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The Turks and Caicos Islands Constitution Order 2011

Type Statutory-Instrument

Publication 2011-07-13

State In force

Department Queen's Printer of Acts of Parliament

Source legislation.gov.uk

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(1) The elected members of the House of Assembly shall be persons qualified for election in accordance with this Constitution and, subject to this Constitution, shall be elected in the manner provided by law.

(2) For the purposes of elections to the House of Assembly, the Islands—

(a) shall be a single electoral district and shall return five members to the House of Assembly; and

(b) shall also be divided into ten electoral districts each of which shall return one member to the House.

Qualifications for elected membership

46

Subject to section 49, a person shall be qualified to be elected as a member of the House of Assembly if, and shall not be qualified to be so elected unless, on the date of his or her nomination for election he or she—

(a) has attained the age of 21 years; and

(b) is resident in the Islands and has been so resident for not less than twelve months, in the aggregate, out of the two years immediately preceding that date; and

Appointed members

47

(1) Appointed members of the House of Assembly shall be appointed from among persons qualified under section 48, and so far as possible from among persons representing shades of opinion which would not otherwise be represented in the House, as follows—

(a) two shall be appointed by the Governor, acting in his or her discretion; and

(b) two shall be appointed by the Governor, acting after consultation with the Premier and the Leader of the Opposition.

(2) No person shall be appointed under this section who has unsuccessfully stood as a candidate for election as an elected member at any election since the last dissolution of the House of Assembly.

Qualifications for appointed membership

48

Subject to section 49, a person shall not be qualified to be appointed as a member of the House of Assembly unless he or she has attained the age of 21 years and is qualified to be registered as an elector in the Islands.

Disqualifications for elected or appointed membership

49

(1) No person shall be qualified to be an elected member of the House of Assembly who, on the date of his or her nomination for election—

(a) is, by virtue of his or her own act, under any acknowledgement of allegiance, obedience or adherence to any foreign power or state;

(b) holds or is acting in any public office or in the office of judge of the Supreme Court or the Court of Appeal or magistrate;

(d) is a person certified to be insane or otherwise adjudged to be of unsound mind under any law in force in the Islands;

(e) is serving or has at any time within the period of fifteen years immediately preceding that date been serving any part of a sentence of imprisonment (by whatever name called) of at least twelve months imposed on him or her by a court in any country or substituted by competent authority for some other sentence imposed on him or her by such a court; or is under such a sentence of imprisonment the execution of which has been suspended;

(f) is a party to, or a partner in a firm or a director or manager of a company which is a party to, any contract with the Government and has not, by that date, disclosed in a notice to the Integrity Commission the nature of such contract and his or her interest, or the interest of such firm or company, in it;

(g) has been convicted of an offence of corruption or an offence relating to political party regulation or the misuse of public money under any law in force in the Islands;

(h) is disqualified for membership of the House of Assembly by any law relating to offences connected with elections;

(i) has not made a declaration as required by section 50; or

(j) is disqualified for election by any law by reason of his or her holding or acting in any office the functions of which involve—

(i) any responsibility for, or in connection with, the conduct of any election; or

(ii) any responsibility for the compilation or revision of any register of electors.

(2) For the purposes of subsection (1)(e)—

(a) where a person is serving two or more sentences of imprisonment that are required to be served consecutively he or she shall, throughout the whole time during which he or she so serves, be regarded as serving a sentence exceeding twelve months if (but not unless) any one of those sentences exceeds that term;

(b) no account shall be taken of a sentence of imprisonment imposed as an alternative to or in default of the payment of a fine.

(3) At the close of nominations of candidates for election to the House of Assembly the Integrity Commission shall publish any notice delivered to it under subsection (1)(f) in such manner as it considers effective for the purpose of informing the electorate before the date of election.

(4) No person shall be qualified to be an appointed member of the House of Assembly who, on the date of his or her proposed appointment, falls within any of paragraphs (a) to (h) of subsection (1).

Declaration by candidates for election to House of Assembly

50

(1) Each candidate for election to the House of Assembly shall, on the date of his or her nomination for election, make a written declaration to the Supervisor of Elections that he or she is qualified for election under section 46 and that no disqualification mentioned in section 49 applies to him or her.

(2) The Supervisor of Elections shall publish any declaration made to him or her under subsection (1) by the close of the next following working day.

(3) Within five days of the publication of any such declaration, a challenge to the veracity of that declaration may be brought by any registered elector or by the Attorney General before the Supreme Court; the Supreme Court shall hear and determine the matter as expeditiously as possible, and its decision shall be final and not subject to any appeal.

Tenure of seats of members of House of Assembly

51

(1) Every elected or appointed member of the House of Assembly shall vacate his or her seat in the House at the next dissolution of the House after his or her election or appointment.

(2) An elected or appointed member of the House of Assembly shall also vacate his or her seat in the House—

(a) if he or she resigns it by writing under his or her hand addressed to the Speaker;

(b) if, without the written permission of the Speaker, he or she is absent from three consecutive meetings of the House;

(d) if the Speaker declares his or her seat vacant in the circumstances described in subsection (3); or

(e) subject to section 52, if any circumstances arise such that, if he or she were not a member of the House, would cause him or her to be disqualified for election by virtue of any provision of section 49(1) other than paragraph (i).

(3) Subject to section 52, if the Integrity Commission determines that an elected or appointed member of the House of Assembly has acquired a prohibited interest in a contract with the Government, the Speaker shall declare the seat of that member vacant.

(4) The Integrity Commission shall make and publish rules defining the circumstances in which the acquisition by an elected or appointed member of the House of Assembly of an interest in a contract with the Government is prohibited, and each such member of the House shall disclose to the Integrity Commission every interest he or she acquires in any such contract within seven days of acquiring it.

(5) Subject to this Constitution, an appointed member of the House of Assembly shall hold his or her seat in the House during Her Majesty’s pleasure.

Delay in vacation of seat to allow for an appeal

52

(1) A member of the House of Assembly whose seat has been declared vacant by the Speaker under section 51(3) may appeal the legality of the declaration to the Supreme Court, whose decision shall be final and not subject to any further appeal, and pending the decision of the Supreme Court the member shall not vacate his or her seat but shall cease to perform his or her functions as a member.

(2) If the Supreme Court upholds the legality of the declaration the member shall forthwith vacate his or her seat, and if the Supreme Court does not uphold the legality of the declaration the member shall not vacate his or her seat and may resume the performance of his or her functions as a member.

(3) If circumstances such as are referred to in section 51(2)(e) arise because a member of the House of Assembly—

(a) is declared bankrupt;

(b) is adjudged to be of unsound mind;

(d) is convicted of an offence relating to party political regulation, an offence relating to misuse of public money, an offence of corruption, or an offence relating to elections,

and it is open to the member to appeal against the decision (either with or without the leave of a court or other authority) that member shall forthwith cease to perform his or her functions as a member, but, subject to subsection (5), he or she shall not vacate his or her seat in the House until the expiration of 30 days thereafter.

(4) At the request of the member the Governor, acting in his or her discretion, may from time to time extend the period of 30 days referred to in subsection (3) for further periods of 30 days to enable the member to pursue an appeal against the decision, but extensions of time exceeding in the aggregate 330 days shall not be given without the approval of the House of Assembly signified by resolution.

(5) If, on the determination of any appeal, such circumstances as are mentioned in subsection (3) continue to exist and no further appeal is open to the member, or if for any reason, including the refusal of leave to appeal or the expiration of any time limit for entering an appeal, it ceases to be open to the member to appeal, he or she shall forthwith vacate his or her seat.

(6) If at any time before the member vacates his or her seat such circumstances as are mentioned in subsection (3) cease to exist, his or her seat shall not become vacant on the expiration of the period referred to in that subsection and he or she may resume the performance of his or her functions as a member.

Determination of questions as to membership of House of Assembly

53

(1) Without prejudice to section 52(1), the Supreme Court shall have jurisdiction to hear and determine any question as to whether—

(a) any person has been validly elected as a member of the House of Assembly; or

(b) an elected member of the House has vacated his or her seat in the House or is required by virtue of section 52(3) to cease to perform his or her functions as such member,

and the decision of the Supreme Court shall be final and not subject to any appeal.

