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