fp Turks and Caicos

U.K. officials who spent a week in the Turks and Caicos Islands to hear from the public on proposed changes to the 2006 Constitution spent much of their time trying to explain the main objections.

Foreign and Commonwealth Office Deputy Director of Overseas Territories Helen Nellthorp, Constitutional Advisor Ian Hendry and Legal Counsellor Susan Dickson did not say what changes they might include as a result of their visit, but they pledged to report all suggestions and objections not included to Overseas Territories Minister Henry Bellingham.

The FCO group has invited members from both political parties, the clergy, the governor’s Advisory Council and the Consultative Forum to meet with Bellingham in London before the revised Constitution is finalized in the coming months.

Balance of power

By far the most controversial topic of discussion was giving the governor more power over decisions and appointments by elected ministers.
One major change allows the governor to assent to a bill which the Cabinet refuses to introduce to the House of Assembly or which the House appears unlikely to pass, but only with the approval of the U.K. Secretary of State.

The 2006 Constitution only allows the governor to force the passage of a bill that already has been validly introduced by the Cabinet.
The governor would also be given authority to decide if the Public Service Commission (PSC) should be three or five members, and to appoint all its members at his discretion after consulting with the premier and the leader of the opposition. The 2006 Constitution requires a five-member PSC and forces the governor to accept one appointment each from the premier and the leader of the opposition.

Changes would also give the governor final say in making appointments to public offices and in disciplining those officials without having to follow recommendations of the PSC. The 2006 Constitution forces him to listen to the PSC unless instructed by the Secretary of State or Her Majesty.

Under the revised Constitution, much of the governor’s actions and those of elected government would be directed by a set of governance principals proposed by the U.K. Secretary of State and debated in the House of Assembly.

One objection was that the governor would be exempt from judicial review by the Supreme Court for violating the principals, while other government officials could be reviewed. Hendry conceded that exempting the governor likely would be removed from the final draft.

Deputy governor

Another hotly debated topic was the office of deputy governor, who would be placed in charge of the public service. The public objected to changing the Constitution to allow a non-Belonger to be deputy governor if the governor could not find a qualified Belonger willing to assume the office.

The 2006 Constitution requires the deputy governor to be a Belonger. Advisor Kate Sullivan first recommended that anyone qualified could hold the office, then reversed herself after hearing widespread objections. In her third and final proposal, she reinstated a provision to allow non-Belongers to hold the office.

Legislation required

Several unpopular proposed Constitutional changes would require laws to be passed to spell out exactly what those changes will be, including the voting method for the House of Assembly, obtaining Belongership and granting Crown land.

While the laws pertaining to Belongership and Crown land could be left to an elected government whenever it is reinstated, it has not been stated if that will be the case.

However, if the proposed new voting method is approved, the interim government headed by the governor would have to enact voting laws necessary for elections to go forward.

Voting method

It is recommended that the method of voting for all members of the House of Assembly be changed from the current and popular first past the post system in single member districts, where a simple majority wins.

Sullivan said that method invites corruption and intimidation in small constituencies, and can give one party a large majority of seats while only winning with a narrow majority of votes.

During the last election, the Progressive National Party got only 52 percent of the vote but ended up with 13 of 15 elected members of government.

Sullivan suggests that each of the six island constituencies elect a member with first past the post. In a second ballot, nine at large members would be chosen to represent the entire country in a method that would assign House seats proportionally to votes received.

While many people object to the complicated and unfamiliar proportional voting method, residents of smaller islands made a strong case for their own island representatives.

In a national referendum, U.K. citizens recently voted overwhelming to keep first past the post instead of an alternative method aimed at more proportional representation.

Path to Belongership
The 2006 Constitution is silent on the definition of a Belonger and how to become one. Proposed changes would add the conditions of Belongership that are currently contained in government regulations, but it adds a requirement that laws must be written to provide a clear legal path for others to become Belongers and gain the right to vote.

The reason for the change is that U.K. ministers are worried about the small number of eligible voters in the TCI — about 7,000 in a population of about 30,000 — the smallest among overseas territories. They want that voting population enlarged gradually through a defined legal process that is not political.

In the past, the path to being granted Belongership — other than by birth or marriage — came through elected ministers and the governor with no legal guidelines. The new Constitutional language doesn’t say who has the power to grant Belongership, but it does require laws to be written to spell out exactly how it should be done.

One condition that would be added to the Constitution requires an applicant for Belongership be a British citizen or British overseas territories citizen who has held a Permanent Residence Certificate (PRC) for at least five years, or who has been a legal resident for at least 10 years.

When the Constitution was suspended in August 2009, the interim government suspended granting of Belongerships except by birth and marriage. In February 2010, the government suspended granting of PRCs.

Crown land

Crown land is not mentioned anywhere in the 2006 Constitution. It was being distributed under a government policy by elected ministers and approved by the governor.

That arrangement led to a huge number of Crown land leases and grants that left only 23 percent of usable land for distribution to Belongers to build residences or businesses.

Land was given away illegally in national parks and reserves, people have been accused of illegally “flipping” land they received, and several developers have been hauled into court over large, questionable land transactions.

A new section on Crown land is proposed that would require laws to be written to control the acquisition, management and disposal of Crown land that conforms with governance principles.

While the governor would be required to consult the Cabinet on Crown land matters, he would not have to follow its recommendations.

Freedom of information

The United States has had Freedom of Information Acts (FOIA) at the federal and state level for nearly 50 years. Those laws require nearly all public bodies and documents to be open to the public and press without unreasonable delay or cost.

The idea of open government was a long time coming to the U.K., which didn’t get an FOIA until January 2005. And that law gives government more power to deny the release of information than most other democratic governments.

For example, information contained in court records is exempt from disclosure in the U.K., while nearly all court records in the U.S. are considered public information. Most are accessible on the Internet.

The TCI has never had an FOIA, but the 2002 Constitutional commission recommended one, and both political parties renewed that call in September in their All-Party Commission report on the Constitution and election reform. It was called for again during recent consultations.

Hendry said some Constitutions, such as in Cayman, require that an FOIA be enacted, and he saw no reason that the same requirement couldn’t be included in the revised TCI Constitution.

But requiring an FOIA to be enacted “is about as much as you can do in a Constitution,” Hendry said, leaving the details to laws that must be developed and approved by government.

Written comments will be accepted until May 28 and can be sent to the Governor’s Office, Waterloo, Grand Turk, or by e-mail to This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Click HERE to read the 2006 Constitution.

Click HERE to read the March 4 draft Constitution under consideration.

Click HERE to read the All-Party Commission’s full report on the Constitution.

Photo: FCO Constitutional Advisor Ian Hendry