14 August, 2010


We are looking at my preliminary views on Kate Sullivan's Initial Recommendations for Changes to the Constitutional and Electoral Arrangements in the Turks and Caicos Islands.  I urge you to read the discussion paper if you have not done so.  It can be downloaded by clicking on the link above.  We have in the first two posts on the topic dealt with the background papers and with Ms Sullivan’s statement of what constitutional issues are not open for discussion.  I have expressed my concern there.  I continue:
[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 the UK 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,
ü      strengthening the Integrity Commissioner law to give teeth to ensure that public officers publicly disclose their assets and liabilities at regular intervals;
ü      entrenching the Tenders Board and reinforcing the procurement procedure to make them fair and transparent;
ü      giving the legislature power to oversee dealing in Crown Lands;
ü      introducing an Appointments Commission to monitor the suitability of ministerial nominations to government boards and committees;
ü      enforcing adherence to public service and ministerial Codes of Ethics;
ü      entrenching a Complaints Commissioner to oversee the public service and police service response to complaints from citizens;
ü      supporting and ensuring the effectiveness of the Public Accounts Committee in overseeing the administration's spending of public monies;
ü      introducing and administering Freedom of Information Acts;
ü      obliging the Governor to accept the advice of independent Service Commissions;
ü      introducing an independent Boundaries Commission to minimise the chance of gerrymandering;
ü      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.

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