(2) An application to the Supreme Court for the determination of any question under subsection (1) may be made by the Attorney General or by any person who is a registered elector; and an application for the determination of any question under subsection (1)(b) may also be made by any member of the House of Assembly.

(3) Any question as to whether a person is an ex officio or an appointed member of the House of Assembly, or whether any such person has vacated his or her seat, shall be determined by the Governor acting in his or her discretion.

Penalty for unauthorised person sitting or voting

54

(1) Any person who sits or votes in the House of Assembly knowing, or having reasonable grounds for believing, that he or she is not entitled to do so shall be liable to a penalty not exceeding 1,000 United States dollars for each day on which he or she so sits or votes.

(2) The penalty referred to in subsection (1) shall be recoverable by action in the Supreme Court at the suit of the Attorney General.

Qualifications of electors and entitlement to vote

55

(1) Subject to subsection (2), a person shall be qualified to be registered as an elector for the purposes of the election of members of the House of Assembly if, and shall not be so qualified unless—

(a) he or she was lawfully registered as such an elector on the date of commencement of this Constitution; or

(b) on the qualifying date—

(i) he or she has attained the age of eighteen years; and

(ii) he or she is resident in the Islands and has been so resident for not less than twelve months, in the aggregate, out of the two years immediately preceding the qualifying date, or he or she is a member of Her Majesty’s Forces, a person working abroad on Government business or a student resident abroad in such circumstances as may be prescribed by Ordinance; and

(iii) he or she is a Turks and Caicos Islander.

(2) No person shall be qualified to be registered as an elector under this section who on the qualifying date—

(a) is a person certified to be insane or otherwise adjudged to be of unsound mind under any law in force in the Islands;

(b) is serving a sentence of imprisonment (by whatever name called) for a term of at least twelve months imposed on him or her by a court in any country or substituted by competent authority for some other sentence imposed on him or her by such a court; or

(c) is disqualified by or under any law in force in the Islands from being registered as an elector by reason of having been convicted of an offence relating to elections.

(3) Section 49(2) shall apply for the purposes of subsection (2)(b) of this section as it applies for the purposes of section 49(1)(e).

(4) In this section “qualifying date” means such date as may be appointed by or under any law as the date with reference to which the qualifications of persons for registration as electors, for the purpose of the election of members of the House of Assembly, are to be ascertained.

(5) A person registered as an elector shall be entitled to vote at an election unless he or she is prohibited from doing so by reason of his or her conviction, prior to the election, of an election offence which disqualifies him or her from voting; but no person shall be entitled to vote in an electoral district if—

(a) he or she is not registered as an elector in that electoral district; or

(b) he or she has voted in another electoral district.

Leader of the Opposition

56

(1) The Governor shall appoint as the Leader of the Opposition the elected member of the House of Assembly who demonstrates to the Governor in writing that he or she commands the support of the majority of the members of the House in opposition to the Government.

(2) If at any time between the polling in a general election and the next following dissolution of the House of Assembly the Governor, acting in his or her discretion, is satisfied that, if the office of the Leader of the Opposition were then vacant, he or she would appoint to that office a person other than the person then holding that office, the Governor shall revoke the appointment of the Leader of the Opposition.

(3) The office of the Leader of the Opposition shall also become vacant—

(a) if for any reason other than a dissolution of the House of Assembly the holder of that office ceases to be a member of the House; or

(b) if the holder of that office is appointed as a Minister.

Prorogation, dissolution and elections

Prorogation and dissolution

57

(1) The Governor, acting in accordance with the advice of the Premier, may at any time prorogue the House of Assembly by proclamation published in the Gazette; but the Governor may, with the prior approval of a Secretary of State, reject the advice of the Premier to prorogue the House in any case in which in the Governor’s judgement it is necessary to do so in the interests of good governance.

(2) The Governor, acting after consultation with the Premier, may at any time dissolve the House of Assembly by proclamation published in the Gazette.

(3) The Governor shall dissolve the House of Assembly at the expiration of four years from the date when the House first meets after any general election, unless it has been sooner dissolved.

Recalling dissolved House of Assembly in case of emergency

58

If, between a dissolution of the House of Assembly and the next ensuing general election, an emergency arises of such a nature that, in the judgement of the Governor, it is necessary for the House to be recalled, the Governor may, acting after consultation with the Premier, summon the House that has been dissolved, and that House shall thereupon be deemed (except for the purposes of section 59) not to have been dissolved, but shall be deemed (except as aforesaid) to be dissolved on the date on which the next ensuing general election is held.

General elections and filling vacant seats

59

(1) A general election shall be held at such time within three months, but not less than 35 days, after every dissolution of the House of Assembly as the Governor shall appoint by proclamation published in the Gazette.

(2) Whenever an elected member of the House of Assembly vacates his or her seat for any reason other than a dissolution of the House, an election shall be held to fill the vacancy, on such date as the Governor shall appoint by proclamation published in the Gazette within three months, but not less than 35 days, of the occurrence of the vacancy unless the House is sooner dissolved or will be dissolved under section 57(3) within four months of the occurrence of the vacancy.

(3) Whenever an appointed member of the House of Assembly vacates his or her seat for any reason other than a dissolution of the House, the Governor shall, as soon as practicable, appoint a person to fill the vacancy under section 47.

Electoral District Boundary Commission

60

(1) An Electoral District Boundary Commission (in this section and in section 61 referred to as a “Commission”) shall be appointed from time to time at such time as the Governor, acting after consultation with the Premier and the Leader of the Opposition, may determine; but the first Commission shall be appointed not later than four years after the commencement of this Constitution and each subsequent Commission shall be appointed not later than four years after the last Commission submitted its report under section 61.

(2) A Commission shall consist of—

(a) a Chairman appointed by the Governor, acting in his or her discretion;

(b) a member appointed by the Governor, acting in his or her discretion, from among persons who hold or have held high judicial office; and

(3) A person shall not be qualified to be appointed as a member of a Commission if he or she is a member of the House of Assembly or a public officer.

(4) The Chairman or other member of a Commission shall vacate his or her office—

(a) on the day following the submission of the report of the Commission under section 61;

(b) if any circumstances arise that, if he or she were not a member, would cause him or her to be disqualified for appointment as such; or

(c) if the Governor, acting in his or her discretion, directs that he or she shall be removed from office for inability to discharge the functions of his or her office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour.

(5) A Commission may regulate its procedure and, with the consent of the Governor acting in his or her discretion, may confer powers and impose duties on any public officer or on any authority of the Government for the purpose of the discharge of its functions.

(6) For the purpose of the discharge of its functions, a Commission—

(a) may invite views from members of the public;

(b) shall consult the public about a draft of its report; and

(7) A Commission may act notwithstanding any vacancy in its membership (including any vacancy not filled when appointments of members are first made); but any decision of the Commission shall require the concurrence of not less than two members of the Commission.

(8) In the exercise of their functions under this Constitution, a Commission and its members shall not be subject to the direction or control of any other person or authority.

Review and alteration of electoral district boundaries

61

(1) A Commission shall, as soon as practicable after its appointment, review the boundaries of the electoral districts into which the Islands are divided and submit to the Governor and the House of Assembly a report either—

(a) stating that, in the opinion of the Commission, no change in those boundaries is required; or

(b) recommending the changes in those boundaries specified in the report.

(2) In determining its recommendations under subsection (1)(b), and in determining whether or not to recommend any changes in the electoral district boundaries, a Commission shall ensure that the electoral districts contain, so far as is reasonably practicable, approximately equal numbers of persons qualified to be registered as electors under section 55.

(3) As soon as may be after a Commission has submitted a report under subsection (1)(b), the Governor shall cause a bill to be introduced in the House of Assembly for giving effect, whether with or without modifications, to the recommendations contained in the report; and such a bill—

(a) may contain provision for any matters which are incidental to or consequential on its principal provisions; and

(b) shall include a provision for the coming into force of the measure when enacted upon the next dissolution of the House of Assembly after enactment.

