Tuesday, August 24, 2010

Montserrat Trip Report

Trip Report on a visit to Montserrat 
16-20 August 2010

By Don Mitchell CBE QC
[1]        Last week I visited Montserrat at the invitation of the Hon Donaldson Romeo MLC to consult with him and members of the public on the new draft Constitution 2010.  This has been drafted by a team of Foreign and Commonwealth Office (FCO) lawyers, and agreed by the Government of the island.  The FCO legal team and the Government propose that the Legislative Council should pass a Resolution approving the draft with or without amendment.  The present Constitution dates to the year 1989. 
[2]        During the three days that I was in Montserrat, I met with one youth group, two service clubs, the Rastafarian organization, one church group, and various individuals, including a number of the island’s barristers and solicitors.  I also took part in a television interview, a radio call-in programme, and interviews by various members of the press.  I am especially grateful to Jean Kelsick Esq, barrister and solicitor of the Eastern Caribbean Supreme Court, for some of his observations on weaknesses in the draft Constitution, some of which I have been happy to adopt.
[3]        Montserrat is one of the few British Overseas Territories still receiving financial support from the British Government.  The receipt of grant-in-aid, I was told by several Montserratians, makes it difficult for them to believe that their views on the draft constitution will be welcomed.  Many believe that the draft Constitution is being offered to them on a “take it or leave” basis.  This unfortunate, and wrong, view of theirs is reinforced by recent actions of the local Government. 
[4]        Government has made a concerted effort to rush the draft Constitution through the Legislature without any public consultation.  Only reluctantly did the government suspend its efforts to have an approving resolution passed.  The public has been given three months to ‘consult’.  The resulting consultation process has been deeply flawed.  It would appear that no effort is being made to gather any input from the people of Montserrat regarding the draft Constitution. 
[5]        The government has established a Constitution Implementation and Advice Committee whose main function appears to be to sell the draft to the public, rather than to get suggestions for improvement of the draft.  This is no way to secure the approval and support of the majority of the people to the proposed new Constitution. 
[6]        The process chosen for the introduction of a new Constitution shows an attitude of pure contempt on the part of the FCO and the local administration towards the people of Montserrat.
[7]        I have come to the conclusion that the draft is bereft of any sign of an interest in good governance on the part of the FCO.  It is devoid of any of the principles of integrity, accountability or transparency, as I shall attempt to show.  These principles are routinely touted by the same FCO as the three pillars of good governance.  The draft Constitution of Montserrat has missed the opportunity to contribute to this movement.
[8]        The concentrating of power in the Governor’s hands, as proposed by this draft Constitution, tends towards arbitrary, one-man rule.  It may be true that a good governor is better than a bad local Cabinet.  We cannot be confident that our Governors will always be good.  Experience, especially in the case of Montserrat, teaches otherwise. 
[9]        A new Constitution should rather be trying to develop local democratic institutions that will involve the people in their own governance.  It is preferable that the Constitution should encourage responsible government in the Overseas Territory, rather than destroying it.  Responsible government is a better guarantee of democracy, justice, and fairness in government than one-man rule.  The draft Constitution provides for absolute power to be concentrated in one person, subject only to the oversight of the Secretary of State far away in London. 
[10]      In this respect, in my view, the draft Constitution increases the deficit of democracy in Montserrat.
[11] The Preamble:  The draft Constitution starts with a preamble to the Constitution.  This preamble has evidently been drafted by the FCO legal team.  A preamble to a Constitution should be a statement of who the people of Montserrat consider themselves to be.  It should be an expression of their aspirations.  If this were so, it would be written by Montserratians, and it would be expressed in the first person.  It is not appropriate that this preamble should have been drafted by a foreigner, and expressed in the third person.
[12]      The FCO proposes to weaken many of the fundamental rights of the Montserratian people.  We see this first in the section 5 fundamental right to protection from arbitrary arrest or detention.  This provision in the draft Constitution is very weak.  It does not provide for informing arrested persons promptly of their rights.  They need be told of the reason for their arrest only after they have been brought to the station. 
[13]      A person needs to know immediately he is arrested of the reason for his arrest.  This is so not least because he has a right to know whether he is being illegally arrested so that he can exercise his right to resist the arrest.
