R E P O R T
0F
THE CONSTITUTION REVIEW COMMISSION
FEBRUARY 28, 2002
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CONTENTS
Transmittal Letter
CHAPTER 1 How the Constitution Review Commission Performed its
work
CHAPTER 2 The Existing Constitutional System
CHAPTER 3 Broad Themes
CHAPTER 4 Democratic Institutions and Local Government
CHAPTER 5 Barbuda
CHAPTER 6 The Public Service and the Commissions
CHAPTER 7 Human Rights in the Constitution
CHAPTER 8 Financial Provisions
CHAPTER 9 The Head of State
CHAPTER 10 Patriation of the Constitution
CHAPTER 11 Parliament
CHAPTER 12 Citizenship
CHAPTER 13 Judicial System
CHAPTER 14 Integrity Matters
CHAPTER 15 Amending the Constitution
CHAPTER 16 Follow-up Proposals
CHAPTER 17 Outstanding Issues
CHAPTER 18 Summary of Recommendations
CHAPTER 19 Acknowledgments
Appendices
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February 28, 2002
His Excellency
The Governor General of Antigua and Barbuda
Government House
St. John’s
Your Excellency,
By Instrument dated 17th December 1999 and supplemented by Instrument dated 14th June 2001,
Your Excellency appointed us as Commissioners under the Commissions of Inquiry Act to
review the Constitution of Antigua and Barbuda with the following Terms of Reference:
1. To examine, consider and enquire into the Constitution of Antigua and Barbuda and
other laws and matters generally;
2. After due examination and study, to report in writing giving their opinions, making
such recommendations, and providing for consideration any amendments, reforms
and changes in the Constitution and related laws as it emerges from their inquiry are
necessary and desirable for promoting good government and peaceful, social,
economic and human development in Antigua and Barbuda and in particular for:
(a) maintaining democratic institutions, and ensuring that parliamentary and
multi-party democracy continues to enjoy constitutional protection;
(b) establishing mechanisms to ensure that a
government, political parties, the media, and
non-governmental organisations uphold and
promote democracy and exercise responsibility
and accountability in this regard;
(c) reviewing the administrative and constitutional arrangements between
Antigua and Barbuda and establishing machinery to enhance these
arrangements for the future to ensure the peaceful and orderly
development of the state as a whole;
(d) strengthening the accountability of parliamentary representatives
to their respective constituents;
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His Excellency
Page 2
February 28, 2002
(e) strengthening the capacity of the Public Service to deliver efficient
and responsive service to the public and to provide professional
support in the administration and implementation of government
programmes;
(f) strengthening the fundamental and basic rights, liberties and
freedoms of the individual and ensuring that there is no
discrimination in the national life of the State;
(d) strengthening government machinery for transparency and
accountability in the management of public funds;
(e) evaluating the benefits, if any, for changing from a monarchical to a
republican system of government and making recommendations in
respect of any changes in the executive form of government that results
from such an evaluation;
(f) To advise and make recommendations concerning the partriation of the
Constitution so as to ensure that it draws its authority and validity from an Act
of Parliament of Antigua and Barbuda;
(g) To examine and make recommendations concerning the desirability of retaining
or abolishing the second Chamber of the Legislature;
(h) To prepare a written report on the aforesaid.
We have now completed our work and have much pleasure in submitting herewith our
Report. In so doing, we can only hope that the venture we have been honoured to
undertake will have its impact upon the future welfare of the people of Antigua and
Barbuda.
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His Excellency
Page 3
February 28, 2002
Yours sincerely,
……………………………………..
Sir Fred Phillips, Q.C., Chairman
…………………………………………..
The Honourable Dame Bridget Harris
…………………………
Sydney Christian, Q.C.
……………………………..
Professor Ralph Carnegie
…………………………….
Radford Hill
……………………………
Anthony Michael
……………………………
The Rev. Oral Thomas
……………………………
Stacy Richards-Anjo
…………………………….
Robin Bascus
…………………………….
Blandina Francis Negga
………………………………
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Arlene Gomez
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CHAPTER 1
HOW THE CONSTITUTION REVIEW COMMISSION
PERFORMED ITS WORK
Shortly after the appointment of the Commission, a press release was
issued to the general public. A public meeting was held at the Perry Bay
MultiPurpose Centre on 10th January 2000 at which the Chairman outlined in
general terms how the Commission intended to proceed with its work. It was
also announced at that meeting that an explanatory booklet would be prepared
and printed outlining in layman’s language (as far as possible) the salient
details of the Constitution. The booklet was typed and ready for printing by
March 2000. However, because of pressure of work in the Government
Printing Office, it was not until 5th September 2000 that printing could be
completed.
The Commission was able to move into its Secretariat at Redcliffe Street
by August 2000, by which time both the Administrative Assistant -Mrs.
Anestercia Bailey and the Secretary – Mrs. Arlene Gomez – had been appointed.
On September 8, 2000 the Commission addressed letters to a number of
organisations, institutions and individuals inviting the recipients to submit
memoranda relative to the Terms of Reference. A list of these individuals and
bodies is at Appendix I. The Commission continued to issue releases informing
the public about its mission while the Chairman appeared on television urging
the public to participate and drawing their attention to the booklet which was
available for purchase at the Government Printing Office.
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Between 1st November 2000 and the end of March 2001 the Commission
held a number of consultations in the following locations:
The MultiPurpose Centre at Perry Bay
Parham
Willikies
Freetown
Bethesda
Barbuda
Cedar Grove
Bolans
Old Road
All Saints
Liberta
Villa
Cobbs Cross
The public meetings scheduled for Bethesda and Old Road were
cancelled for lack of attendance by the public.
During this period the Chairman went on television twice to discuss the
Commission’s objectives. He appeared with two other members of the
Commission and another lawyer on the Justice Programme which dealt with
the Commission’s activities in the course of which the members of the general
public were again asked to assist the Commission in its work. Towards the
end of our deliberations four members of the Commission again appeared on
television to acquaint the public of our work and mission.
At the same time the UNDP expert - Professor Albert Fiadjoe - who was
appointed to assist the public with advice on the Constitution -continued to
visit to hold seminars and discussions with individuals and groups as well as
to assist them in formulating their submissions.
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During April, May and June 2001 members of the Commission spent
time reading the Reports of the meetings held in the country areas and
preparing summaries under different Heads of our Terms of Reference while
the Chairman held a number of interviews with Heads of various institutions in
the hope that at least some of them would commit their views to writing.
Several new submissions resulted from this initiative. The list of all individuals
and organizations from whom written submissions were received is at Appendix
II.
The list of the persons who were interviewed by the Chairman is at
Appendix III.
Every organization or individual expressing a desire to appear before us
in public with or without a written submission was readily accorded the
opportunity to present proposals. Whenever such proposals were committed to
writing, they were sent to us in advance so that the Commissioners could be
aware of the issues to be raised. Throughout we adopted an informal approach
and did not insist on sworn testimony – as we were entitled to do under the
Commission of Inquiry Act. Nor did we ever find the necessity of summoning
any witnesses by subpoena. In general those who appeared simply followed
the format of any written submissions and expanded on such proposals.
We were gracefully received wherever we went to hold our consultations.
The Barbudans showed us much hospitality and friendliness on the two
occasions we visited Barbuda for which the Commission expresses its
gratitude.
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CHAPTER 2
THE EXISTING CONSTITUTIONAL SYSTEM
In this Chapter, we look at the vital elements in the present
constitutional structure with a view to placing in perspective the considerations
which would serve to justify reforms in the context of contemporary
circumstances.
Historically, Antigua was one of the ten territories which in 1958 formed
the West Indies Federation destined to be dissolved in 1962, leaving Antigua to
continue in its colonial status. In 1967, in common with five other Eastern
Caribbean islands, it became a “State in Association with Britain” in which
capacity it was independent in all its internal affairs but depended upon
Britain for its defence and foreign affairs. The Governor was however
appointed by the Queen on the advice of the local Premier for the first time.
Associated Statehood was to come to an end in 1981 when Antigua acceded to
independence under the new name of Antigua and Barbuda. It is to a brief look
at the Independence Constitution that we now turn at a time when governance
in the country is without doubt undergoing stresses and strains.
The Head of State
Antigua and Barbuda is governed by a monarchical regime with a
parliamentary system of government. The Head of State is in fact the Queen of
England who constitutionally holds office by virtue of her title to the throne of
the United Kingdom and her position derives from United Kingdom law. As
Queen, she is shared with a number of other Commonwealth countries
including all the former British independent territories in the Caribbean except
Guyana, Dominica and Trinidad & Tobago, which are Republics.
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The functions of the Head of State in Antigua and Barbuda are exercised
by the Governor General. The Queen may on a visit to Antigua and Barbuda
perform the ceremony of opening and addressing Parliament, but apart from
that, the only other function she is likely to perform is the appointment of the
Governor General and this is done on the advice of the Prime Minister.
Parliament
The country has a bi-cameral parliamentary system. Parliament
comprises the Queen, the Senate and the House of Representatives.
Substantial legislative power is reserved for the House of Representatives:
election being on a constituency basis using the first past the post system.
The Queen’s function, and therefore that of her representative (the
Governor General), as part of the parliamentary process is simply to assent to
legislation. Although the Constitution mentions a veto, this is not by
convention ever exercised unless the Cabinet wished exceptionally to reverse at
the very last moment a legislative measure it had processed through the
normal parliamentary stages.
The Senate cannot in its law-making power in any way compete with the
House of Representatives. In respect of money bills, it can delay passage for a
month. Bills other than money bills can be delayed for six months and until
another session.
Eleven of the seventeen members of the Senate are appointed by, and
can be removed at any time by, the Prime Minister.
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Election to the House of Representatives is by secret ballot under
universal adult suffrage.
The Prime Minister and Cabinet
Executive power in Antigua and Barbuda resides with the Prime Minister
and Cabinet. As mentioned above, the Constitution provides for this by
requiring the Governor General to exercise the Queen’s powers on the advice of
Cabinet, or a Minister acting under the general authority of the Cabinet.
The Prime Minister is chosen by the Governor General as the person
likely to command the confidence of a majority of the House of Representatives.
The Cabinet comprises the Prime Minister and his nominees from among the
members of both Houses of Parliament.
The Judiciary
There is a regional court-system which Antigua and Barbuda shares with
the other former Associated States (St. Kitts and Nevis, Dominica, St. Lucia, St.
Vincent and the Grenadines and Grenada) as well as the British dependent
overseas territories of Anguilla, the British Virgin Islands and Montserrat. This
regional body is the Eastern Caribbean Supreme Court, headquartered in St.
Lucia, with a Court of first instance (High Court) comprising puisne judges
which sits in the islands subscribing to the Court and an itinerant Court of
Appeal over which the Chief Justice presides. Final appeals from decisions of
the Court of Appeal lie to Her Majesty in Council (the Judicial Committee of the
Privy Council) in London.
It goes without saying that the judiciary plays a central role in the
constitutional order. Persons who allege violation of the Constitution in
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relation to them can apply to the Courts for redress so long as they have a
relevant interest. Also, where any question concerning the interpretation of the
Constitution is in issue before a tribunal (other than the High Court, the
Appeal Court or a Court Martial) and the court is of opinion that the question
involves a substantial question of law, the court may, on its own, refer the
matter to the High Court and is under an obligation to do so if one of the
parties so requests, in which case the court is bound to refer the matter unless
it is considered frivolous or vexatious.
Appointment of Judges
Judges are appointed by an independent Judicial and Legal Services
Commission, presided over by the Chief Justice of the Eastern Caribbean
Supreme Court.
Appointment of Magistrates and Registrars
The power to appoint and discipline magistrates, registrars, crown
counsel and other legally qualified officers in the Attorney General’s Office lies
with the Governor-General on the advice of the Judicial and Legal Services
Commission.
Director of Public Prosecutions
This office is under the Constitution a public office – appointed by the
Governor General on the advice of the Judicial and Legal Services Commission.
The holder is expected to be qualified as a barrister for at least seven years.
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The Director is removable by the powers prescribed in the Constitution
for a Judge of the High Court, viz, first, by a tribunal appointed by the Chief
Justice which tribunal will hear evidence to establish whether a prima facie
case has been made out. The matter is then referred to the Judicial Committee
of the Privy Council for advice as to whether the Officer should be removed
from office.
The Public Service and the Police
The day-to-day activities of Government are carried out by public officers
organised in Ministries and Departments under the supervision of Permanent
Secretaries. Some public officers have special responsibilities laid down in the
Constitution or by other statutory provisions and operate independently of the
Cabinet or a politically appointed Minister. Such special cases are the Attorney
General (when he or she is a public officer), the Director of Audit and the
Director of Public Prosecutions. In the case of the Director of Audit, the officer
can only be removed from office by a tribunal of three judges or ex-judges
appointed by the Chief Justice, when the Prime Minister considers the removal
of the officer ought to be investigated.
The power to appoint, discipline and remove all other senior public
officers resides with the Public Service Commission: a similar Commission
being provided for members of the Police Service. Discipline and dismissal of
public service officers and police officers are dealt with in the first instance by
the respective Commissions but can be appealed to the Public Service Board of
Appeal.
Permanent Secretaries may be transferred on the advice of the Prime
Minister who has a veto over promotions to this office.
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Citizenship
The Constitution creates citizenship of the country and the detailed rules
governing the acquisition of citizenship, but these provisions are supplemented
by ordinary statute law.
Generally speaking, citizenship under the Constitution is acquired by
birth, first and second generation descent from an Antiguan and Barbudan
parent of either sex, or by registration in the case of the spouse of a national.
The Supremacy of the written Constitution
The Constitution of Antigua and Barbuda is the supreme law. What this
means is that, as far as law-making is concerned, any law of Parliament which
conflicts with the Constitution (or is inconsistent with it) is void to the extent of
the conflict or inconsistency. Thus, the judiciary is given the power to review
legislation and this is of particular importance in relation to Chapter II of the
Constitution which deals with the protection of fundamental rights and
freedoms of the individual.
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CHAPTER 3
BROAD THEMES
A. General
As is well known, the Constitution by which Antigua and Barbuda has
been governed since independence in 1981 is based on what is generally
referred to as the “Westminster Model” of Constitutions. This is in contrast to
Constitutions based, for instance, on principles of socialist legality on which
the Guyana Republican Constitution of 1980 was partly structured.
In the course of our consultations we received a number of proposals
founded on the American system of government. For example, many persons
feel that in a revised Constitution provision should be made for an elected Head
of State, like the President of the United States of America, who should be
elected on a nation-wide basis and who should have a fixed four-year term. In
their view such a person should be capable of being re-elected for only one
further four-year term. The President’s Cabinet should comprise persons who
are not members of either House of Parliament. We shall address this matter
later in our Report.
B. Electoral Reform
A matter which clearly had the highest priority in the view of most
Antiguans was electoral reform, the urgency of which was highlighted by the
Report on the General Elections held in Antigua and Barbuda in 1999 in which
the Commonwealth Observer Group made some specific recommendations
which we shall consider in this Report.
17
We endorse the views of one contributor* to our deliberations, to the
effect that:
“There is popular acceptance of the view that our
electoral laws have outlived their usefulness. In
practice they have been found to be inadequate for the
needs of a modern democratic society.”
The same contributor expressed what is also our considered view in
these terms:
“The question of meaningful and sustainable electoral
reform is not a political concession to be made nor an
indulgence to be granted.”
C. The Relationship between Barbuda & Antigua
This is an issue which has been in the air since independence in the
course of which there have from time to time even been threats of secession.
The Commonwealth Review Team had in October 2000 submitted its
Report the main recommendation of which was the creation of a Joint
Consultative Committee. This recommendation was accepted by both the
Central Government and the Barbuda Council. Meetings of that body had
already begun to be convened. What follows in this Report – by way of
recommendations – is calculated simply to build on this proposal; and to create
greater opportunities for co-operation and collaboration without which there
will never be peace.
D. The Head of State
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This matter was very much in the news while our Commission was in
existence. We found there was much misunderstanding about the role of the
Head of State vis-à-vis the Prime Minister. On this account, we have thought it
desirable in the previous chapter to outline the constitutional position as it
obtains in the present Constitution before making later in the Report certain
recommendations which should make the functions of the Head of State clearer
than it is at present.
E. Governance Issues
We found many people in the society somewhat critical of government
and of politicians. There were calls for a limit of the Prime Minister’s tenure to
two terms; for the power to recall Parliamentarians whenever they did not
“deliver”; for Ministers to account to their electorates in all sorts of ways. There
were calls for limits to campaign spending. Several prominent members of the
community made a plea for local government councils to be re-established
throughout the country which could share in the business of government.
There were complaints that the non-established “parallel” branch of the civil
service was more numerous and sometimes better paid than the regular public
service.
It was represented to us that when property is compulsorily acquired for
public purposes there is sometimes a considerable delay in compensating the
owner for the property and that some coercive measure should be available to
such an owner of property.
Some persons spoke of police brutality and of the abuse of process in
holding at weekends suspects in custody well over the forty-eight hours
permitted in the Constitution.
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F. Public Education
The complaints mentioned in the preceding section must of course be
seen in the context of the need for civic and political education, especially in
matters constitutional.
In so far as the actual Antigua and Barbuda1981 Constitution is
concerned, we found a widespread lack of knowledge of the document. This is
however not surprising as nowhere in this area does the average citizen
possess an acceptable knowledge of the country’s Constitution; and the reason
is not far to seek. The language in the Constitution is not easy to follow and,
as has been stated in the recent Report on the Constitution of a neighbouring
country:
“Its concepts are couched in language that the
lay person generally finds impenetrable, its
legalisms, references and cross-references are
little short of bemusing for the ordinary
individual.”
Our Commission had made an attempt to simplify the language of the
country’s Constitution in a booklet called “The Antigua and Barbuda
Constitution Explained.” But very few people worried to purchase the booklet
which was available for $20 at the Government Printing Office. The result was
that we found it difficult to obtain the views of the populace as to proposals for
change, since they were not aware of the prescribed provisions in the first
instance. Fortunately, the UNDP was kind enough to put at the disposal of the
country the services of an expert in Public Law (Professor Albert Fiadjoe) who
was able to visit
20
Antigua on four or five occasions, holding seminars on the subject and
helping various groups to formulate their submissions to the Commission. We
highly commend the work done by Dr. Fiadjoe which greatly facilitated our
task.
Such education should not however be left to external forces alone. The
NGO’s are active players in this country; and working with the Bar Association
and the School of Continuing Studies of the University they can perform a
valuable service in educating the citizenry on this vital matter. And in all this,
the electronic media should also play a vital non-partisan role. They must all
put their hands to the plough with the Government which should have
standing machinery to promote such education.
It is the Commission’s hope that these ideas on civic education will be
pursued in order that they will lead to a better informed and more watchful
and pro-active citizenry. For if the citizen is to participate meaningfully in the
governance of the country such a person must possess at least a working
knowledge of the basic organ by which the country is governed.
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CHAPTER 4
DEMOCRATIC INSTITUTIONS AND LOCAL GOVERNMENT
In 2(a) of our Terms of Reference we have been requested to examine the
possibility of
“maintaining democratic institutions, and ensuring that
parliamentary and multi-party democracy continues to enjoy
constitutional protection”
In the course of our inquiry we sometimes received complaints of noninclusion
from petitioners, which left us to believe they wished to share in the
business of government. What the people were saying is that politicians acted
on their own without reference to the wishes or the sensitivities of those
affected by their actions.
It was the suggestion of some well-informed memorialists that what is
urgently needed is the re-establishment of a system of local government. We
understand that before independence there were nominated village and
community councils, which considered matters of concern to their respective
areas and made the necessary representations to government. It is clear to us
that the time has come for their re-instatement on an elected basis. Such reintroduction
will enable local societies to help in the regulation of their own
local affairs and even assist in shaping issues of a wider and more national
character. To put it in another way, by re-introducing local organs of
governance the communities will develop a feeling that the State is treating
them with respect and concern by permitting them to have a say in the
formulation of policies and the administration of the country. Thus,
participatory democracy in the national life will be enhanced.
22
We accordingly recommend the insertion in the Constitution of a
provision that the principal organs of local government would be District
Councils. Parliament should then be charged under the Constitution with
providing laws in respect of the membership and functions of these
bodies. Government might wish to create a Task Force to pursue the
matter.
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CHAPTER 5
BARBUDA
Under our Terms of Reference, we have been asked to “review the
administrative and constitutional arrangements between Antigua and Barbuda
and to establish machinery to enhance those arrangements for the future to
ensure the peaceful and orderly development of the state as a whole”.
Historical Review from 1980
There can be no doubt that the present mindset of the Barbudans has
been heavily influenced by the events which occurred at the Lancaster House
Conference held in December 1980 which preceded the grant of independence
to Antigua and Barbuda. The meeting was attended by representatives of the
Government Antigua Labour Party (ALP) and the Opposition Progressive Labour
Movement (PLM). There were also in attendance the Member of Parliament for
Barbuda and the Chairman of the Barbuda Council. They had all come
together to consider a draft independence constitution approved and debated
by the local legislature with amendments prior to publication and wide
dissemination in the country.
The Barbuda delegation presented to the Conference proposals, inter
alia, along the following lines:-
1. Barbuda should have the status of an independent state in
association with an independent Antigua, the Government and
Parliament of which should be vested with powers to look after the
defence, external affairs, nationality and citizenship affairs of
Barbuda.
These arrangements should be protected by entrenched provisions
in the proposed Antigua/Barbuda Constitution. The Government
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of Antigua will, however, be required to consult Barbuda when
dealing with the latter’s defence and external affairs.
2. The Barbuda Council should be upgraded to a House of Assembly
which will have power to make laws for all matters specified in the
1904 and 1976 Ordinances, as well as for education, transport and
communications matters: this to be exclusive. The Assembly
would also be empowered to approach external authorities with a
view to securing aid for Barbuda.
3. The new Constitution should confirm and enact the customary
land law regime of Barbuda. All disposition of land in Barbuda to
persons not resident or domiciled there must be confirmed by the
Barbuda Assembly as well as by the majority of the electorate in
Barbuda.
4. Although police stationed in Barbuda would be members of the
Antigua Police Force they would, while in Barbuda, be under the
command of the Barbuda House of Assembly: the Assembly alone
to have the power to decide when additional police personnel
should be sent to the island; the normal strength to be one
Sergeant and two Police Constables or such other strength as the
Barbuda Police Commissioner might agree.
5. The Antigua Public Service Commission would send to Barbuda
such public servants as the Assembly would from time to time
request, but the said personnel must first be approved by the
Assembly to which they would be exclusively responsible.
6. The Assembly should have the power of raising, collecting and
spending taxes in Barbuda and utilizing such taxes as it considers
fit. The Assembly should also have the exclusive right to establish
a Philatelic Bureau on the island and to use the funds accruing
therefrom for public use locally.
7. The Assembly should be entitled to receive all customs and other
duties levied on goods coming into Barbuda at its port of entry.
The Assembly should keep proper books of account and should be
subject to public audit in the normal way.
8. A Common Services Commission to be set up to determine the
exact cost of all services rendered by the Antigua Government to
Barbuda: the Commission to comprise two representatives from
25
Antigua, two from Barbuda; and a Chairman provided by the
Commonwealth Secretariat.
9. A proportion of the capital funds made available by H.M.G. on
independence to be allocated to Barbuda, the quantum to be
decided by H.M.G. itself.
10. The consolidated1904 Ordinance and the Local Government Act
1976 to be annexed to the Constitution, and to be entrenched so
that both the legislative and executive powers of the Assembly
could not be altered without the approval of two-thirds of the
Assembly AND two-thirds of the electorate of Barbuda.
11. The operation of the Constitution to be reviewed by the
Commonwealth Secretariat after an initial two years and every
three years thereafter. If the Secretariat reports that the
constitutional arrangements between the two states are not
working satisfactorily, it would be open to either Antigua or
Barbuda to secede within six months of the publication of the
Report: such a decision to secede to be reached only by a
referendum.
12. There should be “a common system of Courts” for the two states –
meaning presumably that the Eastern Caribbean Supreme Court
should create a separate circuit in Barbuda. There should be a
final right of appeal to the Privy Council – to be entrenched.
13. There should be no Minister of Barbuda Affairs.
At the end of the Conference, after exhaustive discussions lasting more
than one week, wide gaps still remained in respect of the administration of
Barbuda as well as over the system of land tenure there. As a result of these
divergences, neither the PLM nor the Barbudan delegation felt able to sign the
Conference Report. Accordingly, the Report was signed by only the Antigua
and British delegations.
There then occurred considerable debate in both Houses of Parliament in
London concerning the position of Barbuda in relation to the central
26
government and the debates culminated in the passing of the relevant
legislation bringing the 1981 Independence Act into being.
Commonwealth Review
At the end of the Lancaster House Conference in December 1980 it had
been agreed that after two years a team appointed by the Commonwealth
Secretariat would review the question of the new arrangements between the
Central Government and the Barbuda Council. This review did not however
take place until 2000 when the Commonwealth Secretary-General appointed
Denis Benn and Pierre Bienvenu as members of a team to carry out the task.
They submitted their report in November 2000.
One of the main recommendations of the Review Team was for the
appointment of permanent mediation machinery within the existing
constitutional and statutory framework. The body is to be known as the Joint
Consultative Committee (“J.C.C.”) and would comprise an equal number of
members from both Central Government and Barbuda Council with a senior
official from the Prime Minister’s Office as Chair: the Vice-Chair to be a
