Constitution of the British Virgin Islands

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The Constitution of the British Virgin Islands is a predominantly codified constitution documented primarily within the Virgin Islands Constitution Order, 2007[1] a statutory instrument of the United Kingdom. The 2007 Constitution was the fourth written constitution of the British Virgin Islands, and superseded the 1976 constitution.[2] In addition to the constitution itself a number of the constitutional powers of the British Virgin Islands government are specified a "letter of entrustment" from the Foreign and Commonwealth Office which delegates powers to the British Virgin Islands government to represent itself in certain external affairs.[3]

The 2007 Constitution was adopted as part of a wider consultation between the United Kingdom and the British Overseas Territories. Accordingly, the Constitution is in substantially similar form to the constitutions of a number of other British dependent territories. The Constitution came into force immediately following the dissolution of the old Legislative Council prior to the 2007 general election. The new constitution adopted new nomenclature: the Chief Minister was renamed the Premier, the Executive Council was renamed Cabinet and the Legislative Council was renamed the House of Assembly.

The Constitution is framed on the classic "separation of powers" precept, although as with other Westminster system constitutions, there is a blurring of the distinctions between legislature and executive.

Contents

Constitutional history [edit]

Main article: History of the British Virgin Islands

The British Virgin Islands has had four written constitutions.

From 1901, when the original Legislative Council was formally dissolved[4] until 1950 the Territory was officially administered through the Governor of the Leeward Islands. Following civil unrest in 1947 the Territory was granted its first written constitution in 1950.[5]

The main purpose of the 1950 Constitution was to re-devolve power back to the reformed Legislative Council in the British Virgin Islands from the Governor of the Leeward Islands. Historically it is regarded a holding measure; a part of the process that eventually led to the more fundamental constitutional government in 1967.[6]

The British Government had hoped that after the Leeward Islands Federation was abolished in 1956 the British Virgin Islands would join the new Federation of the West Indies, but there was little enthusiasm for that, and so eventually the 1967 Constitution was promulgated.

The 1967 Constitution was eventually replaced by a revised and updated Constitution in 1976,[7] and the 1976 Constitution was amended at various points, and then in turn superseded in 2007 by the current form.

Framework [edit]

The constitution provides for a parliamentary based upon representative democratic and a multi-party system. The Premier is the head of government, and is selected as the head of the party with the largest number of seats in the House of Assembly. Executive authority is vested in the Cabinet which consists of The notional head of state is the British Monarch, who is represented in the Territory by the Governor.

Structure and provisions [edit]

Chapter I: Interpretation [edit]

The first chapter of the Constitution simply sets out a number of defined terms and generally applicable principles. This includes the definition of "belonger status" under British Virgin Islands law.

Chapter II: Fundamental Rights and Freedoms of the Individual [edit]

The second chapter, which is made up of sections 9-34, lays out the fundamental rights and freedoms of those in the British Virgin Islands. The wording is broadly taken from documents such as the Universal Declaration of Human Rights and the European Convention on Human Rights, although there is a greater emphasis on the right of self-determination. Chapter II expressly reserves the right to the British Virgin Islands Government to legislate in a way which is prejudicial to non-belongers.[8]

Chapter III: The Governor [edit]

The third chapter, which is made up of sections 35-45, states that there shall be a Governor of the British Virgin Islands and describes the appointment process for that office. The chapter also sets out how the duties and powers of the Governor are determined, making reference to the role of the Queen through her Secretary of State. Section 37 of the chapter describes the times when an Acting Governor is required and the appointment process for that position.

Chapter IV: The Executive [edit]

The fourth chapter, which is made up of sections 46-61, sets out the structure and composition of the Executive. Section 46 provides that executive authority is vested in the British Monarch, and exercised through the Governor. The remainder of the Chapter sets out the appointment of Cabinet, which is constituted by the Premier, four other Ministers, and the Attorney General ex officio.

The Premier is appointed by the Governor as the head of the largest party in the House of Assembly. Other Ministers are appointed by the Governor on the advice of the Premier.

Chapter V: The Legislature [edit]

The fifth chapter, which is made up of sections 62-88, sets out the regulation and procedures of the House of Assembly, giving the House of Assembly the power to make laws, describing the sittings, voting and the quorum of the House of Assembly, as well as detailing the role and election of the Speaker of the Legislative Assembly. The House of Assembly is unicameral. The Governor has reserve powers to disallow laws passed by the House of Assembly and (in an emergency) to declare laws to have been passed in accordance with the constitution.[9]

The Chapter sets out both the qualifications and disqualifications for elected membership. It also confirms that the Governor, acting on advice of the Premier, has power to prorogue and dissolve the House of Assembly. The House of Assembly must be dissolved within four years of first sitting, and fresh general elections held.[10] General elections must be held within two months, but not earlier than 21 days, after dissolution.[11]

The Constitution does not make express provision for privileges and immunities of the House of Assembly, but permits the Legislature to make laws to determine the same, provided always that such laws do not exceed the position in relation to the House of Commons of the United Kingdom.[12]

Chapter VI: The Judiciary [edit]

The sixth chapter, which is made up of sections 89 and 90, sets out the provisions relating to the judiciary. This simply provides for the continuing authority of the Eastern Caribbean Supreme Court in the British Virgin Islands.