[14]      The version of the right in the draft is weakened by the provision that he is to be brought “promptly” before a judicial officer.  This provision is capable of abuse, particularly in view of the penchant of the police for arresting persons on a Friday afternoon, and then not bringing them before the Magistrate until the next sitting of the court.  They ought to be obliged to bring an arrested person before a judicial officer within 24 hours of the arrest.  They should bring him to the home of the Magistrate if necessary. 
[15]      This is, not least, so that the Magistrate can observe the arrested person for signs of physical abuse and to be able to give the necessary directions for a medical examination, and to consider bail.
[16]      The FCO proposes to have the Constitution of Montserrat permit the removal of trial by jury:  The wording of section 6 of the draft Constitution makes possible the removal of the right to trial by jury.  There is no suggestion that the people of Montserrat consider this new development either advisable or desirable.  This proposal may have been stimulated by recent failures in prosecution mainly of sexual cases.  Such failures, from what I have been told, spring from patent weaknesses in the prosecution’s cases, and not to any perversity of the jury.
[17]      This is not the only assault on the fundamental right of the people of Montserrat to the protection of law.  The same section 6 contains a provision contemplating abolition of the right to appeal from some or all convictions in the Magistrate’s Court.  Such a drastic curtailment of this fundamental right is inappropriate without thorough consultation with and support from the people of Montserrat, of which there is no evidence. 
[18]      Such a proposal is so offensive as to be incredible in a draft Constitution proposed by an FCO legal team.
[19] The section 9 provision for the protection of the right to marry:  The opportunity has been lost in this or some other provision to ensure that persons born outside of wedlock are not discriminated against under the law.  The Constitution should stipulate equal treatment before the law for all children whether they are born in or out of wedlock or are adopted.
[20]      The FCO legal advisers propose to take away the right of public servants to express a political opinion.  This fundamental right is found in section 12 of the draft Constitution.  It is the provision for the protection of freedom of expression:  In colonial constitutions the fundamental right was traditionally constrained in relation to public servants.  The thinking was that if you are working for Government, you should not be permitted to come out and express views opposed to the Government of the day.
[21]      The way that the right has traditionally been curtailed is by placing in General Orders, the contractual document binding all public servants, a term prohibiting the public or private expression of any political opinion by any public servant.  This was so draconian and absolute a restriction of a fundamental right that it has long been the subject of interpretation by the courts. 
[22]      Restrictions on permanent secretaries and other confidential advisers of government ministers of their public expression of political views may be justifiable.  Ministers need to be confident that their highest advisers will not appear suddenly on a political platform betraying the confidences previously shared.  The same does not apply to the lower ranks of the public service.  It is generally understood in the West Indies today that a blanket ban on public expression of political views by the general mass of public servants is highly objectionable.
[23]      The earlier provision in the Constitution of Montserrat was that the prohibition on expressing a political opinion must be “reasonably justifiable in a democratic society”.  Such a wording has been held by the courts of the West Indies to make it illegal to restrict the lower ranks of the public service from expressing their political opinions. 
[24]      The draft Constitution proposes to remove the need for the prohibition to be reasonably justifiable in a democratic society.  It is to be replaced by a need for Government to show only that the restriction “is reasonably required for the purpose of ensuring the proper performance of their functions.”  This is clearly a lower threshold than previously.  And, the higher test has been removed without any explanation. 
[25]      The intention appears to be to water down the previously enjoyed right, with a view to making it easier to gag teachers and public servants through General Orders.  There is absolutely no justification for this proposed curtailment of this fundamental right of all Montserratians to freedom of expression.
[26] The section 14 provision for freedom of movement contains a sting in the tail.  It would give “an authority” the right to deport a non-Montserratian.  The authority is not defined.  It should be.  As it presently stands, if this provision is passed, it will give a wide variety of people in Government the right to deport someone.  It is clearly preferable that any decision to deport someone should be sanctioned by the court.
[27]      The section 17 provision in the draft Constitution for declaring periods of public emergency is anti-democratic in that the Governor alone decides.  The section should provide as in the British Virgin Islands that he acts in declaring a state of emergency on the advice of Cabinet unless otherwise instructed by the Secretary of State.
[28]      That is not all.  There is a further whittling away of the rights of Montserratians in the section.  The traditional test for restricting the rights and freedoms of the individual is generally expressed as having to be “reasonably justifiable in a democratic society”.  However, in relation to the Governor’s emergency powers, the standard would be set considerably lower in the draft Constitution.  The new test would be “reasonably justifiable for dealing with the situation that exists.” 
