During a Tuesday hearing with Governor John Rankin, the Commission of Inquiry probed whether successive governors have fulfilled their obligation under the Virgin Islands Constitution to support the people of the territory in becoming a self-governing society.
While questioning the governor about a wide range of topics — from the United Kingdom’s offers of assistance in the wake of Hurricane Irma to the role the governor plays in Cabinet and in managing the public service — Commissioner Sir Gary Hickinbottom and COI Counsel Bilal Rawat asked Mr. Rankin to respond to several pointed criticisms, including many that came from elected VI ministers.
“I’m going to take you through a series of topics which, if the commissioner accepts are the evidence, will lead to the conclusion that the manner in which the UK government conducts itself in relation to the Virgin Islands … is not one that is indicative of a modern partnership or indeed mutual self-respect,” Mr. Rawat said at the start of the hearing.
The COI began its questions by asking Mr. Rankin about the various recovery efforts and offers of assistance made by the UK government after hurricanes Irma and Maria devastated the territory in 2017.
Tensions between Premier Andrew Fahie and former Governor Gus Jaspert flared frequently in the early months of Mr. Fahie’s administration in 2019 and 2020, as he and Mr. Jaspert quarreled publicly about the role that the UK-backed Recovery and DevelopmentAgency should play in the recovery and about the conditions attached to the UK’s offer of a £300 million loan guarantee to finance the effort.
Referencing an excerpt of a position statement from elected ministers, Mr. Rawat echoed grievances aired repeatedly by Mr. Fahie.
“When offering a loan guarantee in the aftermath of the hurricanes of 2017, the UK did so by imposing conditions on the BVI which were … suited to the UK’s interests but placed significant constraints on what the BVI could do,” Mr. Rawat read.
He added, “It is an immediate example of what may be said to be a lack of commitment to a modern partnership.”
Mr. Rankin rejected this assertion, claiming that the conditions attached to the guarantee were standard for the UK, and that the purpose of the loan was to give the VI an opportunity to borrow money with terms more favourable than what could be found in the international market.
He also pointed to the UK’s assistance in providing a military and security presence after the storms and in repairing some of the territory’s critical infrastructure, including its electrical grid and water supply.
“It was ultimately, of course, for the BVI to decide whether or not to accept an offer of a loan guarantee, and the government has to date not accepted that offer,” Mr. Rankin said.
But Mr. Rawat said that the governor’s characterisation may have missed the bigger picture.
The RDA, he suggested, had disproportionate UK input, as the UK was allowed to choose some of its board members and to generally “influence what direction it went,” Mr. Rawat said, noting that the agency was empowered to administer all monies earmarked for recovery.
Moreover, because of the borrowing limitations imposed by the 2012 Protocols for Effective Financial Management, “the BVI found itself between a rock and a hard place,” Mr. Rawat suggested.
If the VI government accepted the loan guarantee, it would at least temporarily be in breach of the protocols, yet the UK refused to negotiate, the COI counsel said as he summarised elected ministers’ claims.
As part of its hurricane recovery framework, the UK also demanded “divestment of public assets,” Mr. Rawat said.
Taken together, these requirements may “amount to a fundamental encroachment on the [VI’s] autonomous financial and economic policies,” Mr. Rawat suggested, paraphrasing the government ministers’ position.
While Mr. Rankin accepted that Mr. Rawat had accurately described the framework surrounding the UK’s hurricane recovery, he said he does not think the UK should have offered a loan without any limitations on the use of public funds.
‘Man on the ground’
Mr. Rawat suggested that the issues he raised in relation to the recovery point to a general power imbalance in the relationship between the UK and the VI, and to a contradiction at the heart of the governorship.
On the one hand, he said, the governor is the Foreign, Commonwealth and Development Office’s “man on the ground;” on the other hand, he is also charged with advocating for the VI to the UK government.
“Doesn’t it logically follow that those are just two mutually incompatible positions?” Mr. Rawat asked.
“One must prevail, and what prevails is always the position of the UK government.”
Mr. Rankin agreed that he sometimes plays two different roles — “it’s sometimes said that the governor wears two hats,” he said — but he stressed the supportive role he offers the VI.
Using the VI’s financial services as an example, Mr. Rankin said he supports requirements for VI-based financial services firms to comply with international transparency requirements, but he will go to bat for financial services that are compliant and meet best practice.
But Mr. Rawat suggested that another instance of potential UK overreach could be seen in the UK’s requirement for the VI and other overseas territories to implement public beneficial ownership registers by 2023.
“It’s not holding a carrot over their heads: It’s holding a stick over their heads,” Mr. Rawat said.
After concluding his questions about the hurricane recovery, Mr. Rawat asked the governor about his views regarding his responsibility for disaster management.
Asked whether he has assented to the Disaster Management Act 2021, which would move oversight of the Department of Disaster Management From the Governor’s Group to the central government, Mr. Rankin replied in the negative.
“It is not argued by me nor by my predecessor that the [draft act passed by the House of Assembly in January] is unconstitutional,” he clarified, adding, “What is argued is it impinges on the responsibility of the governor for security and external affairs.”
