Mr O'Brien
HKK OUT!
Reference...
247
1205
CODE 18-77 AWO Ltd. 7/84
DEPENDENT TERRITORY CONSTITUTIONS:DISQUALIFICATION OF MEMBERS OF THE LEGISLATURE
1.
As you know, the lengthy prison sentences passed by a US court on at least two of the three members of the Turks and Caicos Islands Legislative Council gave rise to some constitutional difficulty in that Section 25(1) of the TCI Constitution Order 1976 refers to disqualification for membership of the legislature as a result of a 'sentence of imprisonment exceeding 12 months imposed by a court in any
As you part of the Commonwealth' and not by any other court. also know, the difficulty was eventually resolved by all three members resigning but had they not done so (and two of them seem to have been reluctant) and had they been given permission by the Speaker to be absent (which was always a possibility), then the only way to unseat them would have been for the Governor to dissolve the legislature and call a general election. This might or might not have been justified in the circumstances but such a course would, in my view, have led to considerable political difficulties and possible security risks.
2.
It seems therefore to be at least desirable to consider whether the TCI Constitution should not be amended to remove the reference to conviction only by a Commonwealth court.
3. I have no idea of either the origin or purpose of the phrase in question. However, it appears in all the following
constitutions:-
TCI 1976
St Helena 1966 Caymans 1972
Anguilla 1982
Bermuda 1968
Falklands 1985 Montserrat 1952
(Sec 25 (1))
(Sec 18(1))
(Sec 25(1))
(Sec 39(1))
(Sec 30(1))
(Sec 26(1))
(Sec 9(1) of Consitution and Elections Ordinance, where the reference is to 'Her Majesty's Dominions').
1
It does not appear in the BVI Constitution 1976, where the reference in section 29(1) is merely to a court' (a point I will return to later). I have not checked the position in the only two other dependent territories (Gibraltar and Hong Kong).
4. If it is agreed that the Constitutions concerned should be amended, then I would hope it could be done by a single Order- in-Gouncil amending all the several constitutions (other than Montserrat where local legislation would need to be amended). This, hopefully, would avoid any DT Government feeling that it had been singled out for special treatment. I would hope too that it could be a separate exercise and not get tangled up with any other constitutional amendments that may be on the cards, eg in BVI or St Helena. As to the amendment itself, believe that Mr Bickford would favour a phrase which would exclude courts of doubtful integrity, eg imposed by a court in any country or state with which HMG has a valid treaty or
I