nominee of the Barbuda Council.
The JCC would formulate a development plan for Barbuda, embracing
both public and private sectors. It would also endeavour to resolve disputes,
resorting to outside mediation when absolutely necessary. The team saw the
strengthening of human resources as one of the main pre-requisites for making
the Barbuda Council more effective.
We shall return to the Report of the Commonwealth Team later in this
Chapter.
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A. CONSTITUTIONAL ARRANGEMENTS
We must now examine the constitutional context in which Barbuda operates
as a part of the unitary State of Antigua and Barbuda.
Barbuda was first leased by the King of England to Christopher
Codrington in 1685 for fifty years and the lease was thereafter renewed on
several occasions to the Codrington family culminating in a final lease in 1855
to Sir C.N.B. Codrington and a Mr. E. Dowdeswell for a term of fifty years.
Christopher however died during the currency of this lease and the surviving
lessee surrendered the grant in 1870, whereupon a 21-year lease was granted
to Mr. George Hopkins and a Rev. W. Cowley.
In 1894 a lease was granted to the Barbuda Island Company but in
October 1898 the Crown forfeited this lease and regained possession.
Thus between 1685 and 1898 lessees were in effective control of the
island. In 1901 a local Warden was appointed who was responsible to the
Administrator in Council.
As will be appreciated from a survey of the historical account given above
the question of the land in Barbuda has always been a sore point with the
people on the island and it is instructive to note that when in 1898 the Crown
regained possession of the island from the lessees, the inhabitants requested
they should be allowed to take the place of the lessees. The eventual response
of the Government was the enactment of the Barbuda Ordinance 1901 which
in terms made the ‘inhabitants’ “tenants of the Crown”. As Crown tenants the
inhabitants were permitted to live in the village and to have set apart outside
28
the village land for provision grounds and for grazing. The Barbudans had
provision grounds scattered all over the island, so that when one area of soil
was exhausted they moved on and chose another ground.
The Statutory Provisions Governing Land In Barbuda
The Barbuda Local Government Act 1976
This Act established the Barbuda Council (hereafter referred to as “the
Council’)-sec 3(1)-with perpetual succession and a common seal and with
power to purchase, acquire, hold, mortgage and dispose of land or other
property-sec.3 (2). Barbuda was made subject to the jurisdiction of the Council
– sec.3 (3) – which was also given power to make contracts and to sue in the
name of the Council. It is provided that there shall be a membership of eleven
members, viz: the elected member of the House of Representatives; one
senator; and nine elected members – sec.4. The qualifications of Council
members are prescribed – sec.6 – as are statutory arrangements for elections –
sec.10 to 14; dissolution of the Council – sec.15; and election petitions –
sec.17.
The functions and powers of the Council provide inter alia for the grant
of exclusive responsibility to the body for administering agriculture and
forestry, public health, medical and sanitary facilities; for administering and
regulating the provision of electricity and water; for the construction,
29
improvement and maintenance of roads; and for raising and collecting revenue
pursuant to the provisions of the Act – sec. 18 (1).
Subject to any general or special directions the Cabinet may issue, the
Council is also given the duty to improve and maintain public buildings,
harbours and wharves; to promote hotel and tourist development “in
accordance with and subject to any law relating to the alienation of land,
foreign investment or tax incentives”; to administer fisheries; to keep accounts
of all assessments made and moneys collected and disbursements made by the
Council; to make detailed lists of houses and lots of land in Barbuda – sec. 18
(3) and (4).
The Council is further accorded the power to make by-laws in respect of
such subjects as:
(i) times and modes of meetings;
(ii) cleaning of streets and maintenance of roads;
(iii) management and removal of sewerage;
(iv) establishment and regulation of markets, pounds, public baths
and other such conveniences, public cemeteries, construction of
buildings for cinemas, provision of water tanks, regulation of
public utilities, the management and control of public cultural
institutions, public parks and other places of public recreation; the
regulation of traffic; the control and the imposition of rates and
taxes on mobile refreshment vans and carts, itinerant traders and
vendors, aerated water factories, restaurants and other eating
places; the regulation and control of unoccupied building lots; the
levying and collection of rates and taxes on all non-government
buildings in Barbuda; provision grounds; protection against fire;
liquor licences; highways; coasting trade; fishing – sec. 19 (1).
30
There is also a provision that, notwithstanding the provisions of the
Public Utilities Act, the Council may make by-laws –
(a) regulating the supply and distribution of water for sanitary,
domestic and business purposes to any premises in the
island;
(b) preventing the waste and pollution of such water;
(c) regulating the supply and distribution of electricity to any
premises in the island; and
(d) the imposition of rates for the supply of water and electricity
to any premises, the collection of such rates, and the method
of recovery of arrears of rates form persons who have
defaulted in payment thereof – sec. 19 (2).
The Act also gives borrowing powers to the Council with the sanction of
Cabinet and a resolution of Parliament – any such loan to be made on such
terms and on such security as the Cabinet may deem fit – sec. 20 (1). When it
is proposed for this purpose to approach a person or authority outside the
confines of Antigua and Barbuda, it is incumbent on Council to inform the
Cabinet of the proposal and Cabinet will decide whether the proposed
transaction affects the constitutional or legal responsibility of the Government
in its relations with other Governments and so advise the Council who shall be
guided accordingly – sec 20 (2).
31
The Council may, with the sanction of Cabinet, acquire by lease or
purchase lands and buildings for any purpose of public utility with particular
reference to water works, markets, streets, roads, parks and places of
recreation.
The 1982 Act
The Barbuda Act 1904, when read as one with the 1982 amendment,
provides as follows:
It vests all land in Barbuda in the Governor General on behalf of the
Crown (sec.4) and makes the inhabitants of Barbuda tenants of the Crown (sec.
5).
The Act also permits the Council (with the sanction of Cabinet) to allot,
distribute and divide all lands within the village for erecting houses, on
payment of such rent as the Council might impose (sec. 6).
It enshrines the following other provisions:
(a) it permits the Council to set apart outside the village, with
Cabinet’s approval, lands required for provision grounds on
payment of rent – sec. 7;
(b) it sets out the conditions on which timber may be cut for
making charcoal (sec. 11);
(c) it sets out the requirement for a permit before deer or other
game could be shot (sec. 17);
(d) it imposes a duty on the Secretary of the Council to
supervise the repair of the highways, wells and enclosures
(sec. 37); and
(e) it provides for the making of by-laws by the Council in such
matters as drainage, closing of buildings considered unfit for
32
human habitation and for the provision of tanks and wells
(sec. 38).
The Cases Affecting Barbuda Land
This nature of the tenure of land has since been discussed in a number
of judgments - all of which (except one) have been of courts of first instance.
The first of these was the case of Hilbourne Frank v. Attorney General
(Suit No. 259 of 1985) in which Frank sought declarations from the High Court:
(a) that on the island of Barbuda there was a system of land tenure
under which Barbudans are allotted plots for houses in or near
Codrington Village which they occupy as of right and which on their
deaths pass to their closest relatives;
(b) that all Barbudans enjoy rights in common to graze animals and work
provision grounds throughout the island, save in those parts set apart
for public use;
(c) that land can only be developed or granted to non-Barbudans with
the consent of the people of Barbuda traditionally signified by a village
meeting;
(d) that these customs and rights bind the Crown;
(e) that the Crown cannot lawfully grant Barbudan land for development
or other purposes to any person in violation of the said customs and
rights of the inhabitants of Barbuda; and
(f) that the section is invalid which gives the Crown the power to grant
any interest in land in Barbuda to any person whether or not that
person is an inhabitant of Barbuda – that section being sec. 2 of the
Barbuda Ordinance (Amendment) Act 1982.
The trial judge found, inter alia, as follows:
33
1. The lands vested in the Crown were not held in trust for any
other person or group of persons.
2. It was the intention of the legislature in 1901 to create Barbuda
inhabitants tenants at will who were tenants of the Crown – and
that is still the position.
3. The tenants of the Crown in Barbuda were not tenants in
common of a legal estate or a legal title in the land.
4. Section 15 of the 1901 Barbuda Ordinance swept away any
previously loose or supposedly customary practice with regard
to the occupation of areas of land in Barbuda, imposed the
exclusive use of land apportioned for the erection and
maintaining of houses for residence; an obligation to pay rent
when none existed before, and a procedure for ejectment of the
tenant in the event of non-payment of rent.
5. Section 19 of the 1904 Ordinance concerning provision grounds
restrains the indiscriminate use of land all over the island for
provision cultivation and confers power on the Council to set
aside particular portions of land as provision grounds. No
collective farm was created.
6. The inhabitants did not before 1901 exercise customary rights.
What they exercised were certain licences or practices.
7. The applicant Hilbourne Frank had no prescriptive right to any
land in Barbuda against the Crown nor did the evidence in the
case support any such finding in favour of anyone else in
Barbuda.
8. The inhabitants of Barbuda have no customary enforceable
rights against the Crown.
9. Such rights as the inhabitants of Barbuda then had were
exercised by virtue of and in accordance with the legislative
enactments since 1901.
10. Hilbourne Frank could not claim, as an inhabitant of Barbuda,
that he was suing on behalf of himself and the other
inhabitants of Barbuda. After an examination of all the facts
the judge reached the conclusion that Frank did not have locus
standi in the action.
34
11. All the declarations sought in the action were refused including
the declaration that the 1982 Act was unconstitutional.
This case was taken to the Appeal Court of the Eastern Caribbean
Supreme Court where it was held that Frank had no locus standi and the
appeal was dismissed.
In a second case (Barbuda Council v. Attorney General) the issue was
whether the Barbuda Council was entitled to control the mining of sand in
Barbuda and to obtain the revenues arising therefrom. Redhead J. (as he then
was) found that the power given to the Council to administer Agriculture and
Forestry did not amount to control (or ownership) of the land, although the
Council was entitled to tonnage dues arising from the shipping of the sand. We
are told that this case is also the subject of an appeal to the Court of Appeal of
the Eastern Caribbean Supreme Court.
The third case was brought to determine whether the Council was
unilaterally empowered to grant a lease for the building of a hotel. It was held
that the Council had no such power. The right to set apart land for public
purposes (such as the construction of a tourist resort) could only be exercised
with the sanction of Cabinet, which had not been obtained. That case was
Unicorn Development Co. Ltd. (hereafter simply “Unicorn No. 1”) and the
Barbuda Council (Suit No. 68 of 1998).
Later the Governor General, on behalf of the Crown, purported to grant a
50-year lease of the same parcel of land (35.72 acres) at Spanish Point to
Unicorn. This time the Barbuda Council brought an action against the
Attorney General (representing the Crown) and Unicorn on the ground that the
area had before 1915 been earmarked for provision ground for the villagers and
35
could not therefore be granted by lease to a lessee without the concurrence of
the Council, since only the Council could sanction a change in user of the
premises. (See the case of the Barbuda Council and the Attorney General and
Unicorn Development Ltd – Suit No 412 of 1998) (hereinafter called “Unicorn
No. 2”). The judge found in the Council’s favour and declared the lease,
purportedly granted by the Crown, to be null and void.
In giving judgment in this case O’Meally, J., in referring to the history of
land use in the Island, made this statement:
“(the documents) show that soon after emancipation in 1834
certain rights and duties of the inhabitants were recognized
by the lessee of the island and by the Crown. Relevantly,
these rights and duties related to houses within the village
and use outside the village of land for grazing and provision,
that is to say, for the cultivation of crops. From time to time
the inhabitants asserted other rights over the whole of the
island, but these rights were denied or not recognized by the
lessee, nor by the authorities.”
The Attorney General appealed and this appeal is at the time of writing
this Report before the Court of Appeal of the Eastern Caribbean Supreme
Court.
Separate House Of Assembly For Barbuda
Our Commission has been invited to recommend that Barbuda should be
granted a separate House of Assembly and the case of Nevis has been cited to
use as a model.
36
Earlier in this chapter we drew attention to the wide powers of the
Barbuda Council to pass by-laws and generally to operate as the principal
organ of local government in Barbuda. We are not satisfied that the Council
has made sufficient use of its powers in the twenty years of its existence and
we feel that this situation can improve if the recommendations made in this
Report are implemented. But we do not consider that a case has been made
out for the creation of a separate House of Assembly to serve the needs of
barely 600 adult inhabitants.
It is therefore with regret that we find ourselves unable to accede to
the request to replace the Council by a separate House.
The Firm Position Of The People Of Barbuda
Despite the case - law and the statutory provisions cited above, there is
no doubt that the inhabitants of Barbuda have genuinely felt over a long period
that they all have a common ownership over the land. The way they have
conceived the position is that they have a statutory tenancy which gives them
property rights extending virtually over all the island. They have contended
that since 1981 the Council was given powers to administer agriculture and
forestry and that today virtually the whole of the island outside the village is
held for those purposes. As far as they are concerned, the only small area over
which they do not have a common tenancy is the area set apart for public
purposes.
In the written submission presented to the Commission by Mr. T.H.
Frank, Barbuda Member of the House of Representatives, on the occasion of
37
our visit to Barbuda in January, 2001, the Parliamentarian went on record as
follows:
“The amendments deliberately made after December 1980 to
the Barbuda Ordinance whereby any Central Government
could invade and commandeer the lands of Barbuda without
the consent of the people must be repealed immediately.”
These acts are:
No. 3 of 1981
No. 1 of 1982
No. 4 of 1983.”
In the submission by the Council to the Commission - in paragraph 24,
page 7___ the Council wrote as follows:
“The Governor General holds the land for the Crown to be
dealt with in accordance with the provisions of the
Ordinance, that is, for the benefit of the inhabitants. The
Crown in right of the Government cannot use the land for
some purpose of its own. The land is vested in the Governor
General as a safeguard to ensure that the Crown acts within
the objects of the Ordinance.”
In another section the Council made this further statement:
“The rights which the inhabitants of Barbuda claim are
property rights. If, contrary to the Barbudan view, the 1982
38
Act purports to take rights away from the tenants of the
Crown it contravenes article 9 of the Constitution.”
In answer to a question as to whether the people of Barbuda have
expressed an interest in a change of tenancy in so far as the Village of
Codrington is concerned, we received the following categorical reply:
“The people collectively have not expressed a wish to change
the present land tenure arrangement”.
We received an identical reply in answer to the further question as to
whether they wished to have any change in the matter of lands for grazing and
provision grounds.
When on the invitation of the Council we visited Barbuda to discuss a
questionnaire sent to them, we met the members and witnessed how
passionately they guard the present arrangements on behalf of the people. The
arguments (that they cannot legally devise their individual lots to their relatives
and that they cannot raise mortgages on their properties) “cut no ice” with
them. They preferred the status quo. When later that day we met the villagers
their reaction was even more strident. In the view of the inhabitants of
Barbuda, any change in their existing rights of tenure would never be
countenanced.
It will, of course, be apparent from what has been said above that the
Barbudans’ conception of their ‘existing’ rights in this context differs from that
which has so far prevailed in the still continuing history of litigation on the
land issues. No attempt must be made to alter those rights; and since the
Barbudans want the status quo – as they maintain it to be – to remain, the
39
Commission does not consider any useful purpose will be served by
proposing a change in land tenure.
The Barbuda Joint Consultative Committee
We endorse the recommendation of the Commonwealth Team
referred to above for the establishment of a Joint Consultative Committee
which we suggest should become a creature of the Constitution as soon as
possible. We note with satisfaction that the J.C.C. has already held
several meetings. However, we feel that in the new draft Constitution
there should be a requirement that the parties should meet at least six
times a year.
B. ADMINISTRATIVE ARRANGEMENTS
Transfer of Public Utilities
We hope that steps can be taken to transfer to the Council their
statutory responsibilities for public utilities. We consider that the Joint
Consultative Committee should address this subject at an early date.
Raising of Capital Investment
There is much scope for development in Barbuda which of course
requires a great deal of technical expertise and a good infrastructure as
well as constant interaction with the Central Government. For this
purpose we recommend that the Barbuda Council be given every
40
encouragement to woo investors to the island on the basis of the existing
statutory requirements.
Customs
There are two ports of entry in Barbuda – The Port of The River and the
other at The Lagoon at Codrington. The former is established to accommodate
ships of unlimited tonnage while the other is only intended for “all vessels not
exceeding fifty gross registered tonnage” (S.R.O. 40/1981 and S.R.O. 41/1981
respectively). Vide Trade and Revenue Act Cap. 433 (Subsidiary Legislation) of
the Laws of Antigua and Barbuda.
There are no storage facilities or office accommodation at either port. As
a result, processing of entries for cargo and other goods is done only at the
Headquarters of the Customs in St. John’s. The Customs Officer in Barbuda,
the Commission was advised, operates from his home. As a result, processing
of entries for cargo and other goods is in practice done only at the
Headquarters of the Customs in St. John’s.
We consider this arrangement for processing customs entries
unsatisfactory and recommend that Government and the Council should
make every effort to have at least one port of entry operative. Office
accommodation for the Customs Officer should also be provided.
The people of Barbuda should be given the opportunity to clear
goods in Barbuda, including packages sent by mail. We understand that
this matter is an agenda item for the next meeting of the JCC and we
hope a satisfactory arrangement will result.
41
Notary Public/Justice of the Peace
We were surprised to find that there were no Justices of the Peace or
Notaries Public in Barbuda.
We recommend that urgent steps should be taken to rectify this
omission.
Police Force
It was strongly urged upon us that the members of the Police Force in
Barbuda should be administered by the Council. At present their loyalty, we
were told, lies only to the Commissioner of Police. It was said that since
independence there has never been any consultation with the Council
concerning the movement of members of the Force or about their identity or
suitability.
It is our considered view that, from an administrative point of view,
it would clearly be desirable for the Commissioner of Police to work
closely with the Council in the exercise of his control and command of
the Senior Police Officer in Barbuda.
The Magisterial Arrangements
The Council is unhappy over the existing arrangements under which the
Magistrate pays a three-day visit to Barbuda only every three months. The
members of the Council outlined the problems which arise in the periods
between visits, and our Commission has much sympathy with their concerns
in the matter.
42
We recommend that steps should be taken to permit monthly visits
at which the Magistrate will spend at least two full days in the island.
Work Permits
The Council is also dissatisfied with the way work permits are issued at
present. It is our understanding (confirmed by the Ministry of Labour) that
under the current arrangements such permits are issued without any reference
to the Barbuda Council who would wish to be part of the process.
Having regard to the fact that the Council is the principal organ of
local government in the island, we are of the view that the Council should
at least be consulted when it is proposed to issue a Work Permit operative
in Barbuda.
Secondary School Building
It was brought to our notice that secondary education is carried on from
a wing in the Primary School in the Village.
We are aware that such an arrangement stems from lack of funds, but
we hope that the time is not far distant when a separate secondary school with
a library, computer equipment and laboratories will be available for pupils
pursuing that level of education.
43
Legal Support
It became clear to us at all stages of our inquiry into the relations
between the Central Government and Barbuda that a long period of mediation,
education, and capacity building will be necessary. The Commonwealth Fund
for Technical Cooperation (CFTC) or the United Nations Development
Programme (UNDP) should be asked to make the services of a trained lawyer,
preferably a Barbudan, available for at least two years to work with the people
of Barbuda, assisting them with advice and acting as their negotiator or
representative in matters between the Central Government and themselves.
There is an urgent need to have a legal officer who can draft by-laws and other
documents for the Council. After the first two-year period the Council should
assume responsibility for providing this officer
Concluding Summary
Our Commission was surprised to note that between 1985 and 2000 no
less then thirteen cases were litigated between the Barbuda Council and the
Central Government, usually with the addition of another defendant. Two or
three more are still pending. We cannot question the right of the Council to
resort to the Courts for the assertion of its rights. Indeed, such action is
clearly preferable to direct extra-judicial action, as has sometimes
characterized the resolution of disputes between the Barbudans and the
Central Government. But the only hope for stability is for litigation and
confrontation to become things of the past. It is only then that the country as
a whole will achieve its full potential for prosperity and happiness. Things
should improve considerably if judicious use is made of the Joint Consultative
Committee, and if there is a conscious effort on both sides to resolve disputes
with the assistance of a permanent legal representative to support the Council
44
and the Committee in their work. In an extreme case, the parties may wish to
resort to an outside mediator and it seems that the Commonwealth Secretariat
will be willing to play that role. In this respect we have taken cognizance of
(and support) the following suggestion made by the Commonwealth Team in
their Report:
“It would be useful that a neutral external agency,
such as the Commonwealth Secretariat, or another suitable
international organisation, monitor progress in the
implementation of the new arrangements and even offer, in
the process, advice which could further improve their
operation.”
Finally, this Commission was greatly encouraged to note the following
appearing at page 1 in the “Antigua Sun” of Thursday, 3rd January 2002:
BARBUDA’s OLIVE BRANCH
Council pledges to work more closely with Central Government
The Barbuda Council has made a New Year resolution to develop a
closer working relationship with the central government on matters
affecting that island.
The article quoted the Barbuda Council Chairman, Fabian Jones,
as saying inter alia:
“We are looking forward to a more fruitful relationship, in
which we can sit together and work in the interest of the nation
of Antigua & Barbuda. I believe that if we put aside our
45
differences and sit together, things can happen for the
betterment of the country. We are extending all courtesies to the
government and we look forward to the same from the
government.”
This is a welcome gesture and the Commission wishes to commend the
Council Chairman on taking it and to express the hope that relations will
indeed continue to improve as the Council and the Central Government
address their differences in the future. The gesture is fully in keeping with the
non-adversarial attitude which the Prime Minister advocated when he
addressed us in November 2001.
46
CHAPTER 6
THE PUBLIC SERVICE AND THE COMMISSIONS
It was the view of some petitioners that members of the public service
tended to be partisan and non-professional. It is on that account that we
seize the opportunity to make recommendations with a view to:
“Strengthening the capacity of the Public Service to deliver
efficient and responsive service to the public and to provide
professional support in the administration and
implementation of government programmes.”
as we are enjoined to do in 2(e) of our Terms of Reference).
Time was when every civil servant held office at the pleasure of the
Crown. But with the advent of independence that position changed
dramatically. A machinery was put in place to insulate the public service from
the political arena of government and the new position found expression in the
words of Lord Diplock in the Trinidad & Tobago case of Thomas v AG (1981) 32
WIR pp381/382 in which the learned Law Lord had this to say:
“The whole purpose of Chapter VIII of the Constitution
which bears the rubric The Public Service is to insulate
members of the Civil Service, the Teaching Service and the
Police Service in Trinidad and Tobago from political
influence exercised directly upon them by the Government
of the day. The means adopted for doing this was to vest in
autonomous commissions, to the exclusion of any other
person or authority, power to make appointments to the
relevant service, promotions and transfer within the service
and power to remove and exercise disciplinary control over
members of the service. These autonomous commissions,
although public authorities, are excluded by section
105(4)(c) from forming part of the service of the Crown”.
47
It was in this language that Lord Diplock outlined the underlying raison
d’être for the establishment of Public Service Commissions which are a feature
of the Constitutions of all the newly independent countries in the
Commonwealth Caribbean.
Some experts seriously doubt whether the Service Commissions in fact
serve the purposes they were designed to protect, but the general consensus is
that they go some way to establish neutrality and competence.
The members of the Commissions are in some territories appointed by
the Governor General on the advice of the Prime Minister after he had
consulted the Leader of the Opposition. This system of appointment has its
inherent dangers, since to some Prime Ministers in the Caribbean, consultation
may sometimes mean a short letter expressing the Prime Minister’s intention or
even a note from the Cabinet Secretary to the Leader of the Opposition or a
telephone message to the same effect. More will be said on this matter under a
General head towards the end of this Report.
In any event, what occurs in this region is that the members of the
Public Service Commission, the Police Service Commission, and the Public
Service Board of Appeal have tended to be appointed entirely on the basis of
party affiliation.
In so far as the public service is concerned, some dissatisfaction was
expressed to us concerning non-established workers. It was said that
Government was employing non-established workers to avoid the necessity for
party members whom they wished to appoint having to present the minimum
qualifications; that in some departments non-established workers received
higher emoluments than established officers of the same grade with better
48
qualifications; that they enjoyed less strict disciplinary arrangements and are
unwilling to subject themselves to the authority of Permanent Secretaries; and
that the system governing their appointment was affecting the general morale
of the service. We were told that of a total of the existing 9,248 public servants,
5,912 were classified as non-established, while only 3,336 were “established”.
We also heard that Cabinet was from time to time assuming the role of
employer of the public service, thus ignoring the Constitution to the point
where it has occasionally also usurped the power of the Public Service
Commission to grant leave to established officers.
We found it difficult to believe that Cabinet would deliberately set out to
flout the regulations relating to the public service in so transparent a manner
and can only express the hope that such practices, where they exist, should be
discontinued.
As far as the Service Commissions are concerned, we recommend
that the respective chairmen should be appointed by the President in his
own judgment, after consulting whomsoever he considers it desirable to
consult: the other Members being appointed as set out in the existing
Constitution – viz; on the advice of the Prime Minister after he has
consulted the Leader of the Opposition. We do recommend, however, that
a Teaching Service Commission should be established on the same basis,
to be responsible for the appointment, transfers, promotion and discipline
of the teaching profession.
49
CHAPTER 7
HUMAN RIGHTS IN THE CONSTITUTION
In considering its recommendations for the human rights provisions of
the Constitution, the Commission is aware of the limits of the drafting process.
The human rights provisions which Antigua and Barbuda has enjoyed since
independence, which are contained in Chapter 2 of the Constitution, have been
given very different interpretations by the courts at different times during that
short history.
Up to the first half of 2001, constitutional lawyers would probably have
advised that the Constitution does not authorise mandatory court orders
against the Government, because the Privy Council had said so clearly in a
Guyana case (Jaundoo v. A.-G) which had stood for three decades. In 2001, the
Privy Council has reversed this decision and issued an order against the
Government in a Grenada case (Gairy v. A.G.).
The mandatory death penalty for murder has been taken for granted as
part of our law, and so applied, for centuries. For thirty years of West Indian
constitutional jurisprudence, no court among the many which have imposed
such sentences noticed that this conflicted with the human rights provisions of
the Constitutions. In 2001, the Eastern Caribbean Supreme Court held, in the
Spence and Hughes case still under appeal to the Privy Council, that the
mandatory character of the sentence had been abrogated by the provision of
