1.0 Introduction

1.1 In April 2002, we were appointed by His Excellency the Governor Mr. Mervyn Jones to review the present Constitution of the Turks and Caicos Islands ("TCI"). We understand that our appointments were made on the recommendations of the Chief Minister and the Leader of the Opposition. Our terms of reference were wide, but the main terms were: -

a) To examine the present Constitution of the Turks and Caicos Islands and, following the widest and most comprehensive consultative process in all the Islands to make recommendations designed to modernize the Constitution and to ensure its compatibility with the present aspirations and expectations of the people of these Islands.

b) To recommend additions, amendments or deletions to the present Constitution, after consultations with all relevant persons and organisations in these Islands at either private or public meetings, individually or as a group, as desired.

1.2 In addition to our terms of reference, we were provided with a Constitutional Modernisation Checklist incorporating a wide range of topics, and a draft model Human Rights Chapter. We found these documents to be useful and they have assisted us in our deliberations.

1.3 We were given some four months to complete this exercise, commencing with our letters of appointment on 26^th April, 2002 and with an initial deadline of August 31^st, 2002 to submit our final report.

1.4 We would like to thank His Excellency the Governor, the Chief Minister and the Leader of the Opposition for giving us the opportunity to serve as the Constitutional Review Body.

1.5 We have received congratulatory compliments and encouragement on our appointments from many persons both privately and publicly. That, notwithstanding, there were some who expressed scepticism that the exercise was cosmetic and would not result in any change of the status quo and what would eventually emerge from this exercise would continue to be as it were, stamped ‘Made in Britain’.

1.6 It was against this background that we first convened in Providenciales on 4^th May 2002 for our initial meeting.

2.0 The Review Process

2.1 We endeavoured to obtain the maximum publicity for public meetings having regard to what we understood to be our limited budget. We avoided costly media advertisements,

but depended on:

a) Community service announcements, and ‘spot’ announcements on

radio;

b) News releases and coverage by the press;

c) Flyers and posters;

d) Personal written invitations to churches, service clubs and groups throughout the islands; and

e) One-on-one word of mouth invitations to individuals.

2.2 We held a series of public meetings throughout the Islands. Some 326 persons attended these meetings. We allotted time for private meetings with individuals and groups. A list of such meetings is contained in Appendix 1A to this report. We invited and received a number of written contributions from individuals and groups. A list of the contributors is contained in Appendix 1B to this report. Given the size of our Islands' populations, we felt that all our meetings were well attended. More importantly, the discussions were intense, the level of debate high, and the submissions clear. All of our public meetings commenced at approximately eight o’clock in the evening and ran close to midnight.

2.3 On Tuesday July 2, 2002, we met with former Governor Michael Bradley who serves presently as the Regional Constitutional Advisor for the Overseas Territories.

2.4 In conducting our meetings, we divided the Constitution into the following five major Parts and each of us gave an explanation of one of those Parts:

a) The Governor and the Executive (TCI Constitution Part I & II);

b) The Legislature (TCI Constitution Part III);

c) Powers and Privileges of the Legislative Council (TCI Constitution Part IV);

d) The Judicature, the Public Service Commission and The Complaints Commissioner (TCI Constitution Parts V - VII); and

e) Fundamental Rights and Freedoms of the Individual (TCI Constitution Part VIII).

2.5 We then invited comments and recommendations from members of the audience. We were at pains to point out that we were to receive the views of the public instead of imposing our views.

2.6 At the conclusion of the consultative process, we reviewed the submissions made to us at the public and private meetings and those contained in written submissions. The recommendations contained in this report are the result of all of the above meetings and contributions.

3.0 Acknowledgements

3.1 We owe a great deal of gratitude to a number of persons and organisations who assisted us in carrying out our task, including the following:

a) The Governor's Office for providing us with numerous materials.

b) The Office of the Hon Chief Minister who provided us with our support staff, our Secretary, Mr. Dudley Been and his assistant in the Legislative Council Chambers, our Liaison Officer, Mr Arthur Been, Ms Adelle Branch, Mrs. Verniece Selver in the Chief Minister’s Office, and Mr Dalton Jones.

c) The Hon. Attorney General's Chambers for providing us with copies of relevant legislation.

d) The District Commissioners who worked tirelessly, together with their support staff in all the Islands to ensure that our advertisements were in place and went out on time; and who were very well organised in procuring and preparing venues for our meetings.