[29]      The alteration of the test for justifying a declaration of a state of emergency is undesirable, particularly as that provision has been judicially reviewed in Montserrat.  One may infer that the reason for the watering down of the test is that it is designed to enable the Governor to act in a heavy-handed way in the future without his being accountable to the Courts. 
[30]      Such a deplorable development in a proposed Constitution for a British Overseas Territory is much to be regretted.
[31]      It is accepted that Montserratians live in a country under threat by volcanic eruptions as well as hurricanes.  States of emergency may have to be declared from time to time.  The traditional constitutional provisions are well known, and have been tested in the courts.  There is no need to weaken the rights of the average Montserratian only because there is a risk of more natural disasters striking.
[32]      The draft Constitution would have the section 18 provision for protection of persons detained under emergency laws significantly curtail the rights of the detained person. 
[33]      There is no good reason why the family and the public should wait 10 days to be notified of the identities of persons detained.  It should be no more than 3 days. 
[34]      Nor is there any reason why persons should be able to be detained for up to 30 days without an appearance before the court.  This should be no more than 5 days. 
[35]      Nor is there any need for any other tribunal but the established courts of the island.  Except in a police state, the courts are the most reliable protector of the rights and freedoms of the citizen.
[36]      The evil does not stop there.  The draft states that if an independent tribunal were to recommend that a detainee be released, the authority that locked them up in the first place could ignore the Tribunal’s recommendation.  This provision would mean that the authority could ignore a decision of someone such as a judge appointed by the Chief Justice to preside over the tribunal.  This should be a frightening prospect.
[37]      This new provision vests draconian and dictatorial powers in the hands of the Governor and the police.  It is completely unacceptable in a modern Constitution of a British Overseas Territory in the West Indies.
[38]      There are other objectionable provisions in the draft Constitution that are familiar from the earlier Constitution.  The section 51 restriction on Montserratians who have travelled, and been so lucky and enterprising as to have acquired a second passport, from being able to be nominated and elected to the Legislature is most objectionable.  It repeats the provision in the old Constitution.  One would have thought that preparing a brand new Constitution would have been the opportunity to remove such an anachronism.  It should form no part of a modern Overseas Territory Constitution.
[39]      Section 81 and the following sections set up a Public Service Commission, but it is a powerless institution.  It has the right to consult only on public service appointments and on matters of discipline.
[40]      No FCO-appointed Governor or his deputy should have total power over the appointment and discipline of public servants in a British Overseas Territory.  He should be obliged to follow the advice of a PSC, except, perhaps, for the highest ranks, where consultation with the Chief Minister might be appropriate.  Similarly for teachers and the police force. 
[41]      One notes that section 84 expresses a hope that one day a Public Service Act might be passed that will oblige the Governor to act on the advice of the PSC.  Such a hope is not good enough.  The Constitution should require it to be done.
[42]      One sees with regret that there is no intention to entrench the Ombudsman in the new Montserrat Constitution.  The section 104-105 provisions relating to the Ombudsman are most unsatisfactory.  The office is not to be constituted by the Constitution but is left for a law, which may or may not be passed, to do so. 
[43]      This supervisory officer of the Legislature is one of the most important watchdog institutions that a free people can ever have.  The people of the British Overseas Territories in the West Indies have been exposed to arbitrary and despotic decisions by government departments for decades.  Without the resources to fund a High Court action, the victims have been without remedy. 
[44]      This office is generally recognized as one of the most liberating that a Constitution can provide.  The Constitution should establish the office and set out his functions, tenure and immunities in the usual way, as exemplified by the Constitution of Antigua and Barbuda.
[45]      The draft Montserrat Constitution does not entrench an Interests Commissioner.  Section 106 provides at best a hope that there will be a continuing Interests Commissioner and an effective Integrity in Public Life Act, after it comes into effect.  This is not satisfactory. 
[46]      The new Constitution should entrench the office and make it clear that the provisions are to apply to all members of the Legislature, the Cabinet, Statutory Boards and Committees, and their immediate families.  The disclosures to be made by public officers should not be secret.  They should be public, and failures to obey the law should be subject to serious penalties.  Integrity, accountability and transparency require this.
