Prominent Local Attorney Urges Inclusion Of Bill Of Rights In V.I. Constitution
A leading BVI attorney, Mr. Gerard St. C. Farara, Q.C., is calling on government to ensure the incorporation of a Bill of Rights into the constitution of the Virgin Islands. He made the call during a lecture discussing the Recent Constitutional Changes in the British Virgin Islands, held at the Treasure Isle Hotel conference room on October 25th.
The forum was the first in a planned series of public lectures being organized by the BVI Bar Association. President Paul Webster said the lectures will be done on a quarterly basis and will focus on a topic in the area of law important to the community. As he began his presentation, Mr. Farara suggested that the series be named in honour of one of the territory's finest lawyers, advocates and statesmen, the late McWelling Todman Q.C., C.B.E. He was regarded as a most gifted orator, one of the BVI's finest intellectuals and he was a past President of the BVI Bar Association.
The focus of the lecture was on citizenship and other current changes effected by the Virgin Islands (Constitution) (Amendment) Order 2000. In December 1993, the Constitutional Commissioners submitted a report to the Secretary of State for Foreign and Commonwealth Affairs on the review of the Virgin Islands (Constitutional) Order 1976. They made some 31 substantive recommendations, many of which require changes to both the Constitution and other relevant local legislation. "As recommended, a few changes were implemented prior to the 1995 general elections," Mr. Farara noted. These included the enlargement of the membership of the Legislative Council by the addition of four At-Large or Territorial seats, resulting in an increased membership of 13 Elected Representatives and the abolition of proxy voting as a means of electing representatives. Government later created an office which had administrative responsibility for overseeing the implementation of the other recommendations. This process resulted in a Committee being formed to make recommendations for re-defining the categories of belonger status. Its report was presented to the Governor on 30th September 1997 and all of the recommendations were accepted by both the British and BVI governments and the Legislative Council. A Bill to effect these and other changes recently had its first reading in the Legislative Council.
On July 24th, another recommendation was adopted and a 5th Minister, Honourable Andrew Fahie, was sworn in as Minister for Education and Welfare. This change enlarged the Executive Council. Some of the Constitutional Commissioners' recommendations did not require legislative initiative. One such matter was the creation of a Boundaries Commission. This was facilitated and resulted in the redefining of certain constituent boundaries in time for the 1999 general elections. Another recommendation was that there be an exercise to determine the "costs, obligations and liabilities" of independence. This, however, has not yet been done. "Likewise, I am unaware of whether the Public Accounts Committee...now includes a "person skilled in finance/accounting"; or whether government loans now require approval by a Bill and not a resolution of the Council and finally...there has not as yet been a referendum on constitutional change," the lawyer told the audience.
Mr. Farara said the most glaring omission and one which in his view is unjustified, has been the failure to include a Bill of Rights or fundament rights and freedoms in the Constitution. "I have spoken publicly on previous occasions about this failure," he declared. The Commissioners described this as a matter in respect of which "there was virtually unanimous demand" and annexed to their report a draft Bill based on the provisions then drafted for inclusion in the Cayman Islands Constitution. However, he noted that the public has not yet been invited to comment on this draft and there seems to be no impetus for immediate inclusion of such provisions in the Constitution. "Certainly, this could have been achieved during the most recent exercise leading to the recent amendments to the Constitution addressing other recommendations of the Commissioners," he suggested.
Mr. Farara made it clear that not all amendments have been brought into force. Those not yet in force include the amends relating to belonger status, the composition and regulation of the Public Service Commission, delegation of the Governor's functions regarding the civil service and certain transitional provisions. In relation to the Governor, the changes relate, in the main, to authorizing the Governor to delegate to the Deputy Governor, whilst still in office, more of his powers than he previously could. In the case of the Deputy Governor, there has been an attempt at better defining the role and functions of that office holder. The DG, in essence, is to assist the Governor in his functions and special responsibilities for external affairs, defense, internal security, the civil service and the administration of the courts. The DG is also to carry out certain non-ministerial functions assigned to him by the Governor, at the request of the Chief Minister.
In keeping with the Commissioners' recommendation, the Governor cannot refuse to assent to a Bill, but must either assent or reserve it for the signification of Her Majesty's pleasure. The change as it relates to the Speaker of the Legislative Council, is that the Speaker may now be elected from the Members of the Legislative Council, as well as from outside the Council. As a result of the recent amendments, meetings of the Legislative Council must be held within two months of the previous meeting, when the Council is in session.The membership of the Public Service Commission has been increased from three to five and for the first time, the Leader of the Opposition must be consulted in the selection of a member of the PSC. Lawyer Farara said he understands that a Director of Public Prosecutions may soon be appointed, as per the provisions. The Commissioners also recommended that a referendum on constitutional change be considered by the BVI government. He said this will need legislation providing for the holding of referendums.
The question of independence surfaces from time to time. "It seems to have returned to a state of dormancy and perhaps, that is a good thing," the attorney stated. The Commissioners called for a survey into the costs, obligations and liabilities of independence and for the findings to be made public. "We know patently little about this matter to date. An update from the appropriate functionary would therefore be in order." As mentioned previously, the all important Bill of Rights is yet to find its way to the pages of the Virgin Islands Constitution. "I call upon His Excellency the Governor, the government and all concerned to see to its incorporation," Mr. Farara challenged. "It has been strongly recommended by the public and accepted by the Commissioners. Let it not be delayed further."