the Constitution of St. Vincent and the Grenadines which prohibits inhuman
and degrading punishment, which would in the case of Antigua and Barbuda
be section 7(1) of the Constitution.
50
Not all the issues relevant to human rights are litigated under the
chapter of the Constitution dealing with fundamental rights and freedoms.
Three years ago, few would have expected to be able to challenge a sentence of
detention at Her Majesty’s pleasure, a sentence permitting indefinite
imprisonment at the Government’s discretion. Was this not covered by the
Privy Council’s use of history in earlier cases to determine what was the role of
the executive and what was the role of the judiciary? In 1999, in a St.
Kitts/Nevis case (Greene Browne v. The Queen), the Privy Council discovered
that “Her Majesty’s pleasure” was an unacceptable infringement on the
jurisdiction of the judges, and held that the courts, not the executive, had
under the Constitution to determine the duration of the sentence.
The Privy Council is in no mood, moreover, to apologise for previous
deficiencies in failing to realise earlier what the Constitutions meant: in a very
recent (late-2001) opinion in a case from Barbados (Hinds v. A.-G.), it has said
that “[t]he constitution is to be read not as an immutable historical document
but as a living instrument, reflecting the values of the people...as they
gradually change over time”.
That case, moreover, hinted at an illustration of the
principle: although the Constitution of Barbados provides that a
criminal defendant shall be permitted to defence by a legal
representative of that person’s own choice, and specifically
qualified this by saying that nothing in that permission shall be
construed as entitling a person to legal representation at public
expense, the Privy Council hinted broadly that this would not
prevent a trial being held to be unfair under the Constitution
where the defendant was not provided with legal assistance in a
case whose complexity required it. It would appear, moreover, that
51
this point would have at least the same force in Antigua and
Barbuda, under section 15(2)(d) of the Constitution, as it has in
Barbados.
The Commission respectfully doubts whether this would,
before this case, have been considered to represent the law in
Antigua and Barbuda by any consensus of legal opinion. The case
therefore represents yet another instance of fundamental
development of the content of the human rights provisions of the
Constitution without the need for amendment or rewriting.
Although there has been much comment in legal circles
about the frequency with which the Privy Council seems to be
finding that the law has undergone such fundamental changes, the
point has been addressed by at least one earlier constitutional
review process in the Eastern Caribbean. When the 1985 Grenada
Constitution Review Commission, chaired by Sir Fred Phillips,
considered the matter, it considered that the civil rights provisions
did not need improvement, because any deficiencies identifiable
could be cured by interpretation.
The need for a readable and transparent text
Why, then, need this Commission adopt a different
approach, in the light of this demonstrated flexibility and
evolutionary capacity of the present human rights provisions?
The Commission acknowledges that the effect of this history
is to suggest pause in any process of trying to amend the
52
Constitution by curing specific points of substance, even though
there are a number of such points of substance where the
Commission would be dissatisfied with the prevailing view of the
law.
On the other hand, there are reasons for revisiting the text of
the human rights provisions of the Constitution which do not
depend on the substantive efficacy of that text in the promotion of
justice. In particular, the Commission is dissatisfied with what
might currently be regarded as the level of transparency of the
text and the emphasis it presents to the reader, even if those
emphases do not hinder the courts in applying the appropriate
perspectives. If the Constitution is not to be a document read only
by lawyers, but by the people at large, what is says in relation to
human rights could be rather better expressed.
The present text of the fundamental rights and freedoms
provisions of the Constitution begins with a general introductory
statement of positive rights and is followed by their detailed
elaboration in individual sections. In the individual sections, the
positive statement of the rights is relegated to the sidenote, and the
right is stated in prohibitory form. The general prohibitory form is
stated in short compass, and is followed by extensive and lengthy
qualifications and exceptions. Thus the statement of the right of
personal liberty in the dedicated section is expressed in nine
words, but followed immediately by twelve exceptions, each of
which is stated at greater length than nine words.
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This dilutes the impact that the positive statement of the right
ought to have on the reader. The contrast is apparent when the
Constitution’s drafting technique is compared with that of the United
States Bill of Rights or the Constitution of Trinidad and Tobago or the
Canadian Charter of Rights and Freedoms. In the Commission’s view,
the opportunity should be taken in the process of constitution
reform consequential on its report to recast the human rights
provisions in a more positive and succinct mould, so as better to
communicate its message to the general reader.
The process of redrafting requires a level of care and discussion,
however, which the Commission cannot undertake in the time available
to it for its work. The care is required, in particular, because the detailed
qualifications and exceptions in the present form are arguably there for
good reasons: not, as the initial reading impact might suggest, because
the right is of minor importance compared with the needs of government
which the exceptions protect, but to help to clarify the parameters and
the content of the right. Thus the right not to be required to perform
forced labour is a right of the innocent and not of a convict sentenced to
hard labour, hence the need seen by the Constitution’s draftsman to
spell out in section 6(2)(3) that the forced labour which is prohibited does
not include any labour required in consequence of the sentence or order
of a court
The benefit of experience is not as readily available from other
countries, moreover, as might be expected. In the countries mentioned as
models, there are situations very different from that of Antigua and
Barbuda which might turn out on examination to help the working of
their form of statement of rights.
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In the United States, for example, the Supreme Court has over
history played a determinative and at times almost overtly legislative role
in its application of the Bill of Rights. Under the Antigua and Barbuda
Constitution, the broad language of section 18(2), “the High Court...may
make such declaration and orders, issue such writs and give such
directions as it may consider appropriate for the purpose of enforcing
[the specified provisions relating to fundamental rights and freedoms]”,
might have been sufficient to permit the courts to play this kind of role,
but for the detailed constraints which the qualifications to the rights
were obviously designed to provide. This may be considered a
fundamental matter of balance of political authority. But since it is not
the view of the Commission that the balance of authority between
the courts and Parliament needs changing, so that the impact of the
court on public policy should come to be in the mode of the United
States Constitution, copying the United States Bill of Rights drafting
framework should be done with care.
In Trinidad and Tobago, there is a sister West Indian twin-island state
whose bill of rights formulation better meets the Commission’s view of
the impact a bill of rights should have on its readers. That Constitution,
however, arguably supplies the effect of the missing limitations and
qualifications which are to be found in the Antigua and Barbuda
Constitution by permitting amendment of the provisions by a mere threefifths
Parliamentary majority. This may help to explain why relatively
mundane legislation in areas such as copyright and land use planning
have in Trinidad and Tobago have included provisions overriding that
Constitution’s bill of rights. In Antigua and Barbuda, however, the twothirds
majority bar is higher, and there is no call to make it lower. The
potential safety valve that the Trinidad and Tobago Constitution has
would therefore be missing in Antigua and Barbuda.
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This kind of difference of impact of the Trinidad and Tobago
provisions is even stronger in the case of Canada, where even provincial
legislatures can override the federal Canadian Charter of Rights and
Freedoms under the express “notwithstanding clause” loophole, a device
unknown at the constitutional level in Caribbean jurisprudence. The
Commission would not recommend the opening of this kind of
loophole for the purpose of giving effect to the drafting form that it
considers the Constitution ought to have.
The Commission accordingly recommends that the
commissioning of a redrafted bill of rights should be undertaken,
but should be accompanied both by a process of detailed
Parliamentary scrutiny and of public discussion over a period
comparable to that taken by the Commission for its public hearings.
This would not, of course, duplicate the Commission’s work. The process
would as recommended be one of evaluating a draft available at the start
of the process, rather than one of using public consultation as an input
into the design of the first draft.
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Particular human rights issues: the representations to the Commission
Although the Commission considers that its fundamental
recommendation in relation to human rights is the redrafting process
recommended, it has also considered the representations made to it of
matters of particular complaint in relation to the present scope of the
rights.
The representations to the Commission: Rastafarians and Muslims
Two different sources, Rastafarians and Muslims, made
representations to the Commission that their religious practices were not
provided sufficient recognition under the present Constitution. The
Commission does not turn a blind eye to this dimension of human rights,
in which there has so far been a relatively modest quantum of litigation
in the Caribbean. Indeed, the Commission later wrestles in Chapter 11 of
this Report with what is arguably one aspect of this problem in relation
to the eligibility of ministers of religion for membership of Parliament.
The Commission is also aware of the high profile that this issue has in
United States jurisprudence. The Commission is not on balance
persuaded, however, that changes of substance are required in the
freedom of conscience provisions of the Constitution, where the
issue of freedom of religion is currently addressed.
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The representations to the Commission: the disabled and the elderly
Representations were also made to the Commission on behalf of
the disabled and the elderly. The Commission was indeed persuaded by
the submissions to the extent that the submissions ought to be an input
into Antigua and Barbuda’s public policy in relation to the disabled. The
Commission has decided to tread warily, however, in relation to adding
disability to the list of categories of prohibited discrimination under the
human rights chapter of the Constitution. There is a risk of
recommending legal constraints which Antigua and Barbuda might not
be able to meet. If the Constitution is to be enhanced in this respect, the
Commission recommends that this should be in the context of social and
economic rights rather than the civil and political rights currently
addressed by Chapter 2 of the Constitution.
The representations to the Commission: freedom of information
Representations were made to the Commission relating to the need
for a freedom of information provision of the Constitution. These points
were understood by the Commission to go beyond the present provisions
of section 12(2) of the Constitution, relating to the freedom to receive
information from anyone who volunteers such information, and to argue
that the policy underlying, for example, the Official Secrets Act, should
be reversed. The policy which led to the creation of criminal and civil
procedures against leaking of confidential information seems to be giving
way, in the modern movement towards freedom of information rights, to
a policy requiring persons to be assisted by the courts in the activity
which was formerly considered to attract legal sanctions. The
Commission does not wish to stand in the way of the trend towards
greater openness in Government, but considers that the process
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may for the time being best be left to be canvassed in relation to
ordinary law, and is not yet ripe for constitutional entrenchment.
The representations to the Commission: detention before court appearance
A specific grievance with which the Commission had sympathy
related to the provision of the Constitution which has been taken to give
the police the right to hold detainees for forty-eight hours plus weekends
and public holidays before bringing them before a judicial officer.
The Commission considers the extension for weekends and
public holidays to be an excessive limitation on civil liberty - even
forty-eight hours is arguably longer than would be permitted to the police
at common law - and the Commission considers it indefensible that a
provision of the Constitution purportedly directed at the freedom of the
individual should in this manner significantly abridge such freedom.
It does not follow, however, that the remedy is an express
constitutional amendment in the terms of the Commission’s view. The
process of redrafting recommended may well in any event omit this
provision as one of excessive detail, and simply use the more general
principle requiring promptness in bringing a detainee before a judicial
officer. Again, in a 1980 case (Davis v. Renford), the Jamaica Court of
Appeal held that the Constitution of Jamaica’s parallel provision did not
replace the common law. This precedent might well persuade a court to
hold that the provision of the Constitution did not give the police the
specified time at all, but merely set the maximum limit which legislation
could confer on the police. The Jamaican case could be considered,
indeed, a good illustration of the difficulty of constraining the courts’
interpretation in the very context of the grievance. The Commission’s
recommendation is accordingly to let this issue be subsumed in the
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process of redrafting the human rights provisions, while reiterating
its view that the time limit set out in the present Constitution does
not conform with the Constitution’s view of what is permissible
derogation from civil liberties in the interests of the police function.
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The representations to the Commission: excessive bail
Another representation made to the Commission related to
excessive bail. Since the Constitution already prohibits excessive bail
under section 4(5), the only possible avenue of remedy at the level of the
Constitution text would be to set some kind of numerical limit. But it
would hardly be consistent with the Commission’s desire to see a
readable text if every point of comparable importance were spelt out at
the level of detail which would fix precise monetary limits. The
Commission accordingly does not recommend a specific
constitutional amendment relating to the quantum of bail.
The representations to the Commission: delays in compensation for
property
Representation was made to the Commission, also, complaining of
delays in the payment of compensation for property compulsorily
acquired by the Government. In this regard, the courts’ interpretation of
the Constitution changed materially while the Commission was doing its
work. The Constitution has always had language permitting the courts to
deal with this problem, in the language of section 18(2) quoted earlier.
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The problem lay with the Privy Council, which in Jaundoo’s case
decided that the unrestricted language did not include orders compelling
the Crown to meet its obligations. The Privy Council has now reversed
itself in 2001, and in Gairy’s case issued an order of the kind which it
formerly considered to be beyond its power. The problem complained of
may therefore no longer exist.
But, of course, it is always possible to be specific, if no limits are
imposed on length and detail. The Grenada Constitution Review
Commission recommended a specific provision that property should
automatically revest in the original owner if compensation were not paid
within a defined period. The Commission agrees that this should be the
law. Whether it should be so stated in the Constitution must needs,
however, be reconciled with its desire for a more readable and positively
stated formulation of the rights and freedoms, and the attendant danger
of cluttering the text with a plethora of specifics as to the appropriate
remedy for the near infinite number of possible derogations from the
general rights. The matter should therefore, in the Commission’s view, be
subsumed in the drafting process recommended.
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The representations to the Commission: women’s rights
Representations were also made to the Commission on the issue of
protection of women’s rights. In this respect, the present Constitution of
Antigua and Barbuda is already an advance on those of Barbados and
the United States in prohibiting discrimination on the grounds of sex.
The Commission understands, of course, the concern that empirical
observation suggests that men still enjoy an unjustifiable advantage over
women in many walks of life. Even the position of Her Majesty, the
female head of state, reflects the accident that King George VI died fifty
years ago leaving no sons, and but for the Commission’s
recommendation for republican status, the question would have arisen of
reconciling with section 14 of the Constitution the sex discrimination in
the rules for the succession to the throne. The Commission accordingly
recommends further consideration of this matter at the policy level,
as set out in chapter 16 of this Report, quite apart from any
constitutional amendment which may arise from the consideration of
social and economic rights as discussed below.
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The representations to the Commission: legal aid
Another representation to the Commission related to the provision
of legal aid for constitutional questions. Once again, this is a matter in
which the courts may have accomplished the required task while the
Commission was sitting. The Hinds case from Barbados in 2001, which
has been mentioned above, strongly signals that the Courts may find a
way around the present provision of the Constitution restricting access
to legal aid. But in so far as the Commission’s task is concerned, the
Commission recommends that, given the cost implications, this
matter should be addressed in relation to the consideration of social
and economic rights as discussed below.
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The representations to the Commission: justiciability of the preamble
There was also representation to the Commission that the introductory
Preamble to Chapter 2 of the Constitution should be made justiciable. No
doubt the logical structure of the Chapter, with an introductory section 3
followed by illustrative detail in other sections, might at first glance
suggest that the justiciable meat is to be found in the detailed sections.
The express words of the Constitution, however, say otherwise. The
preambular section 3 is one of the sections the High Court is expressly
permitted to enforce by section 18(2) of the Constitution, the point being
even emphasised by the use of the word “inclusive”. Could any language
be clearer? In the instance of the Constitution of Mauritius, moreover,
which is, like the Constitution of Antigua and Barbuda, a new
Commonwealth ex-colonial Constitution, it is more than fifteen years
since the Privy Council has considered the parallel provisions to be in
some measure justiciable in Société United Docks v. Government of
Mauritius. The Commission’s recommendation, moreover, for redrafting
of the provisions is likely to emphasise the justiciability of the general
principles, which would confirm the effect to which the representations
in this particular were directed.
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The representations to the Commission: evolving human rights norms
It was also represented to the Commission that the courts
should pay special regard to new and evolving international human
rights norms. The Commission agrees with this view, and notes that
Antigua and Barbuda has pioneered in the Caribbean legislation (the
Ratification of Treaties Act) designed to promote harmonisation of
Antigua and Barbuda law with the country’s treaty obligations. But the
British heritage was, by international standards, hostile to the process of
harmonisation: under the United States Constitution, treaties can have
the force of law without the need for additional enforcement legislation,
but the common law does not accommodate this result. There is some
sign, however, of the courts paying the regard which was the subject of
the representations, in particular with respect to the obstacles being
imposed by Privy Council decisions to the enforcement of the death
penalty. But the Commission considers the general principle worthy
of being reflected in the redrafted constitutional provisions,
notwithstanding that international obligations, not only new and evolving
but old and settled, such as the prohibition against expanding the ambit
of the death penalty and the consideration to be given to refugees, and
including the requirements of regional initiatives such as the CARICOM
Single Market and Economy, may from time to time prove embarrassing
to policies which are popular in Antigua and Barbuda.
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The representations to the Commission: the right to vote
Another set of representations included reference to the right to
vote. Although the Constitution presently uses the language of the right
to vote in sections 40(2) and (3), the entitlement is fragile because
Parliament is permitted to impose qualifications relating to residence and
domicile. The right is not categorised, moreover, as one of the rights and
freedoms of the individual. For this reason the matter is dealt with under
Chapter 11 – Parliament.
The representations to the Commission: locus standi
Representation was also made to the Commission that the
Constitution should confer locus standi in relation to human rights
matters in relation to persons who were not yet affected, but were likely
to be affected. The Constitution has since independence done just what
was requested, giving locus standi in section 18(1) to “any person”
alleging that a relevant provision is “likely” to be contravened in relation
to that person. The Commission accordingly does not consider that
any change is needed in relation to this point.
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The representations to the Commission: protection of the environment
The final item represented to the Commission as suitable for
inclusion is provision for the protection of the environment. The
Commission recognises that the protection of the environment can have
aspects of civil and political rights, and some of these are reflected at
common law and in planning legislation. The extreme implications of this
approach can be seen in the recent decision of the European Court of
Human Rights (Hatton v. U.K., 2001) that the scheduling of night flights
into a London airport infringed the rights of persons whose sleep was
thereby disturbed. The Commission’s recommendation, however, is
that the right to the environment issues should be dealt with, in
relation to their inclusion in the Constitution, as part of the issue of
addressing social and economic rights.
Social and economic rights
As has arisen in a number of contexts above, the Commission has
considered whether the Commission should recommend that the
redrafted bill of rights should include a statement of social and economic
rights. The intellectual pedigree of such statments of rights, at the level
of the International Covenant on Economic Social and Cultural Rights
(ECOSOC Covenant) and in the history of the Constitution of India, is
impressive. There is even regional experience in the Constitution of
Guyana and in Grenada’s isolated reference in its Constitution to the
right to work.
The regional experience has not produced results at the level of
implementation which live up to the impressive intellectual history.
When the courts of Guyana started to build jurisprudence on those
provisions, the Government of Guyana reacted by amending the
6 8
Constitution to deprive the courts of jurisdiction to implement those
provisions. But even after this emasculation, there remains some source
of institutional embarrassment in Guyana in the increasing divorce
between the socialist bent of its statement of economic and social rights
and the dominance of market based economic theory in the era of
globalisation.
The Commission is not persuaded by the lack of positive
experience to date that the attempt to give due recognition to social and
economic rights should cease. The Privy Council’s willingness to find a
present constitutional right to state-provided legal representation
suggests, after all, that the obvious problems posed by such provisions -
in particular, the imposition of budgetary obligations on the state which
can distort the Government’s spending priorities - can arise even without
such provisions. The prudent course, in the Commission’s
recommendation, is to address the task of stating such rights,
without making them legally enforceable. In time, the living document
doctrine of Constitutional interpretation, supported by the Privy Council
in the 2001 Hinds case, may come to give life and meaning to such
provisions. The Commission recommends that the ECOSOC
Covenant should be used as the general basis of deriving the content
of the social and economic rights to be stated in the constitution,
and in particular recommends that the right of the disabled and the
elderly to have their problems taken into account in public physical
planning, for example, should be addressed in some specificity. This
approach will also enable due consideration to be given to matters
such as the right to work and the protection of the environment and
the other social and economic rights issues addressed above.
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CHAPTER 8
FINANCIAL PROVISIONS
Para. 2(g) of our Terms of Reference requires us to pay special
attention to:
“Strengthening government machinery for
transparency and accountability in the
management of public funds.”
Two matters gave us cause for some concern. We were initially told
that the latest annual accounts presented to the Director of Audit were
for the year 1992. We were however later very encouraged to hear from
the Accountant General and from the Prime Minister himself that since
the assumption of duty in August 2000 of the present Accountant
General the position had improved significantly. By July 2001
Government had, thanks to assistance from the Commonwealth Fund for
Technical Cooperation, secured the services of two experts who were
busily engaged in bringing the Accounts up-to-date. We now understand
that within a year the accounts up to the year 2000 should all be ready
for submission to the Director of Audit. The Commission expresses its
earnest hope that the proper machinery will be put in motion by the
experts to prevent a recurrence of the regrettable situation under which
there was such an inordinate time-lag between the due date for
submission and the time when submission actually takes place.
The second matter to which we wish to address our attention is the
Public Accounts Committee (“The Committee”).
Section 98 of the Constitution provides for the establishment and
functions of this Committee in these terms:
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“The House shall, at the commencement of each
session, appoint a Public Accounts Committee from
among its member, one of whom shall be a member for
Barbuda in the House, whose duties shall be to
consider the accounts referred to in section 97(2) of
this Constitution in conjunction with the report of the
Director of Audit and in particular to report to the
House-
(a) in the case of any excess or
unauthorized expenditure of public
funds the reasons for such
expenditure; and
(b) any measures it considers
necessary in order to ensure that
public funds are properly spent.
and any other such duties relating to public
accounts as the House may from time to time
direct.”
Unfortunately this section does not stipulate the number of elected
members who should constitute the Committee or what number should
form a quorum necessary to be present to transact its business. This
omission is in our view a serious defect which should be corrected. Nor,
as the provision now stands, is the Committee empowered to subpoena
witnesses to give evidence or to issue an invitation to the Director of
Audit to be present as its meetings. We are also of the view that all
public enterprises which are owned or controlled by Government should
fall within the purview of the Committee.
We accordingly recommend that:
(i) The Chairman of the Committee should
under the Constitution have the right to
subpoena witnesses and to issue an invitation
to the Director of Audit or any other Officer
it considers can contribute to its business;
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(ii) Provision should be made for a quorum that
will be necessary for it to transact its affairs;
(iii) That at least one-third of the members of the
Committee should be Senators in the
reconstituted Parliament; and
(iv) All public enterprises owned or controlled by
Government should be subject to the
oversight and scrutiny of the Committee.
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CHAPTER 9
THE HEAD OF STATE
We have been asked to evaluate the benefits, if any, of changing from a
monarchical to a republican system of government and to make
recommendations in respect of any changes in the executive form of
government that result from such an evaluation.
The weight of opinion in Antigua proper (though not in Barbuda) was
that there should be a change from the system in which the Head of State is
the English monarch to one that would be a parliamentary republic with a
President as the Head of State. In this way the existing relation between the
formal Head of State and the executive arm of government would be retained.
It was generally felt that so vital an office should not be left to the sole
nomination of the Prime Minister. It was also considered that after twenty years
of independence it was time that the country should have a President who
would replace the Queen as Head of State. It was not lost on the public that of
the fifty-two nations of the Commonwealth thirty are republic, seven are
monarchies with their own sovereigns and sixteen still retain the Queen as
Head of State. It is also significant that of this sixteen nine are to be found in
the Caribbean area.
It is also of interest that recent Constitutional Commissions have made
recommendations for presidential systems in Jamaica (1991), St. Kitts and
Nevis (1998) and Barbados (1999).
The principles that have led the people of this country to opt for a
republican form of government – although not fully articulated in this way –
can be set out as follows:
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(a) Antigua and Barbuda is no longer a Colony and
although the Queen is much loved and respected here,
the people feel that their Head of State should be a
citizen of Antigua and Barbuda by birth or descent
who lives in Antigua and Barbuda, has his first
allegiance to Antigua and Barbuda and reflects the
values which Antigua and Barbuda holds as a nation.
(b) The Head of State should be a symbol of unity and this
is more likely to be achieved by a Head of State who is
present in the country at all times but especially in
times of crisis.
