The Turks and Caicos Islands Constitution Order 2011

• (1) Where, in exceptional circumstances, at the close of accounts for any financial year it is found that moneys have been expended on any expenditure in excess of the amount appropriated for it by an Appropriation Ordinance or a Supplementary Appropriation Ordinance or for a purpose for which no moneys have been voted and appropriated, the amount of the excess expended, or not appropriated, as the case may be, shall be included in a statement of expenditure in excess.

• (2) The Minister of Finance shall lay every statement of expenditure in excess before the House of Assembly, which shall refer it to the Public Accounts Committee of the House, and the Minister shall at the same time send a copy of the statement to the Governor.

• (3) The Public Accounts Committee shall report to the House of Assembly on a statement of expenditure in excess referred to it under subsection (2) within six months after the statement is referred to it.

• (4) Where on receiving any report of the Public Accounts Committee issued under subsection (3) the House of Assembly, by means of a resolution, allows the excess or the amount expended but not appropriated to stand charged to public funds, the sum required to meet that excess or such amount as shall be allowed shall be included in a Supplementary Appropriation Bill for appropriation.

Contingencies

118

• (1) The Minister of Finance, if he or she is satisfied that there is an urgent and unforeseen need for expenditure for which no provision or insufficient provision has been made by an Appropriation Ordinance or a Supplementary Appropriation Ordinance, may, by a Contingencies Warrant under his or her hand and in anticipation of the grant of an appropriation by the Legislature, authorise an advance from the Consolidated Fund to meet that need and shall forthwith report his or her action to the Cabinet.

• (2) No Contingencies Warrant shall be issued by the Minister of Finance without the prior approval of the Governor, acting in his or her discretion, and the House of Assembly shall be invited to approve the expenditure resulting from any Contingencies Warrant issued by the Minister.

• (3) An advance made under subsection (1) shall be subject to any Ordinance and to any restrictions imposed by the House of Assembly by resolution from time to time.

Power of Government to borrow or lend

119

• (1) Subject to this Constitution, the Government may borrow from any source.

• (2) The Government shall not borrow, guarantee or raise a loan on behalf of itself or any other public institution, authority or person except—

• (a) as authorised by or under an Ordinance; and

• (b) in accordance with any borrowing guidelines agreed with Her Majesty’s Government in the United Kingdom.

• (3) An Ordinance enacted under subsection (2)(a) shall provide—

• (a) that the terms and conditions of the loan shall be laid before the House of Assembly and shall not come into force unless they have been approved by a resolution of the House; and

• (b) that any moneys received in respect of that loan shall be paid into the Consolidated Fund and form part of that Fund or into some other public fund which is existing or is created for the purpose of the loan.

• (4) The Minister of Finance shall, at such times as the House of Assembly may determine and at least every six months, cause to be presented to the House such information concerning any loan as is necessary to show—

• (a) the extent of the total indebtedness by way of principal and accumulated interest;

• (b) the provision made for servicing or repayment of the loan; and

• (c) the utilisation and performance of the loan.

• (5) The House of Assembly may, by resolution, authorise the Government to enter into an agreement for the giving of a loan or a grant out of any public fund or public account.

• (6) An agreement entered into pursuant to subsection (5) shall be laid before the House of Assembly and shall not come into force unless it has been approved by the House by resolution.

• (7) Any resolution passed by the House of Assembly under subsection (5) or (6) must be compatible with section 109 and the Statement of Governance Principles for the time being in effect.

• (8) For the purposes of this section, “loan” includes any money lent or given to or by the Government on condition of return or repayment and any other form of borrowing or lending in respect of which—

• (a) moneys from the Consolidated Fund or any other public fund may be used for payment or repayment; or

• (b) moneys from any fund by whatever name called, established for the purpose of payment or repayment whether in whole or in part and whether directly or indirectly, may be used for payment or repayment.

Public Debt

120

• (1) The Public Debt of the Islands shall be charged on the Consolidated Fund and other public funds of the Islands.

• (2) For the purposes of this section, the Public Debt includes the interest on that debt, sinking fund payments in respect of that debt, and the costs, charges and expenses incidental to the management of that debt.

Financial control and accounts

121

• (1) The Minister of Finance shall provide the House of Assembly with such reports, information and accounts as may be necessary to ensure that the House is kept fully informed at all times of the state of the economy of the Islands and the finances of the Government.

• (2) Every public corporation or other body or organisation established by or under an Ordinance shall report its financial transactions to the Minister of Finance, who shall include such reports in the information provided to the House of Assembly under subsection (1).

• (3) An Ordinance shall make provision for the regular publication of accounts of the Consolidated Fund and any other public funds and for the laying of such accounts and any reports on them before the House of Assembly.

