Movement

Protection of freedom of movement:  The fourth of our fundamental rights enshrined in the 1982 Anguilla Constitution is protection of freedom of movement.  It is found at section 5(1) of the Constitution, which reads:

No person shall be deprived of his freedom of movement, and, for the purposes of this section the said freedom means the right to move freely throughout Anguilla, the right to reside in any part of Anguilla, the right to enter Anguilla, the right to leave Anguilla, and immunity from expulsion from Anguilla.

This right is quite a complicated one.  To explain, the section says, first, that this freedom means the right to move freely throughout Anguilla.  This seems obvious to us now.  But, there was a time when labourers in England and slaves in Anguilla were obliged to reside on the farm or estate they were connected to.  It was a criminal offence, punishable with the most severe penalties, for us to be found outside of the farm or estate we were tied to.  Those days are long past, but this expression of this fundamental right serves to remind us of the long way we have come in recognition of human rights in the intervening centuries.

The section goes on to say that the right means the right to reside in any part of Anguilla.  This, again, seems obvious to us.  Who can stop me if I want to move from Island Harbour to live in West End?  But, it has not always been so.  In other countries, there are laws that prohibit certain types of people from living in certain places.  We find this type of provision in countries that have a poor record on recognising human rights.  Countries like Saudi Arabia, Sudan, North Korea, Israel, China and Burma, spring to mind. 

The explanatory words in the section remind us that this fundamental right extends to the right to enter Anguilla.  No law can be passed, say, by a West End government of Anguilla restricting the right of people from East End to enter Anguilla, if we could imagine such a thing being done.  Similarly, if a law were to be passed stating that any Anguillian travelling outside of Anguilla must pay a $100.00 tax to re-enter Anguilla, that law might very well be unconstitutional as hindering our right to re-enter Anguilla.

This constitutional freedom extends to our right freely to leave Anguilla.  Government cannot put any hindrances in our way to travel freely into and out of Anguilla.  It is that right that has forced governments to invent all kinds of travel documents to supplement the passport.  We have a right to a passport, once we qualify as a citizen, if it is necessary for us to travel.  If we cannot get a passport, then government must devise some other type of travel document.  If government tries to put too many barriers in our way of getting a passport, we may even be able to bring a constitutional action to oblige the Passport Office to issue a passport that they may be holding up.  

Slavery

The fundamental right to protection from slavery and forced labour.  This is the third of our fundamental rights enshrined in the 1982 Anguilla Constitution.  The protection is found at section 4.  It reads simply,

Protection from slavery and forced labour

4.         (1) No person shall be held in slavery or servitude.

(2) No person shall be required to perform forced labour.

So, unlike in the olden days, no one in Anguilla can be forced to work for the government, or for any other person.  Constitutional rights are rights which are enforceable against the government.  We do not have any Constitutional rights against another Anguillian.  If another Anguillian locks me up and beats me if I do not work for him, I cannot bring a constitutional case against him.  I would sue him in the ordinary courts. 

Constitutional rights are the rights we rely on when our government is taking advantage of us.  We may be able to sue our government under this section if it promoted a law, or made an agreement, or gave a lease or an aliens landholding licence, or entered into a Memorandum of Understanding, to a developer permitting that developer to enslave us.  It will be interesting to see if this ever develops, won't it?

The old prison sentence we used to see in the days before our Constitution, where a convicted person was sentenced with these words, “You are sentenced to a term of imprisonment at Her Majesty's Prison for ten years with hard labour”, is now no longer legal.  Such a sentence would be in conflict with the constitutional protection against forced labour at section 4 of the Constitution.  Nowadays, the judge or magistrate is obliged to sentence with the words, “You are sentenced to a term of imprisonment of ten years” with no mention being made of hard labour.

Of course, as with all legal rules, you can expect there will be exceptions.  These are set out at the same section 4 of the Constitution.  The first exception is very rare, and relates to any labour required in consequence of the sentence or order of the court.  So, if I knock down my neighbour's wall, and the court orders me to put it back up, I cannot protest and say that this sentence is submitting me to forced labour.  If I want to put the wall back up personally in complying with the order, I cannot complain.  But, the criminal punishment of imprisonment with hard labour is gone.

