28 December 2009

Court Clears Way for US Review of Draft Virgin Islands Constitution

A long-awaited judicial ruling by US Virgin Islands Superior Court Judge Darryl Donohue has opened the way for the resumption of a political process which could lead to the adoption of the first constitution for the US Virgin Islands, one of two US administered dependencies in the Caribbean. The territory is governed pursuant to the Revised Organic Act of 1954 written by the US Congress, rather than a constitution written by the people of the dependency, and is one of sixteen remaining territories worldwide recognised by the United Nations as non self-governing.

This is the fifth attempt by the US Virgin Islands to complete the process of drafting and ratifying a territorial constitution based on the present status. In retrospect, the many attempts at constitutional advancement may have more to say about the efficacy of the present dependency status rather than the commitment of the people to have a constitution, since any enhancements of the status quo must fit within limitations of colonial dependency which vary from territory to territory.

Legal Issues

The legal case on this phase of the constitutional process was filed in the Superior Court of the territory in June, 2009 by Fifth Constitutional Convention President Luz James and Convention Secretary Mary Moorhead questioning whether elected Governor John de Jongh had the authority to hold back the draft constitution from transmission to US President Barak Obama for consideration, as required by the US and territorial laws governing the constitutional process (an earlier ruling of the court had required the two Convention officials to file the case in their personal capacities rather than as Convention officials).

The Governor had decided last June not to submit the draft document to Washington after a legal analysis by territorial Attorney General Vincent Frazer contending that elements of the draft violated certain provisions of the US Constitution, including the equal protection of US citizens (there is no Virgin Islands citizenship to be protected, as no such citizenship exists in the Revised Organic Act). A number of members of the Convention have countered that the provisions in question were consistent with those in constitutions of other US-administered territories in the Caribbean and Pacific where the people of the territories do not have full political rights as other US citizens, and thus have unique provisions in their constitutions to compensate for the democratic deficiencies. The court case was not based on the constitutionality of any provisions, but rather was restricted to the procedural question of whether the law provided a role for the governor other than to submit the document to Washington. The ruling made it clear that no such authority existed, as reflected in the conclusion of the court ruling:


The Court finds that Respondent (Governor) has a specific non-discretionary duty required by both (US) Pub.L. No. 94-584 and (Virgin Islands) Act No. 6688 to forward the proposed Constitution to the President of the United States. Respondent's failure to forward the proposed Constitution constitutes a violation of Pub. L. No. 94-584 and Act No. 6688. Within the confines of the language of both statutes, Respondent's duty entails only submitting the proposed Constitution to the President of the United States. The statutes authorize nothing more and nothing less. There is no authority for Respondent to amend, modify, revise, withhold, or take any other action regarding the proposed Constitution beyond his enumerated duty. Consequently, it was not within Respondent's power to take contrary action by not forwarding the proposed Constitution to the President of the United States. Accordingly, mandamus relief is appropriate and Respondent shall be ordered to proceed with his duty pursuant to Pub. L. No. 94-584 and Act No. 6688 and forward the proposed Constitution to the President of the United States within ten (10) business days.”

Budgetary Shortfall

The 30 – member Fifth Constitutional Convention had begun its work in 2007 but suffered from the start because of insufficient resources. The budget of the Convention was never fully funded, and it had to rely on ad hoc appropriations resulting in operational delays and periods of dormancy when there were insufficient funds to convene its public meetings. Several requests to the US Government for financial assistance to the Convention to fill the budgetary gap were denied, leaving the Convention with a significant budgetary shortfall to fully carry out its work. In apparent anticipation of a favourable court decision, the President of the Convention, in testimony before the Fourth Committee of the United Nations (UN) last October, reported on the financial condition of the constitutional process, and requested UN assistance for the upcoming educational programme on the constitution after the document is returned to the people from Washington. The UN has routinely provided such assistance to non self-governing territories in their constitutional advancement process, and it is too early to determine whether the world body would assist the US Virgin Islands in this manner.

The Next Stages

With the court ruling, an in-depth substantive analysis of the draft document will now be undertaken by the US administration, as originally intended, rather than short-circuited at the territorial level. If the territorial government appeals the decision to the Virgin Islands Supreme Court, further delays could be expected. The longer the delays, however, the more likely the constitutional discussions in the territory could take place in the middle of the electoral campaign in 2010 – not an unfavourable outcome for those who seek more substance in the campaign debates, but perhaps an unintended consequence for those who prefer that these issues remain outside of the campaign debate. In any case, the timing could invariably result in the rare opportunity for substantive constitutional and political status issues to be injected into the political campaign.

A number of experts have argued that the constitutionality of the draft Virgin Islands constitution is best examined by the US, rather than by the territory – since it is the US constitution which governs the process, rather than a territorial law, and it is the US Government which is in the best position to determine whether something is consistent or not with its constitution. Any territorial interruption of how US law applies could be well off the mark since the US has the power under the present political status to unilaterally decide which parts of the US Constitution – as well as US laws - apply to the territories, and which do not. Thus, who best to explain this peculiarly inconsistent dependency status than the government which created it, and which has administers it in the case of the US Virgin Islands for over 90 years, and in the case of Puerto Rico and Guam for over one hundred years?

Legal and political scholars are awaiting the contemporary US analysis of the draft Virgin Islands constitution which should be undertaken at some point in 2010. Among the US government agencies which would provide views on the proposed constitutional provisions, the US Justice Department should be the most intriguing I its analysis, as it would provide an assessment on levels of autonomy possible – and not possible - under the unincorporated territory status as it is defined in 2010. The Justice Department assessment of the present commonwealth/territorial status of Puerto Rico essentially served to redefine the limitations of the prevailing dependency status, and an assessment of that department of the draft constitution of the Virgin Islands could also shed similar light on what is deemed possible under the present territorial status. The last time such an analysis was undertaken by the US government was in conjunction with the draft constitution adopted by the Fourth Constitutional Convention in 1980, so a new assessment after thirty years would be useful at the very least.


The clarity which could be brought by a US analysis of the draft constitution could be most revealing, specifically as it relates to the parametres of the territorial status ten years into the 21st century, and at the end of the decade when such colonial arrangements – even as sophisticated as they have become - were supposed to be a thing of the past. Have the parametres of territorial status been expanded sufficiently to accommodate some of the provisions in the draft as adopted by the Fifth Constitutional Convention, as some are hoping? Or do the continual constraints of the dependency political status provide insufficient political space to accommodate what the delegates to the Convention have agreed are necessary adjustments in the political development of the territory?

The anticipated US Congressional hearings on the draft constitution for the US Virgin Islands sometime in 2010 should be most interesting since these questions should be answered. If certain provisions contained in the constitutional draft are outside the parametres of the present territorial status, then the option of choosing a new status which would accommodate new powers and autonomy would have to be seriously considered, sooner rather than later. In any case, the unincorporated territorial status was never meant to be permanent and is an anachronistic relic of an era long past. It was always meant to be an interim stage to a status of political equality, and should have been long relegated to the annals of history, to be replaced by a status of full political equality consistent with international law. The ruling of the Virgin Islands Superior Court permits the process of assessment, public education and political advancement to move ahead, if by only a step.

1 comment:

Unknown said...

Great objective analysis. This is the type and level of discussion that is required. We look forward to the actions by the President and Congress.