Public Accounts Committee

122

• (1) There shall be a Public Accounts Committee of the House of Assembly which shall consist of—

• (a) at least three members of the House appointed by the Speaker from among members who are not Ministers; and

• (b) two persons expert in public finance who are not members of the House, one of whom shall be appointed by the Speaker and one of whom shall be appointed by the Governor, acting in his or her discretion.

• (2) The Chairman of the Public Accounts Committee shall be a member of the House of Assembly in opposition to the Government (without prejudice to the appointment of other such members to the Committee).

• (3) A person appointed under subsection (1)(b) shall cease be a member of the Public Accounts Committee—

• (a) at the expiration of the period for which he or she was appointed;

• (b) if he or she becomes a member of the House of Assembly; or

• (c) if the person who made the appointment revokes it, acting in his or her discretion.

• (4) If in respect of any item of business before the Public Accounts Committee the Governor, acting after consultation with the Speaker and the Chairman of the Committee, considers that a member of the Committee has a conflict of interests, the Governor, acting in his or her discretion, may appoint another person (whether or not a member of the House of Assembly) temporarily to replace that member of the Committee for the purpose of dealing with the business in question; and a member so replaced shall not sit on the Committee when the Committee is dealing with that business.

• (5) The Public Accounts Committee shall examine and report to the House of Assembly on—

• (a) the reports submitted to the Committee by the Auditor General under section 126(4); and

• (b) such management letters and reports of the Auditor General as have been submitted to the Committee or as have been laid before the House or as the Auditor General has brought to the attention of the House;

and shall have and exercise such other functions, and shall operate under such procedures, as are prescribed by this Constitution or as may be prescribed by Ordinance or by Standing Orders.

• (6) The Public Accounts 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.

• (7) The Public Accounts Committee shall report to the House of Assembly by the date set by the House or by its terms of reference, whichever is the earlier; and except as otherwise provided in the Committee’s terms of reference, such a report may be with or without recommendations.

• (8) If the House of Assembly adopts a report of the Public Accounts Committee, and requests the responsible member of the Cabinet to advise the House of the action proposed to be taken by the Government in respect of the report, the member concerned shall convey the Government’s response to the House not later than the first sitting day following the expiration of six weeks after the date of the House’s request, unless the House extends the time for the response.

• (9) The Auditor General shall be adviser to the Public Accounts Committee, and the Committee shall not meet without the presence of the Auditor General or his or her nominee.

• (10) The Public Accounts Committee may invite any person to assist it in its work and to participate in its proceedings.

Accounting officers

123

• (1) There shall be an Accountant General of the Government, whose office shall be a public office.

• (2) The Accountant General shall be responsible for the compilation and management of the accounts of the Government, and for the custody and safety of public money and other resources of the Government.

• (3) The Governor, acting in his or her discretion, shall by directions in writing designate for each department of government and each institution protecting good governance an accounting officer who shall be responsible for the regularity and propriety of the expenditure, receipts and resources of that department or institution, and shall be accountable to the House of Assembly.

• (4) For the purposes of subsection (3), “department of government” means any department of the Government by whatever name called and any other division of the administration of the Islands that the Governor, acting in his or her discretion, may designate by directions in writing.

Remuneration of Speaker and other members of House of Assembly

124

• (1) There shall be paid to the Speaker and the other members of the House of Assembly such remuneration and allowances as may be prescribed by Ordinance.

• (2) The House of Assembly shall not proceed on any bill for an Ordinance referred to in subsection (1) unless a report by the Integrity Commission recommending the appropriate levels of such remuneration and allowances has been laid before the House and has been published; and no Ordinance shall provide for levels of remuneration or allowances that exceed the levels recommended in such report.

• (3) The remuneration and allowances payable to the Speaker and the other members of the House of Assembly are hereby charged on and shall be paid out of the Consolidated Fund.

Remuneration of certain officers

125

• (1) There shall be paid to the holders of the offices to which this section applies such remuneration and allowances as may be prescribed by or under an Ordinance.

• (2) The remuneration and allowances payable to the holders of those offices are hereby charged on and shall be paid out of the Consolidated Fund.

• (3) The remuneration prescribed in pursuance of this section in respect of the holder of any such office and his or her other terms of service (other than allowances that are not taken into account in computing, under any law in that respect, any pension payable in respect of his or her service in that office) shall not be altered to his or her disadvantage after his or her appointment.

• (4) Where a person’s remuneration or other terms of service depend on his or her option, the remuneration or terms for which he or she opts shall, for the purposes of subsection (3), be deemed to be more advantageous to him or her than any others for which he or she might have opted.

• (5) This section applies to the offices of Deputy Governor, Attorney General, Permanent Secretary, Finance, Commissioner of Police, and any member of the Public Service Commission, the Judicial Service Commission or the Mercy Committee.

• (6) Nothing in this section shall preclude an Ordinance that reduces the level of remuneration payable to the holder of any office to which this section applies where that Ordinance makes equivalent reduction to the remuneration of all members of the public service.

