Looking to the Future Through the Lens of the Past: Key Outcomes from the Virgin Islands’ Constitutional Review

The Virgin Islands Constitutional Review Commission Report makes notable recommendations such as revising the ‘at-large’ voting system, introducing local government structures, increasing the independence of constitutional bodies, and exploring juryless criminal trials to address the unique challenges of a small jurisdiction. At its core, the Report embodies public desire for more accessible, responsive, and accountable governance, and therefore marks a significant step towards aligning the Virgin Islands Constitution Order, 2007 with the aspirations of its people – writes Lisa Penn-Lettsome

Introduction

After a year-and-a-half of public engagements, consultations with stakeholders, and extensive research, the Constitutional Review Commission (CRC) of the Virgin Islands has completed its review of the Virgin Islands Constitution Order, 2007. The CRC Report, entitled 2022-2023 Constitutional Review Commission Report – Looking to the future through the lens of the past, was officially presented to His Excellency the Governor, Mr. John Rankin CMG and Premier Dr. Hon. Natalio Wheatley on 27 November 2023, and laid on the table of the House of Assembly on 31 January 2024. It is publicly available on the Virgin Islands Government's website and Commission's website. As previously analysed on ConstitutionNet, the Commission, of which the author was Chairman, was mandated to identify potential reforms to the Virgin Islands Constitution Order, 2007 to achieve the aspirations of the people of the Virgin Islands, including in relation to executive accountability, an institutional framework for good governance, further devolution of power and self-determination.

To achieve this objective, the Commission undertook a total of 45 educational and consultative engagements attracting over 1,000 in-person attendees and over 19,000 views on social media. These included public and private meetings, secondary schools outreach, and interviews with the media and with civic organisations. The Commission received a total of 464 submissions (both written and oral) but, as these each addressed multiple proposals, the number of individual proposals from the public is estimated to be closer to 1,000. These numbers represent a significant increase in turnout and feedback when compared to the previous constitutional review exercise in 2005, which may be attributable to heightened awareness because of a separate Commission of Inquiry that was aired live on YouTube and which, in April 2022, made significant recommendations of its own for improvements to good governance. Whatever the reason, the level of engagement is considered very satisfactory for a jurisdiction with a population of just over 30,000 people.

The CRC Report made 57 recommendations, but only some of the most salient ones are highlighted in this piece. Before doing so, it is important for readers to be reminded that while the Virgin Islands is a British territory, as its next-door neighbours are the U.S. Virgin Islands and Puerto Rico, it is fair to expect that certain elements of the U.S. political and constitutional model would inspire several of the recommendations from the public.

Electoral and System of Government Recommendations

The highest recurring theme during public consultations was the inadequacy of the present ‘at-large’ system of voting, which is broken and needs to be fixed. In 1994, the Virgin Islands made an important modification to the traditional Westminster system. Under the Westminster system, each political candidate is elected by his or her local constituency, and the Prime Minister is then appointed based on the elected person who can demonstrate that he or she commands the majority in Parliament, typically the head of the political party with the majority of seats in the Parliament. This ‘head’ would also have contested elections in his or her local constituency. This model, however, does not transpose well in a small legislature of just 13 elected persons.

At-large voting was initially introduced as a pilot project subject to review but, based on strong public sentiment during public consultations, the voting model has still not struck the right balance.

The 1994 modification led to a hybrid arrangement where, in addition to the traditional local constituencies returning a single member to the legislature, four seats in the Virgin Islands legislature were designated for successful candidates elected by the entire territory (‘at-large’). Each voter is therefore entitled to vote for a single candidate at the local level and, at the same time, up to four candidates who are contesting the elections territory-wide. At-large voting was initially introduced as a pilot project subject to review but, based on strong public sentiment during public consultations, the voting model has still not struck the right balance. In particular, many voters who attended the public consultations complained about their inability to vote for the Territory’s Premier who has, except in one instance since the introduction of the hybrid model, still always been elected at a local constituency level. In a territory with a small electorate (such as the Virgin Islands) this results in the Premier receiving a relatively low number of total votes, and possibly only a few hundred (as indeed is the present case).  

The Commission therefore recommended that the Premier and Deputy Premier be appointed  from amongst the successful at-large candidates. The Governor would appoint the Premier based on the recommendation of the majority of other elected members, or, if no recommendation was forthcoming, based on the Governor’s judgement on the at-large member best able to command the majority of the members. The Deputy Premier would be appointed from the at-large members by the Governor on the recommendation of the Premier. While public sentiment favored direct election of the Premier and Deputy Premier, the Commission was not in favour of this as it would result in expenses for two sets of elections, and would represent too radical a departure from the Westminster model.

Local Government Recommendations

Related to some of the above concerns emanating from voting models is the question of whether the time is now ripe in the Virgin Islands for the adoption of a form of local government to deal with purely parochial issues. The Commission believes that the time has come for the Territory’s central Government machinery to be complemented with a local government structure. This move would address the sentiment raised often during public consultation that the three largest sister-islands are under-represented compared to the largest island, Tortola. Several related issues are explored in the CRC Report, but the core recommendation of the Commission was for the Constitution to include a brief provision mandating the legislature to enact a law that provides for the establishment, functions and jurisdiction of District Councils. The details would need to be fleshed out through public consultation.

