All : CONSTITUTION OF ST HELENA, ASCENSION AND TRISTAN DA CUNHA
Submitted by (Juanita Brock) 29.06.2008 (Article Archived on 31.08.2008)
The draft Constitution, dated 25 June 2008, has been published for the purpose of public consultation in St Helena, Ascension and Tristan da Cunha during the coming months. In large part it is a modified version of the draft Constitution prepared in 2003-2005, and includes some of the constitutional reforms discussed at that time.
CONSTITUTION OF ST HELENA, ASCENSION AND TRISTAN DA CUNHA
DRAFT FOR PUBLIC CONSULTATION OF 25 JUNE 2008
The draft Constitution, dated 25 June 2008, has been published for the purpose of public consultation in St Helena, Ascension and Tristan da Cunha during the coming months. In large part it is a modified version of the draft Constitution prepared in 2003-2005, and includes some of the constitutional reforms discussed at that time. But in deference to the result of the consultative poll in St Helena in May 2005, the draft does not provide for a system of ministerial government.
As regards its application to St Helena, the draft reflects consultations with elected Councillors, senior officials, interest groups and the public on St Helena in early May 2008. The provisions relating to its application to Ascension and Tristan da Cunha largely reflect those envisaged in 2003-2005. But at this stage they are very provisional, and they will require further consideration, and consultation on both islands.
If enacted, the draft Constitution would replace the present Constitution of 1988, which is in many respects outdated or inadequate. It would represent a substantial modernisation, with enhanced human rights protection for the people and a stronger framework for good government.
It should be remembered that the terms of a Constitution have particular legal significance, because the Constitution takes precedence in law over all Ordinances and other local laws of St Helena, Ascension and Tristan da Cunha.
The purpose of this Note is to explain the draft Constitution, Part by Part, with a view to assisting in the process of public consultation and understanding. The whole draft is put forward on the basis that nothing is agreed until everything is agreed.
Unlike the present Constitution of 1988, the draft contains a preamble describing the historical context and the aspirations of the people. This preamble was very largely composed locally in St Helena and was included in the draft Constitution of 2005. It sets the context for all of the provisions that follow.
Part I: Application of this Constitution
This Part simply specifies which Parts of the Constitution apply to St Helena, which to Ascension and which to Tristan da Cunha.
Part II: Partnership Values
This Part lists a set of values on which the partnership between the United Kingdom and St Helena would be based. This too is drawn from the draft Constitution of 2005, and the present Constitution has no such list of values. The values include such matters as the rule of law, good government, sound financial management, the impartial administration of justice, the impartiality of the Public Service, and the maintenance of public order. All parts of government would have a duty to give effect to these values.
Parts XII and XIII contain the same set of values for Ascension and Tristan da Cunha, and provision is made that the relationships between each of St Helena, Ascension and Tristan da Cunha would be based on these values and a willingness to have due regard for one another’s interests.
Part III: Fundamental Rights and Freedoms of the Individual
By contrast with the present Constitution, which contains no bill of rights, this Part sets out in detail the fundamental rights and freedoms of the individual. This is also substantially drawn from the draft Constitution of 2005. The rights and freedoms defined include the right to life, the right to personal liberty, the right to a fair trial, the right to private and family life, the right to education, freedom of conscience, expression and assembly, and protection from deprivation of property and from discrimination. Permissible interferences with these rights and freedoms are strictly defined.
All local laws and government action would have to conform to these rights, and they would be enforceable in the courts. So anyone claiming to be the victim of a breach of any of these rights by government could seek redress in the Supreme Court. The entrenchment of these rights would therefore mark a substantial strengthening of public protection, of the Constitution and of the legal system in St Helena, Ascension and Tristan da Cunha.
Part IV: The Governor
This Part deals with the office of Governor, who would continue to be appointed by Her Majesty The Queen, and with who exercises the Governor’s functions during a long or short absence or incapacity of the Governor. It also deals with some of the Governor’s powers, including the power of pardon and the power to dispose of Crown land. While this Part largely follows the present Constitution, there are some innovations.
The Governor would be obliged to take the oaths of allegiance and for the due execution of office before the Sheriff of St Helena, thus recognising that ancient office in the Constitution.