(c) It is time the people of Antigua and Barbuda cease
swearing allegiance to “the Crown” instead of to “the
State”.
We accordingly recommend that the Head of State of the country
should be a President who should be a citizen of Antigua and Barbuda by
birth: at least one of his or her parents should have been a citizen of the
country. He or she should be at least 45 years old and should have been
living continuously in Antigua and Barbuda for at least seven years prior
to election.
The President should hold office for a term of five years but may be
re-elected for one further five-year term.
The President’s salary and allowances should not be altered to his or
her disadvantage during tenure.
The person holding the office of Governor General at the time the
revised Constitution comes into being should hold the office of President
under the revised Constitution until the election of a President under the
new arrangements takes place.
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It is our considered view that such an open method of selection will
obviate the charge of political patronage which follows appointment on the sole
initiative of the Prime Minister and is more likely to be seen as capable of
assisting in the creation of a symbol of unity in the unitary state of Antigua
and Barbuda.
Functions of the President
Apart from the ceremonial and other mandatory functions of the
President (such as the appointment of the Prime Minister) we recommend
that the President should be charged with making certain appointments
in his own deliberate judgment.
It would make for greater transparency in government if the
President make the following appointments in his discretion:
(a) The Chairman of the Electoral and Boundaries
Commission
(b) The Chairman of the Public Service Commission, the
Police Service Commission, the Public Service Board of
Appeal and the Teaching Service Commission.
(c) The Commissioner of Police
(d) The Director of Audit
(e) The Ombudsman
In effecting these appointments the President might wish to
consult the Prime Minister, the Leader of the Opposition or whomsoever
else he desires to consult; and the appointments should be subject to
parliamentary approval.
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Method of Appointment
If such a candidate is available and has expressed his consent to
serve, the Speaker (on being so informed) should declare the person duly
elected without a vote being taken.
If, on the other hand, the Prime Minister and the Leader of
Opposition are unable to agree as to a joint nomination, the Prime
Minister should so advise the Speaker, who would convene a meeting of
Parliament for a ballot.
The quorum for such a meeting will be 9 elected members
(representatives) and 6 senators.
The Prime Minister and the Leader of the Opposition shall then,
within 14 days after being so informed, submit in writing to the Speaker
under their hands their respective nominations for election as President
and the Speaker shall at the first meeting of the House after the
expiration of that period inform the House of the nominations (to which
the candidates must have consented). The President shall then be
appointed by the members of Parliament sitting unicamerally.
For a candidate to be elected he or she must secure the votes of a
majority of the members of Parliament.
Voting will be by secret ballot.
Removal from Office of The President
The President may be removed from office if the President:
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(a) willfully violates any provision of the Constitution;
(b) behaves in such a way as to bring the office into discredit,
ridicule or contempt;
(c) behaves in a way that endangers the security of the State;
(d) because of physical, mental or other incapacity, is unable to
perform the functions of the office.
Procedure for Removal
The President should be removed from office if:
(a) a motion is passed in the House that the question of the
President’s removal from office ought to be investigated by a
tribunal;
(b) the motion details in full the grounds on which the proposed
removal is based and is signed by at least one-third of the
members of the House of Assembly;
(c) the motion for removal is approved by the vote of at least
two-thirds of all the members of the House of
Representatives and the Senate assembled together;
(d) a tribunal comprising the Chief Justice of the Eastern
Caribbean Supreme Court and four other judges (serving or
retired) – being as far as practicable senior judges –
investigates the complaint and reports the facts to the
Speaker;
(e) the Senate and the House of Representatives assembled
together on the summons of the Speaker consider the report,
and by resolution supported by the votes of not less than
two-thirds of all the members of the Senate and the House of
Assembly together, declare that the President should be
removed from office.
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Immunities of President
During the period any person holds or is acting in the office of
President, no criminal proceedings should be instituted or continued
against that person in respect of anything done or omitted to be done by
the President either in an official or private capacity.
No civil proceedings should be initiated or continued against the
President in respect of which relief is claimed against the President for
anything done or omitted to be done in the President’s private capacity
during the President’s term of office.
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CHAPTER 10
PATRIATION OF THE CONSTITUTION
The concept of patriation has been popularized by recent Canadian
constitutional discourse. It took its rise from the absence before 1982 of
any machinery, apart from United Kingdom legislation, for amending the
Canadian Constitution, even though Canada had become a selfgoverning
dominion by the British North America Act of 1867 (the BNA
Act). It is puzzling to present-day constitutional thinkers that an
independent country should more than sixty years after independence
have actually requested such an arrangement (as Canada did at the time
of the passing of the Statute of Westminster 1931). The effect of that Act
was to give a general power to the other Dominions to amend imperial
legislation affecting respective jurisdictions but to specifically debar
Canada from passing legislation amending the BNA Act, either at the
federal or provincial level: that Act being subject to continued
amendment only by the Parliament at Westminster. As time went on,
that arrangement became more and more unpopular with successive
administrations in the fifty years following the 1931 Statute. The
disillusionment culminated in the enactment of the 1982 Constitution
Act which was passed by the Federal Parliament of Canada, replacing the
1867 Act as the only Instrument by which the Canadian Constitution
could be altered. Henceforward the assistance of imperial legislation was
no longer required or possible.
In the Caribbean region, the respective constitutions were
effectively patriated by Acts passed by the Parliaments of Trinidad &
Tobago and Guyana in 1976 and 1980 respectively, when both countries
became Republics within the Commonwealth. Belize can be regarded as
Sui Generis - having achieved a quasi-patriation since the imperial
7 9
legislation (a Schedule to an Order –in-Council) was simultaneously
duplicated by an (Independence) Act passed in 1981 by the preindependence
Belize Parliament – so that the existing Constitution as
printed in the Revised Laws of Belize is the local legislation rather than
the United Kingdom Schedule mentioned above.
In the case of Antigua and Barbuda, if a new Constitution is the
end-result of the recommendations of this Commission, the question of
patriation will not stricto sensu arise. Since the changes will, by virtue
of the amending regime prescribed by the Constitution, require
amendment by way of a referendum once such a task is undertaken a
convenient opportunity would present itself to consolidate the
amendments in a revised constitutional text to be enacted as the new
Constitution for the unitary State of Antigua and Barbuda. Since such a
process would take place entirely within Antigua and Barbuda the
request for “patriation” would have been fully satisfied.
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CHAPTER 11
PARLIAMENT
In the course of our countrywide consultations and in many of the
written submissions we received, general proposals concerning
Parliament were made. We address those proposals in this chapter, at
the same time as we consider specifically para (3) of our Terms of
Reference, viz:
“to examine and make recommendations
concerning the desirability of retaining or
abolishing the second Chamber of the
Legislature”.
The Parliamentary System
The country has a bicameral parliamentary regime consisting, in
the language of the Constitution, of the Queen, the Senate and the House
of Representatives. Law-making powers reside predominantly in the
House of Representatives. Election is on a basis of first past the post.
The Queen’s function is exclusively to grant assent to Bills – a duty
carried out locally by Her Majesty’s Representative, the Governor
General.
The Senate is in theory intended (like the House of Lords in
England) to review and revise laws passed by the House of
Representatives, thereby acting as a brake on any legislation considered
hastily formulated or in any way ill-conceived. It was however contended
that the Senate in this jurisdiction does not perform such functions.
Since the majority of its members owe their appointment to the Prime
Minister, they tow the party line slavishly and, as far as voting loyalty is
concerned, are simply an extension of the elected House.
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There was also criticism regarding the lack of power in the Senate
to pass judgment on money bills: once a bill is passed by the House of
Representatives the Senate only has a delaying power (sec. 54) whereby it
can delay the passage of the measure for a month. This contrasts with a
bill other than a money bill which the Senate can delay for six months
and until the next session.
As for the composition of the Senate, eleven of the seventeen
members are chosen by the Prime Minister, holding office entirely at his
pleasure. In this connection, it was represented to the Commission that
the government Senators at present serve as “puppets” of the government
while the opposition Senators tend to oppose “for opposition sake.” It
was also contended that there is no independent scrutiny in Parliament
since the Constitution does not permit the appointment of technocrats or
of individuals serving various interests in the society with the lone
exception of a senator to be appointed by the Governor General to
represent such interest as he considers should be represented in the
Senate.
The Right To Vote
The issue of the right to vote probably generated more discussion
in the Commission’s public meetings than any other topic. The views
presented were by no means easily reconcilable. At one end of the range,
some considered that the right to vote should be treated, in line with
some international formulations, as a fundamental right of the citizen.
At the other end some considered that the franchise, as it existed in
advance of the current reform of electoral law being pursued by the
Government, was too liberal in terms of residential qualifications.
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There was one area of consensus, both in the public discussions
and within the Commission. The right to vote is under section 40(2) of
the Constitution not explicitly linked to citizenship of Antigua and
Barbuda, but to Commonwealth citizenship. The opinions reflected in the
public hearings were divided on the question whether Commonwealth
citizens who were not citizens of Antigua and Barbuda should continue
to enjoy the franchise, but there was widespread agreement, and the
Commission recommends, that any statement in the Constitution of
the right to vote should make express reference to citizens of
Antigua and Barbuda as the primary category of holders of the
franchise, whether or not there were to continue to be qualifications
such as residence which excluded some of those citizens from the
franchise.
The question whether residence should continue to be capable of
being added to the citizenship as a requirement for exercising the
franchise posed to the Commission an acute conflict between the
theoretical and the practical. At the level of theory, the Commission saw
no philosophically persuasive rationale for depriving any adult citizen in
a democracy of the most fundamental democratic political right,
notwithstanding that the Constitution and the electoral law both
accommodate the exclusion of citizens from that right by the imposition
of qualifications relating to residence and domicile. At the level of
practice, the institutional infrastructure of the present electoral system
depended so heavily on a system of registration based on residence in a
constituency that there would be a considerable design task in adapting
the system to one in which the entitlement to vote had a different basis,
and the Commission was not satisfied that the capacity existed to carry
out that task.
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The Commission is not, in the light of the practical problems,
at any rate, prepared to recommend the abolition of the
constituency residential requirement. The difficulties of principle
will in consequence remain.
The difficulty of principle is compounded by the extension of the
franchise to categories of residents who are not citizens. A resident noncitizen
can thereby enjoy a greater level of political privilege than a
category of citizens. The representations to the Commission were divided
on the question whether this situation was acceptable. The
Commission notes, however, that the electoral reform process which
has proceeded outside the Commission has produced a system
whereby the members of that non-citizen category have to meet a
more stringent residency qualification that do citizens, and the
Commission agrees that such difference in qualification
requirements is justifiable.
In this regard, the Commission also saw a further problem of
justification: given the tolerance of such a privileged category of noncitizens,
why is the boundary of that category, the Commonwealth?
Should narrower categories, such as citizenship of Caribbean
Community or of Organisation of Eastern Caribbean States, be
preferred? The Commission recommends that the citizens of other
Caribbean member states should, in principle, have a higher priority
in the exercise of the franchise than any other category of noncitizens.
Qualifications of Parliamentarians:
Various aspects of this matter were constantly raised during our
deliberations. But two issues, in our view, stand out for special mention.
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First, the provision that a minister of religion is disqualified from
being a member of Parliament. We were asked again and again why this
should be so. A minority of the members of our Commission considered
that the prohibition no doubt had its genesis in the principle that no
man can faithfully serve two masters. The majority of us had no such
scruples in this matter and consider the disqualification discriminatory
and unwarranted.
A further argument advanced to justify the insertion of the
disqualification was that a Minister of the gospel is likely to exercise
undue influence on his flock if he or she was to become a
parliamentarian.
To this argument one of our Commissioners, Reverend Oral
Thomas, himself a Methodist Minister, had this to say:
“One of the misconceptions that give the basis
for disqualification is that the minister of religion
has an unfair advantage over all other
contenders. He/she, it is believed, has a captive
audience and an accepted authority that can be
exploited to satisfy ulterior motives or personal
aggrandizement. What must be understood,
however, is that within this audience, otherwise
called a congregation, are persons with their
own and established political opinions and
loyalties – Any minister of any one flock would
be unwise to exploit this situation. As such, any
notion that holds that a minister of religion has
an unfair advantage is ill-conceived.”
Our Commission while respecting these sentiments came to the
conclusion that, on closer examination, there were difficulties which
should not be lightly brushed aside. We particularly took into
8 5
consideration the mud-slinging and animosity likely to be created in the
rough-and-tumble of the hustings and agreed that ministers of the
gospel should not put themselves forward for elective office.
At the same time we saw nothing wrong with a minister being
appointed to the Senate if it remains a separate House or as an
“Independent” member of a unicameral House. In this way he or she will
be able to bring to bear whatever expertise, experience, gift of faith or
other quality such a minister may possess.
It is in that spirit that we recommend that provision should be
made in the new Constitution for ministers of religion to be permitted to
serve Parliament in an appointed, rather than an elected, capacity.
We found in the course of our inquiry that issue was taken to the
disqualifications set out in sections 30(1) and 39(1) (a) under which
nationals who acquire citizenship of other jurisdictions are debarred from
becoming members of Parliament in the country. The representation was
made to us that the provisions as they stand were not only
discriminatory but that they rob the country of the expertise of some of
its most knowledgeable and distinguished citizens. We entirely agree
with this argument and recommend the removal of the
disqualification from the new or revised Constitution.
Structure and Composition of Parliament
Several persons who tendered submissions and many who
appeared without submissions argued stridently for a change in the way
Parliament is constituted and in the manner of its operation. Indeed, in
no other aspect of our enquiry was there such a wide variety of views,
articulated with such force.
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There were those who considered that we should eschew the
Whitehall pattern and adopt the American system under which no
Minister or Minister of State or Parliamentary Secretary can be a member
of Parliament. All such dignitaries should in their view be selected by the
Prime Minister from outside the parliamentary system. All members of
Parliament should spend their time in, and concentrate their energies on,
their constituencies and should be required to report at regular intervals
to their constituencies. Failure to take such steps should lead to their
recall. There were those who considered that the age qualification for
being a Member of Parliament should be reduced from 21 to 18.
Some considered that both the Speaker and the Attorney General
should be elected members.
It was, however, in respect of the Senate that the Commission
found even more varied suggestions for change. The following views were
expressed:-
(i) The Senate is simply a “rubber-stamp” of the House of
Representatives, and is intended as a niche for rejects
from the electoral system and as a means of rewarding
party faithfuls.
(ii) The Senate as a separate body should be abolished
and there should be a unicameral Parliament where
elected and nominated members would sit together in
the same House.
(iii) There should be a continuation of a bicameral
legislature but Senators should be elected by the first
past the post system like the House of
Representatives.
(iv) Each constituency in the country should have two
Senators – one elected and one nominated.
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(v) The bicameral legislature should be retained, but the
members of the House of Representatives should be
elected on the first past the post system, while the
Senators should be elected by proportional
representation in the same election.
(vi) No person who fails to secure a seat in an election for
the House of Representatives should be appointed a
Senator.
(vii) There should be a reduction in the number of Senators
who can be named by the Prime Minister, viz, eleven
out of seventeen.
(viii) An effort should be made to effect equality of
representation in the Senate as between men and
women.
(ix) A clause in the Constitution should make it mandatory
for Parliament to consist of a prescribed percentage of
women.
(x) Enlarged Unicameral House
A UNICAMERAL HOUSE
We have carefully considered the above representations
and have decided to make the following recommendations:-
1. That the Senate as a separate body should be
abolished;
2. That Parliament should become a unicameral
body with 29 members comprising 17
Representatives as at present and 12 Senators;
3. That elected members (currently 17) should
continue to be elected on the first past the post
system while the 12 Senators in the expanded
House should be appointed as follows:-
(a) Three by the Head of State in his own
judgment to represent such interests as
Youth, Business, Labour, Religion, Women,
as well as any party or parties securing at
8 8
least 10% of the valid votes cast without
having a party member elected;
(b) One by the Head of State on the advice of
the Barbuda Council;
(c) Five by the Head of State on the Prime
Minister’s advice;
(d) Two by the Head of State on the advice of
the Leader of the Opposition; and
(e) One resident of Barbuda appointed by the
Head of State on the advice of the Prime
Minister
The question of the voting status of the appointed members of the
Senate was given careful study by our Commission. Our first inclination
was to recommend that, save for the three members whom we suggest
should be appointed by the Head of State in his own judgment, they
should all be voting members. Upon mature reflection we have
decided to recommend that all twelve Senators should become nonvoting
members of Parliament except on the occasion of the
election of the President of the country.
In coming to the conclusion that the Head of State should appoint
three “Independents” as part of our parliamentary system the
Commission, while conceding the principle that what is needed is an
arrangement which speaks to the collective responsibility of the
Executive to Parliament, feels strongly that the country should eschew a
culture which is perceived to create and perpetuate the relegation of
Parliament to a charade and a rubber stamp. Although the
“Independents” will not be directly accountable to the electorate, the
Commission feels that such individuals could (if carefully selected), in
the interest of the community they serve, make useful contributions to
8 9
parliamentary deliberations and bring a new dimension to the quality of
parliamentary debate and to the scrutiny of the business of Parliament.
We are anxious that Parliament should become a more vibrant and
productive institution with Working Committees on such matters as the
economy, foreign affairs, the environment and national security; and that
“independents” should be available to serve as members of such
Committees as well as members of the Public Accounts and Public
Enterprises Committees.
Speaker
We also recommend that the Speaker should be appointed
either from the elected or appointed members of the House or from
outside (as at present) at the discretion of the Prime Minister.
The Electoral and Boundaries Commission
As mentioned above under the heading “Broad Themes,” we are
persuaded that a matter of urgent public concern is electoral reform,
following the recommendations of the Commonwealth Observer Group
which reported shortly after the 1999 General Elections. Apart from
submissions to us, we were interested to observe that the matter was
fully covered by the media as a result of a number of consultations
carried out during the year 2000 and in early 2001 by the then Attorney
General. There can be no doubt that the public wish to be assured of
maximum impartiality and transparency in such politically sensitive
activities as control of the Supervisor of Elections in the performance of
his functions as the authority who would be responsible for regulating
the registration of voters and the conduct of elections in the respective
constituencies.
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After giving this matter much thought we have reached the
conclusion, and we now so recommend, that the revised
Constitution should provide for an Electoral and Boundaries
Commission which would embrace the functions of the existing
Constituencies Boundaries Commission. At present this Commission
is deeply entrenched under sections 63, 64 and 65 of the existing
constitution and it goes without saying that the Electoral
Commission must be similarly entrenched.
But there is a further reason why the Electoral Commission
should be a creature of the Constitution. It is the authority which
is to be responsible for the general direction, control and
supervision of the preparation of the voters’ register and the
conduct of the elections in the various constituencies. It will have
the responsibility of issuing directions to its Chief Executive
Officer, the Supervisor of Elections. There will thus be one
Commission instead of two regulating the electoral process, thereby
avoiding the duplication of membership and staff and the possibility
of conflict.
We recommend that the New Electoral and Boundaries
Commission should have as its members a Chairman appointed by
the President or Governor General in his own discretion; two
members appointed on the Prime Minister’s advice; and two on the
advice of the elected members of the Opposition. We further
recommend that if there are no Opposition elected members in
Parliament these two members be appointed by the Governor
General or President in his own discretion.
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No person would be qualified to hold office as a member of the
new Commission if he or she is a Minister, Minister of State,
Parliamentary Secretary, Senator or temporary Senator, or a public
officer.
The members should have a five-year tenure.
Three members should constitute a quorum.
The Commission should regulate its own procedure.
The Commission should be provided with a staff adequate for
the discharge of its functions and the salaries and allowances of
such staff should be a charge on the Consolidated Fund.
The Commission should not be subject to the direction or
control of any other person or authority in the performance of its
functions.
As regards the procedure for review of constituency
boundaries, the new Commission should have the same powers and
functions as are set out in sections 63, 64 and 65 of the existing
Constitution.
THE OFFICE OF ATTORNEY-GENERAL
The Legal Hierarchy under the Westminster Model
In the design of the Constitutions of various West Indian countries
using the Westminster model, nowhere has there been attempted an
exact replication of the legal hierarchy in Britain. In Britain, there are
three political offices at the pinnacle of the system, those of Lord
9 2
Chancellor, Attorney General and Solicitor-General. No Caribbean
Constitution has a close analogue of the office of Lord Chancellor:
Guyana’s Chancellor is the head of Guyana’s judiciary, but does not
exercise political functions such as are associated with the British Lord
Chancellor. Every Caribbean country has a Solicitor-General, an office
not given constitutional status, but the Caribbean Solicitors-General are
civil servants, unlike the British holder of the political office of that
name.
The OECS Model: A Public Service or a Political Attorney General?
The greatest similarity to the Westminster system is to be found in
the position of the Attorney General. In every constitution, the paradigm
is for the holder of that office to be a politician who serves as legal
adviser to the government. In the OECS member states, however, the
position has come in practice, at least, to be treated as one which can
alternatively be held by a public officer and not as a political office. How
far is this practical position supported under the Constitution of Antigua
and Barbuda?
In the Constitution of Antigua and Barbuda, the various references
to the position of the Attorney General present some difficulty of
interpretation in relation to the extent to which the alternatives of a
political or non-political Attorney General remain open.
The Attorney General before the Senate
The first reference to the Attorney General is in section 34, which
provides that the Attorney General should be available to the Senate at
the request of the presiding officer, but should not have voting
membership. This provision may be considered neutral on the question
9 3
whether the Attorney General should be a political appointee or a public
officer.
The Attorney General in the House of Representatives
The next reference to the Attorney General is in section 36(3),
which provides that if the Attorney General is not a member of the House
of Representatives, the holder of the office should by virtue of the office
have non-voting membership of the House. This provision clearly
contemplates the possibility, to put it at its lowest, of a political Attorney
General, when the possible situation is considered that the Attorney
General is a member of the House apart from holding that office. The
House comprises in its entirety, after all, persons elected by political
process.
The provision of section 36(3) also, however, suggests that the
Attorney General need not be the holder of a political office, since section
34 has already excluded membership in the Senate, the only other
repository of political office-holders, and section 36(3) expressly
contemplates that the Attorney-General may not be an elected member of
the House of Representatives either.
The Attorney -General in Election Petitions and similar proceedings
The next references to the Attorney General are in section 44.
These references give the Attorney General locus standi in court
proceedings related to the composition of either of the Houses of
Parliament. These references may, like that in section 34 considered by
itself, be evaluated as neutral on the question whether the Attorney -
General should be a politician or a public officer. On the other hand, the
right of intervention of a political Attorney General in an election petition
9 4
case could amount arguably to biasing the proceedings in favour of the
party in office. Since the judicial process designed for resolution of such
petitions might more appropriately be free from such bias, there could be
a slight inference that section 44 sits more easily with the case of an
Attorney General who is a public officer.
That inference is strengthened by the provision of section 44(9),
which provides that the Attorney-General, in the exercise of his
functions, is not to be subject to direction or control by any other person
or authority. A political appointee is typically subject to the party whip,
so how could such an appointee be given such independence of
authority?
Here, admittedly, the British precedent may be prayed in aid. In
Britain, the political Attorney General does, by convention, exercise some
of his functions, such as his responsibility as protector of charities, in a
non-political manner, and this could be argued to account for the
apparent anomaly. But if the provisions are really simply spelling out an
instance where even a political Attorney General’s not unusual function
of acting as a non-political amicus curiae is protected, that aspect might
arguably have merited clearer statement.
The Attorney General and the Oath of Allegiance
The next reference is that in section 48, which provides that the
Attorney–General shall take the oath of allegiance as a Member of the
House of Representatives even if the membership is only by virtue of the
office. The section is in harmony with section 36(3) above, which clearly
provides for the possibility of a political Attorney General, but reinforces
the inference that the public officer option (implied from the possibility
9 5
that the Attorney General need not initially be a member of either House)
is also available.
The Attorney General and Parliamentary Immunity
The next reference is that in section 58, which permits an Attorney
General to enjoy Parliamentary immunity when assisting the Senate
under section 34. This time, the provision implies a political Attorney-
General under the principle of noscitur a sociis, since the immunity is
arguably conferred by the analogue of the Attorney-General’s role to that
of a Minister, and there is no suggestion so far that a Minister can be
anything but a politician.
The Attorney General in the Cabinet
The next reference is section 70(2). This section provides that the