[47]      Having the Constitution give absolute and dictatorial powers to one man is the opposite of providing for good governance.  A read of the draft Constitution reveals an intention to give the Governor almost total power over the administration.  He is controlled only by secret and unaccountable instructions from the FCO.  This secrecy and lack of accountability are then multiplied by giving him associated discretionary powers. 
[48]      The result is an anti-democratic Constitution.  The system it sets up is not conducive to good governance.  It is the polar opposite of integrity, accountability and transparency.  In particular,
(a) The section 21 use of his discretionary and reserve powers is not subject to democratic accountability.  The draft Constitution should be amended to provide that, except where otherwise instructed by the Secretary of State, he ought first to consult the Cabinet and be subject to review by the High Court in the exercise of his discretionary and reserve powers;
(b) Integrity, accountability and transparency require that the section 26 power to dispose of Crown Land should be subject to a resolution of the Legislature;
(c) The section 28 power of pardon should be exercised on the advice of a Mercy Committee;
(d) The section 87 power to grant or withhold pensions, gratuities and allowances ought to be exercised on the advice of the Public Service Commission;
(e) The section 100 power to appoint the Auditor General is exercised after consultation with the Public Accounts Committee.  Greater accountability and transparency would be achieved if this were to be done after consultation with the Public Service Commission and the Integrity Commission;
(f) Extraordinarily for the twenty-first century, the Governor will retain the power to amend or to disallow a law passed by the Legislature without any reference back to the Legislature. 
[49]      The proposed new draft Constitution for Montserrat is filled with anti-democratic provisions.  These include:
            (a) The Deputy Governor will be able to act in relation to the public service without being obliged to take the advice of the Public Service Commission.  Except in the case of the most senior ranks, this is clearly undesirable;
            (b) The Attorney-General, the Financial Secretary and the Deputy-Governor are not elected.  As in other Overseas Territories with modern colonial Constitutions, they should have no vote in either the Cabinet or the Legislative Assembly;
            (c) The need for a Director of Public Prosecutions has clearly been recognised by the section 45 provision enabling his appointment.  It appears from the wording of the section that the intention is to have the Attorney-General continue to act in that position for an indeterminate period into the future.  The draft should be amended to establish the office and to require the appointment to be made;
            (d) A Magistrate in Montserrat has considerable power, and can impose fines of up to $100,000.00 and prison sentences of up to 10 years.  As Montserrat does not have a High Court judge, the Magistrate plays an enhanced role.  He or she routinely hears cases that would normally be tried by a judge and jury.  The section 84 appointment of the island’s Magistrate is by the Governor after consultation with the Chief Justice.  This is unacceptable in a modern democracy.  It does not insulate the Magistrate from the Executive as should be the case.  For a Magistrate to do a proper job in Montserrat he or she needs to be shielded from influence and pressure from both the Ministers and the Governor.  Additionally, there is a well-known current regional initiative to integrate the Magistracy into the judiciary.  The provision in the draft should be that the appointment and discipline of the Magistrate is by the Governor acting on the advice of the regional Judicial and Legal Services Commission, of which the Chief Justice is the head;
            (e) The thought that the Director of Public Prosecutions and the Magistrate can be removed from office by the Governor and the Secretary of State is a frightening one.  These are both judicial officers.  The rule of law demands that both their appointment and removal be out of the hands of the Executive and be either by, or on the recommendation of, the regional Judicial and Legal Services Commission;
            (f) Currently, the police police themselves.  Complaints about police misconduct made to the Commissioner of Police and the Governor are notoriously not investigated impartially.  Such complaints invariable attract hostile responses from the police.  The absence of any provision in the draft for a Police Complaints Board is regrettable.  Such a Board is a vital tool for controlling police misconduct.  Such a Board will effect greater transparency and justice for all.  There is no reason why Montserrat should have a lower standard of governance in this respect than Bermuda or Britain itself; and
            (g) The FCO proposes through this draft Constitution to retain draconian and unrestrained powers to legislate for Montserrat over the heads of the Legislative Council.  The new Constitution will preserve (i) the power to enact laws through the UK Parliament; (ii) the use of the Order in Council without prior consultation; (iii) the section 73 power of the Governor to refuse his assent to a Bill that has passed through the Legislative Council without any limitation; and (iv) the section 75 power of disallowance, though this section does require the Secretary of State to refer the offending law back to the Legislature.