Also, in exercising the power of pardon, the Governor would be obliged to consult a new Advisory Committee on the Prerogative of Mercy, rather than – as under the present Constitution – the Executive Council. This Committee would include at least one member to represent the public interest, and one member may be a member of the Executive Council; but otherwise no member of the Legislative Council, and no judge or magistrate, would be eligible to be a member of the Committee. Such a Committee should ensure a broader range of advice to the Governor in exercising the power of pardon.
Part V: The Executive
As under the present Constitution, the Governor would continue to exercise executive responsibility on behalf of The Queen, in most matters advised by an Executive Council.
The Executive Council would continue to consist of 5 elected members and 3 ex officio members (the Chief Secretary, the Financial Secretary and the Attorney General). But new provisions would require the elected members to be chosen annually by the elected members of the Legislative Council from among their number, thus allowing the Council to be refreshed if that were considered desirable. The Chief Secretary and the Financial Secretary would be deprived of their votes in the Council. And another new provision prescribes the circumstances in which the Council may meet by teleconference.
Subject to stated exceptions, in the government of St Helena the Governor would be obliged to act in accordance with the advice of the Executive Council. One of these exceptions is in matters for which the Governor has special responsibility. These matters are, as under the present Constitution: defence; external affairs; internal security, including the police; specified Public Service matters; the administration of justice; finance; and shipping. As an innovation, the Governor would also not be obliged to act on the Executive Council’s advice if that advice contravened one of the partnership values listed in Part II, such as good government or sound financial management; but before acting against the Council’s advice the Governor must obtain the approval of the Secretary of State, except in cases of urgency.
The Executive Council would continue to have authority only in respect of St Helena. It would have no powers over Ascension or Tristan da Cunha.
Finally, Part V strengthens the independence of the Attorney General in performing his or her functions as prosecuting authority and as principal legal adviser to the Government.
Part VI: The Legislature
This Part includes many of the provisions introduced by the draft Constitution of 2005. It provides first for the composition of the Legislature of St Helena: it would consist of Her Majesty The Queen and the Legislative Council. The Legislative Council would consist of the Speaker, 12 Elected Members, and 3 ex officio Members (the Chief Secretary, the Financial Secretary and the Attorney General). To enhance democracy, none of the ex officio Members would have the right to vote in the Council.
The Elected Members would be elected by secret ballot, under a system of universal suffrage, from a single constituency for the whole island of St Helena; but power is given to the Legislature to provide by Ordinance for two or more constituencies instead. This allows more flexibility than the present Constitution, which requires there to be at least two constituencies.
New provision is made for a Deputy Speaker to preside in the Legislative Council in the absence of the Speaker. New provisions to strengthen accountability and transparency are also included to establish a public Register of Members’ interests, assets, income and liabilities, and a Code of Members’ Conduct. Further new provisions prohibit Members’ remuneration and allowances exceeding levels recommended by an independent body appointed by the Governor.
A further innovation aimed at improving scrutiny of government is the entrenchment in the Constitution of a Public Accounts Committee, with a majority of members who have no part in the disbursement of public funds and with power temporarily to replace any member who has a conflict of interests. Power is given to increase the remit of this Committee beyond scrutiny of financial matters.
Part VI also deals with Council Committees. The present Constitution limits the number of these Committees to 5, and each Committee must contain a majority of Councillors. These restrictions are removed, thus allowing more flexibility. This could be used with advantage to cover the work of the 13 departments of government and to involve a wider range of expertise.
As regards the legislative process, the reserved power of the Governor under the present Constitution to push through a Bill against the wishes of the Legislative Council is removed.
As now, a Bill passed by the Legislative Council must be submitted to the Governor for assent. The Governor may either assent to the Bill or reserve it for Her Majesty’s pleasure (in other words, send it for decision in London). The Governor must reserve any Bill that is inconsistent with the Constitution or with any of the partnership values listed in Part II (such as good government, the rule of law, sound financial management).
The Legislative Council, and Council Committees, would continue to have authority only in respect of St Helena. They would have no powers over Ascension or Tristan da Cunha.
Part VII: The Judicature
This Part continues to provide for a Supreme Court and a Court of Appeal, as the superior courts of St Helena. But it makes important improvements to the independence of the courts by strengthening the security of tenure, and thus the impartiality, of the judges. A judge would only be removable, before the expiry of his or her term of appointment, for incapacity or misbehaviour, and then only after examination of the case by an independent tribunal and the Judicial Committee of the Privy Council.