Cabinet shall comprise Ministers, one of whom shall be Attorney
General. If this section stood alone, it could be considered to settle the
matter in one way only. If the Attorney General is a Cabinet Minister, as
that section provides, that connotes political appointment and
functioning and excludes the notion that the Attorney General can hold a
public office.
At this point, the difficulty cannot be escaped, that the
Constitution’s language leads in opposite directions. If all the sections
are considered together, is it not an unusual drafting style which treats
the Attorney General unambiguously as a Minister in section 70(2), but
even in section 58, the only other section which comes close in treating
the Attorney General primarily as a politician, treats the offices of
“Attorney-General” and “Minister” as distinct offices?
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The Constitution of the office of Attorney General
The next reference is in section 82, which may be considered to be
the leading section, in that the section is devoted entirely to the office of
Attorney General. Here, the language reverts to the possibility of the
alternatives. After section 70(2) has stated that one of the Ministers shall
be the Attorney-General, paragraphs 4 and 6 of section 82 with
seemingly equal clarity clearly provide for the possibility that the
Attorney-General need not be a Minister.
But then section 83 has to be considered, which specifies that the
appointment of the Attorney General shall be on the advice of the Prime
Minister. This is more like the appointment of a politician than a public
officer, admittedly, but the Prime Minister controls the transfer of
Permanent Secretaries among Ministries and the appointment of public
officers to Ambassadorships, so the strength of the inference in favour of
the exclusively political function of the Attorney-General is to that extent
muted.
The Attorney General and the Criminal Process
Next attention needs to be paid to section is 84 to 89, which may
for this purpose be considered together. Those sections deal inter alia
with the functions of the Attorney General in relation to the criminal
process. When the interplay between those functions and those of the
Director of Public Prosecutions are considered, these provisions are
entirely in harmony with the political functions of an Attorney General,
and would seem inapt in the case of a public service Attorney General.
9 7
The Supreme Court Order and Transitional Provisions
There are other provisions relating to the Attorney-General which
may be distinguished in their relevance to the issue, either because they
relate to the quasi-federal aspects consequential on the federal nature of
the Eastern Caribbean Supreme Court or are found only in transitional
provisions.
Conclusions of Law
It should be apparent from this survey of the relevant provisions of
the Constitution that authoritative guidance, on the question whether
the Attorney General can be a public officer alternatively to functioning
as a politician, may have ultimately to await judicial decision. Subject
thereto, the apparent conflicts between different provisions of the
Constitution are such that it would be difficult to advise a Government
against behaving, where it found this convenient, as though the option
existed. On the other hand, ex abundante cautela reasoning could be
used to suggest that the prudent course of action would be always to
appoint a political Attorney-General, since there is no dispute that such
an appointment is permissible under the constitution, whereas the
public service option may be questioned on the basis of some, but by no
means all, of the relevant constitutional provisions.
If the question were put, what would the Commission decide were
we sitting as a court on the matter, it would be necessary to consider not
only the textual analysis but also the drafting history of the provisions.
The Commission considers that the history is likely to be inconclusive,
based on the recollection of those members of the Commission who were
part of the historical process.
9 8
If the history does not help, then recourse might need to be had to
the principles of resolving conflicting provisions in a single statute, which
depend on identifying the leading provision. On that basis, it is
submitted that section 82 would qualify as the leading provision, with
the result that the Constitution ought to be treated as recognizing the
availability of the option to appoint a public service Attorney-General, as
has been assumed in practice.
Having reached that point in the argument, the interpretation may
be taken one step further, in an attempt to avoid having to reach the
uncomfortable conclusion that a provision of the Constitution was
negated by another. It is difficult to see how the provisions, such as
section 82, which provide the public service option, can be explained
away. But section 70(2) may perhaps admit of some interpretation which
lessens the apparent force of its statement that the Attorney General has
to be a Minister.
Section 70(2) could be read, in the Commission’s view, as providing
that where the Attorney General is a Minister, then he must be a member
of the Cabinet. Ministerial status does not automatically confer Cabinet
membership, as appears from reading sections 69 and70 together.
Section 69(4), which explains how Ministers are appointed, says nothing
about Cabinet membership. Section 70(2) qualifies the membership of
Ministers in Cabinet by the words “such number…as the Prime Minister
considers appropriate”. We may therefore without too much violence to
the language of section 70(2) gloss the words “of whom one shall be the
Attorney-General” by implying the qualification “where applicable”. The
effect of section 70(2) on the office of Attorney-General would therefore be
confined to the instance where the Attorney-General is a Minister by
virtue of some other provision of the Constitution, that is, where the
9 9
person chosen for the office under sections 82 and 83 is an elected
member of the House of Representatives, and is designated as a Minister
under section 69(4) Section 70(2) automatically, on this view, confers
cabinet status on an Attorney-General who is a Minister, but does not
automatically confer on the Attorney-General the status of a Minister.
Recommendations
The consequences of this interpretation of the Constitution would
by and large validate the practice which has obtained in Antigua and
Barbuda since independence. This result is satisfactory to the
Commission, but does not, of course, discharge the Commission’s
responsibilities. As a Review Commission, it must consider whether that
practice, and the constitutional provisions, can be improved.
In that context, there is one aspect of the present position in which
the Commission considers unsatisfactory, that is, the disqualification of
the Attorney General from membership of the Senate. Such membership
is a feature of other Commonwealth Caribbean Constitutions, and the
Commission sees no reason why the position in Antigua and Barbuda
should differ in this respect.
Of course, the Commission is recommending the abolition of the
Senate, so its recommendation has to be adjusted accordingly. The
Commission accordingly recommends that the Constitution should
provide that the Attorney-General should always be a Member of
Parliament and should always hold Ministerial status, unlike the
present position where neither result is required. Where the Attorney
General is not chosen from the elected membership of the House,
that office must, on the Commission’s recommendation, be chosen
from among the Senators nominated by the Prime Minister. It is
10 0
recognised to be a consequence of this recommendation that there
would no longer be the necessity to provide for the Attorney General
to be a public officer, and the Commission recommends the
abolition of that option.
The contingency must be considered, however, that the Prime
Minister chooses an elected representative in a completely constituted
Parliament, augmented as recommended by the Commission. Suppose
that representative is dismissed as Attorney General. In that event, there
might be no vacancy among the members of the House, and none of the
others might in theory be a candidate suitable for appointment as
Attorney General. There is no general requirement of the Constitution
that lawyers must be represented in Parliament, the regional practice
notwithstanding.
To deal with this contingency, the Commission recommends that
the Prime Minister should be free to appoint a supernumerary
Senator to fill the position of Attorney-General, thus increasing the
number of Senators by one where the Attorney-General is a Senator.
Such an appointment should not, of course, on the Commission’s
recommendation, give the Attorney General a vote which as a
Senator that person would not otherwise have.
It is because doubts have been expressed to us regarding the
constitutional position of the Attorney General that we have thought it
might be helpful if we expressed our considered opinion on the issue.
We hope Government and the public will consider the opinion useful.
10 1
CHAPTER 12
CITIZENSHIP
In general all persons born in Antigua and Barbuda on or after 1st
November 1981 and citizens of the United Kingdom and Colonies in
Antigua and Barbuda became citizens on Independence Day.
Additionally, all citizens of the United Kingdom and Colonies, having
been naturalized or registered as such under the British Nationality Act
1948 became citizens of Antigua and Barbuda on 1st November, 1981.
From and after Independence Day, all persons born in Antigua and
Barbuda are citizens of the country, unless one parent (or both) has
diplomatic immunity as a diplomat living in Antigua and Barbuda.
No discrimination exists on grounds of sex in citizenship matters.
This enables citizenship in Antigua and Barbuda to be derived from a
parent of either sex. Citizenship may likewise be acquired by registration
in the case of a spouse of a citizen of Antigua and Barbuda.
Provision is also made for dual citizenship.
There was no serious quarrel from any quarter about the
citizenship provisions in the Constitution except that it was generally felt
that citizenship should be claimed only from first generation parents.
The only other substantial proposal for change was made in the following
submission from the Leader of the Opposition:
“The Constitution gives one the right to hold dual
citizenship. It is therefore inconsistent that the
person/citizen who holds Antiguan citizenship via
naturalization and still holds citizenship in his/her place of
birth or the Antiguan who acquires citizenship via his parent
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or grandparent is not barred from being a member of
Parliament, but the native born Antiguan who holds dual
citizenship is so barred. It seems on the one hand that
whilst you are given the right to take an oath of citizenship
you are being deprived of the oath of office. This is not only
discriminatory but it also robs the country of having some of
its most distinguished citizens from making a worthwhile
contribution to the country at this level.”
The Commission recommends an amendment to that effect in
any new Constitution.
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CHAPER 13
JUDICIAL SYSTEM
It was brought to our notice that the Magistrates and the Registrar
of the Supreme Court in Antigua and Barbuda (and indeed in all the
territories comprising the OECS) are unhappy about their status and the
treatment they receive at the hands of the public. They clearly find such
treatment unwarranted, since the Constitutions of Grenada, St. Vincent
and the Grenadines, St. Lucia and Antigua and Barbuda provide that
their appointments are made by the respective Governors General on the
recommendation of the regional Judicial and Legal Services Commission.
In the case of Dominica as well as St. Kitts and Nevis the appointments
are made by the Public Service Commission after consultation with the
Judicial and Legal Services Commission whereas disciplinary matters are
dealt with by the Judicial and Legal Services Commission after
consultation with the Public Service Commission. Our Chairman looked
closely into the position of the officers concerned in the course of
interviewing three local Magistrates to determine how they felt about
their terms and conditions of service.
From the meetings, the chairman formed the impression that all
was not well and that these officers quite justifiably yearn to be regarded
as judicial personnel rather than civil servants with legal knowledge
presiding over courts of the lower judiciary. The plain fact is that
notwithstanding their appointment by a regional Commission they are
treated simply as sub-heads of departments. They are sent letters of
appointment containing their contracts from local executives. They
approach the Chief Establishment Officer for leave or for an increase in
their house allowance or for a renewal of their contract. Their terms and
conditions are reviewed and determined by Cabinet in every case. They
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have no institutional independence. They have no access to the Chief
Justice about their work or their terms and conditions, which are
considered matters of local concern. There is no one locally or elsewhere
who monitors their workload or their conduct. They are left to their own
devices and the general public does not know to whom to make
complaints, if the behaviour of the officers warrants such a step. There
is urgent need to put their status on a new footing.
We understand that the Governments of the OECS have since
1988 been contemplating a unified legal and judicial service. In that
year the Heads appointed a Committee of Attorneys General headed by
J.S. Archibald, Q.C., to make recommendations for the establishment of
a unified legal and judicial service whereby the appointment and
placement of Magistrates, Registrars, Crown Counsel, Solicitors General
and other legally qualified staff serving in the Attorney General’s
Department would be brought under a single OECS Judicial and Legal
Services Commission. The recommendation for the establishment of such
a regional service was duly made in 1990 whereafter, in the words of the
Dumas 1999 Task Force, commissioned by the Chief Justice of the
OECS, “the committee seems to have shuffled off its mortal coil,”
although “the travails of the ailing magistracy remain.” We however
consider this to be a regional matter and not strictly within our Terms of
Reference, especially as we are told there have been other initiatives
being pursued at the level of the OECS Heads in the area of judicial
reform. We consider it our duty however to put on record the position of
the magistrates which clearly requires special attention. Nor do we feel
called upon to express any views on the Supreme Court of the OECS
which is a regional body operating under the OECS Judicial and Legal
Services Commission.
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The Caribbean Court of Justice
Because of the on-going debate on the Caribbean Court of Justice,
our Commission has had in principle to take a special position on this
body. Indeed, it was raised on a number of occasions at our meetings
and several individuals and organizations adverted to it in their written
submissions.
There were mixed views as to the desirability of establishing such a
Court. Some interlocutors took the traditional approach that the Privy
Council should be retained as our final Court because of the
acknowledged erudition of the judges and because those judges are not
likely from that distance to be swayed by local political considerations.
Other commentators expressed the opinion that it is one of the incidents
of independence that countries liberated from colonialism should have
their own final Courts. This is the view shared by the Commission and it
happens to be the view recently expressed by an out-going senior Law
Lord in the English House of Lords, who sits in the Privy Council (Lord
Browne-Wilkinson). In an interview given in May 1999 to ‘The Lawyer” –
an English publication – Lord Browne-Wilkinson bemoaned the fact that
the Privy Council was spending 25% of its time hearing appeals from the
Caribbean – “quite a fantastic number.” He complained about the
workload of the Privy Council and came out into the open to comment
that “the ultimate court of appeal of a state should be in that state,
staffed by citizens of that state.”
The Commission hopes Antiguans and Barbudans will not be
caught napping in a situation where the British Government gives them
“marching orders” from the Privy Council on the ground that the
Caribbean now has plans to establish its own Court of Justice and that
therefore our Privy Council days should come to an end. We would
then tragically have overstayed our welcome.
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The Commission has given much thought as to what
recommendation it should make on this matter but we regret not
being able to make a unanimous proposal. A minority of the
Commission feels very strongly that the status quo should be
maintained and that no changes in the judicial arrangements are
justified at the present time. A slim majority however feels equally
firmly that the time has come for the establishment of a Caribbean
Court of Justice, especially taking into account the original
jurisdiction such a Court is to have in the Common Market and
Economy regime. This recommendation is made on the
understanding that the decision will be taken not by Antigua and
Barbuda unilaterally but by the OECS as a unit.
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CHAPTER 14
INTEGRITY MATTERS
The Commission has considered the proposal for an Integrity
Commission. Such a Commission would, under that proposal, be
established to consider and review declarations of assets by holders of
public office. The purpose of the declarations would be to enable
suspicious increases of wealth by the holders of office to be revealed, so
as to deter or to facilitate the identification of corruption.
It is not easy to demonstrate anywhere, however, that this
institution has succeeded in achieving this objective. There are,
moreover, many considerations which argue against an expectation of
such success.
The effectiveness of the declaration of assets obviously depends on
effectiveness of verification. There are many ways of hiding assets from
any but the most sophisticated techniques of financial investigation. The
difficulty the United States has had in preventing the channelling of
funds to terrorist organizations until very recently must argue that it is
highly unlikely that a small Caribbean jurisdiction would be able to
track, for example, funds deposited overseas in accounts in names other
than that of the local owner.
The question is not, moreover, just one of hiding assets. Holders of
public office might deal with the problem by over declaring assets to hide
later acquisitions. Again, if the assets declared are, for example, in real
estate overseas, there is also a different kind of problem of verification.
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But the problem of verification is only the first level of difficulty.
The objectives of corruption can be fulfilled by enhancing the wealth of
relatives. For this reason, the system of declaring of assets needs to be
supplemented by declaration of assets of relatives also. But this
objective has two levels of difficulty. Firstly, it cannot be reasonable to
require a holder of office to take responsibility for accurate declaration of
the assets of his or her relatives unless that office holder has the
authority to demand the information from those relatives. But if the law
goes that far, what is the justification for imposing obligations, more
onerous than those borne by other citizens, on those who are not
themselves holders of office?
In the case where the declaration required is that of the assets of a
spouse, this effect is likely to be adverse to gender equity. The holders of
the highest political offices are still predominantly male in every
Caribbean society, so the sacrifice demanded of spouses will tend to fall
more heavily on females than on males.
There are also many techniques, well known to lawyers, of
enabling persons to enjoy the benefits of wealth without ownership. The
attraction of these techniques is sometimes to avoid taxation, which
might not seem significant in a jurisdiction without income tax. But if
wealth is an embarrassment to a holder of public office, because of the
declaration requirement, those techniques could well be attractive and
serve to undermine the objectives of the declaration system.
The comparison with tax avoidance methods serves to remind us,
of course, that the difficulties of verification mentioned are difficulties of
a kind faced by countries with income tax systems. It may therefore be a
fair point that income tax systems are used elsewhere not withstanding
such problems. But, of course, income tax systems are reinforced with
10 9
stringent requirements of secrecy reinforced by criminal penalties for
disclosure, a costly staffing infrastructure and a background
enforcement sanction of assessment in default of declaration of income.
Would it really be feasible to match these features in a system of
declaration of assets?
Were effectiveness the only issue, the point might well have force
that the system would have value nevertheless, on the basis that half a
loaf if better than no bread. It may have loopholes, but could have the
effect of making corruption more difficult and serve as disincentive
thereto.
There could, however, be a disadvantage to such a system even if it
were effective, which might indeed increase in severity in correlation with
its effectiveness. The system of declaration of assets is likely to have a
deterrent effect on some possible aspirants of office. Everyone paid from
public funds must expect that his or her emoluments will not be secret,
but the declaration of assets system requires disclosure of assets derived
from private activity or good fortune also. This is likely to be perceived as
a burden, to be set in the balance against the incentives to serve in
public office.
In societies with a surplus of persons suitable for holding such
positions, this deterrent may not be a matter of concern. In as small a
jurisdiction as Antigua and Barbuda, however, the exclusion from
competition for public office of persons who value their privacy may be a
high price to pay for the institutionalization of the Integrity Commission
system.
If the history appears to show no shortage of aspirants for public
office, the deterrent effect of the requirement of the sacrifice if privacy for
11 0
such aspirants may narrow the selection in a qualitative aspect. It is
surely hardly consistent with our political tradition that office-holders
should be confined to those who have taken vows of poverty and those
sufficiently wealthy as to have no interest in enhancing their net worth.
The appearance of a surplus of candidates is no doubt the result of
observation of the electoral process. But many holders of public office,
who many be able to exploit their functions corruptly, are not elected.
This point is obvious to those who are elected, who have an interest in
and an opportunity to ensure that the disclosure inconvenience they
suffer is shared by civil servants. So an Integrity Commission is likely to
be a system whose deterrent effects will apply to the recruitment of civil
servants as well as politicians. But could anyone reasonably hold the
view that any small Caribbean society has an unlimited talent pool for
the filling of its civil service positions?
In the light of these considerations, the Commission does not
recommend that the Constitution should include provision for an
Integrity or Ethics Commission. This does not however amount to a
recommendation against the institution of such a system by
ordinary legislation and it may well be that the time is ripe for
Government to give careful consideration to introducing legislation
carefully crafted to take into account the problems we have outlined
in this chapter.
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CHAPTER 15
AMENDING THE CONSTITUTION
The entrenchment of constitutional provisions under the Constitution
of Antigua and Barbuda
One obvious test of the entrenchment of constitutional provisions
is the ability of a government with a majority sufficient to maintain itself
in power to amend the Constitution with its majority.
By that standard, all the provisions of the Constitution of Antigua
and Barbuda are substantially entrenched. No provision of the
Constitution may be amended with less than a two-thirds majority of the
members of the House of Representatives (Constitution of Antigua and
Barbuda, s. 47(2)). By contrast, a bare majority of the members of that
House is sufficient to support a Government’s ordinary legislative
programme, since a mere majority of those present and voting is
normally sufficient for a decision of a House of Parliament (Constitution
of Antigua and Barbuda, s. 51(1)). Where no-confidence motions are
concerned, the ability to block a majority of all the members of the House
of Representatives is sufficient to keep a Prime Minister in office
(Constitution, s. 73(1)).
The more deeply entrenched provisions of the Constitution require
not only a two-thirds majority in the House of Representatives, but also a
minimum ninety-day delay after the first reading of the amending bill in
that House and a two-thirds majority in a referendum (Constitution, s.
47 (5)-(8)).
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The functions of the Senate and the Governor-General in relation
to constitutional amendment are not essentially different from their
functions in relation to ordinary legislation. When the House of
Representatives overrides the Senate, however, in relation to a bill
amending the Constitution, the two-thirds majority in the House of
Representatives is required for both the first and the overriding second
passage of the bill (Constitution, s. 47(3)-(4)).
The Speaker of the House and, where a referendum is required, the
Supervisor of Elections must give certificates of compliance with the
amending procedures before the amending bill is presented to the
Governor-General for assent (Constitution, s. 47(8)). This provision
appears, however, to be merely evidentiary, since a concession that the
requirements were met can suffice without the certificates (Mitchell v. R.
(1985)(P.C.)).
Section 123 of the Constitution prescribes a separate
entrenchment for the provisions of the Barbuda Local Government Act,
giving the Council for Barbuda a veto over any amendments of sections 1
to 44 and the Schedule thereto.
The inflexibility inherent in the Constitution is to some extent
mitigated by provisions which expressly authorise Parliament to change
what the Constitution provides. Section 90, for example, provides that all
revenues shall be paid into the Consolidated Fund, but in the same
breadth excepts moneys payable under any other law into some other
fund, thus effectively disentrenching the requirement of payment into the
Consolidated Fund.
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Is the level of entrenchment excessive?
The striking difficulty in justifying the present entrenchment
mechanisms of the Constitution is that of an appearance of excessive
rigidity. Since the minimum requirement for amending the Constitution
is a parliamentary majority which an otherwise effective Government
may well lack, it is conceivable that a Government would be unable to
give effect to a policy of promoting change of any provision of the
Constitution whatever.
In practice, the two-thirds majorities have often been present, so
that the theoretical point is not always realised. Where a referendum is
required, however, it may be significant that no change requiring that
procedure has yet succeeded in any West Indian state outside of Guyana.
The only attempted referendum in those states has been, before the
referendum currently in progress in The Bahamas, the failed secession
referendum in Nevis.
When the 1985 Grenada Constitution Review Commission came to
a similar provision in relation to the Grenada Constitution, it adopted a
recommendation for a specific scheme of entrenchment of particular
provisions (see Report on the Grenada Constitution Review Commission,
etc. (Chairman: Sir Fred Phillips), 1986, Chapter X and Appendix VIII).
Although the Commission is persuaded, as comparison of this chapter
with the recommendations of the Grenada Commission will make
evident, that the same issues of over entrenchment generally apply to
both the Antigua and Barbuda and Grenada Constitutions, the question
of the recommendations which should follow must take into account the
fact that the Grenada Commission’s recommendations in this particular
have not been implemented.
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The Organisation of Eastern Caribbean States regional dimension
This point ought also, in the Commission’s view, to be considered
in the light of the regional dynamics of the Organisation of Eastern
Caribbean States, which apply both to Grenada and to Antigua and
Barbuda. The Commission accordingly recommends that the issue of
over entrenchment ought to be the subject of regional consideration, with
the object of coming up with a policy approach common to the region.
This may to some extent be a reversal of policy. During Associated
Statehood, constitutional amendments for the purpose of a Eastern
Caribbean Federation were exempted from entrenchment restrictions,
but this exemption disappeared with independence. Given that the
function of this Commission is ex hypothesi to take a fresh view of the
policies which dictated the constitutional decisions at the time of
independence, the Commission considers it appropriate to recommend
this reversion to the regional approach.
The particular relationship of this point to the issue of the
projected Caribbean Court of Appeal is considered at the end of this
Chapter.
Entrenchment under section 123 of the Constitution
The special entrenchment of the Barbuda Local Government Act
raises particular issues. The view has been canvassed in the Commission
that this entrenchment is overbroad in relation to the sections it covers,
and that provisions of the Barbuda Act should have been entrenched in
preference to some provisions of the Barbuda Local Government Act.
11 5
The Commission recognises the importance of these issues. It is
faced with the difficulty, however, that some of the issues concerned are
matters of some dispute, including matters which are the subject of
present and possibly pending litigation, as discussed in the Chapter of
this report which deals with Barbuda. There are some other relatively
technical issues. For example, under section 90 of the Constitution, a
Minister has to have the Finance portfolio, but need not be “Minister of
Finance”, but under section 2 of the Local Government Act there
seemingly has to be a Minister of Finance unless the Barbuda Council
agrees to a different name. It is difficult to believe that this effect was
intended.
In all these instances, the Commission is of the view that it is not
necessary or desirable to make a firm detailed recommendation at this
time on the appropriate changes to the entrenchment of legislation under
section 23 of the Constitution. Where the changes are of substance, the
Commission considers that the outcome of the current and pending
litigation would assist in coming to the best result, and should therefore
be awaited. Where the technical changes are concerned, these may be
left to the task of the draftsman when the time comes for the actual new
drafts to be prepared.
The Caribbean Court of Justice
The Caribbean Court of Justice arrangements are proceeding, at
the time of this Commission’s deliberations, at a broader regional level
than that of the Organisation of Commonwealth Caribbean States: the
Court is a Caribbean Community wide initiative. The question arises as
to the appropriate response by this Commission to the obvious
constitutional implications of these arrangements.
11 6
The Commission is unequivocally in support of the movement
towards the establishment of a Caribbean Court of Justice with its
appellate and first instance jurisdictions as set out in.... This support
leads to consequential recommendations to amend the Constitution
accordingly. On the other hand, the Commission sees some advantage in
marrying this support to the importance it has attached above to the
subregional Organisation of Eastern Caribbean States dimension. In the
Commission’s recommendation, the process of constitutional amendment
for the purpose of facilitating the Caribbean Court of Justice should be
