THE PEOPLES DEMOCRATIC MOVEMENT POSITION PAPER ON THE PUBLIC CONSULTATION ON THE FOREIGN AND COMMONWEALTH OFFICE DRAFT CONSTITUTION FOR THE TURKS AND CAICOS ISLANDS
We, THE PEOPLES DEMOCRATIC MOVEMENT, REJECT the FCO draft constitution. Offered below are a number of reasons why it is unacceptable for our people and country at this stage of our development.
Background and recent history
The 2010 review of the constitution of the Turks and Caicos Islands comes from an unfortunate period of maladministration and corruption exposed by a far reaching Commission of Inquiry requested by our party for the good of the country.
The findings of the Commission were shocking, and it did expose numerous failings on the part of individuals in the last Government including individuals in the Foreign and Commonwealth Office and the Governor. Ironically, while the Commission was in oral hearings the Turks and Caicos Governor was still busy signing off on transactions where there was alleged corruption. The final report does not cite one constitutional failure as a cause for these alarming acts on the part of Ministers.
It must be pointed out that this was not the first Commission of Inquiry to be requested. If former Gov. Richard Tauwhare is to be believed, he also declared at a Chamber of Commerce meeting in May 2008 that he had requested the FCO to call a commission of inquiry as far back as 2005. This was during a period before the 2006 constitution was enacted in reality the Governor did have greater authority and responsibility to act and correct failures of the local Government at that time.
The FCO did not listen. What remains to be seen is whether the FCO will listen to the voice and wishes of the people to return our 2006 constitution or whether the FCO and its Ministers will turn a deaf ear towards our concerns on OUR constitution.
As for the information in the Commission of Inquiry the PDM stands resolute in our stance that “WE TOLD YOU SO” and can safely say that we did what was right during this period of maladministration unlike Governor Poston, Richard Tauwhare, Meg Munn and Leigh Turner who did what was wrong and ignored our concerns of corruption, and gross maladministration when they were brought forward and were summarily dismissed as lacking sufficient evidence.
The greatest obstacle to good governance and deterrent to sound financial management is a lack of hearing and adherence to the already existing laws of the Turks and Caicos Islands on the part of persons in authority. When this happens with locally elected officials we have a remedy at the polls through a General Election, but when this happens with UK officials at the FCO the people of the territory have no recourse and we suffer for years, sometimes even decades.
Even today the FCO is not listening to their own MP’s such as Andrew Rosindell and Lord Nigel Jones who have both warned that a constitution cannot and should not be forced on the people of the Turks and Caicos Islands. Even to this day the FCO has neglected to pave a path for DIRECT NEGOTIATIONS with the political parties on any change to the constitution as called for by our party and the British Parliament’s All Party Parliamentary Group on Turks and Caicos Islands, despite the precedent set during the 1986 suspension.
The FCO must remember that it has appointed over the years Governors and Attorneys General who have not served the interest of the people, but who served their own interest and broke the law.
The FCO cannot simply look at the last 8 years and try to impose a constitution on the people based upon this period but it must look back and honestly assess its own failings, gross neglect and incompetence in administering its constitutional obligations to the Turks and Caicos People and our territory, obligations that is has agreed with the world to uphold and move towards. Yet, in this FCO draft constitution the UK’s UNITED NATIONS obligations are being DISREGARDED. It is clear that the FCO is attempting to move the country backwards to an era of colonialism. It is seeking to extend temporary Direct Rule into permanent authority over the Government of the Turks and Caicos Islands through its proposed draft constitution. This is unacceptable and we utterly REJECT IT.
One of the measures being used to extend permanent authority over the Turks and Caicos people and their Government is by granting greater authority to the Governor under the pretext to correct failures of the past. The Governor would be granted the authority to:
1. reject the decision of cabinet,
2. make decisions contrary to cabinet; and
3. solely make appointments to public bodies.
