People of the Virgin Islands, I am making this statement in my capacity as Speaker of the House of Assembly of the Virgin Islands and Head of the Legislative branch in reference to the continued delay and refusal of the Office of the Governor and the Secretary of State, the Right Honourable Dominic Raab’s refusal to assent to the following bills, which were duly passed in the House of Assembly:
- Drugs (Prevention of Misuse) (Amendment) Act; and
- Disaster Management Act, 2021
It is important to note that our Constitution was as a result of the joint effort between our representatives and the United Kingdom. It is an order in council which was laid before the Parliament of the United Kingdom on June 14th, 2007 and came into force on June 15th 2007. Therein, the United Kingdom acknowledged, and in part stated the following:
“1. Acknowledging that the society of the Virgin Islands is based upon certain moral, spiritual and democratic values including a belief in God, the dignity of the human person, the freedom of the individual and respect for fundamental rights and freedoms and the rule of law;
2. Accepting that the Virgin Islands should be governed based on adherence to well-established democratic principles and institutions;
3. Noting that the United Kingdom, the administering power for the time being, has articulated a desire to enter into a modern partnership with the Virgin Islands based on the principles of mutual respect and self-determination;”
No doubt, this Constitution was inspired by Article 73 of the United Nations Charter, which was signed in 1945 by the United Kingdom, and states in part:
“Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well-being of the inhabitants of these territories, and, to this end:
- to ensure, with due respect for the culture of the peoples concerned, their political, economic, social, and educational advancement, their just treatment, and their protection against abuses;
- to develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions, according to the particular circumstances of each territory and its peoples and their varying stages of advancement;”
Article 73 is an international obligation of Her Majesty’s Government in the United Kingdom. The preamble as quoted and Article 73 could be seen as the spirit of the Constitution, and upon which our relationship with the United Kingdom is based, and can be likened to a contract where both parties mutually agree to the terms and contents as the preamble to the Constitution explicitly states “modern partnership with the Virgin Islands based on the principles of mutual respect and self-determination;”
The role of the Legislature in the governance of the Virgin Islands (VI) is explained by Article 71 which states:
“Subject to this Constitution, the Legislature shall have power to make laws for the peace, order and good government of the Virgin Islands.”
The legislature is composed of Her Majesty and the House of Assembly. The primary law-making body within the legislature is the House of Assembly, though Her Majesty has the reserved power to do so, as well and the Governor may, in certain limited instances, also may make laws for the VI.
Before a government-introduced bill makes it onto the order paper of the House of Assembly, it must first be approved by Cabinet of which the Governor is Chairman. After Cabinet approves the bill, it is sent to be listed on the order paper of the House of Assembly for reading, debate and amendments. If a bill is passed, it is sent to the Governor for his assent, further to Article 79(2) of the Constitution which outlines the process by which assent is to be given or rejected as follows:
“(2) When a Bill is presented to the Governor for assent the Governor shall declare that he or she assents to it or that he or she reserves the Bill for the signification of Her Majesty’s pleasure; but unless the Governor has been authorised by a Secretary of State to assent to it, the Governor shall reserve for the signification of Her Majesty’s pleasure any Bill which appears to him or her, acting in his or her discretion—
- to be inconsistent with any obligation of Her Majesty or of Her Majesty’s Government in the United Kingdom towards any other state or power or any international organisation;
- to be likely to prejudice the Royal prerogative; or
- to be in any way repugnant to or inconsistent with this Constitution.
The clear intent is that the power to reject assent to a bill must be based on grounds (a), (b) or (c). The exercise of the power to reject assent must be exercised in accordance with the rules of natural justice which is a fundamental and critical aspect of the rule of law and democratic institutions as set out in our Constitution’s preamble.
What we can therefore conclude from this “Modern Partnership”, is that unless a bill passed by the House of Assembly conflicts with these specified terms, the assent of the bill by the Governor is to be expected. Natural justice is a critical element of our democratic values and rule of law as expressed in the preamble. Therefore, where the Governor exercises his or her discretion not to assent to a bill duly passed by the House of Assembly, he or she would need to clearly outline the reasons for the objection to the Speaker of the House.
Concerning the two aforementioned bills, they would have first came to the Governor’s attention when they were discussed at Cabinet and he would no doubt have had the capacity and opportunity to indicate his objections or concerns at that stage. Indeed, it was also the Governor’s prerogative at the time when the individual bills were first placed before the House of Assembly to indicate any concerns, or objections, within the parameters of his discretion.
The Governor could have taken the opportunity in the first instance to object (at the cabinet-level), he could have done so in the second instance (at the first reading), but only after the House of Assembly had expended time, resources and money, debating and passing the bill did he decide to raise his objections.
It must be clearly stated, that this is not on its face objectionable as this is clearly within his rights under the Constitution. But what we find rather disturbing is that although I as Speaker have written several letters to the former Governor enquiring as to why he has failed to give his assent. He did not respond to me, (except in one case when I was on leave) but rather, wrote to the Premier.
In that response he claimed that the Virgin Islands Cannabis Licensing act was not assented to because it violated the Territory’s international obligation, specifically the 1961 Single Convention on Narcotic Drugs and the 1971 Convention on Psychotropic Substances.
However, the former Attorney General clearly disputed this assertion and noted there are absolutely no violations.
Suffice it to say, I have recently had sight of a new letter from the Right Honourable Secretary of State for Foreign and Commonwealth and Development Affairs Dominic Raab. He has failed to clearly outline how the two bills fall within the scope of Article 79 (2) of the Constitution.
In fact he is now linking the Drugs (Prevention of Misuse) Amendment Act, to the Commission of Inquiry. The Bill was passed some six months plus before the Commission of Inquiry.
The failure of the Office of the Governor to raise objections or concerns during Cabinet has caused a great deal of time, money and other resources to be wasted, and constitutes the very maladministration issues that the Commission of Inquiry is supposed to look into.
You may be assured that as I am a faithful adherent to the Constitution and one who acts in accordance with the best practices of parliamentary principles and procedure. I would have brought to the attention of the House of Assembly any such concerns to ensure compliance with the Constitution and any offending bills or parts thereof would have been dealt with.
The principles of natural justice and modern partnership, however, would have required that the Governor and the Secretary of State give reasons for their denial of assent of the bills to the House of Assembly, so that the Honourable House could respond. This is particularly so, as the Office of the Attorney General which advises the Cabinet, the Governor and the House of Assembly found no bases upon which these bills could have been objected to within the parameters of the Constitution.
It is extremely concerning that the Right Honourable Dominic Raab has stated to the Premier that he is awaiting the reports from the Commission of Inquiry before making a decision as to the assent to the Drugs (Prevention of Misuse) (Amendment) Act.
Therefore, a decision is not being taken on the basis of the clear provisions of the Constitution, despite reports to the contrary. It would appear that the Right Honourable Secretary of State is giving precedence to the Commission of Inquiry over the Constitution.
By virtue of the Commission of Inquiry taking precedence over the Constitution of the Virgin Islands, the question we may now ask, is our Constitution being suspended?