The second exception has to do with hygiene and health.  If I am an inmate at Her Majesty's Prison and I am ordered by the warders to clean out my cell, I have to comply.  I cannot complain this is in breach of my fundamental rights.  The Constitution has made an exception in cases of health and hygiene.  It even extends to the maintenance of the place at which I am detained.  If the prison roof is leaking and I am ordered to join a maintenance gang to repair the roof, I cannot object on constitutional grounds.  The Constitution made an exception for maintenance of the place where I am detained.

The third exception applies to members of a disciplined force in performance of his duties.  If I am a member of the police force, or the defence force, if we had one, and I was ordered by my superior officer to engage in any labour pursuant to my duties, I would not have the right to protest that I was being made to engage in forced labour.  This is an exception specifically permitted by the Constitution.

The final exception is also very rare.  It has to do with declarations of states of emergency.  When a state of emergency is declared, the Constitution allows all our fundamental rights to be thrown out of the window.  So, if, in a state of emergency, the authorities find that my labour is reasonably justifiable in the circumstances of the situation arising or existing during the state or emergency for the purpose of dealing with the situation, they may require me to perform compulsory labour.  You can imagine a situation where, in a state of emergency declared after a Hurricane, the authorities go to a village and round up all the men and tell them they are obliged to clear the roads of fallen trees.  Any man resisting might be arrested and locked up.  If he complained that he had been obliged to submit to forced labour, and had only resisted in protection of his fundamental right, the court will not have any sympathy for him.  If he committed an offence under the State of Emergency Regulations in not assisting with the clear up, he would be convicted and sentenced.  The Constitution made this situation a clear exception to our fundamental right to protection from slavery and forced labour.

And, that brings me to the end of what I wanted to tell you about our third fundamental human rights under the 1982 Constitution of Anguilla.

Life

The first synthetic life created by man. Dr Craig Venter and his team became famous in 2001 when they first sequenced the human genome.  Now they have synthesized DNA and created the first synthetic life form.

We need to wait for a while to see if it shows the usual signs of life: metabolism, growth and reproduction.  Then we shall have the first deliberately man-made new species created out of nothing.

I knew it would be done one day, but I never thought I would be alive to see man create life out of a test tube.

Dolphins

Dolphins Plus makes a play for Anguilla. Word has reached me that representatives of the Florida-based Dolphins Plus met with tourism officials last week to discuss opening a facility on Anguilla. The site of the jetty at Forest Bay was tentatively suggested to them. The Dolphins Plus representatives were so encouraged by this meeting that they are said to be planning a return trip in four weeks time to meet with government.

         Some of our shorter-than-normal-sighted tourism reps are pressing the tourism department for this type of entertainment to be introduced into Anguilla. Apparently, they want to attract more of the Disney World crowd to our shores. Our political representatives are being encouraged to whistle the same tune. They are desperate for any type of project that will bring a crowd, any crowd, to Anguilla. It would give them an opportunity to claim that they are bringing “employment” to Anguillians. This is a perfect example of Juvenal's bread and circuses.

         Anguilla used to be considered a five star resort destination.  That was before construction of the previous dolphin prison, now mercifully closed.  Regretfully, as the intelligence and quality level of our visitors has deteriorated, so has that of our tourism advisers. As we continue to scrape the bottom of the tourism barrel we are once again considering the construction of a prison circus for the entertainment of the more scruffy parts of our market.

         Dolphins Plus are headquartered in Key Largo, Florida. Their website claims that they come to the dolphin pen business with a "different" approach. They say they are more humane and educational. If you believe that, I have a tower in Paris I want to sell you. Here are some recently taken photos of their prison facility at Key Largo.

The only sight more depressing I can think of is San Quentin Prison.  I sure hope they do a better job of constructing a containment facility in Anguilla than they did in Key Largo.

         Has anyone smelled the excrement yet? If you have not, read up on the Dolphins Plus adventures a few years ago in Dominica and Tortola. This is a small example of what awaits us in Anguilla if this project is permitted.

         Fortunately, it does not have to happen.  Before this project can get off the ground, there are many obstacles that Dolphins Plus will have to overcome. A sample of them include:

         The shallow depth of the sea in the bay. There is no significant depth of sand that can be dredged. There is solid rock below and around the Forest Bay jetty. Dynamite will be needed to get the needed depth for dolphin pens. The cost alone would be prohibitive.  If they go any further out into the bay in search of depth, they will block the entrance to the harbour. How would the fishermen take that development?