Two cases come to mind that discredit this theory that granting greater constitutional power to Governors will avoid corruption or conflicts of interest. Specific examples arise namely Attorney General Terrence Donnegan and Governor Christopher Turner. These two such cases involve abuses of constitutional power. One was convicted and deported after the 1986 inquiry and the other left the territory in disgrace after granting special concessions to close relatives which ended up costing the Turks and Caicos Islands people millions of dollars to correct. The FCO and the British Government did nothing to pay for their mistakes. The people of the Turks and Caicos Islands cannot trust their constitutional destiny to a Governor with unchecked power and authority over the three branches of Government, the legislature, the executive and the judiciary. Our history has proven that Governor’s can and will fail to act with integrity and honesty in their decision making powers. This draft FCO constitution also grants the Governor unchecked power and authority over the institutions protecting the three branches of Government making him a complete and total constitutional dictator.
We have been down this road before where the level of incompetence and corruption in Government by locally elected officials coupled with the incompetence and neglect at the FCO has caused our country’s constitution to be temporarily suspended. We have equally been down the road where the imposed solutions to fix the equal failings of the locally elected Government and the FCO robs the people of their democratic, constitutional and fundamental human rights. We wish not to go down that road again as proposed in this draft constitution. Again, we respectfully REJECT IT.
In introducing the draft 2006 constitution for public consultation and debate Lord Triesman remarked, “The UK has only retained those powers, including for the Governor, which are – and will remain - necessary in TCI to ensure the implementation of international obligations; to protect itself against contingent liabilities; and to ensure good governance.” So what happened to the Governor and its constitutional ability to ensure good governance? Again, it was not the people or the constitution that failed. It was the individuals the FCO appointed who failed in giving the necessary attention to the Turks and Caicos Islands. The FCO now seeks to cover up its failings and problems by imposing an untenable constitution on an unwilling people. Again, we REJECT IT.
SPIRIT OF THE NEW CONSTITUTION IS AGAINST THE WILL OF THE PEOPLE
The fact is the FCO failed to uphold their responsibility to good governance, yet the people are being punished for it through a draft constitution that is regressive. This draft represents a major backward step for the people and the protection of their fundamental rights. Specifically, it has components that ignore the WILL OF THE PEOPLE as expressed through their representatives in our Parliamentary system of democracy. This document would eliminate Parliament’s authority on specific matters. The message communicated is one of distrust and suspicion. We can only conclude from the constitutional proposals that the FCO does not trust the people of the Turks and Caicos Islands to make sound decisions through their representatives and the mechanisms to make law because decisions can be overridden, limited and removed from Parliament’s ability to handle the country’s business. This is dangerous. Here are the points we make against the spirit of the constitution.
1. In this document, the tone is undemocratic allowing, for instance, the Governor to remain as he is now under direct rule; a constitutional dictator.
2. In this document, the constitution insults the will of the people by subjecting the principal of the sovereignty of Parliament to non elected bodies such as the Integrity Commission. Parliament cannot for instance set payment for its members.
3. In this document, the other partner, the UK, accepts and offers no constitutional scrutiny for their obligations to the people and their elected representatives.
All of the changes proposed can be dealt with in subsidiary legislation and not enshrined into our constitution. We do not accept any proposed changes that marks for constitutional regression.
Part I Section 1- 22 FUNDAMENTAL RIGHTS
The constitution SHOULD NOT BE SILENT ON TRIAL BY JURY
The constitution should not diminish the rights of people and must have a presumption for the right to trial by jury. We agree that all persons must be equal before the law. We accept that there may be rare occasions for the use of trial by Judge alone, however, the constitution cannot be completely silent least we have a greater situation develop of corruption in our justice system. The temptation will be there for the judiciary to have absolute power over the lives of our people. Our people are capable of making sound decisions and should not be shut out of the process and it should not be enshrined in our constitution. Our view is that the jury system provides a form of checks and balances on the justice system. Our history has proven that we cannot simply leave the matter of trials of persons simply up to the “system”. The people must have a voice and the jury system acts as the voice and will of the people in deciding whether or not persons should be convicted based on evidence. The system will become weakened if the constitution does not provide speak positively of a presumption to right to trial by jury. This right should not be unduly denied.