(4) Where any bill introduced under this section proposes to give effect to the recommendations of a Commission with modifications, there shall be laid before the House of Assembly at the same time a statement of the reasons for the modifications.

Powers and procedure

Power to make laws

62

Subject to this Constitution, the Legislature may make laws for the peace, order and good government of the Islands.

Standing Orders of House of Assembly

63

(1) Subject to this Constitution and to any Instructions under Her Majesty’s Sign Manual and Signet, the House of Assembly may make, amend and revoke Standing Orders for the regulation and orderly conduct of its own proceedings, and for the passing, intituling and numbering of bills and their presentation to the Governor for assent, but such Standing Orders shall not have effect until approved by the Governor.

(2) Standing Orders made under this section may provide for the establishment of committees of the House of Assembly (in addition to the Standing Committees to be established under section 64) and for the proceedings and conduct of business before any such committee.

Standing Committees

64

(1) The House of Assembly shall establish at least two Standing Committees of the House (in addition to the Appropriations Committee and the Public Accounts Committee established by this Constitution), each of which shall be charged with responsibility for monitoring the conduct of business of the Government for which responsibility has been assigned to a Minister or Ministers under section 36(1).

(2) Each Standing Committee shall consist of members of the House of Assembly who are not Ministers.

(3) The composition of each Standing Committee shall, so far as possible, ensure that the representation of political parties in the Committee is proportionate to the numerical strength of those parties in the House of Assembly.

(4) At least one Standing Committee shall be presided over by a member of the House of Assembly in opposition to the Government.

(5) Each Standing Committee shall have power—

(a) to summon any Minister, or any public officer of a department of government for which a Minister is responsible, to appear before it;

(b) subject to any law or Standing Orders, to require any person so summoned to answer questions and provide information about the conduct of business of the Government by the Minister or department concerned; and

(6) The House of Assembly shall publish reports submitted to it under subsection (5)(c).

(7) Subject to this section, Standing Orders shall provide for the composition and functions of, and proceedings and conduct of business before, Standing Committees.

Oaths by members of House of Assembly

65

No member of the House of Assembly shall be permitted to take part in the proceedings of the House, other than proceedings necessary for the purposes of this section, until he or she has made and subscribed before the House an oath of allegiance in the form set out in the Schedule to this Constitution; but the election of a Speaker and a Deputy Speaker may take place before the members of the House make such oath.

Sessions of House of Assembly

66

(1) The sessions of the House of Assembly shall be held at such times and places as the Governor may appoint by proclamation published in the Gazette; but there shall be at least one session in every year and a session shall be appointed to commence within two weeks after any general election.

(2) When the House of Assembly is in session, the Speaker shall call meetings of the House of Assembly so that there are at least nine meetings in each calendar year and any meeting shall be held within six weeks of the end of the previous meeting.

Presiding in House of Assembly

67

(1) The Speaker or, in his or her absence, the Deputy Speaker or, if they are both absent, an elected or appointed member of the House of Assembly (not being a Minister) elected by the elected and appointed members of the House, shall preside in the House.

(2) References in this section to absence of the Speaker or the Deputy Speaker shall include circumstances in which either office is vacant.

Voting

68

(1) Save as otherwise provided in this Constitution, all questions proposed for decision in the House of Assembly shall be determined by a majority of the votes of the elected and appointed members present and voting.

(2) The person presiding shall not vote unless on any question the votes are equally divided, in which case he or she shall have and exercise a casting vote.

Validity of proceedings

69

The House of Assembly shall not be disqualified for the transaction of any business by reason of any vacancy in its membership (including any vacancy not filled when the House is first constituted or is reconstituted at any time) and the validity of the transaction of business in the House shall not be affected by reason only of the fact that some person who was not entitled to do so voted or otherwise took part in the proceedings of the House.

Quorum

70

(1) A quorum of the House of Assembly shall be eight members not including the person presiding, of whom five are elected members.

(2) If at any sitting of the House of Assembly any member who is present draws the attention of the person presiding at the sitting to the absence of a quorum and, after such interval as may be prescribed in Standing Orders, the person presiding at the sitting ascertains that a quorum of the House is still not present, the House shall be adjourned.

Introduction of bills, etc

71

(1) Subject to this Constitution and to Standing Orders, any member may introduce any bill or propose any motion for debate in, or may present any petition to, the House of Assembly, and the same shall be debated and disposed of according to Standing Orders.

(2) Except on the recommendation of the Government signified by a Minister or by the Governor, acting in his or her discretion, the House of Assembly shall not—

(a) proceed on any bill (including any amendment to a bill) which, in the opinion of the person presiding in the House, makes provision for imposing or increasing any tax, for imposing or increasing any charge on the revenues or other funds of the Islands or for altering any such charge otherwise than by reducing it, or for compounding or remitting any debt due to the Islands; or

(b) proceed on any motion (including any amendment to a motion) the effect of which, in the opinion of the person presiding in the House, is that provision would be made for any of the purposes mentioned in paragraph (a).

Governor’s reserved power

72

(1) If the Governor considers that the enactment of legislation is necessary or desirable—

(a) for the purpose of securing compliance with an international obligation;

(b) to ensure compliance with the Statement of Governance Principles for the time being in effect;

(c) to ensure that sufficient funds have been appropriated, within four months of the commencement of each financial year, for the effective operation of committees of the House of Assembly, the courts, the Attorney General’s Chambers, and each institution protecting good governance; or

(d) to give effect, with or without modifications, to the recommendations contained in a report of an Electoral District Boundary Commission,

but, after consultation with the Premier, it appears to the Governor that the Cabinet is unwilling to support the introduction into the House of Assembly of a bill for the purpose or that the House is unlikely to pass a bill introduced into it for the purpose, the Governor may, with the prior approval of a Secretary of State, cause a bill for the purpose to be published in the Gazette and may (notwithstanding that the bill has not been passed by the House) assent to it on behalf of Her Majesty; but the bill shall be so published for at least 21 days prior to assent unless the Governor certifies by writing under his or her hand that the matter is too urgent to permit such delay in the giving of assent and so informs a Secretary of State.

(2) If any member of the Cabinet so desires, he or she may, within 30 days of the publication of a bill under subsection (1), submit to the Governor a statement in writing of his or her comments on such publication, and the Governor shall forward such statement, or a copy of it, as soon as practicable to a Secretary of State.

(3) The powers conferred on the Governor by subsection (1) shall be exercised by the Governor in his or her discretion.

Assent to bills

73

(1) A bill shall not become law until—

(a) the Governor has assented to it in Her Majesty’s name and on Her Majesty’s behalf and has signed it in token of his or her assent; or

(b) Her Majesty has given Her assent to it through a Secretary of State and the Governor has signified Her assent by proclamation published in the Gazette.

(2) When a bill is presented to the Governor for his or her assent, the Governor shall, subject to this Constitution and to any instructions addressed to him or her by Her Majesty through a Secretary of State, declare that he or she assents, or refuses to assent, to it, or that he or she reserves the bill for the signification of Her Majesty’s pleasure; but 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—

(a) to be in any way repugnant to, or inconsistent with, this Constitution;

(b) to be in any way inconsistent with the Statement of Governance Principles for the time being in effect;

(d) to affect any matter for which the Governor is responsible under section 37;

(e) to affect the integrity or independence of the public service, of the administration of justice or of any institution protecting good governance; or

(f) to determine or regulate the privileges, immunities or powers of the House of Assembly or of its members,

unless the Governor has been authorised by a Secretary of State to assent to it.

(3) Subsection (2) is without prejudice to section 116(4).

Return of bills by Governor

74

The Governor, acting in his or her discretion, may return to the House of Assembly any bill presented to him or her for his or her assent, transmitting with it any amendments which he or she may recommend, and the House shall deal with such recommendation.

Disallowance of laws

75

(1) Any law to which the Governor has given his or her assent may be disallowed by Her Majesty through a Secretary of State.

(2) Whenever a law has been disallowed by Her Majesty the Governor shall, as soon as practicable, cause notice of the disallowance to be published in the Gazette and the law shall be annulled with effect from the date of the publication of that notice.

