so it was that by 1966 the constitutional framework of States in Association with Britain became a lesser but acceptable alternative to the grand design of Caribbean Manhood and was structured show-casing the Associated States of Antigua, Dominica, Grenada, St. Lucia, St. Vincent and Saint Christopher Nevis and Anguilla, with provision for Montserrat and the British Virgin Islands.
The vehicle for this new status was to be The West Indies Act 1967 together with The West Indies Associated States Supreme Court Order [of] 1967, which made provision for the common services of the judiciary for the “Little Eight”. Together, with the springboard of common judicial services, they were supposed to effect the ultimate realization of a federation of the “Little Eight” on a voluntary basis and not mid-wifed by Britain, as was the Federation of the West Indies. So was it sold!
The nearest we have come to the realization of that ideal is the Treaty of Basseterre, which, if ratified and domesticated by the unit legislatures would have set up for the OECS a Super Parliament and Government not unmatched by that of the European Union, which subjugated the sovereignty of the Imperial Parliament of the United Kingdom. Witness the ease with which the Treaty of Basseterre allowed us to “borrow the boots of the Reagan Administration” to quell the insurgency in Grenada after the murder of Maurice Bishop and his colleagues.
The Mouse Steps into the Lime-light and Roars
In the context of the Federation of the West Indies, Anguilla had emerged from the Colony of The Leeward Islands, which also comprised the Presidency of Saint Christopher Nevis as part of the unit now known as Saint Christopher-Nevis and Anguilla, which unit would constitute the Associated State of Saint Christopher Nevis and Anguilla on the eventful day.
It was proposed that Anguilla would have a measure of local government, but the details of the arrangement were not finessed to Anguilla’s ultimate satisfaction. The traditional constitutional talks were held at Lancaster House in 1965; but regrettably the details of the provisions for Anguilla were not fine-combed, as the talks were short-circuited to a day, as the cricketing delegates rushed off to be entertained by the England v West Indies Test match, which was being played at Headingly, Leeds. The delegates, including the one from Anguilla, returned home, and doubts about the acceptability of the constitutional arrangements soon surfaced.
There were rumblings in Nevis, trouble with English hotel proprietors, and in particular one Mrs. Pomeroy. The Anguilla delegate accompanied by Dr. Herbert, and led by an Englishman, one Gaskill, who operated a hotel out of Nevis, who found extreme disfavour from R. L. Bradshaw, and whose claim to fame was that he was a distant relative of the Queen, rushed back to London in the latter part of 1966 to seek redress from the impending constitutional arrangements but found that the door was closed; the stage was set to usher in the new constitutional status.
And so the 27th February 1967, the date upon which the new constitutional arrangements would take effect, was turning over upon the calendar, and as a prelude to their unfurling, celebrations were planned by the Central Government in St. Kitts for the month of February, to show-case the event.
Anguillians saw in those plans for the celebration not just the declaration of the new constitutional status, but they saw them as the calling of the banns of marriage in a unitary state in which Anguilla was to be unequally yoked with the Central Government in St. Kitts. If anyone objected to the marriage or knew of any just cause or impediment why the union should not take place, then they were to declare it, or forever hold their peace.
Anguillians did not hold their peace; they had objections to the marriage, and they raised their objections loudly and clearly. And so it was that on the 4th February 1967, three weeks before the marriage was scheduled to take place, and at the Queen Show Event at which the leading thespian from St. Kitts, Cromwell Bowry, was in attendance, the celebratory air was rent with shots. The dignitaries in attendance crawled for cover under desks, and people from the audience stumbled out into the night, their eyes streaming with tears from the tear gas, as they groped their way to a familiar route home. By the 27th February 1967, it was clear that Anguilla was not going to the marriage alter, and that the union would not be blessed.
The exploits and the will by which Anguilla was kept from being dragged to the alter in the ensuing days have been recounted many a time and often – 30th May eviction of the Central Government’s police officers, a date which Anguilla shares with Biafra and its attempted secession in Nigeria:* Bradshaw’s inability to storm the airport or Anguilla’s shores; the quiet alliance of Sint Maarten; the invasion of St. Kitts, and the 10th of June 1967.
Most of the former colonies in the region have cast aside doubts about the viability of small nation states, and incrementally, have moved through the processes and status of full internal self-government as States in Association with Britain, and on to the status of sovereign nation states functioning within well-defined territorial limits.
Anguilla, on the other hand, has moved from the status of Associated Statehood back to that of a colony under the provisions of the Anguilla Act [of] 1980.