[50]      These provisions do not increase democracy in Montserrat.  They reduce what little amounts of justice and democracy Montserratians presently enjoy under threat of renewed volcanic activity.  As such, they amount to a step backwards in constitutional advance, and are a shame on the constitutional advisers who dreamed them up.
[51]      There are some other obvious gaps and deficiencies in the new draft Constitution proposed for Montserrat.  It is to be regretted that no thought has been given in this draft Constitution to providing for a Freedom of Information Act. Without such a law, no one in Montserrat would have the right to obtain information that should be available to the public.  Secret government, which is an enabler of corruption and bad government, is in this way encouraged.
[52]      It is to be regretted that an opportunity was not taken to entrench the Tenders Board in the Constitution.  The greater part of the budget is spent on developing infrastructure, repairs and maintenance. Procurement of goods and services offers attractive opportunities for those who would corrupt the process and illegally enrich themselves.  The Tenders Board ought to have the independence and security of tenure of its members protected by the Constitution and by appropriate laws and regulations, backed up by appropriate training for members of the Board.
[53]      Amendment of the Constitution.  Section 114 of the draft provides that only the Premier, in very limited circumstances, may request an amendment of the Constitution.  The FCO reserves unlimited right itself to amend the Constitution without any reference to the people or government of Montserrat.  This is clearly highly undesirable.  The Cayman Islands recently completed their constitutional negotiations and accepted a new Constitution.  In the case of the Cayman Islands, the FCO accepted that it would never again amend their Constitution without first putting it to a referendum of the people.  No person can suggest that there is a good reason why some lower standard of democracy should be enjoyed by Montserratians.
[54]      A Constitution is the supreme law of any people, subject, in the case of a British Overseas Territory, to the Parliament of the United Kingdom.  A Constitution that is imposed on a people by a foreign power lacks validity and respect. 
[55]      In my view, it is the duty of every patriotic Montserratian to insist in the strongest possible terms for a right to comment on and criticise any terms in this draft Constitution that appear unacceptable to them. 
[56]      Montserratians have a right to demand that the draft Constitution be put to them for their approval either by a referendum or by some other mechanism calculated to demonstrate their real approval and acceptance of the new Constitution.  Only after this has been done would it be proper for the Governor to pass the draft to the Privy Council for enactment by an Order in Council. 
[57]      The British Government has frequently promised that it expects no less than evidence that the people of an Overseas Territory have expressed their support for any amendment to a Constitution. 
[58]      Having read the draft new Constitution, I have come to the conclusion that it does not advance good government in Montserrat.  Rather, it sets Montserratians back decades, particularly in the area of human rights.  I cannot see any reason why Montserratians should accept a second-class Constitution.
Dated 24 August 2010

Monday, August 02, 2010

TCI Constitution

Preliminary Views on Kate Sullivan's Initial recommendations for Changes to Constitutional and Electoral Arrangements in the Turks and Caicos Islands published by the Foreign and Commonwealth Office on 30 July 2010 – By Don Mitchell CBE QC of Anguilla.
[1]        The FCO has now published Ms Sullivan's initial recommendations for constitutional and electoral reform for TCI as a discussion paper.  I have reservations about some of her recommendations that I would like to express.  She starts off her Recommendations by giving the following useful background:
Background to this review
1. In 2008 an independent Commission of Inquiry was set up to look into possible corruption or other serious dishonesty by elected members of the TCI legislature. The final report made over 60 recommendations covering systemic weaknesses; criminal sanctions; civil recovery; integrity in public life and the management of Crown Land. Some of the Commission’s recommendations focused on deterring or preventing corruption and other serious dishonesty while others looked at the broader constitutional and statutory framework of government.
2. In August 2009, United Kingdom (UK) Government Ministers instructed the Governor of TCI to bring into force an Order in Council suspending ministerial government and the House of Assembly. The UK Government also announced that during the period of suspension a review of the 2006 Constitution would be undertaken, as had been suggested in several of the Commission of Inquiry’s recommendations.
