Local King’s Counsel Wants to Know

Dear Editor,

We live and learn. And, lawyers sometimes differ; hence Courts are asked to decide, and we abide.  

Having read on antigua.news  that “Two UK King’s Counsel say Governor-General has no power to call an inquiry”, I immediately sent a whatsapp to the Hon. Attorney General requesting that he disclose, in the public interest, the legal opinion that he received in light of the fact that two local King’s Counsel have earlier this week opined a contrary view – that the Governor-General can act independently and at his discretion in appointing a Commission of Inquiry.

It certainly is not sufficient for the Chief of Staff in the Office of the Prime Minister to simply say that the (UK Legal) experts have concluded that the Governor-General has no such power. Both Ms. E. Ann Henry, KC, and I the undersigned, would like to be informed where we went wrong in our interpretation and assessment of the relevant law. This is a matter of general public interest, and we need to know why Mr. Hurst is baffled at my statements.

The Commissions of Inquiry Act, Chapter 91 of the Laws of Antigua and Barbuda provides in section 2 that “It shall be lawful for the Governor-General whenever he shall deem it advisable, to issue a commission appointing one or more commissioners, and authorising such commissioners . . . to inquire . . . into any matter in which an inquiry would, in the opinion of the Governor-General, be for the public welfare. . .” [my underlining to give emphasis to the words]. No where in that Act is the Prime Minister or any other Minister or the Cabinet mentioned. And section 17 provides that “The Governor-General may direct what remuneration, if any, shall be paid to any commissioners acting under this Act, and to their secretary, and to any other persons employed in or about any such commission, . . . Such sums, so directed to be paid, shall be paid

by the Accountant-General out of the ordinary cash balance in the Treasury.”  The English language seems pellucidly clear to me.

I accept that the Governor-General shall hold office during His Majesty’s pleasure and shall be His Majesty’s representative in Antigua and Barbuda. I also accept that our Constitution is the supreme law of

Antigua and Barbuda and that section 2 further provides that

“. . .subject to the provisions of this Constitution, if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void”. 

Chapter V of the Constitution speaks to the Powers of the Executive branch of Government, and provides that the executive authority of Antigua and Barbuda is vested in His Majesty and may be exercised on behalf of His Majesty by the Governor-General either directly or through officers subordinate to him.

Section 80(1) of the Constitution provides that “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 except in cases where other provision is made by this Constitution or any other law, and, without prejudice to the generality of this exception, in cases where by this Constitution or any other law he is required to act – (a) in his discretion; (b) . . .” [my underlining to give emphasis to the words].

I am and remain of the view that section 2 of The Commissions of Inquiry Act quoted above gives the Governor-General the power to act in his own deliberate discretion – and not on the advice of anyone. Just check the words which I have underlined.

In summary, that is my reasoning; and Ms. E. Ann Henry, KC, is of the same opinion. I therefor respectfully ask of the Hon. Attorney General and/or the Chief of Staff to disclose the legal opinion that they have received from the UK King’s Counsel, that we may assess and note where our reasoning is faulty, and acknowledge that we are wrong. The public, too, needs to know.

Kind regards,

Justin L. Simon, KC