A new, independent Judicial Service Commission would also be established to advise on the appointment and removal of magistrates, thus taking this matter out of the hands of the Governor alone.
These are important improvements, drawn from the draft Constitution of 2005, which would meet human rights requirements regarding the independence and impartiality of the courts, and which would strengthen the administration of justice.
Part VIII: Public Service
This Part would ensure the impartiality of the St Helena Public Service, which is vital to good government on the island. The power of appointment, discipline and removal of officers of the Public Service is given to the Governor, and the Governor may delegate any part of that power to any officer of the Public Service.
There is also an enabling clause to allow an independent authority to be established, by Ordinance, to advise the Governor on such matters as recruitment and grievance procedures and public service policies, and to carry out annual reviews of these procedures and policies. Furthermore, the terms and conditions of employment of Public Service officers must be as prescribed by a Code of Management approved by the Governor.
Part IX: Public Finance
This Part, which has no equivalent in the present Constitution, makes detailed provision for the control of public finance and enshrines the principles of sound financial management at the constitutional level, monitored by an independent and impartial Chief Auditor. It also entrenches the important principle that no taxation may be imposed except under the authority of an Ordinance, thus protecting the public from taxation other than by decision of their elected representatives in the Legislature.
Part X: Complaints Commissioner
This Part makes new provision for the appointment of an independent Complaints Commissioner to investigate complaints of maladministration in the government of St Helena. Appointments could be made from time to time, rather than a permanent appointment, to save cost and to respond to the volume of complaints made. An Ordinance would be required in order to prescribe the details of a Complaints Commissioner’s remit and powers.
Part XI: Miscellaneous
This Part deals with the interpretation of terms used in the Constitution and related matters.
Part XII: Ascension
This Part deals – in a very provisional way – with application of the draft Constitution to Ascension. Ascension would no longer be called a “Dependency”. It would be referred to by its name.
The same partnership values as apply to St Helena would apply to Ascension. All parts of government in Ascension would have a duty to give effect to these values.
The same bill of rights as applies to St Helena would apply to Ascension, except that the right of free movement and the right not to be deprived arbitrarily of local status would not be applied there. This is because there is no right of permanent abode on Ascension and no Ascension status. A reservation is also made to preserve UK/US treaties that apply to Ascension.
The Governor of Ascension would be the Governor of St Helena. The Governor would continue to exercise executive authority on behalf of The Queen. But the Island Council of Ascension would, for the first time, be recognised in the Constitution, with such functions as may be prescribed by law.
The Attorney General of Ascension would continue to be the Attorney General of St Helena, and would have equivalent functions in relation to each island.
The Governor would continue to have legislative authority in Ascension, but for the first time the Constitution would require the Governor to consult the Island Council (if in being) before making any laws for Ascension.
Ascension would continue to share with St Helena the Supreme Court and the Court of Appeal, and would have such subordinate courts as may be established by Ascension laws.
Provisions regarding the Public Service equivalent to those that apply to St Helena would apply to Ascension.
Provisions relating to public finance are included which are appropriate to the circumstances of Ascension, and which are similar to those that apply to St Helena.
Part XIII: Tristan da Cunha
This Part deals – in a very provisional way – with application of the draft Constitution to Tristan da Cunha. Tristan da Cunha would no longer be called a “Dependency”. It would be referred to by its name.
The same partnership values as apply to St Helena would apply to Tristan da Cunha. All parts of government in Tristan da Cunha would have a duty to give effect to these values.
The same bill of rights as applies to St Helena would apply to Tristan da Cunha.
The Governor of Tristan da Cunha would be the Governor of St Helena. The Governor would continue to exercise executive authority on behalf of The Queen. But the Island Council of Tristan da Cunha would, for the first time, be recognised in the Constitution, with such functions as may be prescribed by law.
The Attorney General of Tristan da Cunha would continue to be the Attorney General of St Helena, and would have equivalent functions in relation to each island.
The Governor would continue to have legislative authority in Tristan Da Cunha, but for the first time the Constitution would require the Governor to consult the Island Council before making any laws.
Tristan da Cunha would continue to share with St Helena the Supreme Court and the Court of Appeal, and would have such subordinate courts as may be established by Tristan da Cunha laws.
Provisions regarding the Public Service equivalent to those that apply to St Helena would apply to Tristan da Cunha.
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