[2]        The relationship between Britain and the Overseas Territories is governed by a 1999 social contract.  This contract is titled Partnership for Progress and Prosperity.  It is an FCO Report and it commences with a foreword by Foreign Secretary, Robin Cook.  He sets out the three principles that underlie the partnership between Britain and the Overseas Territories.  He describes them as follows:
n       First, our partnership must be founded on self-determination. Our Overseas Territories are British for as long as they wish to remain British. Britain has willingly granted independence where it has been requested; and we will continue to do so where this is an option. It says a lot about the strength of our partnership that all the Overseas Territories want the constitutional link to continue. And Britain remains committed to those territories which choose to retain the British connection. 
n       Second, the partnership creates responsibilities on both sides. Britain is pledged to defend the Overseas Territories, to encourage their sustainable development and to look after their interests internationally. In return, Britain has the right to expect the highest standards of probity, law and order, good government and observance of Britain’s international commitments.
n       Third, the people of the Overseas Territories must exercise the greatest possible control over their own lives. We are proud that our Overseas Territories are beacons of democracy. We applaud their achievements, and want them to have the autonomy they need to continue to flourish.
[3]        The Foreign Secretary gave us to understand that the three underlying principles of our partnership are “self-determination”, “responsibilities”, and “the greatest possible control” over our own lives.  It is mutually agreed that we the Overseas Territories have a fundamental right to self-determination and control over our own lives while accepting our responsibilities for good governance.
[4]        The next major statement on the constitutional principles that underlie the relationship between Britain and the Overseas Territories occurred in the year 2006.  At the annual Overseas Territories and Countries conference the FCO issued a White Paper on Good Governance.  The first paragraph of this white paper explained what we mean by good governance:
1. Although it is a phrase that has gained currency in recent years, the concept of governance has been with us as long as there have been systems within societies which determine the process of decision making; and the process by which decisions are, or are not, implemented. Good governance is simply doing this well.
In ten short paragraphs the white paper sought to set out some of the issues we should look for in good governance.  It highlighted the need for the rule of law, transparency, accountability, the responsiveness of institutions, and effectiveness and efficiency in securing good governance. 
[5]        The reader takes away from this white paper the idea that good governance means doing the processes of decision making and implementation well.  That notion expressed in 2006 was an underlining and a reinforcement of the need for the rule of law, transparency, accountability and the rest of the principles set out in the 1999 Report.
[6]        It is in the light of these three underlying principles that one reads what Ms Sullivan sets out as some of the features of the TCI Constitution that are not to be the subject of the current review.  She lists them as:
·                    That the executive authority – that is, the power to govern – is held by The Queen;
·                    That the Governor is appointed by The Queen on the advice of UK Ministers and that the Governor exercises the executive authority on behalf of The Queen;
·                    That the Queen retains the power to legislate for all matters of government in the Islands, including those that are the responsibility of elected ministers; and
·                    That certain responsibilities – defined in the current Constitution as the ‘special responsibilities’ – are retained by the Governor and are not subject to the control of elected TCI ministers, but are subject to Constitutional limitation in their exercise, including through the fundamental rights provisions;
·                    That the Governor will retain the power to legislate for some matters of government in the Islands, as long as these matters are specified in the Constitution.
[7]        One reads the above words with a mounting sense of concern and dismay.  Points 3 and 5 are particularly disturbing.  The Queen will retain the power to legislate for matters that are the responsibility of elected ministers?  And, the Governor will retain the power to legislate for some matters of government?  One would have thought that by now the FCO legal advisers were aware that an undemocratic form of government is the opposite of good governance.  Bad governance has flourished in the Overseas Territories under the supervision and tutelage of the FCO.  When unelected officials have the power to legislate in place of elected members of a House of Assembly, that is no assurance of an improvement.  Local politicians may not have the highest integrity, morals or standards.  But, at least they are accountable to the electorate.  Foreign officials are not accountable.  Some of them are incompetent and others do not have a care for the interests of the people they are supposed to help govern.  When power is transferred from the elected ministers to the Governor, we depend for good governance on the character of the man, not on an institution designed to guarantee democracy and good governance.  A strong and fair Governor may well do no harm and may do some good.  A weak and accommodating Governor is unlikely to make good use of his increased powers.  The whole notion of replacing democracy by the arbitrary rule of one individual is offensive.
