Friday, December 05, 2008Constitutional Highlights

Elise DonovanThe Territory's new Constitution Grants More Autonomy

After a three-year review process, the Virgin Islands ushered in a new era in its constitutional development with The Virgin Islands Constitution Order 2007 which took effect in the Territory on 15 June 2007.

The process was started in 2004 by then Chief Minister Dr. Orlando Smith, who appointed the first fully local eight-member BVI Constitutional Review Commission, chaired by lawyer Gerard Farara, QC. After a year-long consultation process with Virgin Islanders at home and abroad, the Commission produced what Dr. Smith termed “a quality and superb report.” The report was presented to Executive Council in 2005 and its recommendations were used as the basis of the constitutional negotiations with the United Kingdom.

The Constitutional Commissioners in their review, sought to answer how BVI as a micro-territory could position itself in a new global setting to continue to provide its people with an enhanced quality of life and at the same time maintain a posture of dignity and cultural identity. The Commissioners felt that this question could not be appropriately answered without getting Virgin Islanders views on the question of independence. As previous reviews revealed, however, Virgin Islanders’ primary interest was not independence, but securing the Territory’s economic and political future. Virgin Islanders found comfort and stability in BVI’s status as a British territory, but still believed the Territory had matured enough for there to be significant constitutional advancement short of independence.

The UK Government, on the other hand, recognized BVI’s maturity and although it wanted a modern relationship with the Territory, it was cautious about relinquishing too much power. Britain wanted to maintain sufficient powers to “protect its responsibility for ensuring good governance, compliance with international obligations and minimisation of contingent liabilities.”

Chief Minister Smith argued that BVI had demonstrated enough maturity to warrant more autonomy. “Progress and good governance are evidenced in our international financial services sector, which remains beyond reproach and continues to meet all international standards of prudence and regulation. Our other economic pillar, the tourism sector, continues to be robust, again because of sound management. Our public institutions, which fall outside the direct constitutional control of the Governor, have functioned efficiently from their inception and some are recognized as models in the Caribbean region,” said Smith.

Even more significant, he noted, was that BVI’s development showed a strong correlation between constitutional advancement and economic advancement. “Increasing moves toward greater autonomy and self-governance continue to result in greater economic self-sufficiency, prosperity and the overall maturity of the Territory,” he said.
Devolution of some of the Governor’s powers and responsibilities would be recognition by the UK of BVI’s ability to handle greater autonomy in managing its own affairs.

Crafting a new constitution for the BVI, Dr. Smith also the leader of the National Democratic Party, felt was a bi-partisan affair and he included on his team of negotiators then Leader of the Opposition Hon. Ralph T. O’Neal and the Hon. Julian Fraser of the Virgin Islands Party. Members of Dr. Smith’s government and two of the constitutional commissioners comprised the other members of the team.

The BVI Negotiating Team started out united in their resolve to secure the legitimate rights of Virgin Islanders and maintained this posture during the first three rounds of the intense negotiations held in the Territory. But as the BVI elections became imminent, political expediency prevailed on the members of the opposition and they diverged from the previously supported position of seeking to considerably scale back the Governor’s powers and responsibilities. At the final round in London, Opposition leader O’Neal told the Parliamentary Under Secretary for the Foreign and Commonwealth Office, who led the UK team, that he was not in agreement with Dr. Smith and others on his team to remove the Governor from Cabinet.

Dr. Smith and his team though fragmented, persevered, but ultimately, the discord weakened the BVI Team’s overall position and provided fertile ground for the UK Government to be disinclined to significantly shift the balance of power in the BVI Government’s favour.

Although he was not able to get the Governor out of Cabinet, Chief Minister Smith still proclaimed success in achieving his overall objectives in getting a new constitution and counted this as one of the most important accomplishments of his administration.

Key among those objectives was clearly defining who is a Virgin Islander and who belongs to the Virgin Islands. In its preamble the Constitution states, “The people of the territory of the Virgin Islands have over centuries evolved with a distinct cultural identity which is the essence of a Virgin Islander.” The Constitution further recognizes that “the people of the Virgin Islands have a free and independent spirit, and they have developed themselves and their country based on qualities of honesty, integrity, mutual respect, self-reliance and the ownership of the land engendering a strong sense of belonging to and kinship with those islands.”

