The constitution is a dynamic document that organises, distributes, and regulates how the territory is governed to meet the needs of residents, visitors, investors and so on. It promotes democracy, human rights, good governance, the rule of law, equality under the law, individual liberty, free trade, economic and development, education, environment, health and safety, good order and discipline, security among other things.
The VI is a small territory in the Caribbean Sea lying east of Puerto Rico and USVI, and north-west of Anguilla with a size of 59 square miles spread over 36 islands, islets, rocks, and cays with 15 being inhabited and has a current but growing population of approximately 32,000. Under UN charter, it is classified as a non-self-governing territory (1 of 17 current non-self-governing territories; its westerly neighbour, USVI, too is a non-self-governing territory) and an Overseas Territory (OT) of the UK. It is partially self-governing, sharing governing responsibilities with the UK. The UK through its appointed Governor (de facto head of state) is responsible for a) defence, b) external affairs, c) internal security (including Royal Virgin Islands Police Force), civil service, and courts; local government, remaining functions, including finance. What is the source of UK power to grant a constitution to the VI?
The VI, unlike the UK that does not have a single constitutional instrument, has a distinct written constitution. It is different than and separate from the constitutions of other OTs, though it shares some commonalities with them. Its constitution is contained in an Order of Council and is legally enacted by Her Majesty the Queen by and with the advice of the Privy Council, acting on the recommendation of UK ministers. The constitution is granted under Statutory Power granted by Acts of Parliament. The Act granting the VI constitution is the West Indies Act 1962 (Ian Hendry and Susan Dickson). Though the constitution was issued through Statutory Power, Prerogative Power could have been employed to grant it.
The VI it appears has had its first written constitution in 1867. However, in the modern era, it has had four (4) constitutions; each constitution provided for some self-governing advancements. The first constitution was granted in 1950 following the Theodolph Faulkner-led Great March of 24 November 1949. It was a temporary holding measure that was intended to re-devolve power back to Legislative Council that was dissolved in 1901, taking power from the Governor of the Leeward Islands. It was described by the late McWelling Todman, QC, as, “an instrument minimal in its intent and its effect.” The constitution re-established the Legislative Council dissolved in 1901 and provided for four (4) directly elected at-large members. Further, the Constitution and Election Ordinance of 1954 expanded the number elected members to six (two in Road Town). It also introduced adult suffrage, for in the 1950 General Election the basis of votes was on landowners who were able to pass a literacy test, eliminating many people from being able to cast a vote.
Second, the 1967 Constitution expanded the elected membership to seven (7), ushered in ministerial government and created the Chief Minister position to lead local government business. The late iconic Hamilton Lavity Stoutt was appointed as the first Chief Minister. Third, the 1976 Constitution and the 1977 Election Ordinance expanded the number of elected members to nine (9) with the 1994 Election Act introducing four (4) at-large territorial seats; this addition brought the number of elected members to 13 (9 districts and 4 at-large).
Fourth, the 2007 Constitution superseded the 1976 Constitution and ushered in some new changes, i.e., Chief Minister was renamed Premier (late Hon Ralph T. O’Neal was the first Premier), Legislative Council renamed House of Assembly, Executive Council renamed Cabinet, a new National Security Council established, along with the office of Director of Public Prosecutions. Additionally, for the first time, it included a chapter setting out the fundamental rights and freedoms of the individual and provisions for their enforcement.
From the first modern-era constitution in 1950 through the current 2007 Constitution, the territory has earned and granted an increasing level of autonomy. Moreover, the VI has grown exponentially from what some considered the ‘backwater” of the West Indies to a thriving leader in financial services, along with being a top small tourist destination. Additionally, it has one of the highest standards of living, quality of life and per capita income in the region. The territory and its people have grown and are positioned for more increasing levels of self-governing.
Moreover, as noted above, the VI is ready for increasing levels of autonomy. The increasing levels of autonomy can include:
* Rename HOA to parliament, creating a bi-cameral assembly of 1) Senate and 2) House.
* Reduce Governor’s reserve powers;
* Limit Governor’s responsibility to i) defence and ii) external affairs (make Crown role more ceremonial);
* UK consult with local government on external/international affairs before acting on its behalf;
* Delegate power to local government to assent on some domestic bills;
* Provide time limit for Governor to act/assent bills approved by the people’s duly elected representatives;
* Develop and institute mechanism(s) to resolve bills Governor failed to assent on. Bills should not just languish and die a natural death on Governor’s desk;
* Premier should preside over and take command as chairperson of Cabinet meetings;
* Create local panel to make recommendations to UK government on appointing Crown representative (Governor) in place of Crown just unilaterally appointing a representative based on recommendation of UK ministers. This action would be similar to what is apparently done in Crown dependencies of Jersey, Guernsey, and Isle of Man since 2010;
* Consult with and attain consent/concurrence on laws affecting the territory before passing them; extend the same courtesy to the VI as is given to Crown dependencies;
* Increased the number of ministers to address the growing complexity and extensiveness of governing functions. Span of control of some ministers is too extensive;
* Review, rework and consider adding electoral districts; reimagine the use and efficacy of at-large seats;
* Premier as Minister of Finance should present the annual Operations and Maintenance, and Capital budgets, replacing the Throne Speech. The Crown representative can deliver a separate speech on state of affairs in UK and how the VI will be impacted;
* Set a Fix Election Date, leveling the playing field and avoiding the guessing as to when a General Election will occur. The UK has a Fix Election Date;
* Establish a Constituency Boundaries Commission.
* Separate the blurring of lines between Legislative and Executive Branches;
* Establish a Border Protection Unit consisting of air, marine and land assets that is separate from RVIPF;
* Revise Pension Law to separate pensions out the annual Operations and Maintenance budget, address the current pension unfunded liability, establish a pension managing body, and establish a pension sinking fund, and;
* Task Premier for the most part to be the spokesperson/voice for the territory on local issues (unity of command).
The relationship between the territory and UK should be one of mutual respect and support; it should be a partnership. The UK as the sovereign country should lead the way in helping the VI progress towards a different level(s) of self-determination, perhaps, even independence. Further, benchmark Bermuda in regard to increasing levels of autonomy. Bermuda is the most senior of the UK’s 14 OTs and has more experience with self-governing.