(3) Section 16(1) of the Interpretation Act 1978[^f00006] shall apply to the annulment of any law under this section as it applies to the repeal of an Act of Parliament, save that any enactment repealed or amended by or in pursuance of that law shall have effect as from the date of the annulment as if that law had not been made.

Privileges, immunities and powers of House of Assembly

76

An Ordinance may determine and regulate the privileges, immunities and powers of the House of Assembly and of its members, but no such privileges, immunities or powers shall exceed those of the Commons House of Parliament of the United Kingdom or of its members.

PART V — THE JUDICATURE

The Supreme Court

Constitution of Supreme Court

77

(1) There shall be a Supreme Court for the Turks and Caicos Islands which shall have such jurisdiction and powers as may be conferred on it by this Constitution and any other law.

(2) The judges of the Supreme Court shall be a Chief Justice and such number of other judges as may be determined by the Governor, acting after consultation with the Chief Justice; but the office of a judge shall not, without the consent of that judge, be abolished during his or her continuance in office.

(3) The judges of the Supreme Court shall be persons qualified for appointment under subsection (4) and shall be appointed by the Governor, acting in accordance with section 87, by instrument under the public seal.

(4) A judge of the Supreme Court must be—

(a) a barrister or solicitor of the United Kingdom, of any other part of the Commonwealth, or of Ireland;

(b) a member of the Faculty of Advocates or a Writer to the Signet of Scotland; or

(c) an attorney of the Supreme Court admitted under the Legal Profession Ordinance[^f00007] or under any law for the time being in force in the Islands making like provision,

and of at least ten years’ standing as such.

(5) It shall be lawful for a person qualified for appointment as a judge of the Supreme Court to be appointed (regardless of his or her age) for such term as may be specified in the instrument of appointment, and section 85 shall have effect in relation to any person so appointed as if he or she would attain the retiring age applicable to that office on the day on which the specified term expires.

Acting judges of Supreme Court

78

(1) If the office of Chief Justice is vacant, or the holder of that office is for any reason unable to perform the functions of that office, then, until some other person has been appointed to, and has assumed the functions of, that office, or until the holder of that office has resumed those functions, as the case may be, such one of the other judges of the Supreme Court or such other person qualified for appointment as a judge of the Supreme Court as the Governor, acting in accordance with section 87, may appoint for that purpose shall act in that office.

(2) If the office of a judge of the Supreme Court other than the Chief Justice is vacant, or if any such judge is acting as the Chief Justice or is for any reason unable to perform the functions of his or her office, the Governor, acting in accordance with section 87, may appoint a person qualified for appointment as a judge of the Supreme Court to act as such a judge.

(3) A person may be appointed under subsection (1) or (2) notwithstanding that he or she has attained the age of 65 years.

(4) Any person appointed under this section to act as a judge of the Supreme Court shall, unless he or she is removed from office under section 85, continue to act for the period of his or her appointment or, if no such period is specified, until his or her appointment is revoked by the Governor, acting in his or her discretion; but a person whose appointment so to act has expired or been revoked may, with the permission of the Governor, acting in his or her discretion, continue so to act for such period as may be necessary to enable him or her to deliver judgment or to do any other thing in relation to any proceeding previously commenced before him or her.

Oaths to be taken by judges of Supreme Court

79

Before assuming the functions of his or her office, every judge of the Supreme Court shall make and subscribe before the Governor, or some other person authorised by the Governor, acting in his or her discretion, the oath of allegiance and the judicial oath in the forms set out in the Schedule to this Constitution.

The Court of Appeal

Constitution of Court of Appeal

80

(1) There shall be a Court of Appeal for the Turks and Caicos Islands which shall have such jurisdiction and powers as may be conferred on it by this Constitution and any other law.

(2) For the purposes of hearing and determining appeals the Court of Appeal may sit either in the Islands or in such places outside the Islands as the President of the Court may from time to time direct.

(3) The judges of the Court of Appeal shall be a President and two Justices of Appeal, or such other number of Justices of Appeal, not being less than two, as may be determined by the Governor, acting after consultation with the President of the Court; but the office of a Justice of Appeal shall not, without the consent of that Justice of Appeal, be abolished during his or her continuance in office.

(4) The judges of the Court of Appeal shall be appointed by the Governor, acting in accordance with section 87, by instrument under the public seal, for such period as may be specified in their respective instruments of appointment.

(5) A person shall be qualified to be appointed as a judge of the Court of Appeal if, and shall not be qualified to be so appointed unless, he or she holds or has held high judicial office and is qualified for appointment as a judge of the Supreme Court under section 77(4).

(6) A judge of the Supreme Court may exercise any of the powers of a single judge of the Court of Appeal to such extent as may be prescribed by any law relating to the Court of Appeal.

Acting judges of Court of Appeal

81

(1) If the office of the President of the Court of Appeal is vacant, or if the holder of that office is for any reason unable to perform the functions of that office, then, until some other person has been appointed to, and has assumed the functions of, that office, or until the holder of that office has resumed those functions, as the case may be, such one of the Justices of Appeal or such other person qualified for appointment as a judge of the Court of Appeal as the Governor, acting in accordance with section 87, may appoint for that purpose shall act in the office of President.

(2) If the office of a Justice of Appeal is vacant, or if any Justice of Appeal is acting as the President or is for any reason unable to perform the functions of his or her office, the Governor, acting in accordance with section 87, may appoint a person possessing such legal qualifications and experience as he or she, after consultation with the President of the Court, may deem appropriate to act as a Justice of Appeal.

(3) Any person appointed under this section to act as a judge of the Court of Appeal shall, unless he or she is removed under section 85, continue to act for the period of his or her appointment or, if no such period is specified, until his or her appointment is revoked by the Governor, acting in his or her discretion; but a person whose appointment so to act has expired or been revoked may, with the permission of the Governor, acting in his or her discretion, continue so to act for such period as may be necessary to enable him or her to deliver judgment or to do any other thing in relation to any proceeding previously commenced before him or her.

Oaths to be taken by judges of Court of Appeal

82

Before assuming the functions of his or her office, every judge of the Court of Appeal shall make and subscribe before the Governor, or some other person authorised by the Governor, acting in his or her discretion, the oath of allegiance and the judicial oath in the forms set out in the Schedule to this Constitution.

Judicial independence

Independence of the judiciary

83

(1) The judges and magistrates appointed to preside or sit in any court of the Turks and Caicos Islands shall exercise their judicial functions independently from the legislative and executive branches of government.

(2) The Legislature and the Cabinet shall uphold the rule of law and judicial independence, and shall ensure that adequate funds are provided to support the judicial administration in the Islands.

Remuneration, terms and conditions of judges and magistrates

84

(1) The remuneration and allowances of each judge of the Supreme Court, each judge of the Court of Appeal and each magistrate shall be determined by the Governor, are hereby charged on and shall be paid out of the Consolidated Fund, and shall not be diminished during his or her continuance in office.

(2) The terms and conditions of service of each judge of the Supreme Court, each judge of the Court of Appeal and each magistrate shall be determined by the Governor, and shall not be altered to his or her disadvantage during his or her continuance in office.

(3) The powers conferred on the Governor by this section shall be exercised by the Governor in accordance with the advice of the Judicial Service Commission, unless the Governor is instructed by Her Majesty through a Secretary of State to do otherwise.

Tenure of office of judges and magistrates

85

(1) Subject to this section, a judge of the Supreme Court shall vacate his or her office when he or she attains the age of 65 years; but—

(a) the Governor may permit a judge who attains the age of 65 years to continue in office until he or she has attained such later age, not exceeding the age of 70 years, as may have been agreed between the Governor and that judge; and

(b) a judge who has attained the age at which he or she would otherwise vacate office under this subsection may continue in office for such period as may be necessary to enable him or her to deliver judgment or do any other thing in relation to any proceeding commenced before him or her before he or she attained that age.

(2) Subject to this section, a judge of the Court of Appeal shall vacate his or her office on the expiration of the period of his or her appointment to that office.

