Abolition

The British abolished the death penalty without our consent!  Some persons express themselves to be very bitter about the way that they perceive that the death penalty was abolished in the British Overseas Territories in the West Indies.  They say that it was an arbitrary exercise of power by the British Government over us.  They protest that it was a dictatorial step taken by the Foreign and Commonwealth Office, and which was contrary to the wishes of the people.  They say it was an imposition on us, which was made without our knowledge or consent. From what I have been told, it would appear that nothing could be further from the truth.

First, some background.  The British Government, it is true, is bound both the Universal Declaration of Human Rights of the United Nations and by the European Convention on Human Rights.  The Convention is a constitutional document binding all members of the European Union.  Under the Convention, it is illegal for a member government to execute any person for any offence.  The reason for this general aversion to the death penalty is buried in the psyche and subconscious of the Europeans.  They have had such a blood-soaked and murderous past, stretching over 3,000 years of written history, not to mention the hundreds of thousands of years before writing was invented, that they have developed an instinctive aversion to the death penalty.  It may seem curious to some of us, but they consider the death penalty barbarous and uncivilised.  They cannot help having this feeling.  It is now part of their DNA, so to say. 

The guilt the Europeans feel for their 10,000-year recent history of war; massacre; burnings of religious heretics at the stake; pogroms against the Jews; drownings of witches; hanging, drawing and quartering of rebels; keel-hauling of mutineers; death by exposure while hanging in irons for bandits; the euthanasia of mentally retarded children; the elimination of Gypsies and other "subnormals"; religious wars; tribal wars; national wars; ethnic cleansings; the Holocaust; war upon war; not to mention the thousands of innocent persons who have been wrongfully convicted of capital offences, and executed, only to be proven innocent after they have been executed, have induced such an instinctive revulsion at the death penalty, that the Europeans will not countenance in their midst any country that retains the death penalty.  Their partners in the European Union hold Britain responsible for any outrages against their conscience that take place in the British Overseas Territories by the application of the death penalty.  It is undoubtedly true that, during the decades of the 1970’s and the 1980’s, the British were under intense international pressure to force us in the Overseas Territories to get rid of hanging.

       The death penalty has always been popular in the Americas, including the West Indies.  It satisfies the very human need to implement the Biblical injunction of “an eye for an eye, and a tooth for a tooth.”  During the decade of the 1980s, the Foreign and Commonwealth Office repeatedly pressured the governments of the Overseas Territories to abolish hanging.  They were tired of being harangued and abused by their European colleagues at international conferences on human rights.  The British Government met stiff resistance to their urgings that we abolish the death penalty.

       The West Indian governments of the Overseas Territories, though at first loath to give in to the pleadings of the British Government, eventually saw the point.  By the end of the decade they were expressing themselves no longer opposed to the abolition of the death penalty.  But, they did not want to be the ones to introduce the idea into the parliaments of the West Indies.  They knew that the suggestion of abolishing hanging would meet with universal opposition.  Their governments would become so unpopular that they would almost certainly be defeated at the next polls. 

A solution was worked out.  The Premiers and Chief Ministers of the British Overseas Territories in the West Indies, at one of their annual conferences in London, put the solution to the FCO.  The suggestion was made that it would be much cleaner, and cause many fewer problems for the local governments, if the British Government would do it for them.  So, the British were encouraged by our governments to pass the necessary Order in Council that abolished the death penalty.  As promised, none of our governments objected.  It was done quietly and peacefully.  Hardly anyone noticed.  The British need to have their name cleared of the charge of permitting state-sponsored killings in their Overseas Territories was satisfied.  The West Indian governments need to stay clear of any suggestion that they were soft on crime by proposing the abolition of hanging was met.  Everyone was happy. 

       And, so we can say that in Anguilla, the death penalty has been abolished since the year 1991.  The right to life is absolute.  Well, nearly absolute.

       It is still lawful for one of us to take the life of another in using reasonable force for the defence of person or property.  This is the defence of self-defence.  If a violent person is attempting to evade arrest, or to escape from prison, and he is shot in the process of effecting that arrest or preventing that escape, that would be a lawful killing.  In the unlikely event of a riot, insurrection, or mutiny, if a lawful order is given to fire on the rioters, any deaths will not be in breach of the constitutional protection of the right to life.  And, finally, in the event that Anguillians are involved in a lawful war, our soldiers firing on an enemy as a result of orders to do so, will not be in breach of the provision.  Killing in pursuance of a lawful war is no murder.

       But, generally, when it comes to the death penalty for murder, it is safe to say that it has been completely abolished in Anguilla.  The protection of the right to life in Anguilla is sacrosanct.

Hanging

Let us look at the first of our fundamental rights, ie, the right to life.  The protection of our right to life is enshrined in section 2(1) of the 1982 Constitution of Anguilla.  This reads:

2.(1) No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence under the law of Anguilla of which he has been convicted.

