Turks and Caicos Islands: Report On The Partial Suspension Of The Constitution Of The Turks And Caicos Islands

Last Updated: 19 October 2009
Article by Susan Barrington-binns

A report on the partial suspension of the constitution of the Turks and Caicos Islands, a British overseas territory, and the provisions in their place for the interim governance of the Islands by the Governor.

Introduction

On Friday, August 14, 2009, the British Government partially suspended parts of the Turks & Caicos Islands (TCI) constitution. The announcement was made by His Excellency, Governor Gordon Wetherell in a broadcast made live to the nation at 10am on the same date.

In his address, the Governor stated that the suspension would be for a period of 2 years, subject to an extension or an abbreviation as necessary. During this period, the Governor will be responsible for the government of the Turks and Caicos Islands.

Background to the Suspension

a) Commission of Inquiry

Sir Robin Auld, a retired English Court of Appeal Judge was appointed on 10 July 2008 as sole Commissioner under a warrant signed by the previous Governor of the TCI, His Excellency Richard Tauwhare MVO, pursuant to the Commissions of Inquiry Ordinance.

The warrant required Sir Robin to conduct an inquiry and to report his findings and recommendations on the following:

  1. the possibility of corruption, or
  2. other serious dishonesty in relation to past and present Members of the Legislature of the TCI

A Commission of Inquiry was held during a four week period ending on 11th February 2009.

b) Reports

Following the inquiry, the interim report was issued on 28 February 2009 ("the Interim Report").

The report confirmed that Sir Robin was satisfied that there was a "high probability of systemic corruption and/or other serious dishonesty involving past and present elected Members of the House of Assembly and others in recent years."

The final report of Sir Robin was published on the 18th July 2009 on the Turks & Caicos Islands Commission of Inquiry website, www.tci-inquiry.org.

In that report, Sir Robin made recommendations including the following:

  1. The partial suspension of the 2006 Constitution and the introduction of interim direct rule from Westminster acting through the Governor;
  2. The provision for special criminal process and civil recovery of assets arising out of any criminal or other investigations prompted by the final report;
  3. Trial by judge alone, without a jury;
  4. Improvement of standards of integrity in public life;
  5. Statutory reform of the system for administration and disposal of crown land in the form of a Crown Land Ordinance;
  6. On return of the TCI to ministerial government, the amendment of the 2006 constitution, and
  7. A review of the Legal Profession Ordinance.

The New TCI Governance

As a result of the partial suspension of the TCI Constitution, the Governor has now taken control of the government of the Turks & Caicos Islands including all the former responsibilities of TCI government ministers. In the Governor's press release, he confirmed the following:

"With immediate effect, Ministerial Government and the House of Assembly are suspended meaning that Cabinet will no longer exist and the House of Assembly is dissolved and Members seats are vacated. The constitutional right to trial by jury is also suspended with immediate effect."

However, the police, courts and other public bodies are to continue to perform their normal functions. Public services continue to be run by the people of the Turks and Caicos Islands.

Advisory Groups

In order to assist the Governor in his functions, there are two new advisory groups, an Advisory Council and a Consultative Forum.

The Governor in his press release said of these two committees:

"Although the Advisory Council and the Consultative Forum will not be elected bodies, they will I hope be representative of the views of the community and be responsive to public concerns. I want to ensure that the voice of the people continues to be heard."

a) Advisory Council

The Advisory Council is to be made up of The Governor, Deputy Governor, Chief Executive, the Attorney General and the Permanent Secretary, Finance and seven other "nominated members" who are all belongers (broadly, TCI citizens) chosen by the Governor as follows: Joseph Connolly, Edith Cox, Theo Durham, Carlton Mills, Eugene Otuonye, Mary Doreen Quelch-Missick and John T Smith.

The nominated members must meet certain criteria and must disclose to the Governor any personal interests they have in any Government contracts.

The function of the Council is to advise the Governor on the formulation of public policy but the Governor is not obliged to act in accordance with this advice and can exercise his discretion.

b) Consultative Forum

Governor Wetherell has now appointed 12 members of the Consultative Forum. On August 25th, the Governor swore in all the chosen Consultative Forum Members at Waterloo, Grand Turk.

The forum consists wholly of belongers. The Forum's members include notable public figures including Karen Delancy, former Minister for Home Affairs and Human Services, LIME CEO Drexwell Seymour, a prominent attorney Carlos Simons QC, and Dr Linda Williams, former chair of the Public Service Commission.

The appointed members will be joined on the forum by the Chief Executive, Martin Stanley (and from October 2009, his successor Mark Capes); Attorney General, Kurt DeFreitas and Delton Jones, Permanent Secretary (Finance).

The Governor shall have the power to appoint and terminate the appointment of any member of the Forum.

Like the Council, the Forum shall have an advisory role, and make recommendations to the Governor on any bill or public policy. As before, the Governor is not obliged to follow the recommendations and may exercise his discretion.

Special Prosecutor Appointed

Helen Garlick has now been appointed as Special Prosecutor in the Turks and Caicos following the recommendations made in the Commissions Final Report. According to Newspaper reports, Ms Garlick was an Assistant Director of the UK's serious fraud office where she worked for the past 20 years and was the first head of its Overseas Corruption Unit.

New Tourist Board

In addition, the final report made references to statements by the Chief Auditor describing the tourist board being "in a poor financial state" . The appointments of all previous tourist board members have now been terminated by the Governor and a new smaller board chaired by Hugh Fulford and a special working group headed by Clive Stanbrook QC has replaced it.

The Legal Order partially suspending the Constitution

The Order is The Turks and Caicos Islands Constitution (Interim Amendment) Order 2009 ("the Order") which was made on the 18th March 2009, and was made pursuant to Sections 5 & 7 of the West Indies Act 1962(a).

The order came into force on Friday 14th August 2009 when the Governor signed a proclamation published in the TCI Gazette which brought into force the Order in Council suspending parts of the Turks and Caicos Islands constitution.

In the Governor's press release on 14th August 2009 ("the Press Release") he stated:

"In accordance with the Order in Council, this will be for a period of two years, subject to extension or abbreviation as necessary. During this period, the Governor will be responsible for the government of the Turks and Caicos Islands."

He also stated as follows:

"Through the technical assistance it is bringing to the Turks and Caicos, the United Kingdom is already making a positive difference in many areas. The British Government and I are committed to working towards holding free and fair elections by July 2011."

The Order will provide the Governor exclusively with all the powers that were formerly given to the members of the Cabinet including the Premier, Ministers, the Cabinet Secretary and even the leader of the opposition.

Where the Governor was previously required to consult the Cabinet in relation before exercising any powers, he now has the freedom to use his discretion in so doing.

In effect:

"The Governor acting in his discretion shall have the power to make laws for the peace, order and good government of the Turks and Caicos Islands."

Summary

The Governor will now inherit all the legislative and governance powers of the TCI government. Whilst he will be required to take the advice of his council and consult with his forum, he will be able to exercise his own discretion. Ultimately, the power is vested in Westminster as any law made by the Governor may be disallowed by Her Majesty through the UK's Secretary of State. The Governor is also subject to the instructions of the British Foreign Secretary and the scrutiny of Parliament in London.

The Governor in his press release concluded:

"Our goal is to make a clean break from the mistakes of the past by establishing a durable path towards good governance, sound financial management and responsibility. Our guiding principles will be those of transparency, accountability and responsibility."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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