e) The print media who gave some of our meetings banner headlines, with complete and positive coverage.

f) The media (T.V. Section) who were most professional throughout and went out of their way to show coverage of some of our meetings in news releases etc. and who tried very hard to have us appear live on television.

g) The media (Radio Section) who gave us great coverage in their community and social broadcasts and their news releases. Special mention must be made of their Disc Jockeys (D.J’s), whose many ‘spot’ announcements every 15 – 30 minutes or so for stretches on end, really gave us the edge in informing the public of our meetings.

h) The moderators of our public meetings, Mr William Clare, Mr

Albert Clare, Pastor Peter Kerr, Mr Leo Selver, Mrs Dottis Arthur,

and Mrs Carolyn Dickenson for assisting us in carrying out our task

in a professional and effective manner.

i) The pastors, officers and members of our Churches.

j) The presidents and officers of our professional groups;

k) Organisations and service clubs;

l) The corporate entities that made their conference rooms available to us free

of charge.

m) Finally, all persons, who attended our meetings, public and private, and

all those individuals and organisations who provided us with written submissions.

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4.0 Economic and Political Background of the TCI

4.1 The TCI is one of the remaining Overseas Territories in the Caribbean. Over the preceding twenty years, the TCI has undergone rapid transformation.

4.2 During this period, TCI has experienced significant growth, associated with the take off in tourism. This growth has been possible due to large inflows of foreign investment and extensive development of private and crown land. Since the mid 1980s, real GDP has grown at an average annual rate of 8%.

4.3 Most of the development that has taken place has occurred on Providenciales with increasing economic disparity between that Island and other Islands within the TCI. This is evidenced by internal migration from other Islands to Providenciales. Some Islands have witnessed declining populations.

4.4 Economic expansion has also been accompanied by massive increases in the immigrant population. There is growing concern about the impact that continuing external immigration will have on the physical, social and political environment. There is also a concern that public infrastructure and government revenue are not keeping pace with private sector growth. Looking forward it is imperative that the Islands' resources are utilised in the most efficient manner.

4.5 The view has been clearly expressed that the political and constitutional advancement have not kept pace with economic growth and development of TCI.

4.6 In some quarters, there is a feeling that Belongers are being marginalised and are not being involved in the development process. There is clearly a need to maintain an environment that is friendly towards inward investment and sustainable economic growth, but at the same time one that is sensitive to and protective of the legitimate needs of the indigenous population.

4.7 Until 1976, the people of the TCI had little say in how the Islands were governed, although there was an elected body for the passage of local legislation. Executive power rested entirely in the hands of the Administrator/Governor.

4.8 The year 1975 witnessed the birth of the present two major political parties, the Peoples Democratic Movement (PDM) and Progressive National Party (PNP), both of which continued to press for democratic and political reform. The year 1976 was a watershed for the Islands ushering in a new Constitution with a ministerial system of Government. In 1986, following a Royal Commission of Inquiry, the ministerial system of Government was suspended and an appointed Advisory Executive Council was appointed in its place to advise the Governor.

4.9 In 1986, a Constitutional Commission headed by Sir Roy Marshall recommended its reinstatement. In 1988, following a general election, ministerial government was restored with some amendments. Further amendments to the 1988 Constitution was made in 1992 on the recommendation of Walter Wallace, the then Constitutional Advisor to the FCO for the British Dependent Territories.

4.10 HMG in its White Paper, "Partnership for Progress" in 1999, implicitly recognised

the need for further constitutional advancement.

4.11 The TCI no longer receives Grant in Aid from HMG.

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5.0 Overview Of The Present Constitution and Findings

5.1 In this chapter, we examine the existing constitutional provisions and report on our findings following the consultative process.

5.2.0 The Governor

5.2.1 Under the present constitution, the Governor is appointed by Her Majesty and his emoluments are paid by the TCI and charged on the Consolidated Fund.

5.2.2 The Governor’s powers and functions fall broadly into 4 categories as follows:

a) Those powers and functions exercisable under direct instructions from the Secretary of State. These are not specified in the Constitution;

b) Those powers and functions conferred on him and which are

expressed to be exercisable by him in his discretion or in his judgement;

c) Those powers and functions, which are conferred on him but which

are not expressed to be exercisable by him in his discretion or his judgement;

d) Those powers and functions, which are expressed to be exercisable

by him after consultation with or on the advice or recommendation of a person or authority other than the Executive Council (ExCo).

