The
Development Planning Unit
Government of the British Virgin Islands Policies

REPORT OF THE CONSTITUTIONAL COMMISSION 2005

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CHAPTER 1

Historical Overview

The Virgin Islands - Background to Constitutional History

1.  The Virgin Islands is a sub group at the northern end of the Lesser Antilles archipelago, which arcs across the Atlantic, from the eastern tip of South America to approximately ninety miles off the eastern end of Puerto Rico. While geographically a single chain of islands, the group comprises two distinct territorial systems.
   
   

2. For nearly three hundred and thirty three years, the British have exercised sovereignty over the north-eastern portion of islands (the principal ones being: Tortola, Virgin Gorda, Anegada and Jost Van Dyke). By the purchase from Denmark in 1917 of the Danish West Indies (principally: St. Thomas, St. Croix and St. John), the United States of America established sovereignty over this group, which was renamed the Virgin Islands of the United States of America and soon became shortened to “The Virgin Islands”. To avoid confusion in the day to day usage, the northerly group began to be called ‘British Virgin Islands’ . However, the official name of this Territory is the Virgin Islands. The Commission is of the view that every effort should be made, officially and otherwise, to reverse the trend towards the de facto surrender of the proper name of this Territory.
   
   

3. The documented constitutional history of this Territory began in 1493, when Christopher Columbus stumbled upon this cluster of islands, which it is reported he named the Virgin Islands in memory of the legendary St. Ursula. 
   
   

4. By the early 17th century, not only were Europeans aware of the existence of a whole new world to the west, but their wars became extended to these new ‘West Indies’, and the Virgin Islands was caught up in those struggles. 
   
   

5. The Virgin Islands, with its many islands and natural harbours was a haven for legitimate naval vessels, licensed brigands and pirates. Given its size, topography, aridness and poor quality of soil, the Virgin Islands became more attractive as a station along the trade route from South America and the Greater Antilles than as a settled territory. Spanish failure as the principal claimant to establish a settlement left the way open for the French, Dutch, Danish and British to become stakeholders. 
   
   

6. Since the early 1620s’ Britain commenced the establishment of colonial settlements along the Lesser Antilles chain of islands and instituted governance structures in islands such as Barbados, Antigua and St. Kitts. Colonel William Stapleton, was appointed Governor, in 1672 of the new English colony of the Leeward Islands, and took the opportunity of the outbreak of the Third Dutch War, to attack a small Dutch settlement on Tortola in July of the same year. This event began the British hegemony over the island group.
   
   

7. At the end of the third Anglo-Dutch war, the Treaty of Westminster (1674) required the return of the Virgin Islands to the Dutch. This did not take place. Harassment from Spain, conflicting claims from the Dutch and French, all impacted negatively on the attractiveness of the Virgin Islands to settlers. However, for brigands, pirates and others of like mind, the lack of institutions for governance afforded the perfect environment for their plundering activities.
   
   

8. Initially, the British had no interest in establishing settlements in the Virgin Islands, but merely wished to deny them to others as points from which attacks could be mounted on the colonies being established on the larger islands in the Antillean chain. This lack of interest did not, however, deter a small group of planters and their families in 1680 from leaving Anguilla and moving to Virgin Gorda.
   
   

9. Strategic defence of the settlements was indeed problematic. The many islands, bays and coves provided perfect cover for even one marauding vessel to wreak havoc on an undefended isolated community. The Spanish had not accepted that other European powers had the right of placing settlements on unoccupied territories, which Spain claimed to have discovered and whose ownership was validated by Papal Bulls in 1493 and 1506. The Spaniards did everything to prevent others from establishing settlements, including providing official backing to pirates or any one prepared to attack such settlements. Settlements in the Virgin Islands were in constant danger, given their proximity to Puerto Rico.
   
   

10. After 1718, the British did not actively pursue sovereignty rights over St. Thomas, but St. John and St. Croix were still somewhat open to question. During the Napoleonic Wars the three islands were taken over by the British, but after the Treaty of Paris (1815) they remained in Danish possession until sold in 1917 to the United States of America. The rights of sovereignty by Britain in respect of Tortola, Virgin Gorda, Anegada and Jost Van Dyke were agreed by 1735 and they have since remained British possessions. With the settlement of the sovereignty issue the population began a steady growth.
    

Development of Governance Institutions

11. There were three reasons for the lack of interest and hence the reluctance to establish institutions of governance:
    

1. Low potential economic viability due to nature of land mass, topography and soil quality;
   
   

2. Strategic difficulties in sustaining a viable defence; and
   
   

3. Issues relating to sovereignty of the islands
   

12. Due to its geographical and geological characteristics, questions of the economic viability of the Virgin Islands as a socio-political unit have plagued this Territory from the “get go”. For example, a genuine effort in 1711 was made by a Captain John Walton, to encourage settlements in the islands by establishing “the institution of a regular system of administration” This effort was discouraged by Governor Hamilton, who was more interested in promoting the welfare of the new Leeward Islands Colony of St. Christopher, Nevis, Antigua and Montserrat.
     
    

13. His reports on the physical characteristics and productive capacity of the Virgin Islands were deliberately designed to create an unfavourable picture of the islands. He portrayed them as being “barren, mountainous, and rocky, and could produce nothing else but timber.” By 1716 there were 247 whites and 125 blacks on Virgin Gorda; 103 whites and 44 blacks on Tortola; and 17 whites and 6 blacks on Beef Island. By 1717 these numbers had increased respectively to: 317 whites and 308 blacks; 159 whites and 176 blacks on Virgin Gorda and Tortola, but had declined on Beef Island. 
    
    

14. An unfavourable report by Captain Candler sailing through the islands on HMS Winchelsea did not help in shifting the general impression of the Council of Trade and Plantations (distant fore-runner to the Colonial Office) on the viability of settlements, although the overall populations of whites had increased, with only a small decrease in the number of blacks. Because of these reports, a decision was taken in April 1718 to remove the inhabitants from Tortola and Virgin Gorda. Despite this decision, however, the population continued on a steady increase.
    

First Constitution

15. By 1734, it became evident that the principal islands required institutions to administer justice and governance. As Governor of the Leeward Islands Colony, Governor Mathew made appropriate provisions for the establishment of councils and assemblies in Tortola and Virgin Gorda in early 1735. Each Council consisted of six (6) and each Assembly of nine (9).
    
    

16. Members of the Councils were appointed by the Governor and members of the Assemblies were elected generally by the inhabitants. There was no property requirement to be a voter as effective proprietary rights in many cases were in some doubt.
    
    

17.  To effect the election, Tortola was divided into three divisions, viz.: Fat Hogs Bay Division, Road Division, and Saka Bay Division. Each returned three (3) Members.
    
    

18. Virgin Gorda was divided into two divisions: viz: Valley Division, which returned six (6) Members; and North and South Sound Division, which returned three (3) Members.
    
    

19. It was subsequently realized that Governor Mathew had exceeded his authority under his Commission in establishing Assemblies. The Assemblies, as a result, were never called into session, although the Councils took up their duties, which included magisterial and tax-levying functions.
    
    

20. The appointment of Lieutenant–Governor James Purcell in 1747, as well as the expanding population, kept alive agitation for some form of civil government. Petitions were sent. Finally, during a personal visit to Britain in 1754 Purcell, with support from agents and leading merchants trading with the Leeward Islands, was able to present the case to the Lords of Trade for establishing some form of government in the Virgin Islands. Purcell favoured constitutional government, but he believed that legislative authority should be vested in the Governor and Council. If an Assembly was granted, he felt it should be for the whole Territory, rather than one for Virgin Gorda and one for Tortola. He also favoured a property qualification and recognized the need to involve the public in matters of taxation. However, his enthusiasm for advancement in civil government was not shared by Governor George Thomas, who intimated that the inhabitants were so illiterate that a legislative body would only turn their heads and questioned the sincerity of Lt.-Governor Purcell in promoting such institutions of governance for the Virgin Islands
    

Second Constitution

21. European war in the 1750s and looming difficulties with the American colonies distracted any likely attention for the introduction of civil governance in the Virgin Islands. Nonetheless, the productive capacity of the islands was growing at an increasing rate, as was the population. By 1756, this was estimated at 1,184 whites and 6,121 blacks. The improved economic climate coincided in 1773 with the appointment of a progressive thinker in the person of Sir Ralph Payne as Governor of the Leeward Islands. 
    