Chapter VII: The Public Service [edit]

The seventh chapter, which is made up of sections 91-101, specifies that there shall be a Public Service Commission, a Teaching Service Commission, a Judicial and Legal Services Commission and a Police Service Commission. The power to appoint, remove and exercise disciplinary control over the public offices judiciary, the police force is vested in the Governor who shall ordinarily exercise that power on the advice of the relevant Commission (there is no equivalent power for teaching posts).

Chapter VIII: Finance [edit]

The eighth chapter, which is made up of sections 102-109, regulates the powers of the Government of the British Virgin Islands over the public finances. The chapter provides for the Consolidated Fund for the storage of public funds, and section 104 regulates the authorisation of expenditure.

Section 106 creates a Contingencies Fund, to be used in the event of an urgent and unforeseen need for expenditure. Use of the fund requires the approval of the House of an Assembly by way of an appropriation Bill.

Chapter IX: Complaints Commissioner [edit]

The ninth chapter, which is made up of sections 110-112, sets out the procedure for the appointment of a Complaints Commissioner and describes its process and function. The first (and to date, only) Complaints Commissioner has been the former Deputy Governor, Mr Elton Georges. The Complaints Commissioner appears to be the least well functioning part of the Constitution; although Complaints are reported and then investigated, the usual outcome is that the relevant Government department simply ignores the findings.[13]

Chapter X: Miscellaneous [edit]

The tenth and final chapter, which is made up of sections 113-119, deals principally with revocations and the continuing validity of existing laws and offices and officers. Section 119, the last section, provides:

“ There is reserved to Her Majesty full power to make laws for the peace, order and good government of the Virgin Islands. ”

Amendments [edit]

The 2007 constitution has never been amended (although previous constitutions had been[14]), nor have any of the letters delegating authority to the Territory to manage its external affairs. However in 2010 the Premier at the time, Ralph O'Neal, publicly stated that the constitution may soon have to be amended to delegate further powers to the Territory from the United Kingdom.

External Affairs [edit]

Under the Constitution the Governor is given responsibility for all external affairs,[15] and in practice this power is exercised by or under the direction of the Foreign and Commonwealth Office. However, the Constitution also provides that this power is then to be delegated by the Governor either to the Premier or a Minister of Government in relation to a number of specific areas:[16]

  1. the Caribbean Community, the Organisation of Eastern Caribbean States, the Association of Caribbean States, the United Nations Economic Commission for Latin America and the Caribbean, or any other Caribbean regional organisation or institution;
  2. other Caribbean regional affairs relating specifically to issues that are of interest to or affect the Virgin Islands;
  3. the relationship between the British Virgin Islands and the United States Virgin Islands in matters of mutual interest;
  4. tourism and tourism-related matters;
  5. taxation and the regulation of finance and financial services; and
  6. European Union matters directly affecting the interests of the British Virgin Islands.

Pursuant to a "letter of entrustment" dated 13 June 2007 the British Government has devolved wide discretion to the Government of the Territory to manage its own external affairs, and adds that the British Government would give "sympathetic consideration" for requests to take action on other matters.[17]

Constitutional challenges [edit]

In the comparatively brief history of the 2007 constitution, there has only been one legal challenge brought against it to date. In 2012 two police officers brought proceedings against the Acting Chief of Police, David Morris, and the Governor, Boyd McCleary alleging that the Police Service (Delegation of Powers) Regulations, 2012 were unlawful under section 97(5) of the Constitution.[18] Those proceedings are ongoing.

External links [edit]

Footnotes [edit]

  1. ^ SI No 1678 of 2007.
  2. ^ Virgin Islands (Constitution) Order, 1976 (SI No 2145 of 1976).
  3. ^ As the British Virgin Islands is a dependent territory of the United Kingdom, absent such delegation then all external affairs of the British Virgin Islands would be conducted by the United Kingdom through the Foreign and Commonwealth Office.
  4. ^ Constitution (Virgin Islands) Act, 1902.
  5. ^ Constitution (Virgin Islands) Act, 1950.
  6. ^ Virgin Islands (Constitution) Order, 1967 (SI No 471 of 1967).
  7. ^ Virgin Islands (Constitution) Order, 1976 (SI No 2145 of 1976).
  8. ^ Section 26(4).
  9. ^ Sections 80 and 81.
  10. ^ Section 84(3).
  11. ^ Section 86.
  12. ^ Section 82.
  13. ^ "Complaints Commission deemed useless by some - Georges". Virgin Islands News Online. 2012-09-25. ; "Deputy Premier Slams Elton Georges For "Old School Boy Way" Of Writing Memos". Platinum News. 2012-12-17. 
  14. ^ The 1976 Constitution was amended five times pursuant to the Virgin Islands (Constitution) (Amendment) Order, 1979; the Virgin Islands (Constitution) (Amendment) Order, 1982; the Virgin Islands (Constitution) (Amendment) Order, 1991; the Virgin Islands (Constitution) (Amendment) Order, 1994 and the Virgin Islands (Constitution) (Amendment) Order, 2000.
  15. ^ Section 60(1).
  16. ^ Section 60(4).
  17. ^ British Virgin Islands Commercial Law (2nd ed.). Sweet & Maxwell. 2012. p. 15. ISBN 9789626614792. 
  18. ^ "Morris in full support of controversial ‘delegation of powers’". Virgin Islands News Online. 2012-12-14. 
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