For upwards of forty-one years, the issue of our constitutional arrangements has engaged us. So far as the current initiative is concerned, we have been agitated by the debate on constitutional reform since 2001, and the fact that we have not brought the initiative to a conclusion is indicative more of our earnest resolve to get the process right for our people, rather than an indifference to the process itself.
Throughout the British Overseas Dependent Territories, there is an ongoing initiative for constitutional ‘modernisation’ and ‘advancement’ which finds its recent and adventitious roots in the White Paper Partnership for Progress and Prosperity of 1998. But the tap-root of that initiative extends more deeply into the international recognition of the centrality of the individual in a wholesome society and the inalienable right to self-determination with which all peoples are naturally endowed.
In Anguilla, we welcome the focus on the concept of partnership as a constructive basis for the relationship between Anguilla and the United Kingdom.
The values of trust, mutual respect, recognition of our cultural mores, and commitment to the democratic ideals must inform the workings of the partnership if we are to move forward with a sense of harmony and attain the political, economic, social and educational advancement within the community of nations to which we aspire.
If ever there was a time for Anguilla to embark upon an essential process of clarification of her aspiration for constitutional self-fulfillment, that time is now. As Anguillians, we are in need of clarification of ourselves as human beings. We are in need of clarification of the form of governance most appropriate to us as a people at this stage of our development. We are in need of clarification of the form of governance under which we are presently administered. We are in need of clarification of the form of governance to which we, as human beings in a society culturally defined as Anguillian, are entitled to aspire.
We are in need of this clarification, because we are at the cross-roads of our constitutional journey, and we need to find our direction and set our compass accordingly.
Governance
The World Bank defines “Governance” as:
The exercise of political authority and the use of institutional resources to manage society’s problems and affairs.
The Worldwide Governance Indicators Project of the World Bank further defines “Governance” as:
The traditions and institutions by which authority in a country is exercised. This considers the process by which governments are selected, monitored and replaced; the capacity of the government to effectively formulate and implement sound policies and the respect of citizens and the state of the institutions that govern economic and social interactions among them.
“Governance” is in essence the structure of institutions set in place in an arrangement agreed by the community for the regulation of society’s social stability, for the advancement of the individual human self-fulfillment, and for the realization of the people’s social and economic aspirations. It is the agreement of the people, which gives the structure of governance its validity.
From the time of our settlement in 1650 until the 1948 Declaration of Human Rights, we lived, worked and survived under the rigours and oppression of colonialism. Save for the brief flirtation with the Associated State of St. Kitts-Nevis and Anguilla in 1967, Anguilla has evolved into the status of a non-self-governing territory administered by the United Kingdom as a colonial power, albeit that Anguilla functions under the guise of a constitutional structure of governance, which is essentially colonial in nature and design.
And yet we are told that we live in a democratic structure of governance. As recently as the 30th May 2008, at the celebrations of the forty-first anniversary of the Revolution, the Governor spoke of Anguilla as a democratic society.
We need to test that claim by an examination of the principles of the ideal of democracy, and a critical appraisal of the elements and exercise of democratic governance.
The Democratic Way of Life
There was a time when democracy was defined as the societal institution of government under which a homogeneous people were governed by an electoral process which was open and fair. It was wrapped in the catch phrase, “Government of the people, by the people and for the people.”
Democracy is no longer seen in such simplistic terms, because experience has shown that, having gone through the process of the election of representatives to the seat of government, governments have gone on to administer the affairs of state as if democracy had given way to autocracy. It seeks to assure to an informed population on-going and meaningful participation in the affairs of the nation and in the decision–making process well beyond the casting of a vote on election day.
This is the age of universal declarations, and in keeping with the spirit of our times, the Universal Declaration on Democracy was declared and adopted in Cairo on the 16th September 1997. The principles emerging from that Declaration are:
• First, democracy is a universally recognized ideal as well as a goal, which is based on common values shared by peoples throughout the world community irrespective of cultural, political, social and economic differences. It is thus a basic right of citizenship to be exercised under conditions of freedom, equality, transparency and responsibility with due regard for the plurality of views, and in the interest of the polity.
• Second, as an ideal democracy aims essentially to preserve and promote the dignity and fundamental rights of the individual, to achieve social justice, foster the economic and social development of the community, strengthen the cohesion of society and enhance national tranquility, as well as to create a climate that is favourable for international peace. As a form of government, democracy is the best way of achieving these objectives; it is also the only political system that has the capacity for self-correction.
• Third, democracy is inseparable from the rights set forth in the international instruments. These rights must therefore be applied effectively and their proper exercise must be matched with individual and collective responsibilities.
• Fourth, democracy is founded on the primacy of the law and the exercise of human rights. In a democratic State, no one is above the law, and all are equal before the law.