    “He was impressed with the productivity of the islands, especially Tortola, the prospects of augmented trade and the willingness of the people to be governed. He deplored their neglect, ‘half a century having elapsed since the Virgin Islands had been visited by the Chief Governor’. Vexed by the ‘most irregular and impolitic constitution and nature of Government’ which existed in the Virgin Islands, and prompted by a petition from the inhabitants, which his own encouragement stimulated, Payne recommended the early institution of civil government” 
    
    

22. In July 1773, Governor Payne was instructed by the Secretary of State for the colonies to introduce into the Virgin Islands a representative system of Government, based on a Governor, a nominated Council, and an elected Assembly. This structure reflected the one already established in other territories within the Leeward Islands and the British system as a whole.
    
    

23. The generosity toward political advancement did not come without its price. One element in the Petition for civil governance was an undertaking to pay a 4 ½ % excise tax on all produce and this was made a condition of the undertaking to introduce representative government.
    
    

24. The proclamation for the institution of a legislature in the Virgin Islands was issued by Governor Payne on November 30, 1773. It provided for:

1. A Council of twelve (12) members nominated by the Governor;
   

2. An Assembly of eleven (11) members: -

1. eight (8) representing Tortola,
   

2. two (2) representing Virgin Gorda, and 
   

3. one (1) representing Jost Van Dykes.

25. All white men who had attained the age of 21 years and who possessed 40 acres of land or a house worth £40, and all sons of the required age who were heirs apparent of persons possessing 80 acres of land or a house valued at £80, were eligible as candidates for election. Qualification for electors included possession of 10 acres of land or a building worth £10. Tortola, Virgin Gorda and Jost Van Dyke were each to be treated as a single constituency. Voters and representatives had to be resident in the island.
    
    

26. Governor Payne was present for the opening of the first legislature on January 31, 1774. In his speech he stressed the need for immediate action to pass certain laws necessary for the welfare and good government of the Virgin Islands. Bitter conflict between the Governor and the Assembly (all being plantation owners) over an all important tax Bill and confirmation of land titles led to a stalemate. The Assembly refused to pass any legislation for the establishment of a court system. 

Third Constitution

27. When the Governor was given the authority to establish a court system without the approval of the legislature, suspicions as to the intentions became more entrenched and opposition bordered on insurrection. A number of members were suspended from the Assembly, which was then reconstituted. New electoral districts were established and qualifications for voters and candidates were prescribed. The three constituencies on Tortola (Road Town, Eastern and Western) each had three representatives with an extra one for Road Town. Virgin Gorda had two (Valley and Sound) each with one representative and an extra for Spanish Town. Jost Van Dyke was a single constituency with two representatives. This made for an Assembly of fifteen (15) representatives. 
    
    

28. The new assembly proved to be just as intransigent as the former and it was not until the British Government gave a firm undertaking not to challenge titles to lands which were settled without grants, that the way was clear for the passage of both the Court Bill and the Quieting Bill in 1783.
    
    

29. From the onset of the establishment of representative legislative institutions in the Virgin Islands there existed a struggle between the perceived interest of the colonial administrators and that of the Territory’s inhabitants. This pattern of relationship continued throughout the rise, fall and re-emergence of representative government.
    
    

30. Establishment of an assembly and council (a sort of executive council or cabinet) coincided with the economic emergence of the Virgin Islands:
    “From about 1740 to the end of the century economic progress accelerated, periods of war bringing considerable prosperity to the islands…..improved products in sugar, molasses, rum, cotton, lime-juice, ginger, indigo, coffee, aloes, pimento, turtle shell, mahogany, timber and plank was to the value of £30,000 sterling in Tortola and £15,000 in Virgin Gorda.” 
    
    

31. Historians of this period (1756-83) usually refer to it economically as the “golden era”. During this period slave population reached its peak at 9,000, with a white population of approximately 1,200.

Fourth Constitution

32. Settlement of the land tenure issue, establishment of courts of justice and the general economic prosperity enabled Governor Shirley in 1785 to report that the Virgin Islands were beginning to feel the beneficial effects of good order leading to a well regulated community. Unfortunately, economic progress in the islands had been fuelled by European wars and the American War of Independence. With the turn of the century and relative peace after the Napoleonic wars, competition from beet sugar, the movement against slavery as the basis of an economic system, and eventual abolition of the slave trade all affected the prosperity of the West Indies and especially the Virgin Islands. 
    
    

33. The machinery of representative government which had been established was predicated on the presence of a white planter class. Although the number of free blacks was on the increase, they had no vote. In 1815 they petitioned the Lord Commissioners of Trade and Plantations for civil rights and three years later legislation was passed permitting the right to vote for a representative in the assembly, who had to be a white freeholder.
    
    

34. Nevertheless, steeply declining electoral participation, due partly to a steady exodus of whites, led to increasing curtailment in legislative activity.
    
    

35. By 1867 all pretence to the operation of a Legislative Council in which there were elected representatives came to an end. An Act was passed to reconstitute the Legislative Council to provide for three official members and three unofficial members nominated by the President with the approval of the Crown.

Fifth Constitution

36. In 1871 a single federal colony comprising all the Leeward Islands and Dominica was created, but in the federal assembly the Virgin Islands was not represented by an elected member. The Virgin Islands lost the status of colony and became a presidency. Diminishing government personnel presented a problem in appointing even official members of the legislature, due to the multiple appointments of one individual to several posts. By 1902 the Federal Council abolished the local council, bringing the status of the Territory back to what it was in the beginning. In the words of Harrigan and Varlack:
    
    
    “The ‘legislature’ (in the person of the governor) had practically nothing of any real importance to the islands to legislate about and the function of the executive was the maintenance of law and order and the collection of taxes from miserably poor people” 

Sixth Constitution

37. For the first thirty years of the twentieth century, constitutionally the Virgin Islands went to sleep. Not until the 1930s did civic minded Virgin Islanders seriously begin to question the quality of governance in the presidency. Hope Stevens of New York, Tortola and Nevis had been travelling through the Caribbean promoting labour movements and awakening political consciousness. In the Virgin Islands he encouraged the formation of a Civic League, which attracted membership from among the progressive thinkers of the day - “Men like Howard Penn, Herman Abbott, Rufus DeCastro and David Fonseca” . 
    
    

38. The Civic League was backed by the British Virgin Islands Pro-Legislative Committee of America. Together they began to demand the reinstitution of an elected legislature and petitioned the Secretary of State for the Colonies to that effect. These stirrings were taking place at a time when practically every British colony in the Caribbean had experienced riots or other forms of insurrections short of armed conflict. As a result of those conflicts the West Indies Royal Commission under the chairmanship of Lord Moyne, was appointed in 1938 to investigate “what had gone so wrong in the British Caribbean colonies. In the Virgin Islands, we prepared a petition for them, to tell them what we wanted and raising our concerns about all the things we did not have” .
    
    

39. The Second World War placed the Moyne’s Commission recommendations on hold, but it was instrumental in paving the way for advanced constitutions in the colonies after the war. The war had also been beneficial to the Virgin Islands (Br.) in that activities in St. Thomas related to defences created opportunities for employment by a large number of Virgin Islanders (Br.)
    
