By Sir Gerald Watt KCN KC. Speaker.
The Leadership of the United Progressive Party (UPP), its supporters and some other concerned citizens have publicly called for a public inquiry into the setting up of the Nigerian Airline Antigua Airways, its transporting of hundreds of Cameroonians fleeing their country and for a variety of reasons, are stuck in Antigua and Barbuda, and the unfortunate death of three of these persons who drowned while unlawfully attempting to enter St. Thomas, USVI, by boat.
The Government of Antigua and Barbuda (GOAB) has declined to hold any such Inquiry and has stated its reasons for not doing so.
Whatever one’s views of the matter, the UPP continues to treat the matter as a “cause celebre” and has called and continues to call on the Governor General (GG), Sir Rodney Williams to issue a Commission under the provisions of the Commissions of Inquiry Act (COIAct).
The GG has declined to do so on the grounds that, he cannot independently call a Commission of Inquiry, and can only do so “on the advice of the Cabinet”.
The UPP does not accept this as being a legal position, continues to agitate for an Inquiry, and has even resorted to picketing the office of the GG, at Government House.
The matter has now become a political football, and the body politic is divided on the issue.
It is under these circumstances that Justin Simon KC published a letter in the media in which he declared that the GG did indeed have the authority to issue a Commission of Inquiry (COI) under the provisions of the Commission of Inquiry Act (COIAct) Cap 91 of the revised laws of Antigua and Barbuda.
He supported his legal position by quoting from the aforesaid Act and underlining for emphasis those words which he considered supported his legal view, a view shared by E. Ann Henry KC.
My reason for this article is that I, Dr. David Dorsett and Jarid Hewlett Esq. of the firm WATT, DORSETT, HEWLETT, consider the legal opinion to be seriously flawed and the opinion of both Kings Counsels to be wrong in law.
It is respectfully submitted that both Kings Counsels have fallen into error, in that they have based their opinion solely on the words of the statute, without analysing and interpreting the Act in a constitutional environment, and failed to apply constitutional punches and conventions, in particular, relevant sections of the Constitution of Antigua and Barbuda (the Constitution).
The COIAct cannot be read and interpreted in isolation. Due regard must be had to the genesis of the Legislation which was passed in the year 1880, when the decisions such as this were made by the Governor who was supported by the British Monarchy, not so post 1981, when Antigua and Barbuda attained its independence and governed under the provisions of the Antigua and Barbuda Constitution which provided for government by an Executive or Cabinet, the other two arms of Government being the Legislature and the Judiciary.
In analysing interpreting the COIAct, one must also look at and take into consideration sections 80(1), (2), (3), (16) and (19) of the Constitution of which the marginal note reads: “the exercise of the Governor General’s functions”. The section reads as follows:
“In the exercise of his functions, the Governor General SHALL act in accordance with the ADVICE OF THE CABINET or a Minister acting under the general authority of the Cabinet” (emphasis supplied).
The meaning of this section and its subsections are crystal clear and mandatory; no discretion lies in the GG.
Further, section 80 (2) of the Constitution sets out precisely certain sections which confer upon the GG those functions in respect of which he acts in his own discretion. These are sections 63(6), 67(6), 73(1), 87(8) and 99(5), all of which give to the GG authority “to remove the holders of certain offices in certain circumstances”. These include:
- A member of the Constituencies Boundaries Commission
- The Supervisor of Elections
- Revoking the appointment of the Prime Minister in certain circumstances,
- The Director of Public Prosecutions
- A member of the Public Service Commission
In this regard, it must be noted that appointing Commissions of Inquiry is not a function permitted under section 80(2) of the Constitution and even those functions require the GG to refer the matter to a Tribunal, appointed by him, before he can exercise his power of removal.
In passing, readers will recall that Dame Louise Lake Tack utilised such powers to have me removed from my position as Chairman of the Antigua and Barbuda Electoral Commission (ABEC), the Tribunal consisting of three regional Justices of Appeal. The Tribunal refused to recommend refusal and the GG was unable to do so. Simon KC was the Attorney General who would have advised the then GG.
In addition to all of the above, I invite the readers to consider the reality of the situation and to ask themselves the following questions:
- If section 2 of the COIAct clothes the GG with the authority to issue a Commission of Inquiry on his volition, how will the Commission be funded?
- More particularly, how will the GG on his own, ensure compliance with sections 14, 15, 16 and 17 of the COIAct?
- If Simon’s interpretation of the Act is correct, why has every GG in respect of every COI done so on the advice of the Cabinet?
- Surely if the intention was to empower Governor Generals to independently set up Commissions of Inquiry, an amendment to the Act would have long since been passed.
In the face of the continuing agitation by the Opposition UPP, the GG sought and obtained three written legal opinions from Kings Counsels of known eminence. All three have concluded and addressed that the GG “must act on the advice of the Cabinet”.
In contrast, the Simon opinion has publicly gained support from Leon Chaku Symister Esq. and Dwyer Astaphan Esq. of the Antigua and St. Kitts bar respectively.
While not bashing to be unkind, none of these attorneys can be said to be versed in Constitutional law, known to practice in the highest courts, or are concerned to have attained any sort of eminence in the legal profession.
In these circumstances, both Kings Counsels must admit their error and retract their opinion. They owe the Governor General and the country no less.