coordinated at the level of the Organisation of Eastern Caribbean States,
acting in concert with the subregional Supreme Court.
This recommendation is not intended to act as a brake on the
establishment of the Caribbean Court of Justice, but merely to reflect the
implications of the fact that Antigua and Barbuda is already part of a
subregional Supreme Court system which ought to be harmonised with
the Caribbean Court of Justice system.
Equally, the recommendation is made in the context of the
discussion of entrenchment generally, rather than being treated
exclusively in this Report’s chapter on judicial provisions, in view of its
recommendation for the adoption of an Organisation of Eastern
Caribbean States regional approach to the general issue of entrenchment
of constitutional provisions.
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CHAPTER 16
FOLLOW-UP PROPOSALS
It must not be thought that writing the Report of the Constitution
Review Commission is the end of the process of reviewing the organic
instrument by which the country is governed. It is in fact only the end of
one segment of the process. After its submission, the Report will clearly
need to be examined by Government at the same time as it is published
for general information and debate.
To assist Government in implementing the accepted
recommendations of the Commission we consider there is need for a
Standing Steering Committee to be charged with this specific task. That
body (hereafter referred to as “the Steering Committee”) should comprise:
(a) a Chairman who should be appointed jointly by the
Prime Minister and the Leader of the Opposition;
(b) three members of whom two would be nominated by
the Prime Minister and one other by the Leader of the
Opposition; and
(c one member nominated by the NGO’s on behalf of civil
society;
(d) one member nominated by the University of the West
Indies;
(e) the Resident Tutor of the University of the West Indies
School of Continuing Studies.
In addition, there will be an eighth member of the Committee (to be
appointed jointly by the Prime Minister and the Leader of the Opposition)
as a recorder of proceedings and convener who will undertake legal
research on behalf of the Committee at the direction of the Committee.
11 8
Our Commission is firmly convinced that such bi-partisan cooperation
will be imperative if any significant changes are to be made to
the existing Constitution since at the end of the day a referendum will be
needed at which two-thirds of the people must signify their agreement to
the proposed changes. Such bi-partisanship will also be in consonance
with the declared wish of the Prime Minister for a less adversarial and
more inclusive approach to governance in these jurisdictions.
The deliberations by the general public should, in our view, be
guided and informed by the Steering Committee who would put in train a
sustained programme of civic education on the subject and work closely
with the central government and the non-governmental organizations in
conducting seminars and meetings to educate and sensitize the public
about the nature and content of the reforms to be achieved. Such
discussions should properly be carried out in a dispassionate manner
and not in a spirit of political rhetoric and partisanship. They should
begin in the senior stages of the country’s secondary schools and be
carried on throughout the various sections of the community. Secondary
school teachers should accordingly be given special opportunities to
learn about constitutional developments.
A number of statutes will have to be modified to accommodate the
accepted recommendations and these will have to be identified and
redrafted. Additionally, certain of the Commission’s recommendations
(set out in broad outline) will need to be spelt out in detail - two
instances of this being the re-drafting of a Bill of Rights, as
recommended in Chapter 7 above, and the crafting of integrity legislation
in the manner suggested in Chapter 14 as well as rationalising the new
Constitution and the Representation of the People legislation in relation
to the Electoral and Boundaries Commission.
11 9
The Steering Committee would be expected to review the Civil
Service Act 1984 and the Civil Service Regulations 1993 in which certain
provisions (based on the former General Orders) are clearly repugnant to
the Constitution. It should also address the amendments or repeal of
statutory enactments declared unconstitutional by the Courts, e.g.:
The Farrell case (1975) 27 WIR 377
The Hector case (1990) 30 WIR 216
The deFreitas case (1989) 3 WLR 675 (P.C.)
The Steering Committee will hopefully also act as a bridge between
Government and Opposition when the time comes to draft the new
Constitution. It will be expected to bring together all professional bodies,
the public service and the NGO’s to explain the new proposals. A
country-wide operation will then have to be mounted on a bi-partisan
basis when the new Constitution is being put to the people by way of a
referendum; and the Steering Committee should be available to arrange
call-in and other programmes as well as to assist in modifying curricula
in the secondary schools to embark on studies in constitutional change.
The Internet may also well be a useful tool in this endeavour.
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CHAPTER 17
OUTSTANDING ISSUES
In this Chapter we set out, without comment, summaries of certain
representations raised with our Commission which we were unable to
endorse but which we feel could be the subject of further discussion and
public debate. They are matters on which the Steering Committee
recommended in Chapter 16 might wish to encourage further
consideration.
The representations (most of which were in the form of written
submissions) covered the following main issues:
(a) The embodiment of the principle of equality of men and
women in the Constitution or other appropriate legislation as
well as the establishment of a Gender Commission to
monitor, investigate, research, educate, lobby, advise and
report on issues concerning gender equality. In the same
submission, a request was made that there should be
enshrined in a new Constitution two other clauses, viz:
(i) a clause to provide that the Preamble to the
Constitution should embrace an articulation of
women’s rôle in public life and the right to equal
participation therein; and
(ii) a clause to make it possible for political parties
to field a certain percentage of women
candidates in all national elections.
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(b) That the bill of rights should give to all citizens of the
country locus standi in relation to the environment.
(c) That legal aid should be provided for persons who desire but
cannot afford to pay for assistance of counsel upon their
being arrested or charged.
(d) That freedom of information legislation should be enacted.
(e) That the President of the country should be elected on a
country-wide basis by popular vote; that he or she should be
a Executive President supported by ten Secretaries of State
to be selected by the President and approved by affirmative
vote of Parliament. The ten Secretaries of State to cover the
following departments:
(i) The Attorney General;
(ii) Justice and Legal Affairs;
(iii) Planning and Finance;
(iv) Foreign Affairs;
(v) Defence;
(vi) Labour, Civil Service Affairs & Local
Government;
(vii) Agriculture, Lands and Fisheries;
(viii) Trade, Industry and Commerce;
(ix) Education, Sports, Science and Technology;
and
(x) Health, Housing and Environment.
(d) That there should continue to be two Houses of Parliament –
the House of Representatives and the Senate – the former to
12 2
be elected on a first past the post constituency basis: the
latter to be elected on a basis of proportional representation.
(g) That there should be increased representation for Barbuda.
(h) That all bills – regardless of their nature – should be capable
of being introduced in either House of Parliament.
(i) That public officers should be granted leave of absence to
contest general elections and permission given to them to
return to their posts if they are unsuccessful.
(j) That there should be an Administrator of Parliament and two
Deputies to be appointed by the Public Service Commission
“to be responsible for the day-to-day management of
Parliament under the direction and supervision of the
speaker in both chambers of Parliament.”
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CHAPTER 18
SUMMARY OF RECOMMENDATIONS
Chapter 4 – Democratic Institutions and Local Government
There should be enshrined in the Constitution a provision that the
principal organs of local government would be District Councils.
Parliament should enact laws in respect of the membership and
functions of these bodies. A Task Force should be created to pursue this
matter.
Chapter 5 - Barbuda
The Barbuda Council should not be replaced by a separate House
of Assembly.
No recommendation is made in respect of change in land tenure in
Barbuda.
The recommendation for the establishment of a Joint Consultative
Committee (JCC) proposed by the Commonwealth Team is endorsed. It
should become a creature of the Constitution with a stipulation that the
Committee meet at least six times a year.
The JCC should at any early date examine the steps to be taken to
transfer to the Council statutory responsibilities for public utilities.
The Barbuda Council should be afforded every encouragement to
woo investors to the island on the basis of the existing statutory
requirements.
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The arrangements for processing customs duties are considered
unsatisfactory and the Commission recommends that the Central
Government and the Council should make every effort to have at least
one port of entry operative and to provide office accommodation for the
Customs Officer. The people of Barbuda would in this way be given the
opportunity to clear goods in Barbuda including packages sent by mail.
Urgent steps should be taken to attain the appointment of a
Justice of the Peace and of a Notary Public in the island.
It is desirable for the Commissioner of Police to work closely with
the Council in the exercise of his control and command of the Senior
Police Officer in Barbuda.
Steps should be taken to permit monthly visits at which the
Magistrate will spend two full days in the island.
Council should be consulted when it is proposed to issue a Work
Permit operative in Barbuda.
Chapter 6 – The Public Service and the Commissions
The members of the Service Commissions should continue to be
appointed as at present but the Chairman should be appointed by the
President in his own judgment, after consulting whomsoever he desires
to consult. These arrangements would apply to the Public Service
Commission, the Police Service Commission, the new Teaching Service
Commission and the Public Service Board of Appeal.
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Chapter 7 – Human Rights in the Constitution
The opportunity should be taken in the process of constitutional
reform to recast the human rights provisions in a more positive mould so
as better to communicate its message to the general reader.
There should be a commissioning of a redrafted bill of rights
accompanied by a process of detailed parliamentary scrutiny and public
discussion over a period comparable to that taken for the public hearings
of the Commission.
There is no need for any change of substance to the Constitution in
so far as the religious practices of Rastafarians and Muslims are
concerned.
If the Constitution is to be enhanced to provide for the disabled, it
should be in the context of social and economic rights rather than of the
civil and political rights addressed by Chapter 2 of the Instrument.
In so far as greater openness in Government is concerned, the
process should for the time being be left to be canvassed in the realm of
statutory provision.
As regards the right of the police to hold detainees for forty-eight
hours plus week-ends and public holidays, this is an excessive limitation
on civil liberty and it is indefensible that a provision of the constitution
directed at the freedom of the individual should so significantly abridge
that freedom. This issue should be subsumed in the process of redrafting
the human rights provisions.
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Provision should be made for property to revest in the original
owner when compensation is not paid within a prescribed period; and
this issue should also be subsumed in the drafting process
recommended.
Women’s rights should be given further consideration at the policy
level as set out in Chapter 16 of this Report.
On the subject of legal aid: given the cost implications, this matter
should be addressed in relation to the consideration of social and
economic rights.
The matter of the courts paying special regard to new and evolving
international human rights norms should be reflected in the redrafted
constitutional provisions.
Since independence the Constitution has given locus standi in
relation to human rights matters to persons not affected but who are
likely to be affected; and no change is recommended in this regard.
The right to environment issues should be dealt with as part of the
issue of addressing social and economic rights. Such rights should in
general be addressed without making them legally enforceable. The
ECOSOC Covenant should be used as the general basis of deriving the
social and economic rights to be stated in the Constitution.
Chapter 8 – Financial Provisions
The Chairman of the Public Accounts Committee – i.e. the Leader
of the Opposition – should have the right to subpoena witnesses and to
issue an invitation to the Director of Audit or any other officer to attend
12 7
meetings. A quorum that is necessary for transaction of business should
be stipulated. At least one-third of the members of the Committee
should be Senators. All public enterprises owned or controlled by
Government should be subject to the oversight and scrutiny of the
Committee.
Chapter 9 – The Head of State
The Head of State should be a President who is a citizen of Antigua
& Barbuda by birth – at least one of his or her parents having been a
citizen of the country. He or she should be at least 45 years of age and
should have been living continuously in Antigua & Barbuda for at least
seven years prior to election.
The President should hold office for a term of five years but may be
re-elected for a further five-year term. His or her salary and allowances
should not be altered to his or her disadvantage during tenure.
The person holding the office of Governor General at the time the
revised Constitution comes into being should hold the office of President
under the revised Constitution until the election of a President takes
place.
Chapter 10 – Patriation of the Constitution
If a new constitution is the end-result of the Commission’s
recommendations, the changes will require a referendum which will
obviously take place within Antigua & Barbuda: thus satisfying the
request for patriation.
12 8
Chapter 11 - Parliament
Dual citizenship should be no bar to parliamentary office in
Antigua & Barbuda.
Any statement in the Constitution of the right to vote should make
express reference to citizens of Antigua and Barbuda as the primary
category of holders of the franchise, whether or not there were to
continue to be qualifications such as residence which excluded some of
those citizens from the franchise. The abolition of the constituency
residential qualification is not recommended. It is noted that the
electoral reform process which proceeded outside the Commission has
produced a system whereby the members of that non-citizen category are
required to meet a more stringent residency qualification than do citizens
– a qualification we consider justifiable. We however recommend that
citizens of other Caribbean member States should, in principle, have a
higher priority in the exercise of the franchise than any other category of
non-citizens.
The Senate as a separate body should be abolished.
Parliament should become a unicameral body of 29 members
comprising 17 elected Representatives and 12 Senators.
The elected Representatives should continue to be elected on
the first past the post system.
The 12 Senators should be appointed as follows:
(a) Three by the Head of State in his own judgment to
represent such interests as Youth, Business, Labour,
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Religion, Women, as well as any party or parties
securing at least 10% of the valid votes cast without
having a party member elected;
(b) One by the Head of State on the advice of the Barbuda
Council;
(c) Five by the Head of State on the Prime Minister’s advice;
(d) Two by the Head of State on the advice of the Leader of
the Opposition; and
(e) One resident of Barbuda appointed by the Head of State
on the advice of the Prime Minister.
All twelve Senators to be non-voting members, except on the
occasion of the election of the President.
The Speaker should be appointed either from the elected or
appointed members of the House or from outside (as at present) at the
discretion of the Prime Minister.
There should be an Electoral and Boundaries Commission which
would embrace the functions of the existing Constituencies Boundaries
Commission and which would be similarly entrenched. This body will be
responsible for the general direction, control and supervision of the
preparation of the voters’ register and the conduct of elections in the
various constituencies. The Commission will also issue directions to its
Chief Executive Officer, the Supervisor of Elections. It will also review
the number and the boundaries of the constituencies and report thereon
to the Speaker.
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The Chairman should be appointed by the President in his or her
own discretion while the Prime Minister and the Leader of the Opposition
will each appoint two Members.
No person will be qualified to hold office on this Electoral and
Boundaries Commission if he or she is a Minister, Minister of State,
Parliamentary Secretary, Senator or temporary Senator. The Members –
three of whom would constitute a quorum – would have a five-year
tenure and would regulate their own procedure. The Commission would
be provided with a staff adequate for the discharge of its functions and
the salaries and allowances of such staff would be a charge on the
Consolidated Fund.
The procedure for review of constituency boundaries will be as set
out in sections 63, 64 and 65 of the existing Constitution.
The Commission would not be subject to the direction or control of
any other person or authority in the performance of its duties.
As regards the Attorney General the new Constitution should
provide that the Attorney General should always be a Member of
Parliament holding ministerial status. Where not chosen from the
elected membership of the House, the officer must be chosen from among
the Senators nominated by the Prime Minister. The Commission
therefore recommends that the Attorney General should not be a public
officer.
Where the occasion arises for a Prime Minister to replace an
Attorney General who is a member of the House but is dismissed by the
Prime Minister, provision should be made for the Prime Minister to be
13 1
free to appoint a supernumerary Senator to fill the position of Attorney
General, thus increasing the number of Senators by one.
Chapter 12 - Citizenship
An amendment should be made to the citizenship provisions of the
Constitution to enable a person with dual citizenship to become a
Member of Parliament.
Chapter 13 – Judicial System
The position of Magistrates in the OECS should be reviewed in a
regional setting, since the appointment and disciplining of these officials
is a responsibility of the OECS Judicial and Legal Services Commission.
It is understood that the regional body is currently undertaking a
study in judicial reform and it is suggested that the position of
Magistrates in the area should form part of that study.
By a majority the Commission recommends that Antigua &
Barbuda should join the Caribbean Court of Justice when established
provided that this decision should be taken not by Antigua and Barbuda
unilaterally but by the OECS as a unit.
Chapter 14 – Integrity Matters
Although the Commission does not recommend enshrinement into
the Constitution of provision for an Integrity of Ethics Commission, it is
suggested that the time is ripe for the enactment of carefully crafted
legislation to take into account the factors outlined in Chapter 14.
13 2
Chapter 15 – Amending the Constitution
The question of over-entrenchment in the Constitution ought to be
the subject of regional consideration with a view to arriving at a policy
approach common to the region as a whole,
In so far as the special entrenchment of the Barbuda Local
Government Act is concerned, the Commission is of the view that it is
neither necessary nor desirable to make a firm detailed recommendation
at this time on the appropriate changes to the entrenchment of
legislation under section 123 of the Constitution. When the changes are
substantial, the Commission considers that the outcome of current and
pending litigation would assist in coming to the best result and should
therefore be awaited. Where technical changes are concerned, these may
be left to the task of the draftsman when the time comes for the new
drafts to be prepared.
Chapter 16 – Follow-up Proposals
A Standing Steering Committee should be appointed to assist
Government in the implementation of the accepted recommendations of
the Commission.
To assist Government in implementing the accepted
recommendations of the Commission we consider there is need for a
Standing Steering Committee to be charged with this specific task. That
body (hereafter referred to as “the Steering Committee”) should comprise:
13 3
(a) a Chairman who should be appointed jointly by the
Prime Minister and the Leader of the Opposition;
(b) three members of whom two would be nominated by
the Prime Minister and one other by the Leader of the
Opposition; and
(c one member nominated by the NGO’s on behalf of civil
society;
(f) one member nominated by the University of the West
Indies;
(g) the Resident Tutor of the University of the West Indies
School of Continuing Studies.
In addition, there will be an eighth member of the Committee (to be
appointed jointly by the Prime Minister and the Leader of the Opposition)
as a recorder of proceedings and convener who will undertake legal
research on behalf of the Committee at the direction of the Committee.
Chapter 17 – Outstanding Issues
Certain outstanding proposals which the Commission was unable
to endorse should be brought to public notice to be canvassed, if desired,
when the citizens of the country are debating the contents of the new
Constitution. Such issues include:
(a) The extent to which specific provision should be made for
women’s affairs by the insertion into the Constitution of
provision for a Gender Equality Commission or for political
parties to be under a statutory obligation to field a certain
percentage of women candidates in national elections or for
the Preamble to the Constitution to include an articulation of
13 4
women’s rôle in public life and the right to equal
participation therein.
(b) That the bill of rights should give to all citizens of the country
locus standi in relation to the environment.
(c) That legal aid should be provided for persons who desire but
cannot afford to pay for the assistance of counsel upon a
citizen being arrested and charged.
(d) That freedom of information legislation should be enacted.
(e) That the President of the country should be appointed
country-wide by popular vote. He or she should be an
Executive President supported by the Secretaries of State to
be selected by the President and approved by affirmative vote
of Parliament.
(f) That there should continue to be two Houses of Parliament -
the House of Representatives to be elected on the first past
the post constituency basis and the Senate to be elected on
the basis of proportional representation.
(g) There should be increased representation for Barbuda.
(h) That any Bill should be capable of being introduced in either
House regardless of its nature.
(i) That Public Officers should be granted leave of absence to
contest general elections and permission given for them to
return to their posts if they are unsuccessful.
13 5
(j) That there should be an Administrator of Parliament and two
Deputies who should be appointed by the Public Service
Commission “to be responsible for the day-to-day
management of parliament under the direction and
supervision of the Speaker in both chambers of Parliament”.
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CHAPTER 19
ACKNOWLEDGMENTS
The carrying out of our mandate would not have been possible if
we did not receive such good co-operation from so many quarters.
The Prime Minister was always ready to assist us in our many
requests and we convey to him our grateful thanks. The Permanent
Secretary in his Ministry was also very helpful. We thank also Senator
Asot Michael, the Minister of Communications and Works, who made the
office as comfortable as it turned out to be.
Mrs. Anestercia Bailey, the Administrative Assistant, was always
willing to put in the long hours required of her and her skill in handling
the computer proved a great asset.
It is however on the shoulders of our Secretary, Mrs. Arlene
Gomez, that the heavy burden fell of providing the many services to the
Commission – making all the telephone calls, dealing with the members
of the public, arranging for our meetings in the various localities, taking
notes at all our meetings. Without her input our work would have been
seriously impeded and we owe her a great debt of gratitude.
We express our gratitude to the Prime Minister and the Leader of
the Opposition for the clarity and thoroughness of their respective
presentations made in person before us.
We must also express our appreciation to the Chairman and
Members of the Barbuda Council, to the Council Secretary and to the
13 7
Member of Parliament for Barbuda. They could not have been more
helpful to us on the occasion of the two visits we paid to the Island.
We received commendable assistance from the Permanent
Secretary in the Prime Minister’s office, Mrs. Agnes James and from the
Information Department of the Prime Minister’s Office and particularly
from Miss Shawn Nicholas in so far as media coverage was concerned.
But it is to the people, institutions and organisations of Antigua
and Barbuda that we must pay special tribute. The intensity of their
contributions and the keenness they exhibited greatly encouraged us in
our work. Their written submissions were generally of a high quality and
for this we must thank the United Nations Development Programme
which enabled some of the contributors (by providing Dr. Fiadjoe) to
understand the intricacies of the Constitution and to appreciate where
reform was needed. We hope the keen interest displayed by so many
citizens can be maintained in the years ahead. We are much in the debt
of the good people of the country for the interest they have shown.
13 8
APPENDIX I
Mr. Justin Simon - Antigua & Barbuda Bar Association
President - Antigua Christian Council
Ms. Holly Peters - Antigua & Barbuda Chamber of Commerce and Industry
General Secretary - Antigua & Barbuda Public Service Association
Mr. Gerald Pryce - Antigua & Barbuda Red Cross
President - Antigua & Barbuda Junior Chamber
Mr. Gerald Watt - President Rotary Club of Antigua
President - Lions Club of Antigua
Hon. Reuben James - Senator/Parliamentary Representative of
Barbuda
Mr. Arthur Nibbs - Chairman Barbuda Council
Hon. Hilbourne Frank - Parliamentary Representative of Barbuda
Mr. Enoch Lewis - President Antigua Cricket Association
Mr. E.P. ‘Chet’ Green - President Antigua & Barbuda Football
Association
Mr. Henderson Bass - Antigua Employers Federation
Mr. Wigley George - President Antigua & Barbuda Trades &
Labour Union
Ms. Sheila Roseau - Directorate of Gender Affairs
President - Antigua & Barbuda Union of Teachers
President - Environmental Awareness Group
Ms. Keva Margetson - Professional Organization of Women in
Antigua
Mr. Henson Barnes - United Progressive Party
Resident Tutor - UWI School of Continuing Studies
Ms. Joycelyn Humphreys - Caribbean Conference of Churches
President - Antigua & Barbuda Hotel Management
Association
H.E. Jose Cots - Ambassador Venezuelan Embassy
Mr. Elrie Farrell - President Architects Association
Mrs. Cynthia Simon - Manager Antigua Hotels & Tourist Association
Mr. Neil Gomes - President Small Farmers Association
Mr. Bruce Goodwin - President Small Business Association
Chairman - Police Service Commission
Chairman - Public Service Commission
Mr. Author George - President United Taxi Association
Mr. Roy Luke - President St. John’s Taxi Association
President - Public Service Taxi
Mr. Chester Joseph - President Bus Association
Mr. Stanley Francis - President Antigua National Taxi Association
Principal - Antigua State College
Mrs. Linda Lovell-Roberts - President Medical Association
President - Nurses Association
Mr. Maxwell Francis - President Dental Association
Rastafarian Association
President - United Vendors Association
Mr. Wilfred Francis - Antigua & Barbuda Vendors Association
13 9
Mr. Tommy Joseph - President Contractors Association
Mr. Addison Workman - President Engineers Association
Mr. Rick James - Antigua Freedom Party
Mrs. Cynthia Thibou - President Welfare of Senior Citizens
Mr. Charles Hunte - Antigua & Barbuda Pensioners Association
Mr. Swinburne Lestrade - Director General Organisation of Eastern
Caribbean States
Secretary General - CARICOM Secretariat
The Editor - The Daily Observer
The Editor - Cable Television
The Editor - Antigua & Barbuda Broadcasting Service
The Editor - Outlet Publishers & Printers
The Editor - Antigua Sun Ltd
The Editor - Workers Voice
Dr. John Ashe - Permanent Mission of Antigua & Barbuda to
the UN
Mr. Eike Fredrick Maling - Consul General for Antigua & Barbuda –
Germany
Mr. Kosei Kurimoto - Consul of Antigua & Barbuda in Tokyo, Japan
Mr. Sung Hee Rhee - Consul of Antigua & Barbuda in Korea
Mr. Werner Ulrich Giersch - Honorary Consul - Germany
Sir Ronald Sanders - High Commission of Antigua & Barbuda in
London
Mr. Lionel Hurst - Embassy of Antigua & Barbuda in Washington
Dr. Patrick Lewis - Permanent Mission of Antigua & Barbuda to
the UN
Mr. G.R.E. Bullen - High Commission – Canada
Ms. Madeline Blackman - Consulate General of Antigua & Barbuda in
Canada
Dr. Norman Athill - Consulate General of Antigua & Barbuda in
Florida
Dr. David Ricardo Koeing - Consul of Antigua & Barbuda
Sheikh Amin Al-Dahlawi - Consul of Antigua & Barbuda – Saudi Arabia
Mr. Joupert Williams - Consul of Antigua & Barbuda – Sweden
Mr. David K. Hsiu - Counsellor Charge d’Affaires – Beijing
Mr. Manuel Preud’homme - Consul of Antigua & Barbuda in France
Mr. Matjaz Tomlje - Consul of Antigua & Barbuda in Solvenia
Antigua & Barbuda Department of Tourism
Consulate of Norway
Consulate of the Federal Republic of Germany
Embassy of the People’s Republic of China
Consulate of Denmark
Consulate of Italy
14 0
Appendix II
Submissions
Individuals/Organizations
Antigua & Barbuda Trades & Labour Union Sections
Mr. Wilfred George
Clare K. Roberts, Attorney-at-law
Mr. Ashfield Thomas
Mr. Daniel George
Mr. George Jeffrey
Mr. Arnel Grey
Hon. T. H. M. Frank (MP)
Austin M. Josiah, Labour Commissioner
Antigua Employers Federation
Antigua & Barbuda Pensioners Association
Dr. Hayden Thomas, Ombudsman
Hon. Baldwin M. Spencer, Leader of the Opposition
Lake & Kentish, Attorneys-at-law
Mr. Harold Lovell, Attorney-at-law
Mr. Ronald Michael
Directorate of Gender Affairs
Mr. P.E. Millwood
Ms. Asheen Joseph
Mr. Wandsworth Harris
Antigua & Barbuda Public Service Commission
Mr. Leslie Emmanuel, President, Antigua and Barbuda Association of
Persons with Disabilities
Mr. Emile Floyd, Antigua and Barbuda Public Service Association
(ABPSA)
Mr. George Pigott
Ms. Farrell, Secretary, Public Service Commission
Mr. Davis
14 1
Appendix III
Ms. Joan Underwood - Chairman, Employers’ Federation
Mr. Bradley Lewis - Chairman, Public Service Commission
Mr. Richard John - Supervisor of Elections
Mr. Truehart Smith - Commissioner of Police
Ms. Arah Armstrong - Director of Audit
Mr. Clarence Edwards - Chairman, Public Service Appeal Board
Mr. Joseph Laurent - Chairman, Police Service Commission
Mrs. Euslyn Lewis - Chief Establishment Officer
Mr. Justin Simon - President, Bar Association
Ms. Claire Wason - Chief Magistrate
Mr. Cosbert Cumberbatch - Director of Public Prosecutions
Ms. Maureen Hyman - Magistrate
Mr. Charles Eddie Hunte - President, Pensioners Association
Mr. Asquith Riviere - Magistrate
Mr. Rafael Browne - Comptroller of Customs
Mr. Eustace Peters - Accountant General
Mr. Hilbourne Frank - Parliamentary Representative – Barbuda