    

40. The real impetus for addressing the issue of elected representation in the Virgin Islands arose out of the anguish felt by a fisherman from Anegada, Mr. T. H. Faulkner, who had come to Road Town with his wife who was approaching her time of delivery. While he awaited his wife’s delivery at the Peebles Hospital, an issue arose between himself and the medical doctor, which, it appears, he was unable to have resolved to his satisfaction and there was no representative of the people to whom he could make a complaint or have assistance in seeking redress. With no representative, he decided to take the matter directly to the people. Night after night he took to the rostrum in the market square in front of the administration building. He spoke to the issues that concerned him and the need for the people to have a say in the governance of the country. His public outcry resonated with the people as more and more persons gathered around to listen to his nightly lectures. Eventually there emerged a political groundswell which on the 24th. November, 1949 culminated in the largest political demonstration in the history of the Territory. The people, led by Faulkner, I. G. Fonseca and C. L. DeCastro, marched through the streets of Road Town to the office of the Commissioner, J. A. C. Cruikshank, where they presented a petition setting out grievances pertaining to the manner in which the presidency was being administered. The petition stated inter alia:
    
    “We are imbued with a desire to decide our local affairs our own selves. We have outgrown that undesirable stage where one official, or an official clique, makes decisions for us….We are seeking the privilege of deciding how our monies are spent and what shall be our Presidential laws and policies” .
    
    

41. As a result of the demonstration an announcement was made in February 1950 that Lord Baldwin, Governor of the Leeward Island Colony, appointed H. R. Penn to chair a committee to make recommendations for the establishment of a Legislative Council. Representatives from all the villages and out-islands were appointed to the committee by Commissioner Cruikshank. On the appointed day, all the membership met in the Methodist School, exchanged opinions, and based on the terms of reference recommended a Constitution similar to that of Montserrat. In July, 1950 the Virgin Islands Constitution Act was passed by the Leeward Islands Federal Legislature. The Legislative Council of the Virgin Islands, established thereby provided for eight members of whom two were ex-official members, two nominated members and four elected members. The Commissioner was to preside as President of the Legislative Council. 
    
    

42. Candidates for election were required to make a deposit, which they would lose if they failed to poll a certain percentage of votes. Adult suffrage based on a literacy test. For purposes of the election, the Territory was to be treated as one constituency. Most importantly, the Executive Council (policy decision making) was to include two of the four elected members. The General elections were held in November 1950. Nine candidates contested the election and 67.4% of the registered voters cast their ballots. 
    

Seventh Constitution

43. In 1953 Governor Sir Kenneth Blackburne appointed a second Constitutional Committee to further improve the Constitution. The meeting of this second Committee took place at the Anglican School. Again Mr. H. R. Penn was Chairman and Mr. McWelling Todman, a senior civil servant was secretary. The recommendations provided for five constituencies and six elected members, two members representing the Road Town constituency.
    
    

44. De-federation of the Leeward Islands Colony in 1956 to clear the way for the creation of the West Indies Federation, further empowered the local Legislature. The Presidency, by opting not to participate in the new federal state, was elevated to colony status, with greater legislative authority and a direct line to the Colonial Office in the United Kingdom. The title of Commissioner was now changed to Administrator. Under the reformed constitution, the two members elected by other elected members to the Executive Council, were given oversight for “trade and production” and “works and communication”. This was a small but important step on the road to ministerial responsibility.
    
    

45. An issue which constantly arose in general political discussions, was whether the Virgin Islands, both British and American, should be amalgamated as one territory under the United States of America.
    
    

46. This matter appeared to have been given serious consideration, particularly in the late 1950s and early 1960s when it was believed that discussions on the topic were taking place between London, Washington and even St. Thomas. In 1964 Nigel Fisher, Parliamentary Under-Secretary of State for the Colonies visited both the British and United States Virgin Islands. In discussions with members of the Legislature in the Virgin Islands (Br.), the impression must have been communicated that the people’s representatives did not favour such a merger at this time even though a plebiscite might well suggest such a desire. This position could have accounted for the official report in 1965, to the effect that the British Government had no intention of proposing any change in the status of the territory unless this is strongly requested by the people themselves.
    

Eighth Constitution

47. The sense that there was a growing dissatisfaction in the territory with Britain as a colonial master as compared with the United States of America, might have hit a nerve. This could have lead to the new proposals put forward by the Colonial Office in 1964 to pass responsibility for internal governance of the colony to representatives of the people in the form of a State Council, which would have both legislative and executive functions. The idea was rejected by the politicians as unfamiliar and lacking in British precedent.
    
    

48. As a way forward, Dr Mary Proudfoot was appointed in 1965 to review the constitution. After appropriate public consultation throughout the territory, she concluded that constitutional advancement to ensure elected members more initiative in the direction of the colony’s affairs was justified. Such progress was essential to laying a solid base for self-government. A conference was convened in London on 4 October 1966, with representatives from the Colonial Office and the Virgin Islands and agreement was reached on all the substantive issues as recommended in what became known as the “Proudfoot Report”.
    
    

49. Recommendations implemented from the report were an increase in elected representatives to the Legislative and Executive Councils respectively from six to seven and from three to four. Non-elected members in the Legislature were reduced from four to three and in the Executive Council from three to two.
    
    

50. The normal life of the Legislature was extended from three to four years. A ministerial system was introduced to provide for three ministers including a Chief Minister. The latter was to be appointed by the Administrator, as the elected member who, in the opinion of the Administrator, could best command a majority in the Legislature. The Chief Minister so appointed would advise the Administrator on the appointment or dismissal of the other two ministers.
    
    

51. The special responsibilities of the Administrator (after 1970 the Governor) were defence, and internal security, external affairs, the public service, the courts and for a time finance. Other matters were left to the control of Ministers and the Administrator had to seek and act on the advice of Executive Council. Provision was also made for election of a Speaker from outside the Legislature.
    
    

52. Recall that in 1867 the Virgin Islands Legislature, such as it was, passed an Ordinance by which all pretence of representative Government was brought to an end. “Crown Colony Government”, a system built on the “principles of legislative subordination to the executive and the subordination of the executive to the Crown” was put into place. One hundred years later to the month, Her Majesty’s Privy Council established The Virgin Islands Constitution Order (1967) - A new constitutional instrument that made for meaningful participation by the people in the executive authority of the country through the mechanism of the ministerial system. History has demonstrated that the desire for effective power sharing by politicians of the day was not to achieve ‘power over’, but ‘power for’ enabling economic empowerment of the people through the development of their country. The same is true of politicians today seeking constitutional change. 
    
    

53. In the general election of 1967, seventeen candidates were nominated for the seven available seats. A full slate of candidates were fielded by the United Party, five by the Democratic Party and five by the People’ Own Party. 3,645 persons were registered as voters and 71.36% cast their ballots on election day. The United Party won four of the constituencies with a total 1,094 votes. The Leader of the United Party having been defeated, H.L. Stoutt was selected as leader and appointed by the Administrator as the first Chief Minister of the Virgin Islands. 
    
    

54. To assume that an advance of constitutional authority will somehow create smooth sailing into the future, borders on naiveté. A dynamic struggle for power is the consistent pattern between the metropolitan ruler and the colony at each stage on the road to self-determination. In itself, this is not necessarily a bad thing, as it is the crucible in which statecraft is forged. 
    
    

55. The positive attitude shown by Her Majesty’s United Kingdom Government in granting a ministerial system of government to the Virgin Island Colony, did not initiate a long honeymoon period. This may have been the result of three factors. First, the lack of a clear majority by any of the parties contesting the 1971 election resulted in difficulties forming a Government. The Democratic Party, under the leadership of Dr. Q. W. Osborne, won three seats but needed a fourth in order to form the Government. To secure that seat he offered the office of Chief Minister to Mr. W. Wheatley who had run and won, as an independent candidate. 
    