(3) Subject to this section, a magistrate shall vacate his or her office when he or she attains such age as may be prescribed by law.

(4) In the following subsections “judge” means a judge of the Supreme Court, an acting judge of the Supreme Court, a judge of the Court of Appeal or an acting judge of the Court of Appeal.

(5) A judge or a magistrate may be removed from office only for inability to discharge the functions of his or her office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour, and shall not be so removed except in accordance with subsection (6).

(6) A judge or a magistrate shall be removed from office by the Governor by instrument under the public seal if the question of the removal of that judge or magistrate from office has, at the request of the Governor made in pursuance of subsection (7), been referred by Her Majesty to the Judicial Committee of Her Majesty’s Privy Council under section 4 of the Judicial Committee Act 1833[^f00008] or any other enactment enabling Her Majesty in that behalf, and the Judicial Committee has advised Her Majesty that the judge or magistrate ought to be removed from office for inability as aforesaid or for misbehaviour.

(7) If the Governor considers that the question of removing a judge or magistrate from office for inability as aforesaid or for misbehaviour ought to be investigated, then—

(a) the Governor shall appoint a tribunal, which shall consist of a Chairman and not less than two other members selected by the Governor from among persons who hold or have held high judicial office;

(b) the tribunal shall inquire into the matter and report on the facts thereof to the Governor and advise the Governor whether he or she should request that the question of the removal of that judge or magistrate should be referred by Her Majesty to the Judicial Committee; and

(8) The provisions of the Commissions of Inquiry Ordinance[^f00009] as in force on the date of commencement of this Constitution shall, subject to this section, apply as nearly as may be in relation to tribunals appointed under subsection (7) or, as the context may require, to their members as they apply in relation to Commissions or Commissioners appointed under that Ordinance.

(9) If the question of removing a judge or magistrate from office has been referred to a tribunal under subsection (7) the Governor may suspend the judge or magistrate from performing the functions of his or her office, and any such suspension may at any time be revoked by the Governor, and shall in any case cease to have effect—

(a) if the tribunal advises the Governor that he or she should not request that the question of the removal of the judge or magistrate from office should be referred by Her Majesty to the Judicial Committee; or

(b) if the Judicial Committee advises Her Majesty that the judge or magistrate ought not to be removed from office.

(10) The powers conferred on the Governor by this section shall be exercised by the Governor in his or her discretion.

Judicial Service Commission

86

(1) There shall be a Judicial Service Commission for the Turks and Caicos Islands, which shall consist of a Chairman and two other members.

(2) Of the members of the Judicial Service Commission—

(a) the Chairman shall be appointed by the Governor, acting in his or her discretion;

(b) the other two members shall be appointed by the Governor, acting after consultation with the Premier and the Leader of the Opposition, from among persons who hold or have held high judicial office.

(3) The members of the Judicial Service Commission shall be appointed by instrument under the public seal for such period, not being less than one year nor more than four years, as may be specified in their respective instruments of appointment.

(4) The office of a member of the Judicial Service Commission shall become vacant—

(a) at the expiration of the period specified in the instrument by which he or she was appointed;

(b) if he or she resigns his or her office by writing under his or her hand addressed to the Governor; or

(c) if the Governor, acting in his or her discretion, directs that he or she shall be removed from office for inability to discharge the functions of his or her office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour.

(5) If the office of a member of the Judicial Service Commission becomes vacant or if such a member is for any reason unable to perform the functions of that office, the Governor, acting in the manner prescribed by subsection (2) for the appointment of that member, may appoint another suitably qualified person to act as a member of the Commission; and any person so appointed shall, subject to subsection (4), continue so to act until he or she is notified by the Governor, acting in his or her discretion, that the circumstances giving rise to the appointment have ceased to exist.

(6) Any decision of the Judicial Service Commission shall require the concurrence of at least two members of the Commission.

(7) The Judicial Service Commission may make regulations governing its operation and procedure.

(8) In the exercise of their functions the Judicial Service Commission and its members shall not be subject to the direction or control of any other person or authority.

Functions of Judicial Service Commission

87

(1) Power—

(a) to make appointments to the offices of judge of the Supreme Court, judge of the Court of Appeal, magistrate, registrar and deputy registrar;

(b) to exercise disciplinary control over persons holding or acting in the offices of Chief Justice, President of the Court of Appeal, registrar and deputy registrar; and

is vested in the Governor, acting in accordance with the advice of the Judicial Service Commission, unless the Governor is instructed by Her Majesty through a Secretary of State to do otherwise.

(2) In subsection (1), “registrar” and “deputy registrar” mean registrar or deputy registrar of any court in the Islands.

(3) The Judicial Service Commission, acting after consultation with the Chief Justice, shall—

(a) draw up and publish a code of conduct for the judiciary, which shall include power for the Chief Justice to exercise disciplinary control over the other judges of the Supreme Court and magistrates and power for the President of the Court of Appeal to exercise disciplinary control over the Justices of Appeal; and

(b) draw up and publish a procedure for dealing with complaints relating to the judiciary;

and the Commission shall have such other functions as may be conferred on it by Ordinance.

(4) This section is without prejudice to section 85.

PART VI — THE PUBLIC SERVICE

Overriding duty of public officers

88

Subject to this Constitution, all public officers must act in accordance with the best interests of the Turks and Caicos Islands and not in their own private interests.

Public Service Commission

89

(1) There shall be a Public Service Commission for the Turks and Caicos Islands, which shall consist of a Chairman and four other members.

(2) Of the members of the Public Service Commission—

(a) the Chairman shall be appointed by the Governor, acting in his or her discretion;

(b) one member shall be appointed by the Governor, acting after consultation with the Premier;

(d) one member shall be appointed by the Governor, acting after consultation with the Civil Servants Association; and

(e) one member shall be appointed by the Governor, acting after consultation with the Premier, the Leader of the Opposition and the Civil Servants Association.

(3) The members of the Public Service Commission shall be appointed by instrument under the public seal for such period, not being less than one year nor more than four years, as may be specified in their respective instruments of appointment.

(4) No person shall be qualified to be appointed as a member of the Public Service Commission if he or she is a public officer or if he or she is or has been within the preceding three years—

(a) a member of the House of Assembly; or

(b) the holder of any office in any political party.

(5) The office of a member of the Public Service Commission shall become vacant—

(a) at the expiration of the period specified in the instrument by which he or she was appointed;

(b) if he or she resigns his or her office by writing under his or her hand addressed to the Governor;

(c) if he or she becomes a member of the House of Assembly, the holder of any office in any political party, or a public officer; or

(d) if the Governor, acting in his or her discretion, directs that he or she shall be removed from office for inability to discharge the functions of his or her office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour.

(6) Whenever the office of the Chairman of the Public Service Commission is vacant or the holder of that office is for any reason unable to perform the functions of that office, such one of the other members of the Public Service Commission as the Governor, acting in his or her discretion, may appoint shall act in the office of the Chairman; and any person so appointed shall, subject to subsection (5), continue so to act until he or she is notified by the Governor, acting in his or her discretion, that the circumstances giving rise to the appointment have ceased to exist.

(7) If the office of a member of the Public Service Commission other than the Chairman is vacant or the holder of that office is acting as the Chairman or is for any other reason unable to perform the functions of his or her office, the Governor, acting in the manner prescribed by subsection (2) for the appointment of that member, may appoint a person who is qualified for appointment as a member of the Commission to act as a member of the Commission; and any person so appointed shall, subject to subsection (5), continue so to act until he or she is notified by the Governor, acting in his or her discretion, that the circumstances giving rise to the appointment have ceased to exist.

(8) No business shall be transacted at any meeting of the Public Service Commission if there are less than three members of the Commission present.

(9) Any question proposed for decision at any meeting of the Public Service Commission shall be determined by a majority of the votes of the members present and voting; and if on any question the votes are equally divided the Chairman shall have and exercise a casting vote.

(10) The Public Service Commission shall be served by a secretariat, the members of which shall be public officers.

(11) In the exercise of their functions the Public Service Commission and its members shall not be subject to the direction or control of any other person or authority.