[8]        So, it is with trepidation that one continues to read Ms Sullivan's initial recommendations.  Recommendations 1, 2 and 3 have their good points.  Recommendation 4 gives should give us a problem.  She is proposing that the Constitution provide that the FCO will issue a Statement of Governance Principles and the Constitution will require the Governor, Premier and Ministers to work within these principles.  The Governor will then have clear power to reject any advice and to refuse to act on any advice from the Premier, the Assembly or the Cabinet if he or she believed that such action would be in contravention of the governance principles.  The idea of there being in place in any Overseas Territory a Statement of Governance Principles is commendable.  We must assume that it will be negotiated, that it will be a contract made by the FCO acting on behalf of and in the name of the people of the Overseas Territory.  We are expecting that there will be nothing contained in the Statement that will be offensive to or contrary to the wishes and expectations of the people of the Overseas Territory.  We won't know until we see it.
[9]        What is objectionable in this recommendation is that it is made with a view of introducing an essentially undemocratic form of government under the guise of improving good governance.  There will be no mechanism for ensuring that the FCO determines the wishes and expectations of the people.  The risk is that they may from time to time impose their own notions of good governance.  While such a power to impose could be viewed as a healthy counterbalance to the power of the Premier and his Cabinet, there is the risk that it will introduce an undemocratic counterweight to the elected government.  The proposal does not provide any hope for local development of good governance mechanisms.  It should be repugnant to all right-thinking persons.
[10]      Particularly objectionable is the proposal to empower the Governor to reject a measure coming to him from the local legislature for his assent.  Colonial legislatures are by their nature inferior legislatures.  Only Parliament is supreme under the Constitution.  Parliament in the UK can at any time rescind or amend a colonial law.  This situation only changes with independence.  To go this much further, to provide that the colonial legislature can be overruled at the whim of a foreign official, is not acceptable in the twenty-first century.  The situation may be bad in the Turks and Caicos Islands, but nothing justifies the abrogation of democratic government in an Overseas Territory to the extent that is proposed.  An acceptable alternative would be to have the Constitution introduce mechanisms for the people of the Turks and Caicos Islands themselves to exercise increased democratic control over errant ministers.  These mechanisms are well understood.  They include provisions for recall and for referendum, as well as a whole range of local, democracy-enabling measures which I summarise below.
[11]      Much needed democracy-enabling mechanisms include, without being exhaustive, strengthening the Integrity Commissioner law to give teeth to ensure that public officers publicly disclose their assets and liabilities at regular intervals; entrenching the Tenders Board and reinforcing the procurement procedure to make them fair and transparent; giving the legislature power to oversee dealing in Crown Lands; introducing an Appointments Commission to monitor the suitability of ministerial nominations to government boards and committees; enforcing adherence to public service and ministerial Codes of Ethics; entrenching a Complaints Commissioner to oversee the public service and police service response to complaints from citizens; supporting and ensuring the effectiveness of the Public Accounts Committee in overseeing the administration's spending of public monies; introducing and administering Freedom of Information Acts; obliging the Governor to accept the advice of independent Service Commissions; introducing an independent Boundaries Commission to minimise the chance of gerrymandering; and improving the transparency of Cabinet meetings by opening them up to the press and public.  These are all locally-managed mechanisms for improving democracy and good governance.  They promote self-government and self-determination.  They do not rely on a deus ex machina in the person of the Governor and the FCO to achieve these effects, which is what, I would submit, the proposal attempts to do.
[12]      Recommendation 8 was like a breath of fresh air.  It provides for local supervision of the political directorate, and is entirely commendable.  She is proposing that a minister can be removed from the ministry if the Integrity Commission finds that he or she has breached the Code of Conduct for persons in public life or that the minister has failed to comply with the registration of interests requirements on two separate occasions.  This is exactly the sort of development that we should be looking for if we are to see local institutions taking control of good governance issues.
[13]      Recommendation 9 would have the Constitution provide that the Governor may act contrary to the advice of Cabinet in an area of ministerial responsibility if to act in accordance with the Cabinet's advice would be contrary to the Statement of Governance Principles.  At first blush this may seem acceptable on the basis that the ministers have negotiated the Principles, and should not be permitted to act in breach of their contract to abide by them.  The objection to the Recommendation is that it is an anti-democratic provision.  It does nothing to promote and develop good governance in the Territory.  It is to be remembered that we are talking about the Governor rejecting the advice of a Cabinet in which the Governor, his Deputy, and the Attorney-General have sat and participated in formulating.  If, in the presence of these worthy individuals, the Cabinet comes to a decision that some action is needed in the interests of the country, it is simply not acceptable for the Governor to be empowered unilaterally to act contrary to the advice.  There are other preferable mechanisms that will introduce transparency and good governance into Cabinet decision-making than by making the democratic institution of the Cabinet subservient to the non-democratic one of the office of the Governor.  Opening up uncontroversial Cabinet discussions to the press and public is one mechanism.  Making it mandatory for there to be a press conference immediately after Cabinet meetings at which the press was not present to brief the press on major decisions is another.  Removing secrecy from Cabinet decisions is the best guarantee there is for ventilating and cleaning up those Cabinet processes that do not require secrecy.