Definition of legal representative Section 22
In the interpretation section the issue of definition of what a legal representative is should be redefined to mean someone “admitted” to practice law in the islands and not simply someone “entitled” to practice law. The constitution could do harm to accused persons if for any reason that person is not admitted and cannot help the accused.
Lawful administrative action Section 19
When section 19 is read in conjunction with section 126 it raises the concern that the grant of Belongership is something that the FCO wants as a procedure and that if someone applying for Belongership feels they have been adversely affected that they can appeal. There must be no appeal when a person applies for Belongership and is denied. Belongership is not a right. It is discretionary, and as this constitution conceives, it is based upon the views of a commission of Belongers who would have considered the issues.
Part II Section 23-29 The Governor
INCREASING THE GOVERNOR’S POWERS ARE WRONGLY ASSUMED TO BE THE SOLUTION TO BAD DECISIONS MAKING
The constitution rewards the British Government through their Governor with increased and advanced powers when the truth is that the FCO and the Governor was culpable in causing the crisis that now exists. Richard Tauwhare made this known when he publicly announced before he departed that he had requested a commission of inquiry into Government corruption in 2005 but his request was rejected by the FCO at the time. In 2005 most of the allegations of corruption had not occurred and had this request by former Governor Richard Tauwhare been granted the people could have avoided this painful episode of the Interim Government.
29 (2) b. The governor has veto power and can ignore the will of the people. We reject it. The Statement of Governance principles can be best be described as a set of moral and ethically values that will be interpreted by The Governor to impose yes or no decisions on a Government elected by the will of the People. The Governor will sit not just as a constitutional dictator but a constitutional JUDGE. This concept is completely foreign to any parliamentary democracy. Besides, we have had Governors; such has Mr. Poston who has been a complete and total moral failure according to the morals and values of the Turks and Caicos Islands people. The will of the electorate cannot be subjugated to this type of bizarre constitutional arrangement.
Section 28 STATEMENT OF GOVERNANCE PRINCIPLES
We reject the Statement of Government principles. This section is completely against the will of the people. The Governor cannot sit as a constitutional judge and dictator. This represents constitutional regression. It also speaks to the attitude that the FCO has toward the territory. As if the FCO and the Minister does not want to be bothered with serious decisions that the Governor has to take when history shows that the Minister must and should take an interest in the matter that the Governor raises to avoid the situation that we now find ourselves in. This is a recipe for chaos and uncertainty. We are now in a period of uncertainty and it has resulted in disastrous results for the people of the TCI. The provision for the governor to act contrary to the advice of Cabinet in an area of ministerial responsibility is contrary to the principles of parliamentary democracy. This has to change. The Governor’s powers should be limited to his reserve responsibilities. If HMG would like to increase the reserve powers of the Governor that is another matter but there has to be a clear line between local Government and HMG responsibility for oversight.
Section 25 The DEPUTY GOVERNOR
The deputy Governor must constitutionally be a Belonger without exception. The clause allowing the Governor to act contrary to this based on his or her opinion is wrong and we reject it. Additionally, there must be consultation and move towards advice of the cabinet on the choices that the Governor is considering for deputy governor.
THE EXECUTIVE PART III
Section 31 the Cabinet
The size of the cabinet must not be reduced. This is regressive. We reject any change to it. The size of the cabinet has not been proven to be the cause of any corrupt act.
Section 37 Governor’s special responsibilities
The special responsibilities of the Governor need to be seen as being taken on by a Minister of Cabinet to promote and enhance political development. Therefore we believe subsection (3) should simply mention that the Governor may delegate after consultation with the Premier any responsibility of section 37(1). We reject the notion that some of the Governor’s reserve power cannot be delegated to a Minister. If the Turks and Caicos Islands are to develop politically then a Minister must be seen as being competent and trustworthy in the constitution, if not in deed, to administer these responsibilities.