         Has anyone considered what sort of breakwater will need to be constructed to attain the protection these sea mammals require when they are caged? The cost would make the project unaffordable.  And, what would constructing a breakwater do to the health of the Bay? Does anyone swim in nearby Marigot harbour since they constructed their breakwater?

         The requisite Environmental Impact Study will be interesting to read. What impact, if any, will the chemicals leaching from the Corito Landfill a half mile away have on the health of the dolphins? And what of the proposed nearby deep water harbour?

         Forest Bay Beach has its swimming devotees. The beach is a mere hundred yards down-current. There are Anguillians who regularly take their constitutional swim there, some in the mornings and others in the evenings. Will anyone still want to swim there after the dolphins are installed?

         Has anyone told Joyce or Dame Bernice about this proposal to place a five-star dolphin toilet pit in the front yard of their Conch Bay property? If not, please do so now. Let us see Dolphins Plus try to deal with a combination of those two ladies.

Ba'al

Professor Richard Dawkins says it better than anyone I know. For the safety of the nation and the well-being of the children it is not sufficient for us to be merely atheists. It is necessary for us to be militant atheists. After all, we are all of us atheists to some extent. When you think of it, all good Christians have nothing but contempt and disdain for any belief in Ba'al, Thor and the Golden Calf. Some of us just choose to go one god further.

      
        I have given the matter a lot of thought. There are said to be three known reasons why intelligent West Indian men went into the ministry. They are the usual ones: sex, money and power. All the good looking women, who were at the same time gullible, were to be found in church dressed in their Sunday best. They knelt down before you, emoting to your every word and gesture. Seducing them was as easy as shooting fish in a barrel. Additionally, with little or no learning, but an ability to talk good, one could make a fortune through a church. Just look at the fat, greasy tel-evangelists we see on the TV every day. And the power came from being in a position to influence people's lives. Jim Jones was one of the most successful at all of these church-centered activities. He was one of the few who came to a sticky end.

         It is different today. Our young men of the 21^st century can go into politics, business and the professions without any restriction at all. Fifty years and more ago, the options for a bright young black man were more limited. Race prejudice excluded them from most of the more reputable outlets for self improvement. There were few other opportunities to better yourself than the church.

         That is one reason why elderly West Indian church leaders still among us seem to have been all scholarship material. We look at them perform and listen to them preach and wonder why they had to waste their brains on such a mindless occupation as preaching superstitious nonsense to their followers.

         It is different with the younger generation of preachers and ministers today, I have to shake my head at how unsophisticated and uneducated many of them are. And, so mindlessly and perversely cruel.

         I have never heard an evolutionist condemn a church-goer to everlasting hell. No palaeontologist to my knowledge has ever cut off anybody's head for not accepting that the dinosaurs were made extinct by an asteroid colliding with the Yucatan peninsula 65 million years ago.

         Do you not agree?

IMMI

Sorry, I have been busy. But, someone sent me this video I had to share with you.



With some of the stories that I have been hearing about, but lack the resources to research, or to defend myself from the inevitable libel suit if I publish, I am thinking of moving to Iceland.

Challenge

Challenge Fund invites applications from Anguillian NGOs for funding of projects designed to build human rights capacity:

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Dear Don Mitchell,

I would like to draw your attention to the Challenge Fund that exists under the project to build human rights capacity in the British Overseas Territories.

This Fund is designed to give civil society organisations the opportunity to undertake activities that will help to increase respect for human rights, including in Anguilla.  The kinds of actions that can be supported are very broad, as you can see from the attached Guidelines. We have tried to keep formalities limited to the necessary basics.

The next deadline for receipt of applications is Wednesday 30 June.  The decision process is swift (within four weeks), which means that successful applicants can usually start their activities within two or three months of the deadline.

If you have any questions abut the Fund or the application process, please feel free to get in touch with me.

It would be very helpful if you will also inform other civil society organisations in Anguilla about the availability of the Challenge Fund.

With best wishes,
Peter Ashman
Peter Ashman
Consultant (Human Rights Capacity Building BOT Project)
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GUIDELINES FOR THE CHALLENGE FUND FOR BUILDING HUMAN RIGHTS CAPACITY IN THE BRITISH OVERSEAS TERRITORIES

2010-2011

Overview

The Project “Building Human Rights Capacity in the British Overseas Territories”, funded by the UK Department for International Development (DFID), is being carried out by the Commonwealth Foundation and its project partners, the Commonwealth Legal Education Association and the Commonwealth Human Rights Initiative.