Good Governance Recommendations

Another frequently recurring theme during public consultation was the need for greater public consultation and transparency in governance. The CRC Report attempted to address this concern in several ways – not all necessarily directly bearing on the Constitution. For example, the CRC Report recommends that the legislature adopts a fixed annual meeting schedule to improve preparation and debate and minimise rushing through government business. The CRC Report also recommends that members of the legislature make greater and full use of standing committees (for example to call for evidence, or to examine public accounts) and that the deliberation of these committees be public unless there is a compelling reason for confidentiality. Although the House of Assembly Standing Orders already contain provisions for such committees, they are not being used to the fullest potential.

The CRC Report recommended against introducing people-initiated referenda until there is more experience with them in the Commonwealth Caribbean.

The CRC Report recommended against introducing people-initiated referenda until there is more experience with them in the Commonwealth Caribbean. While people-initiated referenda are common in direct democracies, the Virgin Islands operates a system of representative democracy where improvements could be made (for example, a greater use of manifestos so that it is clearer to a voter what a candidate represents). The experience of people-initiated referenda in the Commonwealth Caribbean is extremely limited and there is concern that its implementation may actually hinder the efficient implementation of legitimate government policies. A more careful study would need to be undertaken to assess whether the possible benefits of such referenda outweigh perceived disadvantages.

Keeping within the overall theme of good governance, the Commission was specifically asked to consider whether the independent institutions enshrined in the Constitution are effective to ensure good governance. Such independent institutions include the Director of Public Prosecutions, the Auditor General and the Complaints Commissioner, for example. Although their independence is secured in the Constitution in that they are not subject to the direction or control of any other person or authority, independent institutions like these continue to sit within the central government structure (as opposed to being a statutory board or corporation). They have thus reported challenges with reliance on the machinery of central government for approval of their budgets, staffing and other administrative matters. The issue is better summarised by one of the comments received by the Commission:

Currently, the arrangements of the independent institutions are characterised by dependence and interdependence with the very mechanisms of the Executive and the Public Service that they are meant to be independent of to ensure good governance . . . . Some institutions may fare better than others, but even when financial resources are made available in the Government’s Annual Budget Estimates, the surrounding mechanism for recruitment and procurement are onerous and lengthy.

To address these concerns, the CRC Report recommended that language be added to the relevant section of the Constitution to mandate that such offices shall enjoy both administrative as well as financial independence and to require the legislature to guarantee ‘sufficient budgetary allocations to allow a timely and efficacious discharge of their competences’.

Justice System Recommendations

Another interesting matter considered by the Commission is one that is quite topical globally: juryless criminal trials. The Virgin Islands Constitution Order, 2007 guarantees a defendant the right to a trial by jury. The smaller the jurisdiction, however, the greater the challenge of finding a jury where, for example, the defendant is not personally known or where no juror has been exposed to speculation about the case outside the courtroom. Judge-only criminal trials would help with clearing backlogs, reducing costs, and improving public confidence in the justice system. Nonetheless, any changes ought not to overlook any existing constitutional rights such as the right to a fair trial, which is found in many constitutions.

In light of this, the CRC Report recommends a constitutional amendment that provides for juryless criminal trials through legislation, providing a pathway for either party to apply for a judge-only trial. Wide public consultation was further recommended by the CRC Report, including among the legal fraternity.

Conclusion

As a matter of good practice, the CRC Report should be debated in the House of Assembly. In the meantime, a public relations exercise is soon to be implemented by the Government with the aim of educating the wider public on several of the major recommendations. Recommendations contained in the CRC Report were formulated based on public feedback during consultation and there is no direct correlation between the making of a recommendation and having it accepted and reflected in a new Constitution. The Virgin Islands’ Government must set up a negotiating team to discuss the recommendations with the Government of the United Kingdom, which both agree will form the basis for drafting a new Constitution.

On the whole, the CRC Report is a substantial report, underpinned by supporting research and references. It also serves the secondary role of educating the public on constitutional matters, as insufficient education on the Constitution was also one of the highly recurring themes. The Commission is confident that many of its discussions will eventually engender the constitutional improvements desired by members of the public. Given the detailed presentation of the CRC Report, it will also serve as a significant reference document now and in the years to come.

Lisa Penn-Lettsome is Chairman of the 2022 Virgin Islands Constitutional Review Commission. She is a lawyer of 30 years having held senior posts in the Virgin Islands public sector and recently concluded 13 years with an international law firm where she was head of the regulatory practice.

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Suggested citation: Lisa Penn-Lettsome, ‘Looking to the Future Through the Lens of the Past: Key Outcomes from the Virgin Islands’ Constitutional Review’, ConstitutionNet, International IDEA, 1 March 2024, https://constitutionnet.org/news/voices/looking-future-through-lens-past-key-outcomes-virgin-islands-constitutional-review

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