    

56. Conflict arose between Wheatley and Osborne within the first year in office. Chief Minister Wheatley secured his own position by recruiting the sole winning candidate of the United Party, and then asked the Governor to revoke Osborne’s appointment as a minister of Government. In the second year, there was disagreement between the Chief Minister and Minister O. Cills who resigned but was persuaded to return, thus avoiding the fall of the government. These internal struggles within the government impacted on governance capacity.
    
    

57. The second difficulty arose out of the Wickham’s Cay and Anegada lease agreements. Former Administrator M. S. Staveley had imprudently issued Crown leases to a British Corporation for nearly two thirds of Anegada and a large area of the foreshore of Road Town, including the mangrove island of Wickham’s Cay. Public out-cry against this ‘giving away’ of the people’s heritage was focused through a pressure group; The Positive Action Movement, under the leadership of Noel Lloyd and Walter DeCastro. Pressure continued to mount on the government to have these leases rescinded. The new Governor Cudmore was not in a position to rescind the leases as compensation would be involved and the monies would have to come from the United Kingdom Government.
    
    

58. Third, a situation of increasing political unrest was further fuelled by the decision of Governor Cudmore, against the advice of the Executive Council, to commute the death sentence of a prisoner convicted of murder. In general, the Government’s internal squabbles, coupled with the people’s dissatisfaction over unreasonable leases and what was perceived as the reckless exercise of the prerogative of mercy, all resulted in focus on the Queen’s representative as a target of frustration. 
    
    

59. Two ministers of the Government joined with Positive Action in leading a public demonstration, supported by a petition, demanding the removal of Governor Cudmore. This was followed by the successful passage of a Resolution in the Legislative Council demanding the recall of the Governor. The Secretary of State for Foreign and Commonwealth Affairs rejected the Petition on the grounds that the Governor had acted within his legitimate authority. Ministers of Government then concluded the real problem was that the Governor had too much power. By a Resolution of the Legislative Council, a Constitutional Committee of the whole House, was established with the Speaker of the House (Honourable. H. R. Penn) as Chairman. 
    
    

60. Members of the Legislature were unable to agree on an approach for seeking the views of the people. Therefore, on 22 May 1973, a second Resolution was unanimously passed by the Legislature requesting the United Kingdom Government to appoint a Constitutional Commissioner to obtain the ideas from the people and to recommend a new Constitution for the Virgin Islands. The Secretary of State agreed and appointed: Sir Colville Deverell, KCMG, CVO, CBE from the U.K. and Mr. Harvey L. daCosta, CMG, QC, from Jamaica. The secretary to the Commission was a Mr. W.J. Dixon from the Foreign and Commonwealth Office.
    
    

61. The Commission under the Chairmanship of Sir Colville Deverell, visited the Virgin Islands and held well attended meetings throughout the Territory. They also received 31 memoranda from individuals, and one from the BVI United Party (which was actually signed by Chief Minister W.W. Wheatley, Minister Conrad Maduro, Minister Oliver Cills and Member for Second District, Austin Henley). The Commission reported on 20 December, 1973 to the Secretary of State for Foreign and Commonwealth Affairs.
    
    

62. A number of recommendations were made that addressed concerns expressed by the people. One of the most innovative was for four members of the Legislative Council to be elected at large (by the Territory as a whole). Single member constituency representation was increased from seven to eight to enable the constituency of Virgin Gorda / Anegada to be represented by two candidates. This Commission also recommended the entrenchment of a Bill of Rights in the Constitution.
    
    

63. The Government of the day did not favour the introduction of at-large representation in the Legislature, and as a result rejected the Report. Under Chief Minister Wheatley they advanced their own proposal for constitutional change. These were debated and passed but only with a majority of one. It did not meet with support from the Opposition led by Hon. H. L. Stoutt. Nothing further developed from this. A second proposal was again brought to the Legislature for debate on the 3rd. July, 1975, the very day the Legislative Council was being dissolved. Again it was only supported from the Government side of the House and was not further pursued.
    

Ninth Constitution

64. The 1975 General Elections did not produce a clear majority for any party and the loyalties, which appeared to have existed prior to and in the course of the election campaign, fell apart in the aftermath. Mr. W.W Wheatley again emerged as Chief Minister, but with a different team. 
    
    

65. At the very first meeting of the Legislative Council on 30th April, 1976, a Resolution was brought to the Legislature with proposals for amendments to the Virgin Islands Constitution Order 1967 as amended.
    
    

66. The proposed amendments included all the recommendations of the Deverell / Costa Commission, with the only notable exceptions being provision for at-large representation in the Legislature and the entrenchment of a ‘Bill of Rights’.
    

The Resolution asked for:

• Finance to be the responsibility of a Minister and as a consequence, the Financial Secretary should cease to be a member of the Executive and Legislative Councils;
  

• The Governor to consult with the Chief Minister on the exercise of his remaining reserve powers;
  

• The Governor, before exercising the prerogative of mercy, to consult with an Advisory Committee consisting of the Attorney General, the Chief Medical Officer and four other members appointed by the Governor after consultation with the Chief Minister;
  

• The title of the post Chief Secretary to be changed to that of Deputy Governor;
  

• Chief Minister to be appointed by the Governor on the recommendation of the elected members of the majority Party in the Legislative Council; if there is no majority Party, the Governor will appoint the member who in his judgement is best able to command a majority;
  

• Provisions to be made for the appointment of a Deputy Chief Minister and an Acting Chief Minister whenever the Chief Minister is absent from the Virgin Islands or is otherwise absent from duty for a period of 48 hours or more;
  

• Increase in the number of elected members from seven to nine to be elected in single member constituencies; and the removal of the provision for a nominated member;
  

• Entitlement to be registered as a voter to be lowered from twenty-one to eighteen;
  

• Provision for the removal of the Speaker (or Deputy Speaker) from office if six or more elected members of the Legislature vote in favour of a Resolution calling for their removal;
  

• Chief Minister to be consulted by the Governor prior to an appointment of a Permanent Secretary or Head of a Department;
  

• Provision to be made for the appointment of a leader of the Opposition.

67. The usual procedure to secure such constitutional changes entail the Secretary of State for Foreign and Commonwealth Affairs inviting a delegation to London for talks on the issues and amendments being sought.
    
    

68. In this instance all the issues were resolved through correspondence, which in itself was an expression of confidence in the growing political maturity of the Territory. The changes were so significant that instead of just providing for amendments, a whole new Virgin Islands (Constitution) Order 1976 was prepared. These constitutional advancements substantially opened the way for the indigenous political leadership of the Territory to shape its course for the future. The General Election of 1979 was held under the new constitution, with the Virgin Islands Party gaining the majority and Mr. H. L. Stoutt being appointed Chief Minister for the second time.
    

Impact of Constitutional Change on Economic Growth and Development. 

69. Over the twenty five years after the introduction of the ministerial system, our political leadership, while in the process of their own maturation, were able to demonstrate the effective use of power in lightening the darkness in areas of education, health and generally to create an infrastructural base for giant strides in the economic development of the Territory. The Herculean leaps made by the Territory is best evidenced in the statistical data.
    
    

70. A population growth, stagnant for one hundred (100) years, suddenly took-off in the 1970s’ and grew at a substantial pace over the next twenty (20) years. The growth was not from a sudden increase of births and an absence of deaths. It was the result of an increase in the demand for a labour force, with the range of skills necessary to sustain the expanding increase in economic activities, mainly in tourism, construction, financial services, transportation and communication. The increase was specifically associated with inflow of labour, not only from the Caribbean, but also the United States and Europe.
    

Population Size and Growth, Census Years 1871 to 1991

     
  
The economic activity sectors are highly indicative of rapid growth in the areas already identified.

The second table of data shows sectoral activities which became involved in driving the economy.