5.2.3 In respect of those powers and functions exercisable under paragraphs (a), (b) & (d) above, the Governor is not obliged to consult with ExCo, but he is obliged to consult with ExCo in respect of those functions exercisable under paragraph (c). In all cases where the Governor is required to consult with ExCo, he must follow the advice of ExCo. There are a number of exceptions to this general rule. The Governor may act without consulting ExCo in the exercise of his powers under paragraph 2(c) above in the following cases:

a) Where Her Majesty's service would suffer material prejudice and

require consultation.

b) Where the matter is too unimportant to require consultation.

c) Where the urgency of the matter requires him to act before consultation

with ExCo.

d) Where in his judgement, the interest of public order, public faith and good governance requires.

The Governor must as soon as possible inform ExCo of his actions and the reasons for them.

5.2.4 The principal areas where the Governor’s powers are exercisable in his discretion or judgement are defence, external affairs, internal security including the police, international and offshore financial relations, appointment, suspension, dismissal, termination and retirement of public servants and judicial appointments. In exercising these powers, the Governor is not obliged to consult with ExCo, but he is required to keep ExCo informed of matters which involve the economic and financial interests of the Islands, the enactment of laws and in the case of defence and external affairs, the domestic interests of the Islands.

5.2.5 In practice, the Governor has no legislative powers but section 44 of the Constitution provides that if the Governor considers it necessary for the proper exercise of his reserve powers under Section 13 of the Constitution or if it is expedient in the interest of public order, public faith or good government or if in order to secure detailed control of the finances of the Islands whilst the Islands are on grant in aid he may declare to be in effect any bill or motion which relates to any of these reserved matters which have been introduced in the Legislative Council ("LegsCo") either in the form introduced or in any amended form as he thinks fit. On the making of such a declaration, the bill or motion becomes law as if it had been passed by LegsCo. Before exercising these legislative powers, the Governor is required to first obtain the approval of ExCo. If ExCo fails to give its approval, the Governor can then act unilaterally.

5.2.6 The Constitution provides for the appointment of an acting Governor when the office of Governor is vacant or the Governor is absent from the Islands or for some other reason is unable to perform the functions of his office. The acting Governor must be either the Chief Secretary or the Attorney General or the Permanent Secretary of Finance, in that order.

5.2.7 The Governor may himself appoint a deputy when he is away from Grand Turk or absent from the TCI for a short period of time or when he is suffering from illness which is likely to last for a short duration.

5.2.8 It was suggested to us that there should be consultation with the Chief Minister and the Leader of the Opposition on the identity of the person who is appointed Governor.

5.2.9 Many of the other submissions we received were to the effect that the Governor’s powers were too wide and that some of them should be transferred to ministers. In particular, there appeared to be broad support for:

a) transferring to a Minister or the Public Service Commission, or both,

The Governor’s powers in relation to the civil service;

b) eliminating the ability of the Governor to act without consulting

The ExCo on those matters in respect of which he is obliged to follow their advice;

c) The Governor should not have the sole power of appointing

members of the judiciary, but should be required to consult with

The Chief Minister and the Leader of the Opposition;

d) The Governor’s powers for offshore finance should be transferred

to the Minister of Finance; and

e) The Governor should not be a member of ExCo.

5.2.10 The view was expressed to us that there should be a permanent Deputy Governor who should be a Belonger.

5.3 The Executive Council

5.3.1 ExCo consist of the Governor as President, the 6 Ministers of Government (including the Chief Minister), the Chief Secretary and the Attorney General.

5.3.2 Each Minister is assigned a portfolio responsibility by the Governor acting on the advice of the Chief Minister, but in all matters, Ministers must exercise their responsibilities in accordance with policies adopted by ExCo and the principle of collective responsibility.

5.3.3 Only elected Members of LegsCo may be appointed Ministers and become members of ExCo.

5.3.4 The Governor summons ExCo at his discretion, but is obliged to call a meeting of ExCo when required to do so by 4 or more Ministers.

5.3.5 It has been suggested to us by some that ExCo should consist only of Ministers and that the Governor and the Chief Secretary should not be members. It has also been suggested that the position of Attorney General should be allocated to a Government Minister and there should be a new post of Solicitor General. The Attorney General might be either an appointed or elected member of LegsCo.

5.3.6 The Chief Minister should be styled Premier and chair meetings of ExCo.

5.3.7 There were a number of proponents for full internal self government. Once the position (as we understand it to be) was explained that a decision to advance to full internal self government would have to be accompanied by the setting of a timetable for Independence, enthusiasm for the proposal dissipated.