[14]      Recommendation 26 is headed in the wrong direction.  It proposes keeping the Governor's old colonial powers unilaterally to make a law for the TCI without that law having been passed by the House of Assembly.  It goes further and widens his power unilaterally to legislate for the islands “to ensure compliance with the Governance Principles.”  A more objectionable provision it would be difficult to imagine.  There is no question of either the Governor or the FCO needing such a draconian provision in TCI or in any other of the BOTs.  In this day of instant communication the FCO is well informed about all proposals to introduce legislation in good time to make interventions to ensure that Britain's contingent liabilities are not put at risk.  In the event that a Government should introduce a new legislative provision that has not passed through Cabinet and had the benefit of the Attorney-General's and the Governor's advice, there are ample powers to pressure the Government to revise the measure.  This was proved recently in Montserrat when the Assembly passed a legislator's pensions provision that was wildly in excess of the provision that had been approved by the Cabinet.  The government of the day was embarrassed into passing through the House of Assembly an amendment immediately thereafter to go back to the original approved provision.  To remove the power of the legislators to legislate is to destroy democracy itself.  A constitutional framework such as the one proposed here has nothing of either democracy or good governance in it.
[15]      Recommendation 31 proposes to completely emasculate the Public Service Commission and give it a completely vacuous and useless role.  The TCI has at present one of the most advanced and democratic provisions in its Constitution for the governance of the public service.  A Commission of locals appointed by the Governor on the recommendation of various stake-holders makes the decisions about appointments and conditions of service of public servants.  The Governor is required to implement their recommendations.  That is as it should be.  If the system in TCI is not working, of which there is no suggestion, then the members of the Commission need to be trained in their proper functioning, not have the country deprived of the institution.  It is essential that the FCO recognise that its mandate is to develop and to improve the local institutions of self-government so as to help the people of the Overseas Territories to learn the proper rules of government and how to avoid cronyism, conflicts of interest, and nepotism.  Putting appointments in the hands of an FCO functionary, advised behind the scenes by those cronies that he and his superiors select, is not an acceptable alternative.
[16]      Similarly, Recommendations 36 and 37 retain the power of the Governor to deal in Crown Lands.  We know what that has meant in the past when there have been weak Governors and Attorneys-General.  The Governor has allowed ministers of government secretly to misuse Crown Lands for their own and their families' profit.  The proper reform is to have the Constitution require any dealing in Crown Land to be approved by the House of Assembly.  Let the government answer to the public for any proposed dealing in Crown Land.  This is not a proper province for either the mandarins in Whitehall or for the Governor in Government House.  We need the disinfecting influences of openness, transparency and fresh air.  We do not need to maintain a system that has shown itself to be a failure in the past.
[17]      There are many other Recommendations in this Report that we can all appreciate and approve of, particularly the provisions for Watchdog Institutions.  One complaint would be that they are not complete and others are missing.  For example, the Constitution makes no provision for a Tenders Board, with security of tenure and guarantees for its independence.  Similarly, the Constitution makes no provision for a Public Accounts Committee.  For democratic principles to begin to flourish in what has clearly become a failed kleptomanic state, institutions such as these are essential.  No dictatorship by a foreign Governor can be an acceptable substitute for the nurturing and encouragement of local democratic institutions.
[18]      There are several other recommendations that one might legitimately have strong views on.  There are other obvious and timely recommendations that could and should have been made but that are missing.  We in the Overseas Territories need to act swiftly to discuss them on a variety of forums.  Our concern should be transparent and obvious.  It is that if these recommendations are permitted to find their way into the TCI Constitution, it will not be long before there is pressure for them to be introduced into ours, for consistency and administrative convenience.  However, this paper is long enough for all but the very patient to be able to read, and I propose to stop writing here.

2 August 2010