Belonger

Draft of New Constitution Creates Second-Class Status of “Belonger”. At present, all Anguillians are called “belongers” of Anguilla. There is no such word in the Constitution as an “Anguillian”. Some people find this offensive. The name “belonger” is not an Anguillian word. It is a concept taken from the British Nationality Acts. Anguillians don’t feel sympathy with the term “belonger”. They find it quite offensive. Everyone calls himself an “Anguillian”. Twenty years ago all Anguillians knew everyone on the island. You were either Anguillian or you were not.

As a belonger one has rights. You come to and go from the island without hindrance from the Immigration Department. You can freely acquire interests in land. You can vote. You can stand as a political candidate for election to the House of Assembly. None of these rights are held by “aliens”.

During the past twenty years Anguilla’s economy has boomed. Thousands of Jamaicans, Vincentians, British, Americans, and Santo Domingans have flooded into Anguilla. After a few years they have qualified to be naturalized under the British Nationality Act. Doing this in Anguilla has automatically made them “belongers” of Anguilla. They have all the rights of “native” born Anguillians. The status of being a belonger has become a bit confusing.

There is a process under the Anguilla Constitution for becoming a belonger. It is set out at section 80 of the 1982 Constitution. A “natural born” belonger, so to say, is one born in Anguilla of Anguillian parents. There are other ways of becoming a belonger. One can marry a belonger. Alternatively, one might qualify by living in Anguilla for fifteen years. A short cut is to become naturalized as a British citizen. As soon as the A-G’s Chambers gives an alien the okay, and the Governor swears him in, he immediately qualifys. Today you come across complete strangers in the supermarket talking loudly about how the Governor just made them into Anguillians. Many Anguillians are offended at the numbers of persons taking this short cut. There is general agreement that if this process continues, Anguilla will be swamped by crowds of strangers drowning out the Anguillians.

During the 2006 Constitutional and Electoral Reform Commission hearings there was much discussion on whether or not there should in future be two classes of citizens. Some persons wanted “real” Anguillians to have a special status. The new Anguillians, those who came here lately, could continue to be called “belongers’. In future, they should never have the same status as “real Anguillians”. Only real Anguillians, ie, those with an ancestral connection to the island should in future be called “Anguillians”. This notion of different classes of Anguillian was soundly rejected by the majority of persons making representations to the Commission. There was widespread agreement that the practice of naturalizing foreign persons and automatically qualifying them to belonger status was wrong. The people of Anguilla wanted this practice to end.

The Commission recommended that in future the process of naturalization should be disconnected from the process of becoming a belonger. Anyone who wants to become a British Overseas Territories Citizen can go ahead and get naturalized. That will give one British rights, but no automatic rights in Anguilla. The process of naturalization should not automatically result in acquiring Anguillian status. Anguillian status should be reserved for those persons who had a connection by birth and ancestry with Anguilla. [Those from overseas who had in the meantime become Anguillians could not have their rights taken away. They would be grandfathered in as Anguillians.] All persons becoming naturalized in future would not have this benefit. The Chief Minister’s Committee subsequently studied the recommendations. The Committee supported the idea of removing naturalization as a method of acquiring full Anguillian rights.

The new draft Constitution up on the government website brings more confusion to the picture. It revives the status of belonger and adds the new status of Anguillian. Only an Anguillian can be Deputy Governor. Only an Anguillian can run in general elections. The bottom line is that this new draft constitution does exactly what a majority of Anguillians have already rejected. And it does it without the slightest prior consultation with the people.

Section 45(2) says who is an Anguillian. Who is a belonger is dealt with elsewhere. As if to emphasise the importance of the distinction, the draughtsperson has chosen to provide for the status of belonger in two different sections. Sections 20(5) and 105 contain conflicting definitions of who is a belonger. There are some similarities, but there are differences between the two definitions. There is no hint that these are alternatives open for discussion. They are put forward as separate and distinct definitions.

Check it for yourself.

How in the world did a competent draughtsperson make such an elementary mistake.

What confusion!

What embarrassment!

Birthdays

Not many people can boast that their birth certificate is the country’s constitution. Billy Herbert was one. But, he has now passed on. James Woodley was another. But, he has passed on too. I wonder how many of us are left.

I am a Kittitian by birth. St Kitts is my native island. I had grown up in Trinidad and Jamaica. My Dad worked in those islands while I was a youngster. It never occurred to me to spend the rest of my life in either of those islands. I did not belong to them. I have inherited from my late father citizenships in both Grenada and St Vincent and the Grenadines. We never visited either of them when I was growing up. I knew no one there. To this day, I do not know if I have a single cousin living in either of those countries.