British Virgin Islands Gross Domestic Product by Economic Activity at Factor Cost (US$ Million)

Economic Activity Sector	1984	1985	1986	1987	1988	1989
Agriculture	3.56	3.66	3.73	4.35	4.40	4.76
Mining and Quarrying	0.11	0.16	0.16	0.21	0.24	0.30
Manufacturing	2.27	2.31	2.87	3.45	3.73	4.30
Electricity and Water	2.68	2.87	3.60	4.10	4.78	5.21
Construction	6.83	5.91	5.43	6.53	7.34	9.45
Wholesale and Retail Distribution	6.48	6.61	7.17	7.56	8.06	11.20
Hotels and Restaurants	16.76	18.0	18.97	24.63	26.14	28.25
Transportation and Communication	7.73	8.70	9.74	12.28	14.41	21.28
Banks and Insurance	5.49	5.94	6.25	7.30	8.20	10.63
Real Estate and Housing	15.26	16.50	17.29	18.72	19.32	20.58
Government Services	11.28	10.25	11.82	12.91	17.79	19.00
Other Services	4.61	4.70	4.82	6.00	6.29	6.50
Less Imputed Service Charge	5.16	5.21	5.27	6.52	7.18	9.01
G.D.P at Factor Cost	77.90	80.40	86.58	101.52	113.45	132.45
Growth Rate	-	3.2	7.7	17.3	11.8
Source: BVI National Accounts Statistics, 1984-1989

The third table which further extends the data in terms of the Gross National Product, evidences the sustained trend of the Territory’s growth and development leading to an enhanced quality of life for the people of this community. The Virgin Islands is a classic example of the use of power for the good of the people.

GROSS NATIONAL PRODUCT
MILL OF US DOLLARS

	1988	1989	1990	1991	1992	1993	1994	1995	1996
GDP in purchasers' value	204.71	245.42	279.31	287.84	280.53	421.64	434.20	479.15	511.20
Net Factor payments from the rest of the world	-21.99	-24.49	-26.24	-26.59	-28.83	-40.1	-48.05	-45.4	-50.24
Gross National Product
(GNP) in purchasers' values	182.72	220.93	253.07	261.25	251.70	381.54	386.15	433.75	460.96

Tenth Constitution

71. The Constitutional Review requested by way of a Resolution in the Legislative Council on 27 November, 1992 did not arise out of any immediate crisis seeking a solution in an advanced constitutional instrument. It was merely a feeling that the time was ripe for a further review.
    
    The Commissioners appointed in July 1993 were: 
    Mr. Walter Wallace (Chairman), 
    Hon. Dr. Howard Fergus and 
    Mr. Alford Penn. 
    
    

72. With the exception of Dr. H. Fergus, from our sister territory of Montserrat, the other two Commissioners were well known in the Virgin Islands. Mr. Wallace was a former governor of the Virgin Islands who had since been involved at the Foreign and Commonwealth Office in matters pertaining to the Territories. Mr. Alford Penn, a Virgin Islander, had held the post of Deputy Governor for many years.
    
    

73. The review was conducted in the Virgin Islands between 1 November and 3 December, 1993. There were twelve public meetings, a number of private interviews and forty five written submissions. The Commission’s Report was submitted on 3 December, 1993 to the Secretary of State for Foreign and Commonwealth Affairs.
    
    

74. Except for a few substantial issues identified below, the Report may be viewed as primarily recommendations for the ‘tidying up’ of the Constitution. The more substantive recommendations were:

• Expanding the elected membership of the Legislative Council by the addition of four representatives to be elected at-large;
  

• Entrenchment of a ‘Bill of Rights’ in the Constitution;
  

• Provision for a public register of interest;
  

• Provision for an Ombudsman;
  

• Abolition of proxy voting;
  

• Provision for referendum on constitutional change

75. Most of the recommendations made in the Report were dealt with in The Virgin Islands (Constitution) (Amendment) Order 2000. It is significant that even though it was the second time that a recommendation for entrenchment of a ‘Bill of Rights’ had been made, this is yet to be done.
    
    

76. The most controversial recommendation was that of representatives elected at-large. The Government of the day was totally against the introduction of this system. The same issue had resulted in a circuitous route in dealing with the recommendations of the Deverell / Costa Report. On this issue alone a request was made for a delegation to London for discussions. The Foreign and Commonwealth Office issued a direct invitation to the then Leader of the Opposition (Hon. E. W. Brewley) to participate in the discussions and the recommendation of the Commission prevailed. 
    
    

77. It might be noted with some amusement, that had there been no provision for at-large representations, the incumbent political party might have lost the 1995 General Elections. Subsequent General Elections (1999 and 2003) have demonstrated the truth of the reasoning of both the Deverell / Costa and the Wallace / Fergus / Penn Commissions. The field of candidates has broadened and quality of debates in the Legislature has improved.
    

Conclusion

78. The issues that challenge the Virgin Islands in the new millennium will be significantly different from those of the past. The big question is how does a micro-territory position itself in a new global setting to continue to provide its people with an enhanced quality of life and at the same time maintain a posture of dignity and cultural identity. It will not be possible to address this question until Virgin Islanders are prepared to deal with the ‘bogeyman’.
    
    

79. The Wallace / Fergus / Penn commission stated that ‘independence’ was not in any way an issue and that there were those who asked them “to tell the Queen that we are satisfied”. Nevertheless, that commission was “encouraged to learn that there were those in the community who believe that the BVI should properly aspire to nationhood”. The said commission commended “their vision of the future”, and went on to state, “there is nothing inevitable about independence, nor can it come like a thief in the night.” It recommended that the cost, obligations, and liabilities of independence should be assessed and the findings made public. It is understood that such a report has been completed in draft by a committee chaired by Mr. Douglas Wheatley.
    
    

80. It is precisely from this point that we are able to make the connection with the task that the present Constitutional Commission has been asked to undertake. Of the seven special items, which the 2004 Commission is to consider, not one addresses the question of ‘independence’. What may be intended by this constitutional review then, is the achievement of greater breath and depth in constitutional authority further enabling the people of the Virgin Islands the means to pursue their social and economic aspirations. However, this objective is being sought at the very time when British sovereignty in breath and depth is being eroded by European integration and internationally by treaty obligations, some of which have been demonstrated to be against the best interest of the Virgin Islands. Nowhere has this been better stated than in the words of our former Deputy Governor, Mr. Elton Georges, CMG, OBE. 
    
    “The major point of contention remains the view of the Territories that while imposition by HMG of requirements under international law is recognized as a genuine responsibility, Britain should not impose obligations of non-legally binding ‘political’ agreements into which it enters such as those within the OECD and the European Union. This applies especially when the Territories consider the application of these agreements to be against their interest. Britain lumps such agreements (into which it enters without consultation with the Territories) with others such as internationally recognized UN Security Council resolutions calling them all ‘Britain’s international commitments’ and positing a responsibility on the part of the Territories to observe them” 
    

81. It is not unfair for Britain to expect that the Territories should not indulge in activities that put at risk the welfare of the United Kingdom, including discharging its international obligations, and that Britain would want to retain the Constitutional authority to deal with such matters should they arise. However, as far as is legally possible, these circumstances and eventualities should be clearly defined and not bundled in miscellaneous wrappings.
    
    

82. Political leaders, pressed by their constituents will continue to seek greater and greater authority to deliver more to their people`. Dr. Isaac Dookhan has made the following observation.
    
    “The history of the British Virgin Islands in the twentieth century has demonstrated the importance of legislative government in achieving progress. When the islands were more or less under external control before 1950, economic growth was negligible; thereafter, the restoration of a legislature enabling greater local participation in directing local affairs has been followed by rapid economic expansion. As such, therefore, the strengthening of the political machinery by permitting more self-government seems imperative if greater prosperity and eventually complete economic self-sufficiency are to be achieved.” 
    