This document sets out what activities can and cannot be supported, what the current priorities of the project are, and how to apply for an award.

The Fund will be open to all civil society organisations, as well as National Human Rights Institutions. It will work flexibly and responsively to support initiatives throughout the Overseas Territories rather than allocate funds per Territory.

The deadlines for receiving grant applications during the period covered by these guidelines are 31 March 2010 and 30 June 2010, 30 September 2010 and 31 December 2010

For more information on the project please visit www.commonwealthfoundation.com or www.OTscapacityCHRI.org

Strategic focus of funding

The Challenge Fund aims to encourage civil society organisations to engage with human rights issues by building the capacity of their members and the population at large on key issues, particularly in regard to the human rights protected by the European Convention on Human Rights, the UN International Covenant on Civil and Political Rights and the UN Convention on the Elimination of Discrimination against Women.

About the Project Partners

The Commonwealth Foundation is an inter-governmental organisation resourced by and reporting to Commonwealth governments that exists to promote and strengthen civil society's role in sustainable development, democracy and intercultural learning in the Commonwealth. Its mission is to strengthen civil society organisations across the Commonwealth as they promote democracy, advance sustainable development and foster inter-cultural understanding. It seeks a Commonwealth where civil society organisations realise their full potential, engaging with their governments and the private sector in the shared enterprise of transformational nation-building and international cooperation.

The Commonwealth Human Rights Initiative (CHRI) is an independent, non-partisan, international non-governmental organisation that promotes human rights through education and advocacy. Its headquarters are in New Delhi (India) and it has offices in London (UK) and Accra (Ghana). CHRI’s mandate is to promote awareness of and adherence to the Commonwealth Harare Principles and the Universal Declaration of Human Rights and other internationally recognised human rights instruments and declarations made by the Commonwealth Heads of Governments as well as domestic instruments supporting human rights in the Commonwealth.

The Commonwealth Legal Education Association (CLEA) fosters and promotes high standards of legal education in the Commonwealth. Founded in 1971, it is a Commonwealth-wide body with regional Chapters in South Asia, Southern Africa, West Africa, the Caribbean, and Europe and numerous country committees. Its work is overseen by an Executive Committee whose members represent: Australasia, Europe, The Caribbean, East Africa, West Africa, North America, Southern Africa, South Asia (Bangladesh, Pakistan and Sri Lanka), South Asia (India), and South East Asia.

How much is available

The Fund has a total of £100,000 to disburse. The maximum award available to any one project is £5,000. Applicants are required to provide evidence of available matching funds in cash or in kind (i.e. voluntary facilities or labour that will be used in the project and that would otherwise have to be paid for to undertake the project activities). These matching funds or in-kind contributions must be approximately 20% of the project costs.

What we can support

Challenge Fund grants may be used towards the costs of the project activity, including supporting participants or resource people, campaigns, publications, awareness-raising, meetings and workshops, study visits, subsistence and travel, and new initiatives (“seed grants”), as well as towards monitoring and evaluation and reporting of an activity. Preference will be given to national activities.

What we cannot support

• 
  
  projects lasting longer than one year;


• 
  
  training courses taking place in a university in a developed country;


• 
  
  academic study or research;


• 
  
  presentation of papers at academic conferences;

• 
  
  the publication of books and films, unless these are learning tools developed as a result of an activity supported by the project;


• 
  
  core funding (such as salaries of permanent staff, office rental and general running costs).

Who can benefit

The Challenge Fund gives priority to activities where the direct beneficiaries are individuals or groups who:

• 
  
  are working in civil society organisations directly engaged in promoting human rights;


• 
  
  are employed in work which has direct relevance to the subject of the activity;


• 
  
  are in a position to transfer their learning to others.

Where funding is to support the participation of individuals in an event, the organisers should try to ensure that women and men participate in equal numbers.

The Challenge Fund does not give grants to support:

• 
  
  individual students;


• 
  
  government employees;


• 
  
  private businesses;


• 
  
  political parties.

Equality

All applicants will be expected to demonstrate how the activity and the organisation include gender and youth in their approach to the human rights issue. This should include:

• 
  
  equitable participation by women and men in the activity for which funding is being sought;


• 
  
  activities addressing a gender or youth issue, or which include a component which addresses a gender or youth issue;


• 
  
  participation in the governance of the organisation of both women and men.

