In March 1999 a parliamentary seminar was held for the seven newly elected members of the then territory’s then-Legislative Council. It included several members (also newly elected) from the Turks and Caicos Islands and Anguilla. Among the various topics of the one-week seminar were matters related to the parliamentary practices and procedures, the Standing Orders of the LEGCO, and an understanding of the Constitution. One of the more fascinating presentations and discussions was hosted by the Karass Foundation. The subject matter was on the principles of negotiation. Presenters highlighted the principle that “In life you do not get what you deserve; you get what you negotiate.”

Our upcoming constitutional review will end with negotiations in London, and our success in large part will depend on how the negotiations are conducted and concluded.

There are some major and minor matters to review and discuss, and final agreements to be had. The recent debates in the House of Assembly touched on a number of these, but there are others worthy of inclusion in the overall review.

 

‘Melting pot’

The Virgin Islands is a multicultural and multinational melting pot. The most recent census, from 2010, indicated that there were more than 120 nationalities living here. Marriages, civil unions and births are predominantly amongst residents of different creeds, nations and ethnicities.

In the coming negotiations, there has to be at least an attempt to define who are our people. The Virgin Islands Constitution Order 2007, section 65, helps to define a “Virgin Islander” and those who qualify to be a “Belonger.”

During the constitutional review of 2006-2007, there was extensive debate on this matter. We now need to define who exactly we refer to when we speak about “our people.” Our future could realistically depend on this very subject. Are we prepared to build a country that makes others feel welcome, or are we risking building and creating divisions that could be detrimental to our long-term health?

Many of the complications related to our physical health are a direct result of decisions we made several years earlier — decisions that result in irreversible damage to our physical bodies. Although the issue of defining who are “our people” is a weighty subject, we should weigh this against the possible deleterious effects of not confronting it in the here and now.

 

The environment

Section 29 of Chapter Two of the 2007 Constitution — Fundamental Rights and Freedoms of the Individual — speaks to the protection of the environment, including preservation and sustainable development. Next to “our people,” the environment is the number one asset this territory owns. It is a gift given to us. Handling it properly and adding value to it can result in infinite benefits for generations to come. In a world where our lives will be dominated by climate changes, we can demonstrate forward thinking by emboldening the respect for the environment.

This subsection should be considered as a chapter in the Constitution. The protection should be widened to include the specific issues of scientific research and investment. Specific mention should be made of the marine environment. The oceans are the new frontier, and we should be at the forefront of development and protection of this arena. There is a lot of discussion related to the use of submersible vehicles for both touristic observations and the possibilities of exploiting the natural resources of the seabed. We need to ensure that we do not become the victims of unforeseen exploitation of these resources. Constitutional guidelines are necessary to guide the future of the marine environment.

 

 

Judiciary

Chapter Six of the current Constitution, which covers the judiciary, is short, but it speaks volumes in its brevity. It speaks to the Eastern Caribbean Supreme Court and the subordinate courts and tribunals. A separate provision, Section 31, includes the “enforcement of protective provisions” for Chapter Two.

In the United States, the big point of the legal system is that each individual is equal under the law. This stipulation is one of the primary reasons that democracy works. In the VI we need to ensure that our Constitution bears this out, whether directly or indirectly. We also should adapt the principle that enshrines “justice delayed is justice denied.” I am not even sure if this can be applied in the Constitution, and I am well aware that it means greater allocation from the consolidated fund, but it is worth the discussion in order to allow the legal experts to find the words to express what is desired. If we are building a great little nation, we need our collective commitment to find the ways to express and get things done.

 

Governor’s powers

During the recent legislative debates on the constitutional review, there was much attention payed to the powers of the governor. If the truth be told, this is one of the major parts of the unfinished business from the 2007 review. It is probably in this matter where we dropped the ball in the final negotiations that year. Can we truly at this stage and at this time whittle away the “reserved powers of the governor”? Maybe the recent developments in the Cayman Islands are instructive, where the United Kingdom ultimately decided to retain such powers for the Cayman governor.

Sections 60 and 61 of our Constitution deal with the “special responsibilities and the reserved powers” of the governor. One of the really advanced accomplishments in 2007 was in allowing the VI “letters of entrustment,” responsibility that showed a growing appreciation for the maturity in the area of good governance in the VI. We should seek to build on this and find ways to increase our ability in major decision-making. We must demonstrate that we are preparing to move to the ultimate steps in self-determination and continue to build the foundation for this eventuality.

 

Pensions

There are a few other areas that are worthy of consideration and debate during this review.

The issue of pensions in sections 99 and 100 is ripe for amendment. It is time to mandate that the territory have a contributory pension scheme for public officers. The present non-contributing system is not sustainable. We should at least make it imperative for the whole territory to have a contributory pension plan (private and public). The present Labour Code has made it necessary; the Constitution should make it compulsory.

Recent debates in the HOA have dealt with a couple of the auditor general’s reports. One of the glaring omissions has been the non-inclusion of supplementary reports from the relevant parties that have been investigated even when these reports were solicited and submitted. An amendment to include supplementary reports is necessary under Section 109(3), “Auditor General.”

 

Non-belonger births

We also must again revisit and tackle the vexing issue of children born in the VI of non-belonger parents. This topic has sparked raging debate. Children have no choice in their place of birth, and they should adopt the citizenship of their birth country. After all, children cannot be discriminated against with respect to health and education: They have to be registered with the National Health Insurance; they have to be fully vaccinated; and it is mandatory for them to attend school. Education is free in the VI at the primary and secondary levels. Most births in the VI are to non-belonger parents, and the children are going nowhere. It is time to regularise these children, who will eventually grow up to take their places in the VI.

 

Negotiations

There will be unfinished business when this process is over. We must earnestly prepare for the negotiations in London, setting the stage before we get there to ensure that we get what we negotiate.

The current full members of the Organisation of Eastern Caribbean States were once in similar boats as us. In their day, though, there was a steppingstone to independence called West Indies Associated State. That does not exist today, so we must move the train along to the next stage of national development. The United Nations provides for a Free Association short of full independence that could be explored. The constitutional protection afforded the crown dependencies, which we do not have, also is worth exploring.

By the time the next review comes along, we should be another step closer to achieving the full measure of internal self-government and the eventuality of raising our flag at the community of nations in New York, the United Nations.

 

 

Dr. Pickering served on the previous constitutional negotiating committee leading up to the passage of the 2007 Constitution.


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