Mr. Rawat, however, suggested that the governor’s refusal to assent to the law is another example of a lopsided power balance with the VI.
“That is, again, the ultimate sanction that sits with the governor,” Mr. Rawat said.
Mr. Rankin agreed, though he added that he is not against transferring control of disaster management to the central government: He simply feels it should be done more slowly and carefully than the wholesale transfer of power that would follow his assent to the bill.
Mr. Rawat then put to Mr. Rankin the “criticism” that it has become established practice for the deputy governor to chair Cabinet when the governor is absent from the territory, even though the Constitution allows for the premier to do so.
Summarising from a 2008 opinion by Susan Dickenson, former legal counsel in the FCDO, Mr. Rawat said that although a governor is allowed to appoint the deputy governor to act in his place, “it appears to be the intention of the two governments that where there was no governor or acting governor to president [as Cabinet chair], then the premier would preside.”
Attorney General Dawn Smith, however, has reached the different view “that a deputy governor … cannot sit in Cabinet” and that a governor can attend Cabinet remotely, Mr. Rawat added.
He asked Mr. Rankin if it is “convention” that the premier should be the chair when the governor is absent.
Mr. Rankin replied that he believes the Constitution makes clear that the governor is empowered to appoint the acting governor to act in his place when absent from the territory.
‘Undue political influence’
The next criticism that Mr.Rawat put to Mr. Rankin was that governors have taken an approach inconsistent with “the proper constitutional position and proper convention” by refusing requests to go through the Premier’s Office when requesting information from ministries and other public officials.
In his position statement, however, Mr. Rankin wrote that confidence in the public service has been eroded by such requests and other “perceived attempts to exert undue political influence,” Mr. Rawat read.
But in the ministers’ reply to Mr. Rankin’s position statement, they wrote that while they acknowledge the governor’s right to request official papers and information from any minister, “Itis, or should be, a normal and basic courtesy to the minister … to address such a letter to him or his private office.”
The ministers added in their letter that it is a “legal condition” that the governor inform the premier of such requests as well.
The ministers also wrote that they should be consulted on the performance of their senior public officers, and that they should be free to comment on the performance of those officers without such comments being construed as “undue political interference,” according to Mr. Rawat.
Reading from their statement, he continued, “It has been the experience of ministers that neither the duty nor the courtesy has always been observed, and that direct contact has been made by the Governor’s Office, sometimes with quite junior officials, to demand information or action of which the minister and premier are unaware.”
Asked by Mr. Rawat what entitles him to request information directly from ministries, the governor replied that it is his understanding from speaking to public officials that the governor has engaged directly with ministries and the Premier’s Office Since 2007.
“And your position is that you are entitled to do that under the Constitution?” Mr. Rawat asked. “That’s correct, yes,” said Mr. Rankin.
Public service problems
The next criticism dealt more broadly with issues affecting the public service.
That criticism, read by Mr. Rawat, suggests that successive governors have neglected their responsibility to reform the public service because they have failed to update human resource systems to better accommodate policy development; failed to improve outdated pay structures that discourage new hires; failed to update the territory’s record-keeping apparatus; and failed to put forth any proposal to transform the public service until late 2017.
Mr. Rankin, however, said that responsibility for the public service does not rest solely with the governor and deputy governor.
For one thing, the budget for training public officers is approved by central government, and for another, the Constitution gives ministers responsibility for “the direction and control” of the departments, Mr. Rankin stated.
“In terms of responsibilities to the public service, I fully accept my responsibilities there, but they need to be exercised in a way which is coordinated with the government’s responsibility to provide [an] adequate budget for facilities, training, equipment and pay of the public service,” Mr. Rankin said, adding, “It needs to be a modern shared partnership.”
Mr. Rawat then read from a “supplementary note submitted on behalf of the ministers,” which alleged that the Governor’s Office’s chronic neglect of the public service has severely undermined the ministers’ ability to govern.
Mr. Rankin, however, said it is inaccurate to suggest there have been no attempts to transform the public service until2017, and he listed a series of programmes included in a table provided by the Deputy Governor’s Office that were focused on developing the public service.
In the final half-hour of the proceeding, Mr. Rawat pivoted from criticisms of the governor to specific questions about a recent Cabinet hearing in which cabinet granted a certificate of residency to someone who has lived in the VI for more than 20 years but has a criminal record. Cabinet made this decision against the advice of the Immigration Board and Mr. Rankin, who both recommended that the individual not receive the certificate.
‘I was appalled’
Asked about this decision, Mr. Rankin replied, “I was appalled.”
He added, “Without going into detail, one of the offences was not a minor offence, and I made very clear in Cabinet that in light of the offence and the recommendation of the [Immigration Board] that the certificate of residency should not be granted.”
This example, he said, goes back to the beginning of the day’s hearings, as it shows Cabinet acting independently of the advice given by the governor.
Questions from counsel
Before the hearing ended, Sir Geoffrey Cox QC, counsel to the government, said that he had a few additional questions, mostly budgetary, that he would like to ask Mr. Rankin.
Mr. Rankin agreed, though they did not set a date for the questions.
As the Beacon went to press yesterday, the COI was questioning former Governor Gus Jaspert on similar topics.