(12) Subject to subsection (8), the Public Service Commission may act notwithstanding any vacancy in its membership.

Appointment, discipline and removal of public officers

90

(1) Power to make appointments to public offices except the office of any permanent secretary or head of department is vested in the Governor, acting in accordance with the advice of the Public Service Commission; but the Governor may act otherwise than in accordance with that advice—

(a) if the Governor determines, acting in his or her discretion, that compliance with that advice would be inconsistent with the Statement of Governance Principles for the time being in effect; or

(b) if so instructed by Her Majesty through a Secretary of State.

(2) Power to remove or exercise disciplinary control over persons holding or acting in any public office except the office of permanent secretary or head of department is vested in the Governor, acting in his or her discretion.

(3) Power to make appointments to the office of any permanent secretary or head of department is vested in the Governor, acting after consultation with the Public Service Commission.

(4) Power to remove or exercise disciplinary control over persons holding or acting in the office of any permanent secretary or head of department is vested in the Governor, acting in his or her discretion.

(5) The Governor, acting in his or her discretion, may, by regulations published in the Gazette—

(a) delegate any of the powers vested in the Governor by subsection (1) to the Deputy Governor or to any permanent secretary;

(b) delegate any of the powers vested in the Governor by subsection (2) to the Deputy Governor, to any permanent secretary or to any head of department; and

to such extent and subject to such conditions as may be prescribed in the regulations.

(6) Where a public officer is the subject of a removal or disciplinary decision, that officer may appeal the decision to the Public Service Commission.

(7) On receiving any appeal under subsection (6), the Public Service Commission shall review the matter and report to the Governor with such recommendations as it thinks fit, and the Governor, acting in his or her discretion, shall finally determine the case.

(8) This section shall not apply to—

(a) any office to which section 91 applies;

(b) any office mentioned in section 87; or

Particular offices

91

(1) Subject to subsections (3) and (4), power to make appointments to the offices to which this section applies and to remove or exercise disciplinary control over persons holding or acting in such offices is vested in the Governor, acting in his or her discretion.

(2) This section applies to the offices of—

(a) Attorney General;

(b) Permanent Secretary, Finance;

(d) Director of Public Prosecutions;

(e) Supervisor of Elections; and

(f) Commissioner of Police.

(3) Before making an appointment to the office of Director of Public Prosecutions the Governor shall consult the Premier, the Leader of the Opposition and the Judicial Service Commission, and before making an appointment to the office of Auditor General or Supervisor of Elections the Governor shall consult the Premier and the Leader of the Opposition.

(4) A person holding the office of Attorney General, Auditor General, Director of Public Prosecutions or Supervisor of Elections may be removed from office only for inability to discharge the functions of his or her office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour, and with the prior approval of a Secretary of State.

Functions of Public Service Commission

92

(1) The Public Service Commission shall uphold the principles of merit, neutrality and integrity in the public service, and to that end it shall from time to time issue and keep under review standards of conduct and ethics in the public service, monitor the implementation of such standards and provide advice on them.

(2) Any standards of conduct and ethics issued under subsection (1) must be consistent with the Statement of Governance Principles and the Code of Conduct for Persons in Public Life for the time being in effect.

(3) The Public Service Commission shall from time to time publish and keep under review a disciplinary policy for the public service, monitor its implementation and provide advice on it.

(4) The Public Service Commission shall exercise the following functions in addition to those conferred on it by this Constitution—

(a) the supervision of, and the provision of advice on, the policies and programmes of the Government for the training of public officers at all levels;

(b) the provision of advice of a general nature on questions relating to the pay and conditions of service of public officers; and

(c) such other functions as may be conferred on it by law or by regulations made by the Governor, acting after consultation with the Public Service Commission.

(5) The Public Service Commission must be impartial and must exercise its functions without fear, favour or prejudice, in the interest of the maintenance of effective and efficient public administration and a high standard of professional ethics in the public service.

(6) This section shall not apply in relation to any office mentioned in section 87.

Regulations regarding Public Service Commission

93

The Governor, acting after consultation with the Public Service Commission, may, by regulations published in the Gazette, make provision for—

(a) the organisation of the work of the Commission and the manner in which it performs its functions;

(b) consultation by the Commission with persons or authorities other than members of the Commission;

(c) the protection and privileges of members of the Commission in respect of the performance of their functions and the privilege of communications to and from the Commission and its members in the case of legal proceedings;

(d) the definition and trial of offences in relation to the functions of the Commission and the imposition of penalties for such offences; but no such penalty shall exceed a fine of 5,000 United States dollars or imprisonment for a term of one year or both such fine and imprisonment.

Applicability of pensions law

94

(1) Subject to section 96, the law applicable to the grant and payment to any officer, or to his or her widow or widower, children, dependants or personal representatives, of any pension, gratuity or other like allowance (in this section and in sections 95 and 96 referred to as “an award”) in respect of the service of that officer in a public office shall be that in force on the relevant day or any later law not less favourable to the person concerned.

(2) For the purposes of this section the relevant day is—

(a) in relation to an award granted before the appointed day, the day on which the award was granted;

(b) in relation to an award granted or to be granted on or after the appointed day to or in respect of a person who was a public officer before that day, the day immediately before that day;

(c) in relation to an award granted or to be granted to or in respect of a person who first becomes a public officer on or after the appointed day, the day on which he or she becomes a public officer.

(3) For the purposes of this section, in so far as the law applicable to an award depends on the option of the person to or in respect of whom it is granted or to be granted, the law for which he or she opts shall be taken to be more favourable to him or her than any other law for which he or she might have opted.

(4) In this section “the appointed day” means the date of commencement of this Constitution.

Pensions, etc, charged on Consolidated Fund

95

Awards granted under any law in force in the Islands are hereby charged on and shall be paid out of the Consolidated Fund.

Grant and withholding of pensions, etc

96

(1) The power to grant any award under any pensions law in force in the Islands (other than an award to which, under that law, the person to whom it is payable is entitled as of right) and, in accordance with any provisions in that respect contained in any such law, to withhold, reduce in amount or suspend any award payable under any such law is hereby vested in the Governor, acting in his or her discretion.

(2) In this section “pensions law” means any law relating to the grant to any person, or to the widow or widower, children, dependants or personal representatives of that person, of an award in respect of the services of that person in a public office, and includes any instrument made under any such law.

PART VII — INSTITUTIONS PROTECTING GOOD GOVERNANCE

Establishment of institutions protecting good governance

97

(1) There shall be the following institutions protecting good governance in the Turks and Caicos Islands—

(a) an Auditor General and a National Audit Office;

(b) a Complaints Commissioner;

(d) a Human Rights Commission;

(e) an Integrity Commission; and

(f) a Supervisor of Elections.

(2) In the exercise of their functions each of the institutions protecting good governance, and any person acting on its instructions or on its behalf, shall not be subject to the direction or control of any other person or authority.

(3) The remuneration and allowances of any person holding office as, or as a member of, any of the institutions protecting good governance shall be determined by law, are hereby charged on and shall be paid out of the Consolidated Fund, and shall not be diminished during his or her continuance in office; and the terms and conditions of service of any such person shall not be altered to his or her disadvantage during his or her continuance in office.

(4) Nothing in subsection (3) shall preclude an Ordinance that reduces the level of remuneration payable to the persons referred to in that subsection where that Ordinance makes equivalent reduction to the remuneration of all members of the public service.

Auditor General and National Audit Office

98

(1) The office of Auditor General shall be a public office, and appointments to that office shall be made in accordance with section 91.

(2) The National Audit Office shall be headed by the Auditor General, shall support and assist the Auditor General in the exercise of his or her functions, and shall have such other functions as may be prescribed by law.

(3) In addition to the other functions conferred on the Auditor General by sections 122 and 126, the Auditor General shall have the following functions—

(a) to promote accountability in the public administration of the Islands;

(b) to undertake any function conferred on the Auditor General by or under any Ordinance; and

Complaints Commissioner

99

(1) The Complaints Commissioner shall be appointed by the Governor, acting after consultation with the Premier and the Leader of the Opposition, by instrument under the public seal.