SECTION39 (5) Proceedings and quorum in Cabinet
The Governor should not be allowed to unilaterally publish information without consultation of the cabinet.
Section 41 Attorney General
Since the Attorney General will be the principle legal adviser to the Government his appointment should be subject to the advice of cabinet not in the Governor’s sole discretion.
THE LEGISLATURE PART IV
MAKE UP AND SIZE OF THE HOUSE OF ASSEMBLY
The Legislature consists of a single House of Assembly. For accountability and transparency reasons, it is important for the size of the Parliament to be larger than 15 Members. We recommend that the 19 members remain as is. In order for the committee systems to be effective, there has to be sufficient members to select from to be on committees. In addition, the rules of the Standing Orders of the House of Assembly have to be amended to allow the opposition to have majority members on certain watchdog Committees. Again, the size of the House of Assembly has not been proven to be the cause of any corrupt act.
SECTION 45 (1) THE ELECTORAL SYSTEM
The proposal to change the WAY MEMBERS OF THE HOUSE OF ASSEMBLY ARE ELECTED IS COMPLETELY REJECTED. This voting and election system as many drawbacks including:
1. It is completely foreign to the voters in the TCI and will create confusion in the minds of voters. This will lead to lower voter participation. Each voter has two set of ballot to mark; the election of the island member and nine other persons from a list of quite a number of candidates is alien to the people and will cause a great delay in the balloting process. This process will be overly consuming. Many people turn away from the polls now because of the waiting time where only one choice has to be made. Many will refuse to wait and leave before voting. This runs counter to the system of Parliamentary democracy and the outcome will not be the settled will of the people.
2. This system will usher in a period of lack of accountability by elected members to the population because he or she will have no set constituency, no one to answer to or no cause to fight for. Is this the desired outcome where there is no one to whom the people can call on in case of need?
3. We feel that there has to be a better system that works to bring about a bicameral system with some form of proportionality while maintaining some semblance of geographic cohesion produced by defined constituencies.
4. This system potentially produces nine people pulling in 9 different directions without a cohesive plan will ensure that the Governor has the ultimate authority over decisions of cabinet if there was a coalition Government. This will return the Turks and Caicos Islands back to unfettered colonialism.
5. Provides for disenfranchisement because different communities will not have any one specific representative to address their concern.
6. Against the fundamental rights of organizations to organize and contest elections.
7. This system will pit Political party members against each other vying for votes.
8. The system is designed to kill the party system under which we have enjoyed all of our advancement.
Section 48(1) Declaration by candidate for election to House of Assembly
The legal fees associated with a candidate having to defend him or herself against court action must be borne by the judicial system and not the candidate. This can amount to a serious impediment to candidates.
Prorogation and dissolution
Section 55(1) The Governor cannot be in a position to unjustifiably deny the Premier the right prorogue the House of Assembly. This is against all conventions of Parliamentary democracy.
Section 55(2). The Governor cannot be in a position to unjustifiably deny the Premier the right to dissolve the House of Assembly.
Section 59(1) This section allows the Governor to deny the House of Assembly the approval of the Standing Orders by giving him the authority to approve or disapprove the standing orders acting in his or her own discretion. Alarmingly, this is one change that is not highlighted by The FCO, even though it is added in at the end of the paragraph. This violates again the principle of Parliamentary Sovereignty.
Part VII INSTITUTIONS PROTECTING GOOD GOVERNANCE
The main watchdog institution is the Official Opposition. The draft FCO constitution seeks to deny the Government and Opposition from appointments to these bodies. This is wrong and we reject.
The integrity commission should not have the constitutional power under Section 120 of the constitution. Again, this insults the convention of Parliamentary Sovereignty. The people elect representatives to make decisions on their behalf. The Integrity should not have the role of expressing its opinion on what is a lawful salary for a Member of Parliament; that role is for the Government and the other members of the House. The Integrity Commission should not be makeup of an equal number of members as is recommended in Section 98(1).