       The meaning of this is clear.  No law can be passed in Anguilla permitting someone to be executed, save in carrying out a sentence of a court in respect of a criminal offence.  So, if the House of Assembly were to pass a law providing for mercy killing in Anguilla, that would be unconstitutional.  If we were to provide by law for a eugenics programme of terminating the life of all persons who have an IQ, or intelligence quotient, below a certain level, that would be unconstitutional. 

       In the statute books, you may still find the provision that the sentence for murder is death by hanging.  Such a sentence would indeed be a sentence of a court in respect of a criminal offence, and apparently permissible.  However, the section of the Anguilla Constitution permitting executions by way of a sentence of a court has been impliedly amended by a subsequent statutory instrument.  The death penalty for murder was abolished in Anguilla, and all the British Overseas Territories, in the year 1991.  Section 3 of the Caribbean Territories (Abolition of the Death Penalty for Murder) Order, 1991, provides:

Abolition of the Death Penalty for Murder

3. Notwithstanding the provisions of any other law in force in the Territory, no person shall be sentenced to death by any court in the Territory for the crime of murder, and a person convicted of murder shall be sentenced to imprisonment for life.

       Since, for all intents and purposes, in Anguilla we only had the death penalty for murder it is now safe to say that the death penalty has been completely abolished.  Nobody can be hanged for murder in Anguilla since the year 1991, no matter how deserving we may think that person might be of such a retributive penalty.

Much as some of us may think otherwise, this is no great loss in practice.  My researches have not uncovered a single case of a person being executed in Anguilla for murder since the abolition of slavery in the year 1834.  I am told that many years ago one or two persons who committed murders in Anguilla were taken to St Kitts, tried there, and hanged there.  But, no one has been hanged in Anguilla in all the years of its recorded history, so far as I have been able to determine.

Human rights

And now for something quite different.  A few weeks ago, Wycliffe Richardson, the owner and manager of ATV3, suggested that I do a series of 15-30 minute TV presentations on legal issues in Anguilla.  We have now produced over a dozen scripts. 

Some of the first ones dealt with the elections law.  They were broadcast in the weeks before our recently concluded general elections.  

Wycliffe Richardson

When the elections were over, he suggested that I do a review of the Constitution, highlighting some of the major issues.  Constitutional reform should be high on the agenda of the new Government.  Anguilla and Montserrat are the only Overseas Territories in the West Indies that have not completed the process of reviewing and updating our Constitutions. 

So, let us look at some of the constitutional issues that I feel are worth considering.

When discussing the Anguilla Constitution of 1982, it is as well to start at the beginning.  If you should thumb through the Constitution, as one is wont to do in spare moments, the first thing you come to is Chapter 1, Protection of Fundamental Rights and Freedoms.  The Golden Rule that you should treat others as you would have them treat you is of great antiquity, the foundation of some of the great religions.  By contrast, the concept of fundamental human rights and freedoms is not something natural to humanity that has existed since time immemorial, through all cultures and nations.  Many of us do not realise that the concept is a relatively modern one, a product of the Holocaust and World War II. 

It is only recently that it has been generally accepted that we human beings have fundamental rights.  Modern recorded history begins with the invention of writing some 3-4,000 years ago.  During most of the succeeding time, up until the end of the Second World War, we lived under various regimes that cheerfully permitted our governments to hang, draw and quarter any of us whose lives were deemed to be contrary to the public interest.  It was only when the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights that everything changed. 

For this we have to thank a widow, Eleanor Roosevelt.  Eleanor Roosevelt had been the First Lady of the United States while her husband, Franklin D Roosevelt, was the President of the United States from 1933 to 1945.  After his death, President Harry S Truman made her a member of the US delegation to the United Nations.  There, she was elected to chair the committee that drafted and approved the Universal Declaration.  She played an instrumental role in drafting the Declaration, calling it “the international Magna Carta of all mankind”.  The Declaration was adopted by the UN General Assembly on 10 December 1948.  The vote of the General Assembly was unanimous, except for eight abstentions, by Muslim countries which took exception to the implications of the Declaration as to freedom in marriage.  President Truman called her “The First Lady of the World” in tribute to her human rights achievements.

 Eleanor Roosevelt at the United Nations

As the Preamble to the Universal Declaration says:

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, and

Whereas disregard and contempt for human rights have resulted in barbarous acts, which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief, and freedom from fear and want, has been proclaimed as the highest aspiration of the common people, and

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law, and

Whereas it is essential to promote the development of friendly relations between nations, and

Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person, and in the equal rights of men and women, and have determined to promote social progress and better standards of life in larger freedom.

This Preamble is followed by 30 Articles that enumerate the fundamental rights of all persons.  Since 1948, any government offending against the fundamental rights of its people is liable to find itself and its leaders charged before the court with offences of Crimes against Humanity.  It was from this date that all humans were perceived as enjoying universal rights, including the right to life.

Not all of the fundamental rights recognised by the Universal Declaration are repeated in our Constitution.  But, what we can say, is that those rights that are recognised in our Constitution draw their origin and raison d’etre from the Universal Declaration. 