Who can apply

Civil Society Organisations, National Human Rights Institutions and national capacity building committees or a group of people that have been established as part of the project can apply. But one individual, association or organisation must be able to sign the contract and be financially responsible for the use of the funds.

“Civil Society Organisations” broadly include non-governmental organisations, citizens’ organisations, people’s organisations, clubs and societies, faith-based groups, labour unions, professional associations, media organisations and ‘partnership’ organisations (i.e. a hybrid in various blends of public, private, voluntary and community organisations working together towards a common public good).

The Challenge Fund cannot consider applications from individuals.

In assessing applications, the Challenge Fund will give priority to applications from applicants who have not previously received funding from the Fund. An organisation cannot make more than one application per round.

Eligible countries

The Challenge Fund grants programme is intended to assist civil society organisations from, and citizens of, eligible countries listed in Annex 1.

Application process

There are four grant application rounds. The deadlines for the rounds are 24.00 GMT on 31 March 2010, 30 June 2010, 30 September 2010 and 31 December 2010.

There is no formal application form but all applicants must apply providing the information requested in annex 2 to these guidelines.

Applicants must send their applications by e-mail in a document containing the information required in annex 2, and any supplementary information, to geninfo@commonwealth.int. Please insert in the e-mail subject “Challenge Fund Application”.

Supplementary information can be sent by post to:

BOT Human Rights Challenge Fund

Commonwealth Foundation

Marlborough House, Pall Mall

London SW1Y 5HY

United Kingdom

If applications do not contain all the necessary information, we will not be able to consider your application during the current round.

Applicants should expect to hear from the Commonwealth Foundation four weeks after the deadline and should not apply to fund activities taking place before then. We cannot award grants for activities that have already taken place.

The decision making process

All potentially eligible grant applications made in the current round are assessed in the light of the Challenge Fund’s grants budget, and the grants which are considered to most closely fit the priorities and areas of interest will be taken forward.

If your application is successful, an email will be sent to you to discuss the details of the grant. Once the details have been agreed by email, a formal letter will be sent setting out the terms and conditions of the grant, along with the reporting templates, requirements and a deadline. Any variation from the grant as approved must first be cleared with the Foundation.

If your application is not successful, you will receive an email informing you of the outcome of your application.

A list of grants approved will be published on the project website - www.OTscapacityCHRI.org.

Reporting

All successful applicants are expected to submit a short narrative report on the activity for which funding was requested, as well as a financial report, within six weeks of the end of the activity. Where funding is provided to support participation in an event, the report should focus on the roles the sponsored participants played in the activity and the benefits they obtained. All grantees should report on how their organisation benefited from the grant, what impact the activity had on the situation addressed by it and any plans emerging for future collaboration and follow-up activities. The reporting templates will available on the Project’s website and will be e-mailed to each grantee.

Any photos, activity reports, newspaper articles or publicity material should also be sent to the Commonwealth Foundation.

Grant beneficiaries should also expect to be contacted by the Commonwealth Foundation up to a year after the activity for which they received funding has taken place. The Foundation will be keen to learn of any longer term impact the activity may have had.

Acknowledgement

It is mandatory for all successful applicants to acknowledge the support of the Challenge Fund in all documents or announcements associated with the activity for which funding is provided. This includes all written documents (reports, publications, press releases) or public announcements (speeches and addresses).

In addition:

• 
  
  the Challenge Fund should be mentioned in all printed material;


• 
  
  all beneficiaries of funding should be informed of the source; and


• 
  
  the Commonwealth Foundation should be sent copies of all documentation produced in association with the activity.

Checklist for submission

Before submitting your application, please check that you have:

• 
  
  read the guidelines thoroughly to see whether your project and organisation is eligible;


• 
  
  provided all the information as requested in the application set out in annex 2;


• 
  
  attached all supplementary information, including, as relevant:

• 
  
  annual report of your organisation;


• 
  
  the last set of audited accounts;

Please note that the Foundation does not acknowledge receipt of applications. Applicants should expect to hear from the Foundation about four weeks after the deadline.

ANNEX 1

ELIGIBLE TERRITORIES

1. 
   
   Anguilla


2. 
   
   Bermuda


3. 
   
   British Virgin Islands


4. 
   
   Cayman Islands


5. 
   