Two of my grand children.

About education in Antigua and Barbuda.

I do not like to say “I told you so.“ I also do not like to lie. However if I find myself in a position where I have to choose between the two, I will always say “I told you so.” For years I have being telling the citizens of Antigua and Barbuda that our approach to education is wrong. We do not value knowledge: we love money. Therefore most Antiguans and Barbudans only want to know enough to function at their job. An accountant will have no interest in knowing anything else but accounting. And not only that if they feel secure in their job they will have absolutely no interest in further learning about accounting. Almost all of us have the same attitude. For years I have being telling this nation we need a new attitude towards knowledge. I told them that we should  value knowledge the way we value “food or money.” 

   We do not value education: we endure it. Most of the children in Antigua and Barbuda do not see attending school as an opportunity. They do not see it as a gift. To them it is more like a prison sentence, and many of them just quit. Those who “endure to the end” heave a sigh of relief when the “end” comes. Some might think that dropping out of school is a foolish act, but when they consider what I said about only wanting to know enough to get money, these early leavers might know what they can do to get money. We need to teach our children to value education from an early age. We also need to teach them to respect their teachers and others.

   This brings us to the adults. Many of the adults are rude, disrespectful, semiliterate or illiterate. The semiliterate would include anyone who is not computer literate and the illiterate would include anyone who could not assemble a washing machine or perhaps a computer by following written instructions. Because many of the parents cannot read they cannot help their children, as a result these children are likely to lag behind those who have help. We need to help these parents also.

