British Subject and British Dependant Territories Citizen

10.37      The term “British Subject” is either obsolete or inapplicable to the Virgin Islands. It went out with the British Nationality Act 1981 as a class of citizenship. It was replaced with “British Dependent Territories Citizen” and this designation subsequently changed to “British Overseas Territories Citizen” (“BOTC”). However, notwithstanding subsequent amendments to the Constitution, the term “British Subject” remains in a few provisions, most notably, section 28 dealing with the qualifications for elected membership of the Legislative Council, and section 31 dealing with the qualifications for voters.

10.38      These sections need to be brought in line with the current law and nomenclature regarding citizenship. Alternatively, the requirement for one to have that class of British citizenship, as one of the qualifications for elected membership and also for voting, ought to be removed altogether. We so recommend.

10.39      As regards the qualifications for elected membership of the Legislative Council, this has been addressed in the main in the Commission’s treatment of Issue No. 3 in Chapter 5. The recommendations in relation to this Issue, if accepted, will result in substantial changes to section 28, including deletion of the term “British Subject” from qualification (a).

10.40      As regards the qualification for registration as a voter under section 31(1), Members of the Legislative Council recommended in their Position Paper, the deletion of the term “British Subject”. The Commission is in agreement and so recommends. Honourable Members go on to suggest that subsection (1) should read-

“Subject to the provisions of subsection (2) of this section, a person shall be qualified to be registered as a voter for the purposes of elections if, and shall not be so qualified unless, he is deemed to belong to the Virgin Islands and that person may be a British Overseas Territories Citizen or may not be a British Overseas Territories Citizen, and on the qualifying date has attained the age of eighteen years.”

10.41      This draft provision seeks to remove the requirement of British citizenship as a qualification for registration as a voter for the purpose of General Elections, since, in the wording, the holding of British Overseas Territories Citizenship is put in the alternative, and not made a mandatory requirement. In doing so, there seems to the Commission to be no useful purpose in referring at all to BOTC in the statement of qualifications, and, it is the Commission’s view that any reference to such citizenship can safely be omitted altogether.

10.42      As presently stated, two kinds of ‘status’, one under local law and the other under Imperial legislation, is required to qualify to be registered as a voter. Thus, being deemed to belong is not sufficient, one must also have British citizenship. However, it must be remembered that many persons qualifying for registration as voters in the Territory, are now also full “British Citizens.” It is the Commission’s view, that the only status for eligibility to be registered to vote should be that provided under section 2(2) of the Constitution, that is, Belonger status. We so recommend. For the avoidance of doubt, the other qualifications in section 31(1) ought to remain.

Disqualification for Elected Membership

(a)        Swearing Allegiance, Obedience or Adherence to a Foreign Power

10.48   Section 29 of the Constitution lists the disqualifications for elected membership of the Legislative Council. Only one such disqualification has been raised in the Review for scrutiny and recommended change. This is the first listed disqualification- “who is, by virtue of his own act, under any acknowledgement of allegiance, obedience or adherence to a foreign power or state.”  An identical provision is to be found in the constitutions of Anguilla, Montserrat, Bermuda and the Cayman Islands.

10.49   This disqualification is most relevant in the context of the Virgin Islands, as a not insignificant number of Virgin Islanders or Belongers by birth, have migrated to either the U.S. Virgin Islands or mainland United States, usually in order to better themselves or to afford their children better educational opportunities. Many such persons and their offspring have become naturalized U.S. Citizens, a status most of them wish to retain. However, under the present provision, they would not be qualified to hold elected membership in the Council should they return to live in the Virgin Islands, unless they renounce their U.S. Citizenship. Indeed, some of our politicians and representatives have had to do just that. The question as to the disqualification of certain candidates for election on this ground, has at times attracted much comment both on the campaign trail and elsewhere.

10.50      The view has been expressed to the Commission that this disqualification is unfair to these Virgin Islanders who have returned to live in their country of birth and wish to make a contribution to the continued development and prosperity of these Virgin Islands through elected public office. It is to be noted in this context, that the disqualification does not apply to persons who are U.S Citizens by birth and Belongers by descent. Furthermore, by taking on U.S. Citizenship one is not relinquishing Belonger status, as it is not a ‘citizenship’ and, in any event, the United States permits dual nationality.

10.51   The Commission finds these points persuasive. Our people must be free to return home and to exercise the important democratic right of contesting for election to the highest law making body in the land, regardless of what citizenship they have acquired. Additionally, this disqualification, denies the Territory a potential source of competent leadership. Accordingly, the Commission recommends the deletion of sub-paragraph (a) as a disqualification for elected membership under section 29.

