TCI 6

We continue to look at Kate Sullivan's initial recommendations for Changes to the Constitutional and Electoral Arrangements in the Turks and Caicos Islands.  We have previously dealt in thirteen numbered paragraphs with some of the first 25 Recommendations.

[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.

To be continued …

Related Posts:

Governor Legislating

MOAs

Not that I am a constitutional expert. Far from it. When I served as a judge, many of my judgements were reversed on appeal.  So, take this my opinion with the grain of salt it undoubtedly deserves.

In my opinion, when the government of Anguilla negotiates a Memorandum of Understanding or a Memorandum of Agreement [they both mean the same thing] with a developer, which agreement requires a change of the law, this agreement is not binding until the House of Assembly changes the law.  The agreement does not bind future governments.  It certainly does not bind the House of Assembly.  No Executive Council represents the House of Assembly or can speak on its behalf.  The House of Assembly is the law making body of the country.  The House of Assembly is free to completely ignore or to repudiate any agreement entered into by the government of the day.  It is the duty of the government to present any agreement they have made and which is subject to approval of the House of Assembly to the House to give it the validity of law.  If government fails to present the agreement to the House for approval, the agreement is worthless.  When the law says that only the House of Assembly can agree to something, any agreement by the government is subject to agreement by the House of Assembly. 

The Customs Act is such a law.  No exemption from customs duty under the Customs Act has effect, except it is passed by the House of Assembly.  Only the House can ratify an exemption from customs duty.  One of our major criticisms of the last government was that they made agreements for exemption from Customs Duty that had not been approved by the House of Assembly.  Executive Council has no authority to approve exemption from customs duty, unless they get it approved by the House of Assembly.  At most, Executive Council can agree to move a Resolution in the House of Assembly to exempt a developer from customs duty.

Our new government is subject to any decision made by the House of Assembly.  If the present House should repudiate any previous government’s MOU with Cap Juluca or with Flag Luxury Resorts, or the with Viceroy, which may have been approved by the last Executive Council, but not approve by the previous House of Assembly, then these MOUs or MOAs are worth nothing. 

If the present House of Assembly votes to repudiate any Memorandum or Agreement or any Memorandum of Understanding, not approved previously by the House of Assembly, then they are dust. 

So sayeth the soothsayer, Don.