5.3.8 No one expressed any support for Independence.

5.4 The Legislature

5.4.1 The Constitution provides for a unicameral Legislative Council.

5.4.2 LegsCo is made up of the following:

a) Thirteen elected members

b) Three appointed members (all appointed by HE The Governor; One - acting in his discretion; the second - on the advice of the Chief Minister; and the third - on the advice of the Leader of the Opposition).

c) The Chief Secretary and the Attorney General

5.4.3 LegsCo is presided over by a Speaker supported by a Deputy Speaker, both of whom may be elected from among the elected or appointed members of LegsCo who are not Ministers. The Speaker may also be drawn from outside LegsCo. The total number of members in LegsCo therefore, can vary between 18 and 19 persons.

5.4.4 The life of LegsCo is four years. LegsCo is constitutionally required to meet a minimum of every four months. However, the Speaker may call a meeting at anytime and must call a meeting when he is requested to do so by the Governor, or seven or more members of LegsCo.

5.4.5 The Chief Minister and the Leader of the Opposition are appointed by the Governor from among the elected members of LegsCo. The Leader of that political party represented in LegsCo which commands the support of the majority of the elected members in Council is appointed Chief Minister.

5.4.6 In order to qualify to be a member of LegsCo, a person must:

a) have attained the age of 21 years;

b) be resident in the islands for a period of one year in the aggregate out of the preceding two years prior to nomination day.

c) fall into one of the following categories:

(i) born in the islands; or

(ii) born outside the islands to parents, one of whom was born in the islands; or

(iii) have acquired the status of, a "belonger" as defined under the Immigration Ordinance.

5.4.7 The main qualifications for electors are basically the same, except that electors may only attain the age of 18 years.

5.4.8 No unsuccessful candidate for election to LegsCo is eligible for membership in the Council as an appointed member or Speaker following his defeat at the polls.

5.4.9 Throughout all the Islands particularly in the more populated, there was a strong call for change of the Legislature - change of a substantive, and fundamental nature, rather than cosmetic change. Several persons made submissions for a bicameral legislature - an upper and lower chamber. There was an almost even division as to whether the upper chamber (to be styled a Senate) should be elected or appointed. The submissions that have been made for the retention of a one-chamber legislature have come mostly from an official quarter.

5.4.10 Suggestions made in support of a two-chamber system were as follows: -

a) A Lower House, styled House of Assembly or Representatives (all elected) ranging in size from a low of 17 members to a high of 19 or 21. Provision should be made for “Members at large” elected on a country wide or national basis.

b) The Senate would comprise some seven Members, elected or appointed.

c) The Speaker supported by a Deputy should continue to preside in the House of Assembly and should be elected in the same manner as presently obtains.

d) The Senate should be presided over by a President supported by a Vice President both to be elected by Senators.

e) The tenure of both Houses should be 4 years. There was some suggestion that Elections to the House of Assembly and elections or appointments to the Senate should be concurrent. There was less support for elections to the Senate and House of Assembly to be staggered.

f) All legislation should commence in the House of Assembly. The Senate would have powers of delay and review.

g) Both Houses would be mandated to convene more frequently.

h) The age requirements for membership of the House of Assembly should continue to be 21 years, but for the Senate such a requirement should be at least 30 years of age and upwards.

5.4.11 Most of the proponents who supported the retention of a single chamber favoured having both elected and appointed members and an increase in membership to between 19 - 21 members. Four persons however, were of the opinion that there should only be elected members in LegsCo.

5.4.12 There was virtually a unanimous agreement that only belongers be members of the legislature and be entitled to vote.

5.5.0 Powers and Procedure of the Legislative Council

5.5.1. Under the current constitutional arrangements, LegsCo is empowered to make laws only

for the peace, order and good government of the Islands. This means, for example, that LegsCo cannot amend the constitution.

5.5.2 LegsCo is empowered to make regulations to govern its own procedure called Standing Orders, but such regulations do not have effect until the Governor indicates his approval. It is also empowered to make laws setting out its privileges.

5.5.3 The constitution establishes two standing committees intended to oversee the work of ministers and prescribes that the composition of such committees shall, so far as possible, reflect the numerical strength of the political parties represented in LegsCo. Standing Orders will make further regulations for the conduct of the business of the committees. The committees are required to make reports to LegsCo and LegsCo is required to publish those reports.