(b)        Time for making challenge of disqualification

10.52      Another related issue, and one raised to the Commission by the Attorney General, concerns the ‘timing’ under the Constitution for challenging a person as being disqualified for elected membership. The Constitution does not expressly provide for such a challenge to be made ‘before’ the person has been elected following a General Election.

10.53      Section 49(1)(a) gives the High Court jurisdiction to hear any question as to whether “any person has been validly elected as a member of the Legislative Council.” This permits a challenge only when the election has taken place. It does not permit a challenge before the court when the person is being nominated to contest an election, or thereafter and before the election is held. The view has been expressed to the Commission that the Constitution ought to expressly sanction an earlier challenge, and for the court to have jurisdiction to deal with such matters when the person is being nominated.

10.54      This position is so regardless of the disqualifying ground alleged, for example, where the person is known to be certified as being of unsound mind, has been adjudged or declared a bankrupt, or was convicted of an offence connected with elections. Should the Constitution not provide for the nominating officer, where he or she is aware of such circumstances being applicable to a person being nominated, to be authorized to refuse the nomination papers, subject to such refusal being challenged in a court of law? This would avoid the added costs of having to hold a by-election, in circumstances where a post election challenge has been upheld by the court. There is certainly some merit in these recommendations. However, the Commission considers that the vesting of such authority in a nomination officer can lead to abuse, confusion, uncertainty and disruption of the electoral process. Accordingly, we decline to make any such recommendations.

Members Vacating their seats at next dissolution of the Council after their election

10.55      Section 30(1) of the Constitution stipulates that every elected Member must vacate their seat at the next dissolution of the Council after his election. However, a Member, who is a Minister of Government, does not vacate such office upon dissolution of the Legislature, but continues in office unless he is not elected when the Council first meets after a General Election (section 16(3) (a) & (b)). Also, provision is made for the filling of any vacancy in the office of Minister between dissolution and the next General Election, by a person elected immediately before the dissolution being appointed a Minister, as if he were still a member of the Council (section 15(4)). These sub-sections provide, most importantly, for continuity in administering the government after dissolution of the Legislature, until a new government is sworn in after a General Election.

10.56      Should the same rule apply to members who are not Ministers of Government? Honourable Members so recommend in their Position Paper. They see this as an inconsistency which needs to be corrected. Members of the Legislative Council recommend that every elected member should retain his seat beyond dissolution of the Council, and “until after the counting of the votes on election day whereby it will have been determined who is elected and who is not”. During that period, the Members of the Legislative Council will retain all the rights and privileges of membership of the Legislature.

10.57      Similar provisions to what currently appertains in the Constitution, are in the constitutions of most of the BOTs, including Anguilla and Bermuda. The recommendation by Members of the Legislative Council is akin to what prevails under the U.S. system, where members of the Congress or the legislature, as the case may be, remain in office until they fail at the polls, unless they opt not to seek re-election. On the other hand, under the Westminster system of parliamentary democracy, on which the Constitution of the Virgin Islands is modeled, a member of the Parliament or the legislature, as the case may be, is required to vacate office upon dissolution thereof, while ministerial responsibility and authority continues until the results of the elections are known. Constitutionally, the period between dissolution of the Council and when elections must be held, cannot exceed two months.

10.58   The Commission can find no compelling reason to depart from the existing constitutional arrangements. Once the Council has been dissolved, the authority of the Members of the Legislative Council cease, as the Council is functus and can no longer transact legislative business.

Procedure for deciding Exemption of Member from vacating his Seat

10.59   Section 30(2)(e) requires a member who becomes a party to any contract with the Government of the Virgin Islands, to vacate his seat in the Council. There is good reason for such a preemptory provision. It is to prevent ‘conflicts of interests’ or the appearance of such conflicts, and is considered an important aspect of good governance.

10.60   The issue which has been raised by the Leader of the Opposition, does not concern this ouster provision or the proviso permitting an exemption to be requested and granted by the Legislative Council. The Commission is aware that exemptions have been requested by and granted to certain Members of Council. Rather, his recommendation to the Commission is for the matter of an exemption requested to be the subject of a Motion and open debate on the floor of the Legislature. We are told that what currently pertains, is for the request to be dealt with in camera by Members and either granted or not.