Essential to the exercise of democratic governance are the elements of well-structured and functioning institutions, the development of a body of standards and rules which apply to all and by which all are bound. Democracy is based on the will of the society as a whole determined by the principle of majority rule. One of its corner stones is that the people must be fully conversant with rights and responsibilities.
From the standpoint of the individual as well as the collective social group, democracy is founded on the right of everyone to take part in the management of public affairs; it therefore requires the existence of representative institutions, whether at the grass-roots or state-wide level, and in particular, it requires a Parliament in which all components of society are represented and which has the requisite powers and means to express the will of the people by legislating and overseeing government action.
The existence of a state or political community is justified by the function of the state in ensuring the enjoyment of civil, cultural, economic, political and social rights to its citizens. Democracy thus goes hand in hand with an effective, honest and transparent government, freely chosen and accountable for its management of public affairs.
Public accountability therefore looms large in the democratic form of governance. That public accountability applies to and is owed by all those who hold public authority, whether elected or non-elected and to all bodies of public authority without exception.
Accountability entails a public right of access to information about the activities of government, the right to petition government and to seek redress through impartial administrative and judicial mechanisms.
Democracy is a Basic Right of Citizenship
It is against those principles of democratic governance that the structure of the institutions of governance in non-self-governing or colonial territories such as Anguilla must be stacked in order to determine whether colonial governance can rise to the claim of being democratic in any shape or form.
Is there a full recognition and respect for the entitlement of the people of Overseas Territories to exercise democratic institutions in order to secure their full development and to foster the promotion of their fundamental human rights?
It is convenient to postpone that evaluation until we have considered the significance of constitutionalism in democratic governance.
The Purpose of a Constitution in a Democratic Society
Reference has already been made to the fact that democratic governance is based on the existence of well-structured and well-functioning institutions, as well as on a body of standards and rules. Its survival depends on the will of the people as a whole, fully conversant with rights and obligations.
The laws and legal frame-work must be established; they must be exercised; people must know by what legal provisions they are regulated and bound; they must know their rights and responsibilities.
Given this essential requirement, it can be readily appreciated that democratic governance functions naturally and best in a setting of constitutionalism.
Constitutionalism
How is Democracy secured to a people whose national life no longer revolves around the will of an individual sovereign?
It is secured by the establishment, veneration and adherence to a Supreme Constitutional instrument, which lays out the structure of Government, guarantees respect for human dignity, the fundamental rights and freedoms of the individual, and respect for the rule of law.
The doctrine of the separation of powers underpins the veneration of constitutional rule of law and ensures that only the Executive can frame policy, that only the Legislature can make and enact laws under which those policy decisions are approved for implementation; the Legislature controls our purse strings and determines the moral justification under which administrations can dip their hands into the change in our pockets in the exercise of the taxing power constitutionally reserved to our Parliaments. And the oversight powers and mechanisms which keep those two branches of government in line are vested in the Judiciary, the courts.
The Purpose of a Constitution in a Democratic Society
• A constitution is the expression of the core values of a homogenous people. In that regard, a constitution mirrors and reflects the aspirations of a people living together in a well-ordered society.~ A. V. Dicey
• A constitution is also the keeper of the social and cultural texture of a people, because in it is found the definition of the peoples’ ideals, and from that definition of ideals, the validity of laws is determined. ~ BVL
• A constitution is society’s anchor; it gives certainty to the laws of a country and therefore determines what lawful governance in society is. By that means adherence to the constitution keeps a society stable. ~ BVL
• The purpose of a constitution of a democratic society is to define with certainty the legal rules by which the democratic ideal of the fulfillment of the dignity and enjoyment of rights of the individual in a climate of social justice and economic well-being will be regulated.
A typical Constitution in the Western world assures to its citizens the right to good, responsible and accountable government and the free exercise of their fundamental rights, which can only be limited and trenched upon by state agencies to the extent that the reasonable overall well-being of our people may require.
George Kateb frames it in terms that:
“Constitutional democracy is a way of life, its distinctive features constituting its claim to moral superiority over other forms of Government; and the fundamental values on which it is grounded, and which it embodies, have in common a devotion to the idea that the individual is the moral centre of the society”.
We speak about accountability of our Governments, but Kateb aptly frames it in terms that “restriction or limitation on the power of Government is the soul of Constitutional Democracy”.
If there are no limitations or restrictions upon the exercise of government executive or legislative power, we could hardly claim to be living in a democracy.
So the whole purpose of constitutional democracy is to define with certainty the governance of a cohesive community in which the fulfillment of the individual is the centre-piece of community life.