    

83. The political leaders of the Overseas Territories have but one well from which to draw additional constitutional authority; that well is Britain. The Territories should not be made to be apprehensive by the ‘bogeyman’ threat of ‘independence’. To use the same old Virgin Islands saying used by our former Deputy Governor at the Wilton Park Conference: a partnership is a leaky ship. However, a true spirit of Partnership for Progress and Prosperity must take into consideration the very real dangers that would be faced by micro-state entities seeking to cope in a global setting in which the nation state itself is of diminishing global significance. The Commission is of the view that the new global reality requires creative relationships beyond that of the former ‘official colonial mind’, which conceived of a linear progress from colony to nation-state. Novel relationships have to be explored that provide for the political aspirations of a people within a dignified setting other than being coerced into adopting a national status that is both unrealistic and unsustainable. 

CHAPTER 2

Terms of Reference and the Conduct of the Review

1. This a locally appointed constitutional review commission, (apparently the first since 1953), and the largest, in terms of membership, in the history of the Virgin Islands. It has come about as a direct result of the decision by Her Majesty’s Government in the United Kingdom, to invite each of its Overseas Territories (“OTs”) to appoint a local commission to review and make recommendations for changes to and advancement of their respective constitutions; itself a first. Although the decision was taken in 2001 and commissions were appointed and at work in several of the BOTs, it was not until 2004 that this invitation was acted upon in the Virgin Islands.
   
   

2. The decision to appoint a Commission to review the Constitution and approval of its membership, was made by Executive Council on 11th February 2004. Letters of appointment were issued by the Governor on 13th April 2004, after the primary administrative and other arrangements for the working of the Commission had been put in place by the Office of the Chief Minister. These arrangements included funding and the rental of suitable office premises for the Commission. 
   
   

3. The members of the Commission, drawn from a cross-section of the Virgin Islands community and consisting of persons of various disciplines, educational backgrounds and experience, are-
   
   Gerard St. C Farara Q.C. – Chairman
   Stuart Donovan 
   Vance Lewis
   Audley Maduro
   Carvin Malone
   Edison O’Neal
   Elihu Rhymer
   Joanne Williams-Roberts
   Persia Stoutt
   
   The secretary pro tem to the Commission was Mrs. Tashi Maduro (nee O’ Flaherty). The substantive secretary, Miss Kimberly Crabbe, joined the Commission as from 7th June, 2004.
   

4. The Commission was publicly launched by The Hon. Dr. D. Orlando Smith, Chief Minister, at a press conference held at the Chief Minister’s Conference Room on 26th April, 2004 at which remarks were made by the Chief Minister and the Chairman of the Commission, and questions from the media entertained.
   
   

5. In his presentation, the Chief Minister referred to the Review as “the single most important event to take place in this Territory and certainly in the life of this administration.” He urged residents not to take it lightly as the Review has implications not just for their future, but that of their children. As regards the Constitution itself, the Chief Minister announced that copies of the document would be made available to every primary and secondary school in the Territory, as well as the general public. He challenged every Virgin Islander to read and familiarize themselves with the Constitution. He expressed a desire for the Constitution and its review to be “discussed at dinner tables and in churches…the Halls of Government…at the taxi stands and in the hotels, the business offices and on the piers.” He charged the Commission and the public, when addressing their minds to changes to the Constitution, to not confine their thinking to the short term, but rather to consider where the Territory ought to be in the next 20 years. 
   
   

6. In his remarks, the Chairman emphasized that the Review requires the full participation of the public if it is to be meaningful. In appealing for the active, informed and constructive participation of the public, through the various avenues to be made available to them for expression of their will and recommendations, the Chairman opined- “A constitution must be reflective of the level of development of the country and the aspirations of its people.” The public was urged to acquaint themselves with the Terms of Reference and the Constitution, including recent amendments.
   
   

7. The Terms of Reference of the Commission are:-
   
   To conduct a review of the Virgin Islands (Constitution) Order 1967 (UK SI No. 2145) with a view to ensuring the British Virgin Islands’ continued advancement and good governance and, in particular, to review the following: 

1. The duties of the Attorney General as the chief legal adviser to the Government and also as public prosecutor, with a view to separating those duties and reposing the function of public prosecutor in a Director of Public Prosecutions. 
   

2. The provision for a clear definition of “a Belonger”, in particular persons who may be deemed to belong to the British Virgin Islands, but who may not enjoy BOTC status under the British Nationality Act 1981, with the entitlement to a passport that such status offers; 
   

3. The protection of the rights and privileges of the indigenous people of the British Virgin Islands, by limiting the ability of non-indigenous persons to hold elected office.; 
   

4. The introduction of a sixth ministerial position in light of the increase in the size of the Government and the need to ensure greater efficiency and productivity; 
   

5. The need for a human rights chapter in the Constitution;
   

6.  Having regard to the reserve powers of the Governor, to consider the feasibility of scaling down those powers and establishing a viable system of checks and balance to ensure continued good governance; and 
   

7. Considering the existing system relating to the functioning of the Executive Council, to provide a critical analysis on the feasibility of establishing a cabinet system of government for the British Virgin Islands. 

8. The Commission was required to submit a first draft of its Report within nine months of appointment, and the final report within one year. However, by January 2005, the Commission was still facilitating public consultation. An extension to 28th February 2005, requested by the Commission to submit its draft Report, was approved by Executive Council on 19 January, 2005. The final Report has been submitted within the stipulated period.
   
   

9. It is to be observed that the Terms of Reference calls for a review of the entire Constitution, in addition to the seven specific issues which Executive Council identified for particular treatment. It is on this basis that the Commission set about and conducted the Review.
   
   

10. The Commission’s first meeting was held on 23rd April, 2004, within a week of its appointment, and some days prior to the formal launching ceremony. 
    
    

11. The Review was conducted on the basis of public consultations which consisted of public meetings, radio and television programmes, including call-in programmes, written submissions from the public and others, and meetings with certain functionaries and groups by invitation. Of course, the Commission held its own regular meetings. 
    
    

12. Prior to the appointment of the Commission, there was no initiative undertaken to inform, educate or sensitize the public in general either as to the Constitution itself or the process of a review. In the Commission’s view, this made the Review and, hence, its task a more onerous one, although the Commission did not allow this to adversely affect the conduct of the Review.
    
    

13. Accordingly, the Commission recognized from the beginning of the Review, that it would be necessary for the Commission itself, as part of the Review process, to embark upon a programme aimed at educating and informing the public generally regarding the present constitutional status of the Territory, the more salient provisions of the Constitutional Order, the organization and inter-relation of the three branches of government, and some elements of constitutional theory and practice. In short, to acquaint the public with the Constitution so as to engender informed and constructive contributions and recommendations. 
    
    

14. Another objective of this aspect of the exercise, was to regularly publicize the Review so as to engender active participation by a wide cross-section of the public. This led, with the co-operation and facilitation of the broadcast media and the respective programme hosts, to multiple appearances by Commission members on many of the popular radio and television call-in programmes. In this regard, the Commission is indebted to Mr. Cromwell Smith the host of “Umoja” who, for a period of several months, dedicated this programme, every other week, to one or more of the Terms of Reference in the Review. We are also indebted to our own Commission member, Mr. Elihu Rhymer, who dedicated many of the “Hot Seat” programmes to issues, the subject of the Review. We are also gratified by the assistance received from the Government Information Service (GIS) for the use of the television programme “Public Eye”, as a forum for promoting the Review, and solicitation of views and recommendations from the public. In all, Commissioners appeared on at least fifteen radio and two television programmes.
    