10.61   The proviso to sub-paragraph (e) requires “the Council” to decide on the request for an exemption. It does not prescribe for such matters to be dealt with in private. A negative decision on such a request, is subject to an appeal by the Member to the High Court pursuant to sub-section (4). This immediately raises issues concerning the separation of powers and the authority of the Legislature to regulate its own affairs, matters which the Commission is not required to address in this Report.

10.62      The matter of a sitting Legislator having to vacate his seat or being considered for an exemption from the strict requirement of the Constitution, does not seem to be the kind of matter which ought to be decided away from public view and scrutiny. Moreover, the relevant provision requires such a decision to be made by the “Council”, which suggests during an ‘open’ session. After all, the public has a right to know what is the nature and basic terms of the contract which the Legislator has or is to have with the Government, the reasons for the request for an exemption, the views thereon expressed by other Members of the Legislative Council, and the way in which each Legislator voted on such an important matter as an elected member being liable to vacate his seat. This approach becomes even more important in an era where openness and transparency are the guiding principles of democratic government. We therefore find the point made by the Leader of the Opposition persuasive. Accordingly, it is the recommendation of the Commission that the proviso to section 30(2)(e) of the Constitution be amended to stipulate, or to put it beyond doubt, that requests by a Member of the Legislative Council for exemption from having to vacate his seat, must be made by way of Motion, placed on the Order Paper and debated at the next sitting of the Legislative Council.

Quorum of the Council

10.63      Members of the Legislative Council have recommended that the quorum for meetings of the Legislative Council be changed from five to seven having regard to the current membership of the Council of thirteen elected members. However, this change to section 40(1) of the Constitution was made by virtue of the Virgin Islands (Constitution) (Amendment) Order 1994 (No. 1638).

Office of the Legislature as Autonomous Body

10.64      This is the recommendation of Members of the Legislative Council in their Position Paper. The rationale and justification has been detailed in a “Restricted” internal memorandum accompanying the Paper, for the benefit of the Commission. As presently constituted, the Office of the Legislative Council operates as a department under the Deputy Governor’s Group. The functions of the Deputy Governor are set out at section 5A, inserted in the Constitution in 2000. Neither the Governor nor the Deputy Governor are members of the Legislative Council, and no specific duty or function in relation to the Legislative Council, other than as provided in sections 46 and 47 of the Constitution in relation to the Governor, is assigned by the Constitution to either office. However, the Office of the Legislative Council is staffed by members of the Public Service and, accordingly, falls to be dealt with by the Governor, and by delegation, the Deputy Governor, under sections 9 and 52 (power to constitute and make appointments to public offices and to discipline such persons) and section 19(d) (the governor’s responsibility for the terms and conditions of service of persons holding or acting in public offices) of the Constitution.

10.65      As such, the Office has to deal with the Human Resources Department and the Public Service Commission concerning matters of staffing, a process which it is said is not efficient and can be rather lengthy. Added to this, the Office usually operates under certain stringent time constraints imposed by the Standing Orders of the Legislative Council. These require staff to routinely work unconventional hours and with extended overtime periods. Accordingly, it is said that being an autonomous body or commission will eliminate the inefficiencies with respect to staffing and accounting, without compromising standards. Members therefore, call for the establishment of the Office as a body separate from the Public Service, as an independent commission or statutory board, as is the case in Barbados, where the Management Commission of Parliament is a body corporate. The view is expressed that this can be seen as a means of giving effect to the ‘doctrine of separation of powers’.

10.66      The Commission is certainly attracted to this proposal. As we progress as a country towards self-determination, it is imperative for there to be a strengthening of our democratic institutions, especially the three branches of government, while at the same time giving effect to their separate roles. Any well thought out and tested initiative is therefore worthy of due consideration. However, we note that a matter of such importance as this was not one of the specific Terms of Reference to be considered by the Commission and was not a matter raised at our public meetings. While the Commission has not had the benefit of the relevant law in Barbados establishing their Management Commission of Parliament as an independent body corporate, we are satisfied that the direction adopted by the Members of the Legislative Council ought to be given further consideration and, in so doing, the Commission also recognizes that it is up to the Members of the Legislative Council to initiate the steps, including appropriate legislation, and constitutional change as may be necessary, to give effect to their stated intention.