(2) No person shall be qualified to be appointed as Complaints Commissioner if he or she is or has been within the preceding three years—

(a) a member of the House of Assembly; or

(b) the holder of any office in any political party.

(3) The office of Complaints Commissioner shall become vacant—

(a) at the expiration of the period specified in the instrument by which he or she was appointed;

(b) if he or she resigns his or her office by writing under his or her hand addressed to the Governor;

(d) if the Governor, acting in his or her discretion, directs that he or she shall be removed from office for inability to discharge the functions of his or her office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour.

(4) The Complaints Commissioner shall investigate complaints of maladministration in the government of the Islands in accordance with any Ordinance, and shall have such functions and jurisdiction as may be prescribed by or under any such Ordinance.

Director of Public Prosecutions

100

(1) The office of Director of Public Prosecutions shall be a public office, and appointments to that office shall be made in accordance with section 91.

(2) The Director of Public Prosecutions shall have power, in any case in which he or she considers it desirable to do so—

(a) to institute and undertake criminal proceedings against any person before any court in respect of any offence against any law in force in the Islands;

(b) to take over and continue any such criminal proceedings that have been instituted by any other person or authority; and

(c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by himself or herself or any other person or authority.

(3) The powers of the Director of Public Prosecutions under subsection (2) may be exercised by the Director of Public Prosecutions in person or by officers subordinate to him or her acting under and in accordance with his or her general or special instructions.

(4) The powers conferred on the Director of Public Prosecutions by subsection (2)(b) and (c) shall be vested in him or her to the exclusion of any other person or authority; but where any other person or authority has instituted criminal proceedings, nothing in this subsection shall prevent the withdrawal of those proceedings by or at the instance of that person or authority at any stage before the person against whom the proceedings have been instituted has been charged before the court.

(5) For the purposes of this section, any appeal from any determination in any criminal proceedings before any court, or any case stated or question of law reserved for the purpose of any such proceedings, to any other court or to Her Majesty in Council shall be deemed to be part of those proceedings.

(6) The Director of Public Prosecutions shall formulate, and may from time to time amend, a prosecution policy document which sets out the principles that will be applied by the Director of Public Prosecutions and his or her office in their approach to prosecutions, and the Director of Public Prosecutions shall publish any such policy document and any amendment to it.

Human Rights Commission

101

(1) The Human Rights Commission shall consist of a Chairman and such number of other members, being no fewer than two, as may be prescribed by law, appointed by the Governor, acting after consultation with the Premier and the Leader of the Opposition, and at least one of the members shall be a lawyer of at least ten years’ standing.

(2) The primary responsibility of the Human Rights Commission shall be to promote understanding and observance of human rights in the Islands.

(3) The Human Rights Commission shall have power to—

(a) receive and investigate complaints of breaches or infringements of any right or freedom contained in Part I of this Constitution or in international human rights treaties that have been extended to the Islands, and investigate such possible breaches or infringements on its own initiative;

(b) provide advice to persons who consider that their rights or freedoms have been infringed;

(d) issue guidance on procedures for dealing with any complaints of breaches or infringements of rights and freedoms;

(e) contribute to public education about human rights;

(f) issue reports relating to human rights issues on its own initiative;

(g) exercise such other functions, for the purpose of fulfilling its primary responsibility under subsection (2), as may be conferred on it by law.

(4) The Human Rights Commission shall have no power to—

(a) represent or provide representation to parties to litigation, but this shall not prevent a member of the Commission appearing as amicus curiae when requested to do so by the court;

(b) act in a judicial capacity or make binding recommendations as to whether any right or freedom contained in Part I of this Constitution or in any international human rights treaty has been breached or infringed;

but any public officer or public authority to which the Commission addresses a recommendation must respond in writing within a reasonable time, and such responses shall be published by the Commission unless there is a good reason to withhold publication.

(5) The Human Rights Commission shall make an annual report to the House of Assembly about its activities, and shall send a copy of each report to the Governor.

(6) Further provision relating to the establishment and operation of the Human Rights Commission may be made by Ordinance, but such legislation shall not derogate from any provision of this section.

(7) Nothing contained in or done pursuant to this section or any law made under subsection (6) shall—

(a) oblige a person to refer any complaint of a breach or infringement of any right or freedom contained in Part I of this Constitution to the Human Rights Commission; or

(b) prevent a person from seeking redress directly from the Supreme Court in relation to any breach or infringement of a right or freedom contained in Part I of this Constitution, and the fact that any person had previously sought the assistance of the Commission with respect to any breach or infringement shall not prejudice any legal action.

Integrity Commission

102

(1) The Integrity Commission shall consist of a Chairman and five other members who shall be appointed by the Governor in the manner prescribed by law.

(2) The primary responsibility of the Integrity Commission shall be to promote integrity, honesty and good faith in public life in the Islands.

(3) The Integrity Commission shall—

(a) have and exercise the functions conferred on it by sections 34, 49, 51 and 124;

(b) formulate and publish, after public consultation in the Islands, a Code of Conduct for Persons in Public Life, keep the Code under review and amend or replace it as it considers necessary or desirable, and, in accordance with any Ordinance, investigate any alleged failures to abide by the Code by persons subject to it, either in response to a complaint or on its own initiative;

(c) have and exercise the functions conferred on it by section 103 and any other law relating to the registration of interests by persons in public life;

(d) contribute to public education about integrity in public life; and

(e) have and exercise such other functions, for the purpose of fulfilling its primary responsibility under subsection (2), as may be conferred on it by law.

(4) The Integrity Commission shall make an annual report to the House of Assembly about its activities, and shall send a copy of each report to the Governor.

(5) Further provision relating to the establishment and operation of the Integrity Commission may be made by Ordinance, but such legislation shall not derogate from any provision of this section.

Registration of interests

103

(1) There shall be for the Islands a Register of Interests, which shall be maintained by the Integrity Commission.

(2) It shall be the duty of any person to whom this section applies to declare to the Integrity Commission, for entry in the Register of Interests, such interests, assets, income and liabilities of that person, or of any other person connected with him or her, as may be prescribed by law.

(3) A person shall make a declaration under subsection (2) on assuming the functions of his or her office and at such intervals thereafter (being no longer than twelve months) as may be prescribed by law.

(4) This section applies to all members of the House of Assembly (including Ministers) and the holders of such other offices (except that of Governor) as may be prescribed by law.

(5) A law made by the Legislature shall make provision for giving effect to this section, including the sanctions which may be imposed for failure to comply with, or the making of false statements in purported compliance with, subsections (2) and (3) and, notwithstanding anything contained in Part IV of this Constitution, the sanctions which may be imposed may include the suspension of a member of the House of Assembly from sitting and voting in the House for such period as may be prescribed in such a law.

Supervisor of elections

104

(1) The office of Supervisor of Elections shall be a public office, and appointments to that office shall be made in accordance with section 91.

(2) The primary responsibility of the Supervisor of Elections shall be, in accordance with any Ordinance—

(a) to make arrangements for the registration of electors and the administrative conduct of elections to the House of Assembly; and

(b) to enforce on the part of all election officers fairness, impartiality and compliance with any such law.

(3) The Supervisor of Elections shall have and exercise such functions, for the purpose of fulfilling his or her primary responsibility under subsection (2), as may be conferred on him or her by law.

Funding of institutions protecting good governance

105

(1) Before the commencement of each financial year—

(a) each institution protecting good governance shall submit to the Appropriations Committee of the House of Assembly a bid for its budget for that financial year;

(b) the Appropriations Committee shall scrutinise each bid in public hearings and, having satisfied itself that the bid conforms to the Government’s current budget policies and made any amendments it considers necessary for that purpose, recommend to the House of Assembly a budget for each institution for that financial year.

(2) The House of Assembly may pass or reject a budget recommended to it under subsection (1)(b), but may not amend it.

(3) If the House of Assembly passes a budget recommended to it under this section, that budget shall form part of the Appropriation Ordinance for that financial year.