5.5.4 All members of LegsCo are required to take an oath of allegiance to Her Majesty the Queen before entering into his/her duties as a member of LegsCo. This oath is taken at the first meeting after a general election, and before the election of the Speaker.

5.5.5 The Speaker may be elected from among the members of LegsCo or from outside LegsCo, save that a person disqualified to be an appointed member of LegsCo is also, by the same criteria, disqualified to be elected Speaker. Provision is made for a deputy Speaker, who will preside only in the absence of the Speaker. The Speaker or person presiding has only a casting vote.

5.5.6 Each member of LegsCo is empowered to vote on any matter before LegsCo and each member has the right to introduce bills, whether for private or public purposes. Before a bill passed by LegsCo may become law, it must receive the assent of the Governor on behalf of the Queen.

5.5.7 The Governor has the power to introduce bills and declare that they have been passed where LegsCo fails or refuses to do so, but only in relation to his reserved powers.

5.5.8 The public concerns in this part of the constitution were mainly the time frame between the introduction of a Bill and its passage into law, and the right of the Governor under section 44.

5.5.9 The overwhelming majority felt that Bills ought not be taken through the entire process in one sitting of the Legislature. Few persons would have been aware of the long-standing conventions, rules or Standing Orders of LegsCo ("Standing Orders") setting out the procedure for dealing with Bills, but all contributors were certain that it is undesirable for a Bill to be passed through all its stages and into law at one sitting. The rationale was that ideas that eventually become laws ought to have the widest possible debate among the people at large beforehand, rather than being imposed as laws without warning. We are aware that the current Standing Orders require the elapse of seven days between the introduction of a Bill and the publication thereof in preparation for the second reading. We are also aware that in the last decade, many Bills have been carried without regard for this provision.

5.5.10 We are of the opinion that this is a problem which ought to be dealt with by Members of LegsCo, by reference to the Standing Orders and the long-standing conventions on procedure set out in May's Parliamentary Procedure and other such works.

5.5.11 There was also a feeling among some contributors that where a Member is elected on the ticket of one party and he then decides to switch allegiances, that his seat ought to be put up for election within a limited period of time after that decision. The popular figure seems to be 90 days.

5.5.12 Since we have had political parties, our Constitution has provided that the party leader winning the majority of seats in LegsCo becomes the Chief Minister. Some persons thought that there ought to be a mechanism for the general public to directly choose a Chief Minister, rather than having that matter decided for them by the limited number of persons participating in party elections.

5.5.13 There was also concern over the qualifications of the Chief Minister. Some thought that there ought to be an age threshold; others wanted to restrict the office to persons who were born in the Islands. As is the case with qualifications for electors, this is indeed a vexing question given that there are persons born in the islands with no further connection to the Islands. Then, there are those who were born outside the Islands but know only the TCI as their home. Should the former be preferred to the latter? In the end, we are of the view that the test cannot be one of the geography of birth, but rather, a sufficiently strong connection with the Islands.

5.5.14 Some contributors were of the view that the disposition of large tracts of land ought to be decided by LegsCo rather than ExCo. We understand why people see this as problematic. ExCo decides on grants of land and there is no public scrutiny of their decisions. Since ExCo is made up largely of politicians, the grants of land are a great way to reward political supporters and the refusal of such grants, a great way to punish political opponents.

5.6.0 The Judicature

5.6.1 Part V of the Constitution governs the Judiciary of the TCI. Section 49 of the Constitution establishes a Supreme Court comprising of a Chief Justice and such number of other Judges, not exceeding two. The appointment of Judges is the sole responsibility of the Governor. The Constitution allows for qualifications of Judges of the Supreme Court to be contained in independent legislation.

5.6.2 A Judge of the Supreme Court shall vacate this Office on attaining age 65 years subject only to two provisos contained in the Constitution. Section 50 of the Constitution sets out the procedure for removal of a Judge from Office.

5.6.3 Provisions are made in section 51 for the appointment of Acting Judges and general regulations governing the Office.

5.6.4 Section 53 of the Constitution establishes the Court of Appeal consisting of a President and not less than two Justices of Appeal. The Court of Appeal may sit to hear appeals whether in the islands or outside the islands at such times as determined by the President.

5.6.5 There was a general consensus that the Governor should not continue to appoint Judges in his sole discretion. It was suggested that such appointments should be made on the recommendation of the Chief Minister and the Leader of the Opposition. An alternative suggestion was that appointments should be made on the recommendation of the Judicial Services Commission.