    

15. The Commission held ten public meetings throughout Tortola (including two in Road Town and one at the H. Lavity Stoutt Community College), two on Virgin Gorda, and one each on Anegada and Jost Van Dyke. The Commission also traveled to St. Thomas in the United States Virgin Islands, and met with Virgin Islanders at a meeting hosted by the League of Virgin Islanders there. A total of fifteen public meetings were held by the Commission. Attendance at these meetings ranged from 10 in Sea Cows Bay to 106 at our “mass” public meeting at the Sir Rupert Briercliffe Hall in Road Town on 20th January, 2005. The panellists for the latter meeting included the Chief Minister, the Leader of the Opposition, the immediate past Deputy Governor Mr. Elton Georges, and noted Virgin Islands’ writers, Miss Eugenia O’Neal and Mrs. Medita Wheatley. Apart from this meeting, the highest attendance at any other public meeting was 63, at the first meeting on Virgin Gorda; an excellent turn out for such a relatively small community.
    
    

16. Regardless of the level of attendance at a public meeting, the Commission was pleased (and in some instances pleasantly surprised) with the level of participation by those attending and, in particular, the quality of the views and recommendations voiced. This made each such consultation meaningful and constructive to the Review. The usual format for such meetings (and one which the Commission found worked quite well with necessary modifications from time to time), included a short overview of the nature of the Review by the Chairman, followed by a presentation by a Commissioner on one of the seven specific issues in the Terms of Reference (which had been previously assigned to them) and, in each instance, by reaction and proposals from the audience. 
    
    

17. The public were invited to speak, not just to the seven specific issues in the Terms of Reference, but to any matter related to the Constitution which they were concerned about and wished to advocate for change. Many individuals did avail themselves of this opportunity. The Commission also raised certain issues with the public. It is fair to say that any member of the public (be they Belonger or not), who indicated a desire to speak, were afforded an opportunity to do so. Several of the public meetings ran until almost mid-night.
    
    

18. Many persons present at the public meetings expressed, openly or privately, their gratitude to the Commission for the opportunity afforded them to participate in this important process, and for the perceived ‘benefit’ derived by them from the information imparted during, and the manner in which the meeting itself was conducted. It was not unusual for such gratitude to be expressed by vigorous applause for the Commission at the conclusion of such meetings. We say this not to heap praise upon the Commission and its members, but to indicate the feeling of pride which persons do experience when they are consulted, in a meaningful and timely way, on issues of importance to them, their families, their communities, and to the country at large, making them feel an important part of the ‘democratic’ process.
    
    

19. Having said that, there is one aspect of the conduct of the Review with which the Commission was somewhat disappointed. This relates to the number of persons availing themselves of the invitation extended to the public by the Commission, to either meet with or make written submissions/recommendations to the Commission. The invitation was first issued by the Chairman at the official launching of the Commission and the Review, and repeated many times thereafter via radio, television, at press conferences and at the public meetings. The Commission received some 13 written submissions, including from the Hon. Attorney General, the Chief Auditor and the out-going Chairman of the Civil Service Association. However, no member of the public took up our invitation to meet with the Commission. As a locally appointed Constitutional Review Commission, this is somewhat remarkable.
    
    

20. However, several functionaries did meet with the Commission in response to our specific invitation. Most notably, His Excellency the Governor Thomas Macan, who gave the Commission the benefit of his frank views and valuable insight into the workings of the executive branch of government. His Excellency also accompanied, Mr. Bill Rammell, MP, Undersecretary of State in the Government of the United Kingdom, when he met with the Commission. The Hon. Cherno Jallow, Attorney General, made himself available to the Commission on two separate occasions, and gave us the benefit of his views and insights on a range of constitutional issues, particularly the first specific issue in the Terms of Reference (whether a constitutional office of DPP). He also presented written submissions which the Commission found most useful.
    
    

21. We also wish, in this context, to record the Commission’s appreciation to the ‘top brass’ of the Royal Virgin Islands Police Force, led by acting Commissioner of Police Reynell Frazer, for meeting with the Commission and assisting us with the issue of whether Internal Security and the Police Force, in particular, ought to be removed as one of the Governor’s ‘special responsibilities’ under section 19 of the Constitution. Likewise, we are most appreciative of the very helpful views canvassed at the Commission’s two meetings with the ‘Top Managers’ of the Public Service led by the Deputy Governor Mrs. Dancia Penn Q.C., particularly on the question of whether responsibility for the Civil Service ought similarly to be removed as one of the Governor’s special responsibilities.
    
    

22. The Commission also held discussions with Mr. Michael Bradley, the United Kingdom’s Constitutional Adviser to the Overseas Territories, and with Professor Ralph Carnegie, a leading lecturer, constitutional scholar and the Executive Director of the Caribbean Law Institute Centre at the University of the West Indies, who met with us in his capacity as a consultant to the Organisation of Eastern Caribbean States (OECS). 
    
    

23. Of great significance, is the Commission’s meeting with the Members of the Legislative Council at the office of the Council on 20th December, 2004. This meeting, lasting some six continuous hours, was attended by the Speaker, the Chief Minister, all other Ministers of Government, the Leader of the Opposition and most other sitting Members. It was a useful meeting particularly since Members of the Council had been holding their own meetings together on the Terms of Reference, resulting in substantial unanimity of position on most of the specific issues. This meeting afforded Members of the Legislative Council the opportunity for an exchange of views and testing of positions with the Commission. The end result was the submission to the Commission on 2nd January 2005 of a ‘Position Paper’, emanating from the Members of the Council. Because of its obvious importance, a copy of this document is Appendix 2 to this Report. The Commission found the Position Paper most useful and was in accord with many of the recommendations expressed therein. However, the Commission was unable to agree with some of the specific recommendations and, in some instances, with the justifications or premise for certain of the conclusions, for the reasons stated elsewhere in this Report.
    
    

24. The Commission has met and deliberated no fewer than 55 times. Meetings have been held almost every week since its appointment, at times twice a week, often with added public appearances during such weeks. The exercise has been one which the Commissioners will remember, if not cherish, for the rest of their individual lives. It represented a ‘signal’ opportunity, to participate, at a high level in an exercise of this nature, which can be so important to constitutional advancement, nation building, and the strengthening of our democratic institutions and the rule of law. For some Commissioners it represented a ‘steep’ learning curve, as far as acquainting themselves with the provisions of the present Constitution, with the constitutions of other countries be they other BOTs or independent states, and an ever increasing body of reference material gathered for the conduct of the Review. 
    
    

25. In its deliberations, the Commission, in addition to examining the Virgin Islands (Constitution) Order 1976 and the amendments thereto, considered the constitutions of several other countries and territories, the previous two constitutional commissioners’ reports, other locally produced reports such as the 1997 Report of the Committee to Re-define Belonger Status, and relevant local legislation.
    
    

26. This Review was conducted against the backdrop of the 1999 U.K. Government’s White Paper on Partnership for Progress and Prosperity, which is intended to usher in a new approach in the relationship between Britain and its Overseas Territories. It lays out, for the first time, the principles which are to underlie and govern that relationship. This ‘modern partnership’ is to be rooted in four fundamental principles, which bear repeating here. They are:-

• self-determination;
  

• mutual obligations and responsibilities;
  

• freedom for the territories to run their own affairs to the greatest degree possible;
  

• a firm commitment for the UK to help the territories develop economically and to assist them in emergencies.

27. At the core of this initiative by Britain is ‘modernization’ to meet and conform with its new international role and obligations, “recasting the constitutional settlement to bring power close to people”, while upholding the right of the individual territories “to determine their own future and enjoy a high degree of autonomy.” It is against this ‘new approach’ that Britain embarked upon a deliberate process whereby each Overseas Territory was invited to review its constitution. These constitutional reviews are to reflect “a balancing of obligations and expectations.” The matters which are to be addressed include-

•  Measures promoting more open, transparent and accountable government;
  

• Improvements to the composition of legislatures and their operation; 
  

• Improving the effectiveness, efficiency, accountability and impartiality of the public service;
  

• The role of Overseas Territory Ministers and Executive Councils and their exercise of collective responsibility for government policy and decisions;
  

• Respect for the rule of law and the constitution; 
  

• The promotion of representative and participative government;
  

• Freedom of speech and information;
  

• The provision of high standards of justice;
  

• Adoption of modern standards of respect of human rights. 

