Who is the ‘head’?

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If you have been wondering why there has been a call for meaningful constitutional reform, then you need look no further than the debate regarding who has the authority to call an independent inquiry in Antigua & Barbuda.
This topic has raised its head following the back and forth allegations and finger-pointing surrounding the Odebrecht bribery scandal and the Antigua & Barbuda based overseas bank, Meinl Bank Antigua Limited.
As things sit right now, the opposition United Progressive Party (UPP) is pleading with the Governor General (GG), Sir Rodney Williams, to heed its request to set up of a Commission of Inquiry into the scandal and exercise his power, which the party believe he has.
After meeting with the GG and the Deputy Governor General, Sir Clare Roberts, the political leader of the UPP, Senator Harold Lovell, was optimistic that their arguments would win over the GG and he would act.  He said, “The meeting went very well; he was very attentive and I believe that he understands exactly what we are saying.”
In response to the UPP’s call for an independent inquiry, Prime Minister Gaston Browne said the GG has no powers to initiate such an inquiry.  The Attorney General (AG), Steadroy “Cutie” Benjamin, backed the PM.  Benjamin said, “All commissions of inquiry are initiated by the government”, under the Commission of Inquiry Act, “after which the government would have to make preparations for conduct of the matter”.
He summed up his opinion by stating, “There’s nothing in the law as I know it, that gives the authority for the governor general as head of state to call a commission of inquiry.” Well, if the ‘head of state’ can’t call a commission of inquiry then the position is a little lower than ‘head’.
Be that as it may, let’s turn our attention to the constitution to get some idea of what powers the governor general may have.  The UPP has pointed to section 80 of the Constitution and in particular Section 80, Subsection 1, which Senator Lovell says makes it “very clear that the Governor General, in exercising his function, can act in his own discretion where there is a law that permits him to do so.”
Section 80, Subsection 1 of our Constitution states, “ 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 case where by this Constitution or any other law he is required to act- a. in his discretion; b. after consultation with any person or authority other than Cabinet; or c. in accordance with the advice of the Prime Minister or any person or authority other than the Cabinet.”
So, on the face of it (to our untrained legal eyes), the UPP appears to have a point.  The GG does seem to have a certain amount of independence, especially when we pair it with the Commission of Inquiry Act which, in the second clause states, “It shall be lawful for the Governor-General General whenever he shall deem it advisable, to issue a commission to appoint one or more commissioners, and authorising such commissioners, or any quorum of them therein mentioned, to inquire into the conduct or management of any department of the public service in Antigua & Barbuda, or of any public officer of Antigua & Barbuda, or of any parish or district thereof, or into any matter in which an inquiry would, in the opinion of the Governor-General, be for the public welfare.”
The government’s retort will obviously be that the GG must act in accordance with the advice of the Cabinet.  And let’s not forget the overt expression from the current administration that, as ministers, ‘dey run tings’ and the GG cannot set-up any commission.  We presume that one of the indirect messages is:  who will pay for it if the government refuses?
Sure, the GG may be able to call a commission of inquiry but if the government will not pay and is not compelled by law to pay, then how would a commission ever get funded.
This creates an unsettling position for anyone who believes in transparency and accountability.  It would appear that the government could stymie any independent investigation if it desires.  How then, could we ever look into the affairs of government when serious issues arise, if the very government which may be the subject of those questions can frustrate the process for setting up an inquiry?
These are very serious questions that require serious answers.  As we stated, previously, we are not legally trained, so we invite the legal fraternity to weigh-in on the matter.  Please correct us where we are wrong and educate the public on this matter.  Maybe the Antigua & Bar Association can answer that call –  not to take sides, but simply to educate on the law and its meaning.

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