    “I told you so!” When the ALP administration wanted to justify the introduction of the education levy, they said it was important that everyone should have a good education. Although I did not expect them to use the money for educational purposes, I gave them my support but I suggested that they use radio and television as part of the educational system. I made that suggestion because even then I was aware of the need to educate adults as well as children. They never did. After the administration changed, I outlined to a minister of government how we could use the radio, television and internet to make education available to every one. I was informed by the honourable gentleman that he was old-fashioned.

   We cannot afford to be old fashioned. We need to create a new modern interactive education system where the instructor could be in Angola and the classes could be in Antigua. At the same time the parents should be able stay at home and interact with the process.                     

                                                                                                                          Rupert E. Henry

We live in a wonderfully complex universe, and we are curious about it by nature. Time and again we have wondered--- why are we here? Where did we and the world come from? What is the world made of? It is our privilege to live in a time when enormous progress has been made towards finding some of the answers. String theory is our most recent attempt to answer the last (and part of the second) question.

So, what is the world made of? Ordinary matter is made of atoms, which are in turn made of just three basic components: electrons whirling around a nucleus composed of neutrons and protons. The electron is a truly fundamental particle (it is one of a family of particles known as leptons), but neutrons and protons are made of smaller particles, known as quarks. Quarks are, as far as we know, truly elementary.

Our current knowledge about the subatomic composition of the universe is summarized in what is known as the Standard Model of particle physics. It describes both the fundamental building blocks out of which the world is made, and the forces through which these blocks interact. There are twelve basic building blocks. Six of these are quarks--- they go by the interesting names of up, down, charm, strange, bottom and top. (A proton, for instance, is made of two up quarks and one down quark.) The other six are leptons--- these include the electron and its two heavier siblings, the muon and the tauon, as well as three neutrinos.

There are four fundamental forces in the universe: gravity, electromagnetism, and the weak and strong nuclear forces. Each of these is produced by fundamental particles that act as carriers of the force. The most familiar of these is the photon, a particle of light, which is the mediator of electromagnetic forces. (This means that, for instance, a magnet attracts a nail because both objects exchange photons.) The graviton is the particle associated with gravity. The strong force is carried by eight particles known as gluons. Finally, the weak force is transmitted by three particles, the W+, the W- , and the Z.

The behavior of all of these particles and forces is described with impeccable precision by the Standard Model, with one notable exception: gravity. For technical reasons, the gravitational force, the most familiar in our every day lives, has proven very difficult to describe microscopically. This has been for many years one of the most important problems in theoretical physics-- to formulate a quantum theory of gravity.

In the last few decades, string theory has emerged as the most promising candidate for a microscopic theory of gravity. And it is infinitely more ambitious than that: it attempts to provide a complete, unified, and consistent description of the fundamental structure of our universe. (For this reason it is sometimes, quite arrogantly, called a 'Theory of Everything').

The essential idea behind string theory is this: all of the different 'fundamental ' particles of the Standard Model are really just different manifestations of one basic object: a string. How can that be? Well, we would ordinarily picture an electron, for instance, as a point with no internal structure. A point cannot do anything but move. But, if string theory is correct, then under an extremely powerful 'microscope' we would realize that the electron is not really a point, but a tiny loop of string. A string can do something aside from moving--- it can oscillate in different ways. If it oscillates a certain way, then from a distance, unable to tell it is really a string, we see an electron. But if it oscillates some other way, well, then we call it a photon, or a quark, or a ... you get the idea. So, if string theory is correct, the entire world is made of strings!

Perhaps the most remarkable thing about string theory is that such a simple idea works--- it is possible to derive (an extension of) the Standard Model (which has been verified experimentally with incredible precision) from a theory of strings. But it should also be said that, to date, there is no direct experimental evidence that string theory itself is the correct description of Nature. This is mostly due to the fact that string theory is still under development. We know bits and pieces of it, but we do not yet see the whole picture, and we are therefore unable to make definite predictions. In recent years many exciting developments have taken place, radically improving our understanding of what the theory is.

  If you want to learn more, visit the sites listed below. I also highly recommend the popular science book "The Elegant Universe: Superstrings, Hidden Dimensions, and the Quest for The Ultimate Theory" (W. W. Norton & Company, 1999), written by Prof. Brian Greene, a well-established string theorist.

• The Official String Theory Website: An excellent introductory site for the nonspecialist, including RealAudio interviews with leading string theorists, and a tour of the Big Bang.
• The Elegant Universe: The companion site for the 3 hour PBS series based on Brian Greene's book. You can even watch the series online. (Unfortunately, it is nowhere near as good as the book! It is visually stunning, but the physics content is extremely low and the approach is excessively propagandistic. You can read a critical NY Times review of the series here.)
• Particle Adventure: A very nice tour through the main ideas of the Standard Model of particle physics.(Also available in Spanish and other languages).
• The Science of Matter, Space and Time: Another nice presentation of the concepts of particle physics.
• Einstein's Unfinished Symphony: An article on string theory that appeared recently in TIME magazine, on occasion of TIME's designation of Einstein as the person of the 20th century.
• Strings '00 Pictures: Photos of some of the world's leading string theorists, at the most important yearly conference on the subject (see also the ITP M Theory Program and Strings 96 pictures).
• Black Holes, Strings and Quantum Gravity: A public lecture by Prof. Juan Maldacena, undoubtedly the most influential string theorist in the last few years (also available in Spanish).
• Superstrings! Home Page: A nice site where many aspects of string theory are explained.
• Duality, Spacetime and Quantum Mechanics: A public lecture by Prof. Edward Witten (IAS Princeton), arguably the world's most influential theoretical physicist, and a leading contributor to string theory
• The Theory of Strings--- A Detailed Introduction: An extensive description of the basic ideas of the theory, by Prof. Sunil Mukhi, a leading string theorist.
• String Reviews: List of downloadable review articles on various topics in string theory. Most of them are highly technical, but some of the articles in the "Colloquia/Semipopular" category are intended for a wider audience.
• String Theory and the Unification of Forces: An explanation of the ambitious goal of string theory, by Prof. S. Mukhi.
• The Second Superstring Revolution: A (somewhat technical) report on the latest developments in string theory, due to Prof. John Schwarz, one of the fathers of the theory.
• Black Holes, Quantum Mechanics and String Theory: A series of 10 lectures on string theory, intended for the general public, by Prof. Finn Larsen.
• ITP Teachers' Educational Forum on String Theory: Is it the Theory of Everything?: A set of lectures on string theory, intended for highschool teachers.
• M-theory, the theory formerly known as Strings: A brief introduction to some ideas of the theory, presented by the Relativity & Gravitation group at Cambridge University.
• String Theory in a Nutshell: A brief account of string theory, including some words on the latest developments, by Prof. J. M. Figueroa-O'Farrill.
• What is String Theory?: A longer introductory description of the basic ideas of the theory, due to K. LLoyd.
• Superstring Theory: An explanation of some of the ingredients of the theory, written some time ago by Prof. Brian Greene, for the graduate program at Cornell University.
• String Theory: A short introduction to string theory by Prof. Robert Dijkgraaf, written for physicists.
• M-Theory: strings, duality and branes: a non-technical article by Prof. J.P. Gauntlett, which appeared in Contemporary Physics (available in Postscript only).
• Other String Links
• Other Science Links.

Community Computer Access Sunday, May 27, 2007
 

The Government recently spoke of “community access centers” a program in  which a new method of computer access is provided to the Community. The plan is to have a mobile community center that will be utilized by the schools. The idea of providing Computer access to the community is a good one but the method which is to be implemented is less than ideal. Computer access should be available to every one. Absolutely no one should be excluded.

What I would suggest is that the Government allocates one million dollars to each Constituency. Considering that a single desktop computer can be purchased at less than a thousand dollars per unit, One Million dollars can purchase and import a Thousand computers which the Community can in turn sell at a low and reasonable price of Fifteen Hundred Dollars to the residents of the respective communities. There would be a Five Hundred Dollars profit per computer unit, a total of Half a Million Dollars which could be used to the benefit of the community

 A system of hire purchase with low or no  interest rate could also be implemented to assist those persons that have problems paying the full cost right away and would prefer paying a little at a time.

It might be said the 17 Million dollars is too much to allocate towards this suggestion but I think that if over $200,000,000.00 could be invested in Cricket would cup then investing money into this proposal is one that unlike Cricket World Cup cannot fail. The advantages of providing means by which the people of the country can educate themselves is limitless.

Fifteen Hundred Dollars is less than the average cost of computers in stores and I know a lot of persons would appreciate having a personal computer at home but are deferred by the price and especially the high interest rate that can be associated with hire purchase.

                                                                                     Rupert E. Henry

                                                                                                                                                                              Rupert E. Henry

For a long tine I have observed a link between foolishness and wickedness. What puzzles me is whether a person is wicked because they are foolish or foolish because they are wicked.  What ever the answer one thing is certain both the past and present governments have done some foolish, wicked things to the people of Antigua and Barbuda. However the purpose for which I am writing is not to chronicle the foolishness of the past I am trying to prevent more foolishness from taking place in the future.

I am very much afraid that our government will let another opportunity for the people of Antigua and Barbuda to elevate them selves pass. We missed a golden opportunity at the turn of the last century. If the past government had heeded my advise we would have been prepared. They did not heed my advise, as a result unlike India that was prepared and made millions, we got nothing.

India had an abundance of computer programmers and when the need arose they filled that need. Also, because India was able to demonstrate that it could deliver high quality work at comparatively low cost they have been able to attract many investors. They did not have to give concessions to attract investors, they only had to supply what was in demand.

Once again I am appealing to the government to use the opportunity that will come with the liberalisation of the telecommunications market to benefit the people of Antigua and Barbuda. When LIAT gets into financial trouble many persons will say sell shares to the public, APUA gets into financial trouble; sell shares to the public, Royal Antiguan, financial trouble, public. Only entities that are in financial difficulties are ever considered suitable for the “ordinary man in the street.”

A person does not need to have a PhD to know that there is and will be a demand for computers. I have already outlined how we in All Saints West could handle the supply side, the details can be found at www.allsaintcommunity.com. —— Independence message

I still don’t know whether a person is wicked because they are foolish or foolish because they are wicked but I am asking those in authority not to be so foolish or wicked that they let this opportunity pass. 

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