So, Chapter 1 of the Constitution of Anguilla begins with section 1, a recital of the fundamental rights and freedoms of the individual.  It provides that every person in Anguilla is entitled to life, liberty, security of the person, the enjoyment of property, and protection of the law, freedom of conscience, of expression and of peaceful assembly and association, and respect for his private and family life.  There are limits to the protection under the Constitution.  Principally, our enjoyment of our fundamental rights is subject to respect for the rights and freedoms of others, and for the public interest. 

I believe that it is worth remembering that in addition to our rights being enshrined in our Anguilla Constitution, they are also grounded and based in the United Nations Universal Declaration of Human Rights.

Apology

Apology

I have now discovered the quarrel that Stanley has with my last post.  It seems that I have several factual errors in it.  I also drew some unfair inferences in relation to him and the public service.

It appears that the Immigration Officer who, I wrote, had had his case quietly dropped has in fact been committed to trial in the next sitting of the Assizes.  The case has not been “swept under the carpet”.

The old lady whose case, I wrote, had been nolle prossed, had in fact been tried by the Magistrate who had dismissed the charges when the old lady was unable to identify her assailant.

And, the suggestion that Stanley had been quietly made PS Administration in order to get him out of the Magistracy was quite misconceived.  Stanley had in fact continued to serve as acting Magistrate from time to time for some nine years while serving in the Attorney-General’s Chambers until he was appointed PS Administration. 

For these and any other factual errors in my post I apologise unreservedly to Stanley.  I had received and relied on incorrect information about these incidents.  I therefore had no valid reason to have drawn the inferences I did, that Stanley owed a favour to Keithly. 

Stanley has also pointed out, and I accept, that in the circumstances, it was quite unjustified for me to have said that the one sure way to get a promotion in the Anguilla Public Service is to be caught engaged in serious criminal activity.

Magistracy Series

Magistracy series . I am presently in St Kitts. I understand that when I get home, I shall find a letter from the Governor advising that he has given Stanley and Keithley permission to bring actions against me for defamation if I do not apologise to them.

         If Stanley or Keithley will show me where I have written anything false or defamatory about them, I should happily do so. I have reviewed the prior posts, and have not been able to see what it is that they could be complaining about. I shall be consulting with my solicitors next week to see if there is something I have missed.

         I had a last post on the Magistracy to publish. In it I had proposed to set out my solution to the problem that has been created by this proposal to have the Commissioner of Police move from Police Headquarters directly onto the Magistrate's bench. 

        It would not be proper for me to publish any further on this matter in the circumstances. I shall therefore desist, for now.
        Additionally, until I learn more, I'll take down the posts.

MOAs

Not that I am a constitutional expert. Far from it. When I served as a judge, many of my judgements were reversed on appeal.  So, take this my opinion with the grain of salt it undoubtedly deserves.

In my opinion, when the government of Anguilla negotiates a Memorandum of Understanding or a Memorandum of Agreement [they both mean the same thing] with a developer, which agreement requires a change of the law, this agreement is not binding until the House of Assembly changes the law.  The agreement does not bind future governments.  It certainly does not bind the House of Assembly.  No Executive Council represents the House of Assembly or can speak on its behalf.  The House of Assembly is the law making body of the country.  The House of Assembly is free to completely ignore or to repudiate any agreement entered into by the government of the day.  It is the duty of the government to present any agreement they have made and which is subject to approval of the House of Assembly to the House to give it the validity of law.  If government fails to present the agreement to the House for approval, the agreement is worthless.  When the law says that only the House of Assembly can agree to something, any agreement by the government is subject to agreement by the House of Assembly. 

The Customs Act is such a law.  No exemption from customs duty under the Customs Act has effect, except it is passed by the House of Assembly.  Only the House can ratify an exemption from customs duty.  One of our major criticisms of the last government was that they made agreements for exemption from Customs Duty that had not been approved by the House of Assembly.  Executive Council has no authority to approve exemption from customs duty, unless they get it approved by the House of Assembly.  At most, Executive Council can agree to move a Resolution in the House of Assembly to exempt a developer from customs duty.

Our new government is subject to any decision made by the House of Assembly.  If the present House should repudiate any previous government’s MOU with Cap Juluca or with Flag Luxury Resorts, or the with Viceroy, which may have been approved by the last Executive Council, but not approve by the previous House of Assembly, then these MOUs or MOAs are worth nothing. 

If the present House of Assembly votes to repudiate any Memorandum or Agreement or any Memorandum of Understanding, not approved previously by the House of Assembly, then they are dust. 

So sayeth the soothsayer, Don.

Peter Eigen

How to expose corruption. This little video is a speech by one of my heroes. I hope you will look at it and understand what he says.

Everything he speaks about is relevant to Anguilla as to every other country in the West Indies. Our leaders are subject to absolutely no higher supervision. We are prisoners of a post-colonial system which has bequeathed to our region a constitutional regime that vests absolute power in our Prime Ministers, Premiers, and Chief Ministers.

We all need to concentrate on how we introduce checks and balances into our constitutional arrangements.