STATEMENT ON GOVERNOR GENERAL’S POWERS TO SET UP A COMMISSION OF INQUIRY
Upon assuming office, the Governor General took an oath “to preserve the constitution of Antigua and Barbuda and the law” and “conscientiously, impartially and to the best of [his] ability discharge [his] duties as and do right to all manner of people without fear or favour, affection or ill-will.”
In the light of the debate concerning his powers to call a Commission of Inquiry into matters related to the circumstances under which certain African citizens arrived in Antigua, the Governor General instructed his office to secure independent expert legal advice upon whether he has a power to call a Commission of Inquiry in the absence of a request from the Cabinet (or a duly authorised Minister).
Accordingly, the Office of the Governor General engaged legal firm BDB Pitmans LLP, a reputable chamber with vast constitutional law experience at the level of the Privy Council, to instruct London based senior counsel, Gregory Jones KC to provide a written legal opinion. In addition, the Governor General also separately instructed senior counsel, Allan S. Wood KC, based in the Caribbean to provide an opinion on the same question.
Acting independently of each other, both KCs came to the same view quite separately: namely, that it would not be lawful under the Constitution of Antigua and Barbuda for the Governor General to call a Commission of Inquiry otherwise than upon the advice of the Cabinet (or a duly authorised Minister). It should be noted that this view also accords with a written legal opinion dated 18 September 2002, held by the Governor General’s office and obtained by the previous Governor General from a specialist independent counsel in London.
These legal opinions also accord with past practice The record shows that on all previous occasions when Commissions of Inquiry were established, they were only done upon the advice of the Cabinet.
Consistent with the principles of transparency and impartiality, the Governor General wrote by letters dated May 24th and 25th 2023, to the Government and the Opposition respectively, setting out the legal position and enclosing copies of all three legal opinions. For the benefit of the general public, the said legal opinions are attached for information purposes.
In summary, the inability of the Governor General lawfully to act alone in this matter is well-established. The Governor General is bound by his oath of office to act in accordance with the established law.