28. The Commission is indebted to all those who responded, usually with promptitude, to our requests for copies of documents and various other material. We are also most grateful to those members of the public who accepted our invitation to be panellists at the two public meetings where that format was used, and for the encouragement extended by members of the public to the Commissioners, individually and collectively.
    
    

29. Of course, as a Commission we must record our profound gratitude to those two pleasant and extremely hardworking young ladies, Tashi Maduro and Kimberly Crabbe, who served at various times as Secretary to the Commission. Their invaluable work kept the Commission on track with the progress of the Review, enabling our various meetings to be properly organized and to run in a smooth and productive manner. The unenviable exercise of producing accurate minutes of what was said at the various meetings of the Commission, which have been many, was quite a Herculean task in itself, but one which was essential to the proper functioning and meaningful deliberations of the Commission and, ultimately, the preparation and finalization of this Report, itself a time-consuming exercise, which was ably and conscientiously carried out by Miss Crabbe. 
    
    

30. We also record our gratitude to the staff of the Government Information Service (“GIS”) who assisted the Commission in many ways, including promoting and recording all our public meetings, and the publication of notices and advertisements in the local media. 
    
    

31. The Commission also records our profound appreciation to all those who attended the public meetings or took part in the discussions, whether in person or via the broadcast media. We have listened attentively to all that has been said to us and sought, by our many questions and comments, to test ideas and recommendations. We feel certain that the Commission has accurately distilled and analyzed the body of opinions on the various issues in the Terms of Reference, and has discerned a consensus where such existed, on any particular issue. In so doing, we have attempted to reflect any such consensus, majority or minority, in the Report. We assure you all that the Commission has taken account of and given due weight to your individual views and submissions in coming to our recommendations, as set out in this Report. 
    
    

32. After the draft report was submitted to the Governor for distribution to the members of the Executive Council, the Commission received a letter dated 11 March 2005 from the Governor with his comments and a detailed letter dated 17 March 2005 from the Attorney General with his comments and advice. The Commission considered both letters at its meetings on 30 March 2005 and 4 April 2005, as part of its deliberations leading to the finalization of the Report in accordance with the Terms of Reference. 
    

CHAPTER 3

Separation of the duties of the Attorney General

ISSUE NO. 1 The duties of the Attorney General as the chief legal adviser to the Government and as public prosecutor, with a view to separating those duties and reposing the function of public prosecutor in a Director of Public Prosecutions.

1. This is the first of seven specific Issues which the Commission is charged by the Terms of Reference to consider. It involves a close and critical examination of the various roles, constitutional and functional, which the Attorney General of the Virgin Islands is required to execute. The core question is whether the ‘post’ of Director of Public Prosecutions within the Attorney General’s Chambers, having finally been filled in 2004, ought to be separated out and made a constitutional office with the entrenchment and constitutional protection necessary to ensure its independence, as is currently applicable to the Attorney General as the chief public prosecutor. In considering this question, it is important to bear in mind that the overriding objective of the Commission in the conduct of the Review is to consider meaningful recommendations; change not just for the sake of change, but with a view to ensuring the “continued advancement and good governance” of the Virgin Islands.
   
   

2. This Issue is one of some vintage. It was addressed during the 1993 constitutional review. The 1993 Report recorded suggestions at that time by persons in the community, that constitutional provision should be made for the post of Director of Public Prosecutions, in whom would be vested the Attorney General’s powers relating to prosecutions under section 24(1) of the Constitution. The then commissioners observed that the suggestion was based on the Attorney General’s close association with the Executive Council, and on the need for more prosecutions to be handled by legally qualified staff, rather than by the police.
   
   

3. The 1993 commissioners were of the view that it is “only when the post of Attorney General is filled by a political appointee that it becomes essential to transfer the authority to prosecute to a public officer such as a Director of Public Prosecutions” Having concluded that there was no compelling need to make that fundamental change in the Virgin Islands at the time, the commissioners declined to recommend the inclusion in the Constitution of the post of Director of Public Prosecutions. In doing so, they were satisfied that the existing level of staffing in the Attorney General’s Chambers, with the then recently created post of Director of Public Prosecutions and four Crown Counsel, ought to be sufficient to ensure that prosecution of the more serious criminal cases is undertaken by legally qualified prosecutors. 
   
   

4. However, it was not until the year 2004, that the post of Director of Public Prosecutions (without constitutional authority) was filled. Thus, in large measure, the prosecutorial functions of the Attorney General have been separated out and are being discharged by a Director of Public Prosecutions, although the Attorney General continues to be constitutionally responsible for such functions, and continues to enjoy, ex officio, the necessary protection from interference by other functionaries when discharging such duties.
   
   

5. The professional staff at the Attorney General’s Chambers has grown from four Crown Counsel in 1993 to some twelve Crown Counsel today (excluding the Director of Public Prosecutions, Parliamentary Counsel and Assistant Parliamentary Counsel). In addition, there are three other posts to be filled, bringing the total number of posts for Crown Counsel in the Chambers to approximately fifteen. Of these lawyers, some four are assigned to the prosecution of criminal offences, and two of the unfilled posts are also so designated. When fully staffed, this would bring the complement of prosecutors to seven including the Director of Public Prosecutions. 
   
   

6. The Constitution does not create the office of or provide for there to be an “Attorney General” of the Virgin Islands, as it does for the office of Governor (section 3(1)), Deputy Governor (section 4(1)) and Auditor (section 66(1)). However, it is a “Public Office” within the meaning of section 2(1) of the Constitution, “being an office of emoluments within the Public Service”. Further, the office of Attorney General is one of the offices prescribed in section 65(5) of the Constitution to be specifically remunerated. Appointments to the office of Attorney General is by the Governor in consultation with the Judicial and Legal Service Commission and, by convention, with the approval of the Secretary of State. By virtue of the Constitution, the Attorney General is a member of the Executive and Legislative branches of government, and the chief public prosecutor of the Crown. 
   
   

7. As is readily apparent, the Attorney General wears many hats, some prescribed by the Constitution and others by virtue of the office or as prescribed by legislation. By virtue of the Constitution he is a member of Executive Council (section 14), an ex officio member of the Legislative Council (section 26) and, chief prosecutor - being the office which has sole authority to institute, take over and discontinue criminal proceedings. By section 24, the prosecutorial powers are vested in the Attorney General to the exclusion, and is not subject to the direction or control, of any other person or authority. Furthermore, the Attorney General is a member of the Mercy Committee (section 11), and is one of three categories of persons with standing to petition the High Court to determine whether any person has been validly elected to the Legislative Council or has vacated his seat therein (section 49). Additionally, the Attorney General is the chief legal adviser to the Government, including the Governor and Executive Council, chief legislative draftsman, legal adviser to the Legislative Council and, at times, to the members in the Opposition. By virtue of his position as principal legal adviser of the Crown, and by English legal tradition, the Attorney is an officer of the court and titular head of the Bar.
   
   

8. In the conduct of the Review, the Commission received submissions and different points of view regarding this Issue from a large number of persons. These included the Governor, the Members of the Legislative Council, the incumbent Attorney General, the Auditor, other public officers and, of course, the general public.
   

Recommendations by Members of the Legislative Council

9. In their Position Paper, the Members of the Legislative Council took the position that there should be a Minister with responsibility for matters of justice and “for any other subjects assigned to him by the Chief Minister”, whether styled “Minister of Legal Affairs”, “Minister of Justice” or “Minister of Home Affairs”. In making this recommendation, Members of the Legislative Council support the creation of a constitutional office of Director of Public Prosecutions (“DPP”) with the transfer to that office of all the powers and protections in section 24. The DPP would be appointed through the Judicial and Legal Service Commission process. Members of the Legislative Council also recommend that the Attorney General be accountable to the Minis