The cabinet should have the determination of disposal of crown land, if the Governor feels otherwise then he should notify the house of assembly to have the matter debated by elected representatives of the people. Crown land should only be disposed to Belongers or a scheme involving direct Government ownership in the land. This draft constitution introduces a system of legal maneuvers to allow the Governor to grant land in his sole discretion. We reject it.
Sec 105 PUBLIC FINANCIAL MANAGEMENT
This section may cause the Government to face two political campaigns, one before taking office and one after during the consultation on public finances. In general, these provisions should be placed in subsidiary legislation and not form part of the constitution.
Section 118 THE NEW COMMITTEE SYSTEM
The public accounts committee does not reflect the numerical strength in the House of Assembly and does not hold the Government to account because it lets the committee co-opt members who will be chosen by majority. This debunks the theory laid out by Sir Robin Auld that it was the committee system that failed. The proposed Public Accounts Committee system will result in the Government having authority over that committee. It limits the Official Opposition to the chair and not the numerical strength of its membership of Parliament.
APPOINTMENTS MADE BY ADVICE OF PREMIER AND LEADER OF THE OPPOSITION
Where there is to be an appointment to the PSC, JSC or any other public body it should explicitly state who the Governor should take advice or consultation from i.e. one appointment after consultation with the Premier and one appointment after consultation with the leader of the opposition. Consider section 82(2) (b). This can create confusion and the Governor can use it to his advantage not to make specific appointments. The draft constitution robs the Premier and Leader of the Opposition with the authority to make appointment by advice to the Governor and moves all appointments to a system of consultation of which the Governor is not bound to accept. This is extremely regressive.
Section 126. BELONGERSHIP
We reject this system proposed because it transfers control of who is granted Belongership to the British Government and not the Turks and Caicos People. The only persons who could be seen as being granted Belongership are the persons whom the British Government will deem acceptable. This is prejudicial and robs the Turks and Caicos people of controlling who it allows into the country. We have to ensure that, procedurally, the grant of belonger status is not automatic. When combined with Section 19 it may take the will of the grant of Belongership out of the hands of our people. The FCO seems to be saying if they cannot enlarge the voting franchise then the people of the Turks and Caicos Islands will not be able to grant Belongership except it is someone the Governor approves of.
A BRIEF DISCUSSION ON THE UNITED KINGDOM’S OBLIGATION TO THE UNITED NATIONS ON BEHALF OF OUR COUNTRY
In exercising its remit in the Turks and Caicos Islands the FCO should be concentrating on fulfilling its commitment made to the rest of the world in the United Nations charter.
The UK will argue, wrongly, that it is not bound by International obligation as former FCO Minister, under the Labour Government, Lord Triesman pointed out in his speech to the Turks and Caicos Islands on April 24 2006, he said “In this context, it might be helpful if I set out the UK position on alternative forms of relationship, some of which I know have been discussed here in TCI in recent weeks. UN General Assembly Resolution 1541 set out some options for the relationship between Administering Powers and Territories, including independence, integration and free association. The UK did not vote in favour of that resolution, and does not regard itself as bound by it”.
However, we are eager to point out to the FCO that not being bound to 1541 does not mean there isn’t still an obligation to Turks and Caicos Islands under the UNITED NATIONS Charter. The text of Chapter XI of Article 73 paragraph A and B of the United Nations Charter DECLARATION REGARDING NON-SELF-GOVERNING TERRITORIES reads, “Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well-being of the inhabitants of these territories, and, to this end:
1. to ensure, with due respect for the culture of the peoples concerned, their political, economic, social, and educational advancement, their just treatment, and their protection against abuses;
2. to develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions, according to the particular circumstances of each territory and its peoples and their varying stages of advancement;
Clearly, if we are to hold the British Government to account for their role in helping the Turks and Caicos Islands and our people with achieving any measures of advancement the grade would be low. The fact is this exercise of constitutional change is counter and opposite to the obligations that the UK Government has agreed to the world to uphold with regard to Turks and Caicos Islands. We reject it and will continue the work on drafting a constitution for the people of the Turks and Caicos Islands.