   Turks and Caicos Islands


6. 
   
   Montserrat


7. 
   
   Pitcairn Island


8. 
   
   Ascension Island


9. 
   
   Falkland Island


10. 
    
    Tristan da Cunha


11. 
    
    St Helena

ANNEX 2

Challenge Fund for Building Human Rights Capacity in the British Overseas Territories

Application Form

Please include all the 21 elements listed below. Please try not to exceed 5 pages and respect the numbering and subheadings. Do not provide the information exclusively by way of annex (e.g. 09. Outline of Project – see Annex). Failure to provide all the information requested will delay consideration of your application.

Applicant information

1. 
   
   Name of Organisation

2. 
   
   Address of Organisation , including telephone and fax numbers and website (if any)

3. 
   
   Aims and Objectives of Organisation

4. 
   
   Structure of Organisation, including legal status, number of members and how it is governed (including the youth and gender dimension)

5. 
   
   Main activities of the Organisation

6. 
   
   Total annual budget of Organisation

7. 
   
   Main items of expenditure

8. 
   
   Main sources of income

9. 
   
   Brief details of projects the Organisation has carried out during the past 5 years

Project information

10. 
    
    Title of Project

11. 
    
    Outline of Project, including who will be involved in implementing the project, who will benefit from it (with the gender and youth dimension) and the human rights situation the project addresses.

12. 
    
    Region/area covered

13. 
    
    Total Budget of Project

14. 
    
    Main items of project expenditure, broken down into (a) personnel, (b) travel, (c) events, (d) materials, (e) any other project costs, (e) administration costs up to a maximum of (10%) of total project costs.

15. 
    
    Period covered by grant

16. 
    
    Amount of grant requested

17. 
    
    How will the project be co-funded – distinguish between in cash and in kind

Additional Information

18. 
    
    Any further information you consider relevant

19. 
    
    Signature of person applying

20. 
    
    Name and position in the Organisation

21. 
    
    Date

Reform

Proposals for reform.  During the 2006 consultations on constitutional and electoral reform, several persons recommended to the Constitutional and Electoral Reform Commission that section 3.(3) of the 1982 Constitution of Anguilla is defective.  It presently provides that a person arrested is to be brought before the Magistrate “without delay”.  What is to be made of the meaning of this phrase? 

Is it permissible to keep the suspect in the police cell for three days, or four days, or five days, on the ground that the investigation is still continuing?  This procedure has often been used in the past by police officers to break a person's will and force him to confess his guilt.  Some of these confessions have been true, but others have eventually been found to have been false, having been pressured out of weak or mentally defective persons who were not able to stand up to the stress of confinement. 

In the more advanced constitutions of the Commonwealth Caribbean the solution has been to provide a strict deadline when a person in custody must be brought before the Magistrate, or he will be entitled to sue for breach of his constitutional rights.  In some of our countries it is 24 hours.  In others it is 48 hours. 

At paragraph 13 of its 2006 Report of the Constitutional and Electoral Reform Commission the Commission recommended that Anguilla's new Constitution should replace the present vague “without delay” with the stricter “within 48 hours”. 

The police and the Attorney-General's Chambers don't like the proposal.  But I believe a majority of us would feel safer and happier with such a reform.

Happy 50th to The Pill

Today celebrates the 50th birthday of The Pill. Though it has gone through many formula changes over the past half-century, its purpose remains the same: to give women the CHOICE. Mothers no longer had to choose between celibacy or having a reality-show-worthy brood of children. Single women could now have a sex life without fear of an unwanted pregnancy (though it should be noted that it was

Licences

My interest was piqued this morning when I heard on the news that two young men had been arrested for conducting a business without a licence.  There was no information released on the facts in this matter.  I have no knowledge of the special circumstances affecting the men or their business.  What I say here is not intended to advise anyone or their advisers.  If you have any doubt whether you are required to obtain a business licence to cover some activity that you do in Anguilla, you should obtain appropriate legal advice, and not rely on what I am about to say here. 

I have previously written on this issue, as you can read by checking my earlier post of 29 January 2008.  The bottom line of that post was that the law of Anguilla does not require every business conducted in Anguilla to be licensed.  The law only requires “places of business” where specified businesses are conducted to be licensed.  This is what the law says:

Obligation to obtain licence to carry on certain trades, businesses, occupations and professions

3. Every person carrying on any trade, business, occupation or profession set out in the Schedule shall take out an annual licence in accordance with the provisions of this Act in respect of each premises or place where such trade, business, occupation or profession is carried on, and shall only carry on such trade, business, occupation or profession from such premises or place.