5.6.6 There was some concern that the present arrangements where the Court of Appeal meets twice a year is unsatisfactory and often amounts to a delay or denial of access to justice at the appellate level. This may be particularly so in the case of interlocutory appeals.

5.7.0 The Public Service Commission

5.7.1 The Public Service Commission ("PSC") is established under section 57 of the Constitution and general regulations governing this body are contained in independent legislation. The PSC consists of three members: - a Chairman, who is appointed by the Governor in his sole discretion and two other members who are appointed by the Governor but only after consultation with the Chief Minister and the Leader of the Opposition.

5.7.2 There are several categories of persons that are excluded from serving on the PSC. Such persons are individuals that have served as elected or appointed members of LegsCo or who were holders of Offices in a Political Party within the preceding three years. The Office may become vacant for a number of reasons including end of tenure, resignation of a member, on becoming a member of LegsCo, or if the Governor for reasons listed, ask for the removal of the member.

5.7.3 The functions of the PSC are as follows:

a) To provide advice on policies and programs for the training of the public service.

b) To issue guidelines on the conduct and ethics of the public service.

c) To advise on the pay and general working conditions of the public service.

d) To make recommendations to the Governor as it relates to the appointment, dismissal or discipline of members of the public service.

e) Other functions conferred by the Governor prescribed by law.

5.7.4 The Governor's powers of appointment, dismissal and discipline of public officers may be delegated under section 58(4) of the Constitution after consultation with the PSC. In 1993, section 58(4) was amended to provide that a person to whom the Governor's powers were delegated could exercise those powers without reference to the Public Service Commission.

5.7.5 Section 61 allows for the Governor to make regulations regarding the PSC after consultation with the PSC.

5.7.6 This topic generated the most heated discussion. The views of the public were unequivocal that the Governor in exercising his powers of appointment, dismissal and discipline of the public service should be required to act on the recommendations of the PSC and not otherwise. There is a widespread view that the powers conferred by the 1988 Constitution should be returned and further that the number of members be increased to approximately five.

5.7.7 We find it anomalous that the Governor is obliged to consult with the PSC when exercising the powers conferred on him under section 58(4), but a person to whom he has delegated these powers is not under such an obligation.

5.8.0 The Complaints Commissioner

5.8.1 Part VII of the Constitution establishes the office of the Complaints Commissioner whose function is to hear complaints made by a member of the public who feels that he/she has sustained injustice in consequence of maladministration by a Government Department, authority, or body of persons to which independent legislation governing this office may apply.

5.8.2 The Complaints Commissioner may investigate any Government Department, authority or body of persons that he may have jurisdiction over by virtue of prescribed legislation. Schedule 1 of the Complaints Commissioner Ordinance bars certain persons and bodies from investigations by the Complaints Commissioner. Though the list is not contained in the Constitution, its application has direct bearing on the office of Complaints Commissioner.

5.8.3 There were widespread recommendations that the office of the Complaints Commissioner be given wider jurisdiction. It is felt that the list of bodies and individuals that are not subject to the investigation of the office is too far reaching and should be limited to persons exercising judicial or quasi judicial functions, and the Auditor and his staff. It is further felt that the limited jurisdiction of the office renders the position ineffective and should be expanded for the importance of this office to be realised.

5.9.0 Fundamental Rights And Freedoms Of The Individual

5.9.1 The fundamental rights and freedoms of the individual, that are protected under the

present Constitution, attach to all persons in the Islands, with some exceptions. These

are as follows:

a) The right to life, liberty, security of the person, and the protection of the law.

b) The right to freedom of conscience, freedom of expression, freedom of

assembly, and freedom of association.

c) The right to protection for the privacy of one’s home and other property.

d) The right to protection from the deprivation of one’s property without compensation.

e) The right to freedom of movement, and

f) The right not to be discriminated against on the grounds of race, colour and creed.

These rights are contained in Part VIII of the present Constitution. The Constitution is divided into nine parts, Part IX being miscellaneous matters.

5.9.2 The rights that are protected under the Constitution are subject to limitations. The limitations are designed to ensure that the exercise of each right does not prejudice

the rights and freedoms of others or, equally important, the public’s interests.

5.9.3 The right to protection of the law includes the right, under s 71 (3) of the Constitution, where a person is deprived of his liberty on reasonable suspicion that he has committed, is committing, or is about to commit a criminal offence, to be brought without undue delay before a court and, if such a person is not tried within a reasonable time, to be released unconditionally or on conditions reasonably necessary to ensure that he appears at court.