Emergency Powers

10.67       The Constitution does not address the declaration of a State of Emergency. This is, in our view, a glaring omission which must be rectified with a new Constitution. The only local statute is the Emergency Powers (Disasters) Act Chapter 239, which is at variance with imperial legislation namely the Virgin Islands (Emergency Powers) Order 1967, which confers upon the Governor the power, during a period of emergency, to make laws “as appear to him to be necessary or expedient for securing the public safety, the defence of the Virgin Islands or the maintenance of public order or for maintaining supplies and services essential to the life of the community.” The Governor has the power by proclamation to declare that a public emergency exists or no longer exists in the Virgin Islands, and in so doing he is not obliged to consult with the Executive Council but merely to consult with the Chief Minister unless, in his judgment, it may be impractical to do so. Likewise, the Constitution of Anguilla specifically authorizes the Governor, by proclamation published in the Gazette, to declare a State of Emergency, and to revoke such declaration. The declaration will expire in 90 days, unless previously revoked (section 17). Section 14 of the Bermuda Constitution authorizes the Governor by proclamation to declare a state of emergency. The proclamation must be laid before both Houses “as soon as practicable.” A proclamation will expire in 14 days, unless sooner revoked by the Governor or extended by resolution of each House for a period which cannot exceed 3 months from the date it would have expired.

10.68      The ability to declare a State of Emergency in appropriate circumstances, is an important function of government and one which the Commission considers ought to be included in the new Constitution at the end of the chapter on fundamental rights and freedoms, as is usually the case. We so recommend. The Commission also recommends that provision be made for declarations of a State of Emergency to be made by the Cabinet, after consultation with the Governor (or Her Majesty’s Representative), in the Virgin Islands, such declarations to be laid before the Legislative Council and to expire within 14 days, unless extended by an affirmative vote of the Council for a period not exceeding three months from the date on which it would have expired.

The Courts and the Judiciary

10.69      The Judiciary is the Third Branch of Government. However, there is no provision in the Constitution which speaks to the Courts or the Judiciary. The Commission views this as another omission which ought to be rectified in a new Constitution. We so recommend.

10.70      The Virgin Islands does not have its own Court System. It is a member country of the Eastern Caribbean Supreme Court. The jurisdiction of that court is set out in the West Indies Associates States (Supreme Court) Act 1967. The Act provides for a High Court and Court of Appeal. The former is a resident court and the latter itinerant. Appeals from decisions of the Court of Appeal are to the Privy Council.  Consideration is presently being given to establishing a commercial court or a commercial division of the Eastern Caribbean Supreme Court in the Virgin Islands. Consideration is also being given by the present Government to establishing a separate court system for the Territory. Any of these options will have significant implications for the Territory as a Financial Services jurisdiction. There is also consideration being given, at the level of the Supreme Court, to bringing all Magistrate’s Courts in the OECS, which are all creatures of local statute, under the umbrella of the Eastern Caribbean Supreme Court.

10.71      Whatever the decision locally, whether to establish a separate Court system with its own judiciary for the Virgin Islands or to establish a stand-alone Commercial Court, or to remain a part of the Eastern Caribbean Supreme Court system, the Constitution ought to reflect that existing court system in specific provisions. We so recommend.

Constitutional Advancement and the Question of Independence

10.72      The Commission has not detected any ground-swell of support for the Territory becoming an independent nation. Quite frankly, the word “independence” was hardly mentioned during the public consultations and usually, either to make the point that there is no real support for such a move on the Territory’s part at this stage or to indicate that it makes good sense to embark upon the process of preparing for such status, if it is opted for at some future date. Many persons where of the view that the Territory ought to be moving towards self-determination, and this Review was seen by some as an important step in that direction. Others, who represented a minority, were very skeptical or ambivalent, feeling that the exercise was either a waste of time as Britain will not agree to any substantial constitutional advancement for the Territory, while others felt we should not bother unless and until, as a people, we decide to take the ultimate step and become an independent state.

10.73      It is the Commission’s view, and seemingly that of our elected representatives, that the time has come for there to be some significant constitutional advancement for the Territory short of independence. We must seek through this Review, to craft the kind of democratic framework which permits of the highest exercise of authority by the Territory and our representatives over its affairs, necessary for the effective conduct of the business of government in an open, accountable and transparent manner, and subject to appropriate and proportionate checks and balances on the exercise of that power and autonomy in order to ensure good governance and respect for human rights and the rule of law.  In other words, there must exist in the Territory a ‘culture of accountability’ and of ‘self-policing’, including the fearless and dispassionate enforcement of the laws, regulations and conventions which form an integral part of the constitutional and legal fabric of our government and its institutions, and which are so essential to guard and protect citizens from gross mismanagement and abuse of power in public office at all levels.