The Anguilla Revolution took place in 1967. At that time, I was a student in London. I closely followed events leading up to and after the Revolution. Members of my family lived in both St Kitts and Anguilla. In St Kitts, I had an uncle, Frank Henville QC. He was a well known lawyer of his time. He invited me to come and join him to do my law pupilage. So, when I had completed my law studies in the summer of 1971, I chose to return to Basseterre. There, I did my pupilage, and eventually hung out my shingle and started up my law practice.

Five years later, in August 1976, the Executive Council of Anguilla consisted of Ronald Webster, Emile Gumbs, Idalia Gumbs, and Albena Lake-Hodge. They invited me to come to Anguilla to serve as the Magistrate. That job lasted for four years. Then, I hung up my shingle in The Valley and went back into private practice, this time in Anguilla.

In 1980, the Peoples’ Action Movement of St Kitts and Nevis won the general election. Dr Kennedy Simmonds became the Prime Minister. Billy Herbert was one of his advisers. Billy was also the constitutional adviser to the Anguilla government. St Kitts-Nevis began to prepare for independence from Britain. Anguilla was about to become legally and constitutionally separated from St Kitts for the first time since 1825. The major objective of the Anguilla Revolution was in sight.

One problem was what to do with the many Anguillians who had chosen to work and to spend the rest of their lives in St Kitts. Would they suddenly become foreigners? And, the Kittitians such as Billy and myself who lived and worked in Anguilla? Were we to be made foreigners? The three governments of St Kitts-Nevis, Anguilla and the UK worked out a solution. All Kittitians living in Anguilla on the day of the legal separation of Anguilla would for the purposes of the Anguilla Constitution be deemed to have been born in Anguilla. All Anguillians living in St Kitts or Nevis on that day would be deemed to have been born in St Kitts-Nevis.

And, so we got section 4(3) of the Anguilla Constitution Order 1982:

“If a person who was born in St. Christopher or in Nevis before 19th December 1980 is ordinarily resident in Anguilla, having been so resident since that date, he shall be treated for the purposes of section 80(2) of the Constitution as if he had been born in Anguilla.”

Section 80(2) of the Constitution is the section that provides who is an Anguillian belonger. It reads:

“(2) For the purposes of this Constitution a person shall be regarded as belonging to Anguilla if that person—

(a) is a British Dependent Territories citizen—

(i) who was born in Anguilla, whether before or after the commencement of the British Nationality Act 1981 . . .”

So it is that I can claim with pride that the Anguilla Constitution Order is my Anguillian birth certificate. My birthday is the 19th December 1980. As I recall, twenty-eight is a good age to be!

Being born in Anguilla is one of the conditions or qualifications for election to the House of Assembly. Look out Eddie, here I come!

Anguillian Status

Anguillian Status Commission. We continue our examination of the Commissions and Commissions that are required to oversee our administrators if we are to invest them with increased political powers, amounting to "full internal self-government".

This Commission is the one which decides who is and who is not an Anguillian under the relevant constitutional provision. There is in existance just such a Commission. It was appointed under the Anguilla Constitution 1982. The provision is short. It reads:

“80. (1) There shall be an Anguilla Belonger Commission . . ., the composition and functions of which shall, subject to the provisions of this section, be prescribed by law.”

The law in question is the Anguilla Belonger Commission Act c A60. This may fairly be described as a most unsatisfactory law. The complaints made against it include: (a) it is a stooge of the Chief Minister from time to time, implementing his policy moods as they change, depending on the side of the bed he wakes up on; (b) its members have no security of tenure, so they had better follow the Chief Minister's instructions, or they might all be fired; (c) even the Governor can remove the members without cause; (d) it is difficult to find out how to apply to the Commission for your rights to be determined, as it has no website or other publicly published information about it; (e) it seldom meets to do its work, and if it does meet, this is a state secret. It does not release any information about its decisions. How much of this is true is hard to determine. In theory, the function of the Commission is simply to apply the definition of belonger status under the Constitution.

Needless to say, this type of amateur arrangement does not find approval with most Anguillians. The Constitutional and Electoral Reform Commission did not make any specific recommendations for upgrading the Commission when it presented its Report of August 2006. However, the entire tenor of the Commission's recommendations was directed to improving independence, transparency and integrity in the work of all Commissions, including this one.

Commissions exist to apply government policy, while ensuring that the guarantees of the Constitution are not infringed.

Commissions remove important decisions affecting the rights and property of persons from the political decision-making process.

Commissions ensure that the Constitution and the law are followed by the administration. Such a dichotomy is a necessary guarantee of our liberties. Anguillians recognise this. The British Government recognise this.

It will not be impossible for us to frame a new constitutional provision that will ensure that this objective is achieved.

One, the new Commission must not be subject to the direction or control of any other person or authority in the exercise of its functions.

Two, the Governor should appoint the Chairman after consulting with the Premier, not acting on his advice.

Three, no person who has been a candidate for election to the Assembly should be qualified to be appointed.

Four, security of tenure should be enhanced by making their term of appointment five years instead of the present three. Also, the Governor must not be able to remove a member without cause. And, the emoluments of the members must not be subject to government approval.