A Constitution and its Essence
A Constitution is the supreme or fundamental law of a people. As such it is the embodiment of a people’s social, economic and humanistic aspirations. Its essence is a condensation of how a people expect to live, how a people will regulate their social behaviour, how individuals in the society will be able to develop to their fullest potential both in the individual’s self-interest, as well as in the interest of a whole, cohesive and wholesome society. In short, it is a regulation of how a people expect their society to be governed and how those entrusted with government will be allowed to execute that responsibility.
Illusion or Reality?
In Anguilla we profess to live under a constitutional democracy in the context of dependency upon the administering power of the United Kingdom. The question which arises is: “How faithful are the provisions of this form of constitutional governance to the principles and ideals of constitutional democracy?”
It is true that provision is made in the Anguilla Constitution for a form of elected representation. But, does the colonial constitution really assure to us the continuing right to elected representative governance?
• Does it assure to us the security of our fundamental rights?
• Does it secure to us the right to participate in and fashion the policies which affect us and the laws by which we are governed?
• Does it secure to us the unimpeachable right to constitutional governance?
• Does it assure to us rule by the will of the majority of the people? Are we in social control of our own destinies?
• Does the constitutional arrangement glow with all the ideals of democratic governance or is it merely an illusion?
We answer those questions best by analysing the nature of our representative system of governance, the executive and law-making power reserved to Her Majesty’s government, and the powers of the Governor, as detailed in our constitutional arrangements with the United Kingdom.
Limiting Powers Reserved Dehors the Constitution
The Legislature
The Constitution provides for a limited form of representative government out of which the Legislature is constituted, and the Executive Council vicariously derived.
The law-making authority is really vested in the Governor with the House of Assembly functioning as an “advice and consent” institution. The over-arching limitation on the principle of legislation by the will of the people as expressed through their elected representatives is under-scored by the constitutional provisions reserving to the Minister or Secretary of State in the United Kingdom, who has no elective connection with Anguilla, the pre-eminence of Royal Instructions.
Section 48:
“Subject to the provisions of this Constitution, the Governor and the Assembly shall in the transaction of business and the making of laws conform as nearly as may be to the directions contained in any Instructions under Her Majesty’s Sign Manual and Signet that may from time be addressed to the Governor in that behalf.”
Section 49 also preserves the pre-eminence of Royal Instructions in so far as the House of Assembly is permitted to amend and revoke rules of procedure for the regulation of its own proceedings.
Those Royal Instructions are really the instructions of the Secretary of State or Minister responsible for the territories without any adherence to over-sight by the United Kingdom parliament. As such, they reflect neither the will of the people of the United Kingdom nor the people of Anguilla. Consequently, they are a deviation and aberration from the democratic ideal.
Those limitations upon the will of the people as expressed in the Assembly are further compounded by the use of Orders-in-Council derived from the Royal Prerogative to frame and effect policy for the territories as a matter of primary legislation.
In our association or ‘partnership’ with Britain, we have had our wills over-borne, our cultural identity trampled upon, and we have been subjected to legislation by Orders-in-Council in such culturally sensitive areas as the death penalty and homosexuality.
Our elected representatives have accepted and the people have suffered this humiliation all under the mistaken belief that the only alternatives in constitutional arrangements available to us were independence or rule by Order-in-Council. The British rightly call it the “Nuclear Option”.
We have witnessed the experience of Orders-in-Council in the case of the Chargos Islands.
The crippling tentacles of Royal Instructions are best illustrated by the recent incident in the Cayman Islands, which has occasioned the formulation of the principle that the Governor is empowered to institute a commission of inquiry without the knowledge and consent of the Cabinet. In the course of discussion of the extension of this principle to the Turks and Caicos Islands between Mr. Leigh Turner, Director of Overseas Territories at the Foreign and Commonwealth Office (FCO), and Paul Keetch, M.P, the disposition of the FCO was most enlightening.
Turner explained that “The Governor proposed to hold a commission of inquiry, but the Cabinet did not want it to go ahead, thinking that it was unnecessary in Cayman, and declined to fund it. Of course, the Cabinet has control of the purse strings. At that point, the Governor consulted the Foreign Office and said, “We think that it is very important to hold a commission of inquiry. Please will you give me instructions to overrule the Cabinet,” which is the way that it happens. “We consulted Ministers and agreed that it was important, so the Governor was issued with instructions to overrule the Cayman Islands Cabinet in order to allow a commission of inquiry to be set up.” Keetch then asked whether, if the Governor of the Turks and Caicos Islands wanted to commission an inquiry, and the local Cabinet refused to fund it, the British government would pay for it.
Turner responded, “We would not need to, because we could issue an instruction to overrule it.”
Is this a reflection of the democratic ideal at work?
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