5.9.4 The right to freedom of expression includes the right to hold opinions, the right to receive and impart ideas and information without interference, and freedom from interference with one’s correspondence.

5.9.5 Despite the general right to freedom of expression there can be limitations on that right where there is a law making necessary provisions for defence, public safety, public order, public morality, or public health.

5.9.6 The right to freedom of expression can also be limited where it is necessary to protect the rights, reputations, and freedoms of others, where it is necessary to protect the private lives of persons concerned in legal proceedings and, among other limitations, and where it is necessary to prevent the disclosure of information received in confidence.

5.9.7 The right to freedom of expression can also be limited where it relates to restrictions on public officers or teachers, but provided that those restrictions are reasonably justifiable in a democratic society.

5.9.8 It is notable that no one objected to the presence in the Constitution of the provisions protecting fundamental rights and freedoms. Only one individual indicated that the fundamental rights of the individual that are protected under the present constitution are sufficiently adequate.

5.9.9 What was clear from our meetings was that the public was generally unaware of the list of the constitutional rights of the individual. Although a brief overview of those rights was given at the beginning of each meeting, the level of interest on this subject was disappointing. Those who did express an interest were concerned more about an effective mechanism to enforce these rights. The Supreme Court is given power under the Constitution to enforce the fundamental rights of the individual but this entails the bringing of costly proceedings, which many individuals may not be able to afford. It was proposed that there should be a Human Rights Commission to ensure the better enforcement of these rights.

5.9.10 It was felt that the fundamental rights should be at the front of the Constitutional document.

5.9.11 It should also be noted that only one person expressed a concern about an erosion of the right to freedom of expression.

5.9.12 There has been strong support on all islands, except for our meeting in Salt Cay, for constitutional protections against the abuses of monopolies or from possible collusion by businesses, contrary to the public's interests.

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6.0 Recommendations

6.1 The Governor

6.1.2 We recommend that the Chief Minister and the Leader of the Opposition be consulted

prior to the appointment of the Governor.

6.1.3 There should be a permanent Deputy Governor, who should be a belonger. This would obviate the need for the Office of Chief Secretary.

6.1.4 The Governor should be required to act on the recommendations of the Executive on all matters, except for the following:

a) Where he is exercising a function under the direct instructions of the

Secretary of State, in which case he shall notify the Chief Minister before he acts.

b) Where he is exercising his reserved powers, which should be limited to:

(i) Defence.

(ii) Internal Security and Police.

(iii) External affairs

(iv) International relations including the international relations aspect of offshore finance.

c) Those powers and functions, which are expressed to be exercisable

by him after consultation with or on the advice or recommendation of a

person or authority other than ExCo.

d) Where the urgency of the matter requires him to act before he can

consult ExCo, in which case he shall notify the Chief Minister before he acts.

6.1.5 We recommend that the Governor's legislative powers under section 44 of the Constitution be limited to those matters which fall within the scope of his reserved powers as set out in paragraph 6.1.4. b above.

6.2.0 The Executive Council

6.2.1 We recommend that:

a) There should be an additional Minister.

b) That there should now be ministerial responsibility for the Public

Service and Offshore Finance, other than the international relations aspect of Offshore Finance.

c) That Members of ExCo should comprise of:

i. The Governor;

ii. Seven Ministers including the Chief Minister;

iii. The Attorney General

6.2.2 We recommend that the Governor should be obliged to call a meeting of ExCo when

requested to do so by the Chief Minister.

6.3.0 The Attorney General

6.3.1 We recommend that the Attorney General should be an appointed or elected member of LegsCo, whose appointment can be revoked by the Governor on the recommendation of the Chief Minister.

6.3.2 In the event that it is not possible to fill the office of Attorney General from among the elected or appointed members, the Office shall be held by a public officer, who should then become an ex officio member of LegsCo.

6.3.3 The constitutional duties of the Attorney General as set out in sections 17, 30 and 31 of the Constitution should now be transferred to a new office of Solicitor General who should be a public servant, and whose office should be separate from that of the Attorney General.

6.4.0 The Legislature

6.4.1 We recommend that we retain a unicameral Legislature.

6.4.2 We recommend that the Legislative Council should be made up of the following:

a) a Speaker;

b) seventeen elected members (inclusive of the deputy Speaker);

c) three appointed members, appointed as is presently the case;

d) the Attorney General, if he is a public officer.