(4) If the House of Assembly rejects a budget recommended to it under subsection (1)(b), the Appropriations Committee shall reconsider the budget in question and, after consulting the institution concerned, recommend a revised budget to the House of Assembly; and the same procedure shall be followed if the House rejects a revised budget recommended to it.

(5) This section is without prejudice to section 72.

PART VIII — CROWN LAND

Definition of Crown land

106

In this Part, “Crown land” means any right or interest in land or other immovable property within the Islands that vests in and may be lawfully granted or disposed of by Her Majesty in right of the Turks and Caicos Islands.

Crown land principles

107

Subject to section 108, the principles governing the acquisition, management and disposal of Crown land shall be prescribed by Ordinance and shall be in conformity with the Statement of Governance Principles for the time being in effect.

Grants and dispositions of Crown land

108

(1) The Governor may, in Her Majesty’s name and on Her Majesty’s behalf, make and execute under the public seal grants and dispositions of Crown land.

(2) In exercising the powers conferred on the Governor by subsection (1), the Governor shall consult the Cabinet but may act otherwise than in accordance with the advice of the Cabinet in the circumstances prescribed in section 29(2).

(3) The Governor, acting in his or her discretion, may by writing under his or her hand delegate to the Deputy Governor or any other public officer the power to sign any legal instrument necessary to give effect to decisions taken under subsections (1) and (2).

PART IX — PUBLIC FINANCIAL MANAGEMENT

General principles

109

(1) The macro-economic and fiscal policies of the Government shall be formulated and conducted for the sustained long term prosperity of the people of the Islands.

(2) Public funds shall be managed according to established principles of value for money, affordability and regularity and the interests of long term financial stability.

(3) The Government shall, after public consultation in the Islands, formulate a framework document stating its principles of public financial management which sets—

(a) limits on levels of public debt relative to public revenue;

(b) limits on debt service costs as a proportion of total public expenditure; and

(4) Any framework document formulated under subsection (3) must be agreed by the House of Assembly and a Secretary of State in draft before it is adopted by the Government; and the Government shall publish the document in the Gazette as soon as possible after its adoption.

(5) The prior approval of a Secretary of State shall be required before—

(a) the adoption by the Government of any proposed decision or policy; or

(b) the coming into force of any Ordinance,

which, in the judgement of the Governor, would exceed the framework document published under subsection (4) which is for the time being in effect.

(6) The Minister of Finance shall report to the House of Assembly at least every six months on—

(a) the performance of the Government in implementing the framework document published under subsection (4) which is for the time being in effect; and

(b) the state of the public finances and the state of the economy of the Islands.

(7) The Government shall aim towards achieving and maintaining a surplus budget, and where any Appropriation Bill would not return a surplus result the Minister of Finance shall, at the same time as the Bill is introduced in the House of Assembly, lay before the House a statement explaining the reasons for not achieving a surplus.

Taxation

110

(1) No tax, rate or other levy shall be imposed except under the authority of an Ordinance.

(2) Where an Ordinance confers powers on any person or authority to waive or vary a tax imposed by that Ordinance, that person or authority shall report to the House of Assembly on the exercise of those powers as often as shall be determined by law but not less than every six months.

Contingent liabilities

111

The Minister of Finance shall ensure that all contingent liabilities of the Government, including pension and healthcare liabilities, are subjected to independent actuarial assessment at least every two years, and shall report the information provided by any such assessment to the House of Assembly within two months of receiving it.

Consolidated Fund

112

(1) There shall be a Consolidated Fund for the Islands into which shall be paid all revenues or other moneys raised or received by and for the purposes of the Government.

(2) The revenues or other moneys referred to in subsection (1) shall not include revenues or other moneys—

(a) that are payable by or under an Ordinance into some other fund established for a specific purpose; or

(b) that may, by or under an Ordinance, be retained by the department of government that received them for the purpose of defraying the expenses of that department.

Withdrawal from Consolidated Fund or other public funds

113

(1) No moneys shall be withdrawn from the Consolidated Fund except—

(a) to meet expenditure charged on the Fund by this Constitution or by an Ordinance; or

(b) where the issue of those moneys has been authorised by an Appropriation Ordinance, a Supplementary Appropriation Ordinance, or as provided in subsection (3).

(2) No moneys shall be withdrawn from any public fund of the Islands other than the Consolidated Fund unless the issue of those moneys has been authorised by law.

(3) If the Minister of Finance is satisfied that the Appropriation Ordinance in respect of any financial year will not or has not come into force by the beginning of that financial year, that Minister may, if so authorised by the House of Assembly by resolution and subject to subsection (4), authorise the issue of moneys from the Consolidated Fund for the purpose of meeting expenditure necessary to carry on the services of the Government until the expiration of four months from the beginning of that financial year or the coming into force of the Appropriation Ordinance, whichever is the earlier.

(4) Any sum issued in any financial year from the Consolidated Fund under subsection (3) in respect of any ongoing service of the Government—

(a) shall not exceed one third of the amount approved for that service in an Appropriation Ordinance or a Supplementary Appropriation Ordinance for the previous financial year; and

(b) shall be set off against the amount provided in respect of that service in the Appropriation Ordinance for that financial year when that Ordinance comes into force.

Appropriations Committee

114

(1) There shall be an Appropriations Committee of the House of Assembly, which shall consist of at least three members of the House appointed by the Speaker from among members who are not Ministers, at least one of whom shall be a member of the House in opposition to the Government.

(2) The Appropriations Committee may co-opt to its membership up to two persons who are not members of the House of Assembly, either on a continuing basis or for the purpose of a specific enquiry conducted by the Committee, and shall be assisted in its work by the Permanent Secretary, Finance or his or her nominee and permanent Committee staff.

(3) The Appropriations Committee shall have power to compel the production of documents and evidence from Ministers, departments of government and public officers, and shall meet in public.

(4) The Appropriations Committee shall have and exercise the functions conferred on it by this Constitution and such other functions as may be conferred on it by any other law or by Standing Orders.

(5) The House of Assembly shall publish all reports of the Appropriations Committee without delay.

Financial year estimates

115

(1) At least six weeks before the beginning of each financial year the Minister of Finance shall cause to be prepared and laid before the House of Assembly—

(a) estimates of revenues and expenditure of the Government for that financial year; and

(b) a document setting out targets for revenue and expenditure for the next three financial years, and an assessment of performance against the debt sustainability limits as set out in the framework document published under section 109(4) which is for the time being in effect,

and the House shall publish those estimates and that document without delay.

(2) Before the House of Assembly considers the estimates laid before it under subsection (1)(a), the Appropriations Committee shall scrutinise those estimates and make recommendations in relation to them to the House in sufficient time for an Appropriation Bill to be passed by the House before the beginning of the financial year in question.

Appropriation Bill

116

(1) The heads of expenditure contained in the estimates, other than expenditure charged on the Consolidated Fund by this Constitution or any Ordinance, shall be included in a bill, to be known as an Appropriation Bill, which shall be introduced into the House of Assembly to provide for the issue from the Consolidated Fund of the sums necessary to meet that expenditure and the appropriation of those sums for the purposes specified in the bill.

(2) If in respect of any financial year it is found that the amount appropriated for any purpose under the Appropriation Ordinance is insufficient or that a need has arisen for expenditure for a purpose for which no amount has been appropriated by that Ordinance, a supplementary estimate showing the sums required shall be laid before the House of Assembly by the Minister of Finance, and the Appropriations Committee shall scrutinise that estimate and make recommendations in relation to it to the House.

(3) The heads of expenditure contained in a supplementary estimate shall be included in a bill, to be known as a Supplementary Appropriation Bill, which shall be introduced into the House of Assembly to provide for the issue from the Consolidated Fund of the sums necessary to meet that expenditure and the appropriation of those sums for the purposes specified in the bill.

(4) The Governor, acting in his or her discretion and with the prior approval of a Secretary of State, may refuse to assent to any Appropriation Bill or Supplementary Appropriation Bill if in his or her judgement the enactment of that bill would be inconsistent with section 109 or the Statement of Governance Principles for the time being in effect.

Excess expenditure

117

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