Five, the Commission should report annually to the Assembly, not to any Minister or the Governor. The Report must be widely published within a specified time. This will not be expensive. It can be done by a novice IT person free of charge on the government website.

The Constitution sets out who is to be an Anguillian and who is not. It is not appropriate for persons close to the Chief Minister or the Governor to have a final say in such an important matter.

It is fine to say that an aggrieved person can always sue.

Have you checked out the cost of litigation in Anguilla recently?

Identity Cards

Constitutional Discussions 24: Identity Cards. It is presently a matter of uncertainty who of all the residents of Anguilla are entitled to Anguillian status. This status determines who can vote and who can purchase land freely and without any restriction. You cannot be deported or declared a prohibited immigrant if you are an Anguillian. At present, one has to produce a Belonger certificate issued by the Belonger Commission. Or, you may have a passport showing your Belonger stamp in it. Or, you might have with you your a birth certificate showing your birth in Anguilla to apparently Anguillian parents. Better still, you may have gone to school with the young Immigration Officer who is checking you in at the Arrivals at the airport. It helps if she knew your parents. The result is that you can prove you are an Anguillian in a variety of ways. All of this was entirely unsatisfactory to a majority of those persons who made representations on the subject to the members of the Constitutional and Electoral Reform Commission during the 2006 public discussions.

One representation that found favour was the requirement that all Anguillians carry an identity card. This would provide one standard mechanism for all of us to prove our Anguillian status when lawfully required to do so. Several concerned citizens pointed out that, with the recommendations for widening the definition of who is to be considered an Anguillian, there will in the future be many qualified persons who are not known in the community. At present, with its small village-like community structure, Anguillians generally all know who is who. In the coming years, the island’s population is expected to grow dramatically. It will become increasingly a matter of concern for the authorities to know immediately who is and who is not an Anguillian. Such a provision will go a long way to avoiding doubts. This was the recommendation of the Commission at paragraph 178 of its August 2008 Report.

It is a matter for regret that members of the House of Assembly meeting in caucus at the Limestone Bay Café in March did not agree with this recommendation. They were persuaded that it would be an excessive invasion of privacy. It was precisely because the members of the Commission recognised the intrusion into privacy that such a recommendation entailed that they thought it necessary to include the measure as a Constitutional provision. It is a matter for the law which will have to be enacted by the Assembly to give effect to the bare bones of the Constitutional provision to flesh out the protections for the public. It is difficult to see what the members of the Assembly want to put in place of an identity card. Or, do they not realise what a problem of identification the authorities are going to have in Anguilla in just a few years time?

This post brings to an end the list of disagreements that the members of the House of Assembly had with the recommendations of the Constitutional and Electoral Reform Commission. Subsequently, in July, the Chief Minister’s negotiating team met at Paradise Cove. They came up with some new ideas for discussion with the Foreign and Commonwealth Office team. Those discussions have now been indefinitely postponed. They will occur sometime in the next year or two. It does not look as if anyone in Government is going to tell the public what these ideas were. It will fall to me to do so, if I can find my notes.

As I write this, I am buried in the Public Records Office at Kew in London. I am researching Anguilla’s old colonial documents. I shall depend on you to let me have ideas for blogging for the next few weeks. As soon as I am back home, I shall look for my notes and let you know what I think.

Anguillian Status

Constitutional Discussions 23: Great-grandchildren of Anguillians. The question who is to be considered an Anguillian was the subject of much debate and disagreement during the 2006 public consultations of the Anguilla Constitutional and Electoral Reform Commission. The Commission eventually came up with a compromise recommendation that is contained at paragraph 174 of its August 2006 Report. I am not going to repeat it for you. It is long and complicated. It needs to be read in full to get its entire meaning. The members of the House of Assembly meeting in caucus at the Limestone Bay Café to consider the recommendations were generally in support of the changes recommended. There was just one small disagreement. It had to do with the great-grandchildren of Anguillians.

The Commission had recommended that children and grandchildren of Anguillians should automatically be Anguillians. It is not so now. Grandchildren of Anguillians are not legally Anguillian belongers. The Commission went further than grandchildren. They found that Anguillians in the main wanted their great-grandchildren to be included in the category of Anguillians. There was only one condition. It should not be automatic. The grant of Anguillian status to great-grandchildren should be tied to a proven connection with Anguilla. It would depend on proof of continuous residence in Anguilla for a period of five years prior to the application for a grant of a certificate of Anguillian status. This residence qualification would ensure that the many thousands of descendents of Anguillians who have long ago given up any connection with the island will not automatically be entitled. It is only those who reside on the island who would be so entitled.

Members of the House of Assembly were reluctant to go with this recommendation. They preferred the minority view. They would not include great-grandchildren, no matter how long they had lived on the island.

Quite what they were concerned about is still not clear to me!