10.74      At the same time, the Commission recognizes that, as a country, we have passively chosen to remain under the umbrella of Britain and to retain ultimate authority for the Virgin Islands with Her Majesty and the Government of the United Kingdom. This continuation of our subordinate status, will necessitate the maintenance of certain over-arching provisions in our Constitution, for example, section 71, whereby Her Majesty retains “full power to make laws for the peace, order and good government” of the Territory. This relationship, described in the White Paper as a ‘modern partnership’, also gives rise to international obligations on the part of Britain for the Territory. These obligations must be respected in the context of that constitutional relationship and, in doing so, there must exist a climate of mutual respect for each other’s rights and obligations and for the aspirations of the people of these islands, all of which are so eloquently spoken to in the White Paper.

National Symbols

10.75      The Commission wholeheartedly agrees with those who point out that an important part of nation building is the adoption of certain national symbols, which speak to who we are as the ‘Virgin Islands’, and the principles and ideals which are dear to us as a people and a country. Some such symbols like a national motto, national flower, national bird and national dish, to name a few, have already been adopted. It may not be feasible at this stage of our constitutional status, to adopt or proclaim some of the key national symbols indicative of an independent nation, such as a national anthem and national flag, although we do have our own national song and a ‘local’ flag. As the country moves forward towards self-determination, there ought to be an organized campaign to involve native Virgin Islanders in designing and formulating such national symbols. We so recommend.

Change from Legislative Council to House of Assembly

10.76      The change from ‘Legislative Council’ to ‘House of Assembly’, as has been effected in Anguilla, was recommended by one contributor to the Review and the terminology used by another, perhaps through inadvertence. The legislative body in most Caribbean independent states is constitutionally referred to as the ‘House of Assembly.’ That designation has also been adopted in Bermuda since 1967 when they received a pre-independence constitution. The change would perhaps be more than just one of nomenclature, especially if there is some significant advancement achieved as a result of this exercise. Accordingly, the Commission would recommend its adoption where such advancements, as recommended in this Report, have been accepted and implemented.

Public Debt

10.77      The Auditor  recommended that section 64 of the Constitution be amended to provide for the payments on the Public Debt to be made from the ‘Debt Service Fund’, which is a fund introduced by the Ministry of Finance in the Financial Statements. At present, section 64 provides for the Public Debt to be a charge against the Consolidated Fund. As we understand the reasoning, the Public Debt is currently being serviced from the Debt Service Fund which has no particular legal status. Accordingly, we agree with the Auditor and recommend the amendment of section 64(1) to provide for the Public Debt to also be a charge on the Debt Service Fund, which should likewise be given constitutional recognition.

Pension Fund

10.78      The Auditor has also pointed out that the present government is in the process of establishing a ‘Pension Fund’, to meet the pension disbursement demands for retired public servants. She has similarly advised that section 57 of the Constitution, which provides for “awards” granted under any law in force in the Virgin Islands to be charged and paid out of the Consolidated Fund, be amended to enable such awards to also be paid from the ‘Pension Fund’, when established. We so recommend.

Tabling of the Annual Audit Report

10.79      Section 66(3) of the Constitution requires the Annual Audit Report to be submitted by the Auditor to the Minister of Finance who “shall cause it to be laid before the Legislative Council”. There is no stipulation as to the period within which the report ought to be tabled. We are informed that delays of several months have been experienced. The Auditor has accordingly recommended, that this section of the Constitution be amended to require the Annual Report to be submitted by the Auditor General directly to the Speaker of the Legislative Council for tabling at the Council at the next sitting thereof, as is the case under the Anguilla Constitution.

10.80      The Commission sees the function of the Auditor under section 66 of the Constitution as one of the most important constitutional oversights on the operations of Government and, hence, one which must be strengthened where required. The Annual Report is the primary reporting mechanism to the Legislature, and to the Territory, on how government has been functioning and, most importantly, how public revenues have been spent during the applicable period. Any process which results in significant delay in the tabling of the Annual Report must be rectified. Accordingly, we adopt the position taken by the Auditor summarized above and so recommend, with the further recommendation that the Annual Report should also be submitted to the Minister of Finance at the same time as it is sent to the Speaker.

Auditor General

10.81      Finally, section 66(1) provides for there to be an “Auditor” whose office shall be a public office. The Auditor has recommended that, for consistency, all references in the Constitution to the “Auditor” should be changed to “Auditor General” as the designation used in the Audit Act 2003. Section 66(1) and all other sections, must be made to conform with that nomenclature. We so recommend.