The meaning of the words in the section is clear.  If you have a place of business at which you do one of the businesses set out in the Schedule to the Act, then you are required to obtain a licence in respect of the place in question.  The Act does not say words to the effect that “no business shall be carried out in Anguilla without a licence”.  The words above cannot be stretched to bear this meaning.  

A ‘place of business’ is not defined under the law.  However, the meaning of the words is clear enough.  A place is a spot, a space on the ground, a location.  The businesses that are required to be licensed are listed in the Schedule to the Act. 

A place of business is by implication a place dedicated to doing business, a place to which you invite members of the public to do business with you.  If you do your business of designing Christmas and greeting cards on the computer in your bedroom, your bedroom does not become a ‘place of business’.

If you conduct your business from three different locations, then you are required to obtain three different licences. 

If you have a licensed business place, then you must carry out your business from there.  You cannot have a licensed shop, and then open an unlicensed branch and claim that your licence covers that unlicensed branch.

If however, your business is of a type that does not require any contact in person with members of the public, and you in fact have no contact with the public at a particular place of your own, then it is clear that the words of the Act do not apply to you. 

If you conduct your business from your home, or from a pay phone, or from the computers in the public library, ie, if your business is of a type that does not require a dedicated ‘place’ of business, then the Act does not require you to have a licence to conduct your business. 

If I conduct my business in private, without inviting members of the public to come to my residence, then the Act does not apply to me.

Let us take a few practical examples.  The Schedule lists these occupations:

32. Consultant/Arbitrator ............................................................................................... 1500.00

57. Hairdresser ................................................................................................................. 600.00

66. International Trader .................................................................................................. 1500.00

       Each of these occupations can be carried out at a place of business as defined above.  The places where I carry out the business would need to be licensed.  Equally, they could be carried out without a place of business.  I would not need a licence then to carry out the business.

A consultant who lives in Anguilla and is consulted on the telephone or in the homes or businesses of her clients is not required to be licensed.  The St Kitts consultant engineer or attorney at law who flies in to Anguilla to do a particular job for a client, is not required to take out a licence in respect of his hotel room.

A hairdresser who visits clients at their homes or hotel rooms is not covered by the wording of the Act. 

An international trader who uses her computer at home or at the Library and who does not have a ‘place of business’ is not compelled by the Act to have a place of business, and is not required to have a business licence.

A heavy-equipment operator who keeps his equipment near his home, and takes contracts to do work on different construction sites from time to time has no place of business, and is not required to take out a licence.

I hope the police arrested the right persons.  Otherwise they could be in trouble under the law.  Mind you, remember to take advice from your attorney before acting on what I have written here.

Rights

The procedure the officer must follow after arresting me.  We are looking at our rights under the Constitution once we have been arrested.  Subsection (3) of section 3 of the Constitution provides the procedure that must be followed after a person is arrested.  It says that, after an arrest, the arresting officer must bring the arrestee before a magistrate without delay.  If a private person makes an arrest, he must give the arrestee into the custody of the police or a magistrate as soon as reasonably practicable. 

No time limit for detaining an arrested person has been set in the law of Anguilla, but the courts of our region have frowned on a detention of three days.  Such a length of time is too long to hold an arrested suspect without charging him.  The purpose for taking the arrestee before the magistrate is for the court to consider whether he should be granted bail pending trial.

It is not lawful for the police to arrest a suspect, take him to the station, and keep him there indefinitely until he cracks and signs whatever statement they want him to sign.  That is a considered a serious breach of our fundamental human right, and of our common law entitlement not to be forced to incriminate ourselves.  Any confession or admission as to the commission of a crime must be freely given, and not forced or tortured out of us.  The court will not allow such a confession to be produced in evidence.

Once a suspect has been charged, he must be brought to court on the first court day after the charge has been laid.  In the case of arrest for a summary offence, the law permits the police to grant bail to the arrestee.

A number of cases from the region have established the existence of a constitutional right to an attorney, and the right to be informed by the arresting officer of the right to an attorney.  In some Constitutions this right is spelled out, but in Anguilla the right remains one derived from common law.  A detention will be illegal if the arrested person is not informed of his rights.