6.4.3. We recommend that LegsCo meets at least once every two months.

6.4.4 We recommend that the Speaker should not be an elected or appointed member.

6.4.5 We recommend that section 25(1)(g) of the Constitution which disqualifies a person from membership of LegsCo under any law relating to offences connected with elections, should be extended to offences connected with corruption.

6.4.6 We recommend that only Belongers should be qualified to vote and become elected and appointed members of LegsCo.

6.4.7 We recommend that LegsCo should not be able to enact laws, which attempt to oust the jurisdiction of the Court.

6.5.0 The Judicature

6.5.1 We recommend that there should be a Judicial Services Commission ("JSC"), the membership of which should comprise of the Chief Justice and two other members, one appointed by the Chief Minister and one by the Leader of the Opposition. The JSC should be chaired by the Chief Justice.

6.5.2 We recommend that all judicial appointments other than the Chief Justice should be made by the Governor acting on the recommendation of the JSC.

6.5.3 We recommend that the Chief Justice should be appointed by the Governor after consultation with the Chief Minister and the Leader of the Opposition.

6.5.4 We recommend that the Governor in his discretion be able to make appointments, which are of temporary or short duration.

6.5.5 We recommend that the Court of Appeal be required to sit at least once every three months.

6.6.0 The Public Service

6.6.1 We recommend that the number of members serving on the "PSC" be increased to five members to be appointed by the Governor, one in his sole discretion and two each on the recommendation of the Chief Minister and the Leader of the Opposition.

6.6.2 We recommend that the PSC should have a Secretariat.

6.6.3 We recommend that the Governor should not be able to act contrary to the recommendations of the PSC.

6.6.4 We recommend that where the Governor delegates any of his powers, any person to whom such powers are delegated should only be able to exercise those powers on the recommendations of the PSC.

6.6.5 We recommend that the office of Solicitor General be added to the list of officers outside of the jurisdiction of the PSC.

6.7.0 The Complaints Commissioner

6.7.1 We recommend the retention of the position of the Complaints Commissioner.

6.7.2 It is unrealistic to expect to find a competent Complaints Commissioner whose only source of income are the present emoluments from his office. We therefore recommend that section 65(5) of the Constitution be repealed.

6.7.3 We recommend a review of the Complaints Commissioner (Ombudsman) Ordinance with a view to extending the scope of the bodies and persons to which the Ordinance applies and increasing the effectiveness of the office.

6.8.0 Fundamental Rights and Freedoms of the Individual

6.8.1 Whilst we believe that the present list of fundamental rights are adequate, we recommend that there be a refinement of the existing provisions to bring them more in line with the European Convention on human rights.

6.8.2 We recommend the establishment of a Human Rights Commission, which would be able to take steps to enforce the fundamental rights and freedoms of the individual. (In the interest of efficiency, perhaps the Commission could share facilities with the Complaints Commissioner.)

6.8.3 We recommend that the list of fundamental rights and freedoms be relocated to Part 1 of the Constitution.

6.9.0 Miscellaneous

6.9.1 We recommend that large or valuable tracts of crown land should not be disposed of without a resolution of LegsCo.

6.9.2 We recommend that the Governor's powers of pardon and mercy be exercised only after consultation with an Advisory Committee rather than ExCo.

6.9.3 We recommend that there should be legislation to provide for freedom of information in relation to government 's dealings.

7.0 Other matters outside our terms of reference

7.1 We received a number of submissions that were outside of our terms of reference, some of which we felt should be mentioned in this report.

7.2 There is a problem in these islands with abuses by monopolies of their powers and inability by consumers to cost effectively prevent such abuses. It is strongly recommended that legislation along the lines of Articles 85 and 86 of the Treaty of Rome (creating the European Community) should be enacted to check the powers and abuses of monopolies.

7.3 There was strong support for family courts and a system of local government. Therefore

we so recommend.

7.4 There should be a review of the Voters Registration and Elections Ordinance to ensure, inter alia, the process of registration and other processes are such that:

a) Every voter who is entitled to vote is on the relevant electoral list and be there in adequate time for claims and objections.

b) That adequate notice of claims and objections are given.

c) That a qualified voter should not be removed from a voters list unless he is placed on another list.

7.5 We recommend a review of the Immigration Ordinance and Regulations to meet some of the concerns that were expressed to us.

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APPENDIX 1A