In this regard, significant changes were made to categories of persons deemed to belong to the Virgin Islands. Belonger status was extended to second generation Virgin Islanders born outside the Territory and persons who became British overseas territories citizens by virtue of registration in the Virgin Islands under the British Nationality Act were also deemed to belong.

One section of the Constitution, however, restrictively defines the Virgin Islander by birth or descent and only persons who meet the restricted criteria may qualify to hold elected office in the House of Assembly or be appointed as Deputy Governor and Cabinet Secretary. This measure ensures that political power and the highest offices of public office would indefinitely remain in the hands of native Virgin Islanders.

Arguably, though the most important change in the Constitution is the inclusion of a Human Rights or Fundamental Rights Chapter. This chapter, which is based on the United Nations Universal Declaration of Human Rights, outlines that the fundamental rights and freedoms are to be enjoyed without discrimination of any kind, such as sex, race, color, language, religion, political or other opinion, national, ethnic or social origin, association with a national minority, property, family relations, economic status, disability, age, birth, sexual orientation, or marital or other status.
The basic rights are: life, equality, liberty, security of the person and the protection of the law freedom of conscience, expression, movement, assembly and association; and protection for private and family life, the privacy of the home and other property and from deprivation of property save in the public interest and on payment of fair compensation

While the Fundamental Rights Chapter may be the most important inclusion in the new Constitution, having the highest decision making political body reflect the increasing autonomy, responsibility and financial independence that the Territory exercises was also important. The Executive Council under the old Constitution was replaced by a Cabinet and the Chief Minister became a Premier. Under the new Cabinet system of government, the governor’s supreme powers were diluted and shared with the premier. Correspondingly, the Constitution brought more status to the legislature and replaced the Legislative Council with a House of Assembly.

Of critical importance also was the new Constitution’s correction of the potentially conflicting role of the Attorney General as both the Government’s chief legal adviser and the Territory’s chief prosecutor. Accordingly, the new Constitution separated the adviser and prosecutor duties of the Attorney General and established the post of an independent Director of Public Prosecutions.

Ultimately the true test of the BVI’s autonomy and advancement rests with how much power and responsibility the Constitution affords the local government versus the powers and responsibilities of the Governor. The Governor as Britain’s representative in the Territory still has the final say as he presides over Cabinet and maintains responsibility for defense, the public service, and the administration of the courts. But in the two important areas of internal security (including the police) and external affairs, the Governor shares responsibility with the BVI Government.
For internal security these powers are shared through the National Security Council, which comprises the Governor, the Premier, another Minister appointed by the Governor on the advice of the Premier, and the Attorney General and Commissioner of Police as ex-officio members. Being a part of the National Security Council ensures that the BVI Government has a direct role in addressing crime and crime prevention and can truly represent the people’s interest in this regard.

Getting more responsibility for external affairs was again a major achievement for the Virgin Islands, as it elevated the Territory’s status both regionally and internationally. Any matters of external affairs that relate to ministerial portfolios have now been delegated to the Government of the Virgin Islands under the new Constitution. Specific examples listed relate to regional affairs, including the US Virgin Islands, tourism, taxation and financial services regulation and European Union matters directly affecting the interests of the Virgin Islands. The Government of the Virgin Islands has also been granted authority to commence formal negotiations and to conclude agreements, whether bilateral or multilateral, in these areas of external affairs.

The UK Government still maintains general responsibility for external affairs with the caveat, however, that in carrying out its responsibility it will, whenever practicable, seek the fullest consultation with the Government of the Virgin Islands, and will at all times have special regard to the wishes of the Virgin Islands.

Overall, the new Constitution brings with it significant acknowledgement from the UK of BVI’s advancement and its maturity and responsibility in managing its own affairs. It is without dispute that the more autonomy Britain has given the BVI, the more it has established itself socially, politically and economically and built a strong reputation for governance in the international community, particularly in the area of international finance. Virgin Islanders’ desire to secure their economic and political future may ultimately rely on seeking even further constitutional advancement, the next of which may be independence or something close to it.

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