Audit

126

• (1) The Auditor General shall audit and report on the public accounts of the Islands, including the House of Assembly, the courts, the central and local government administrations, the institutions protecting good governance, and any public corporations or other bodies or organisations established by or under any Ordinance.

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

• (a) accounts shall be provided by the authorities referred to in that subsection to the Auditor General within four months of the end of each financial year; and

• (b) the Permanent Secretary, Finance shall, as soon as practicable after the end of each financial year, cause to be prepared for submission to the Auditor General a statement of accounts reflecting the financial operations of the Consolidated Fund and any other public fund or account for that financial year.

• (3) The Auditor General and any person authorised by him or her shall have a right of access at all reasonable times to all such documents as appear to him or her to be necessary for the purposes of conducting an audit under subsection (1), and shall be entitled to require from any person holding or accountable for any such documents such information and explanation as he or she thinks necessary for those purposes.

• (4) Each year the Auditor General shall, as soon as practicable and in any case within four months of receiving the accounts under subsection (2)(a), submit to the Public Accounts Committee of the House of Assembly a report of the accounts audited by him or her under subsection (1) for the immediately preceding financial year, and shall send a copy of each report to the Governor, who shall publish the audited accounts and report as soon as practicable.

PART X — MISCELLANEOUS

Powers of pardon, etc

127

• (1) There shall be a Mercy Committee for the Islands comprising the Governor, the Attorney General and not less than two nor more than four other members appointed by the Governor, acting after consultation with the Premier and the Leader of the Opposition.

• (2) Any appointment made under subsection (1) may be revoked by the Governor, acting after consultation with the Premier and the Leader of the Opposition.

• (3) The Governor may, in Her Majesty’s name and on Her Majesty’s behalf—

• (a) grant to any person convicted of any offence against the law in force in the Islands a pardon, either free or subject to lawful conditions;

• (b) grant to any person a respite, either indefinite or for a specified period, from the execution of any punishment imposed on him or her for such an offence;

• (c) substitute a less severe form of punishment for that imposed by any sentence for such an offence; or

• (d) remit the whole or any part of any sentence passed for such an offence or of any penalty or forfeiture otherwise due to Her Majesty on account of such an offence.

• (4) The Governor shall exercise the powers conferred on him or her by subsection (3) after consultation with the Mercy Committee unless in any particular case the matter is in his or her judgement too urgent to permit such consultation, in which case the Governor may act in his or her own judgement.

• (5) The Mercy Committee shall not be summoned except by the authority of the Governor, acting in his or her discretion; and the Governor shall preside at all meetings of the Committee.

• (6) No business shall be transacted at any meeting of the Mercy Committee unless there are at least three members present, of whom one shall be the Attorney General.

• (7) The Mercy Committee shall not be disqualified for the transaction of business by reason of any vacancy in its membership, and the validity of the transaction of any business by the Committee shall not be affected by reason only of the fact that some person who was not entitled to do so took part in its proceedings.

• (8) Subject to this section the Mercy Committee may regulate its own procedure.

Constitution of offices

128

Subject to this Constitution and any other law, the Governor, in Her Majesty’s name and on Her Majesty’s behalf, may constitute offices for the Islands.

Freedom of information

129

Subject to this Constitution, an Ordinance shall provide for a right of access to information held by public authorities, for the conditions for the exercise of that right, and for restrictions and exceptions to that right in the interests of international relations, the security of the Islands or the United Kingdom, public safety, public order, public morality or the rights or interests of individuals.

Local government

130

Subject to this Constitution, an Ordinance shall provide for the establishment and functions of local councils to contribute to effective local government in the Islands.

Interpretation

131

• (1) In this Constitution, unless the context otherwise requires—

• “Appropriations Committee” means the Committee established by section 114;

• “Code of Conduct for Persons in Public Life” means a Code adopted and published by the Integrity Commission under section 102(3)(b);

• “Court of Appeal” means the Court of Appeal constituted by section 80;

• “Deputy Speaker” means the member of the House of Assembly elected by the House as Deputy Speaker under section 44;

• “financial year” means the period of twelve months beginning on the first day of April in any year or such other day as the Legislature may prescribe by law;

• “functions” includes powers and duties;

• “Gazette” means the official Gazetteof the Turks and Caicos Islands;

• “Government” means the Government of the Turks and Caicos Islands;

• “Governor” means the person for the time being appointed as Governor of the Islands, and includes any person performing the functions of the Governor in pursuance of section 26 and, to the extent to which a person appointed under section 27 is authorised to act, that person;

• “high judicial office” means the office of judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or Ireland or a court having jurisdiction in appeals from such a court;

• “institution protecting good governance” means an institution established by section 97(1);

• “the Islands” means the Turks and Caicos Islands;

• “law” includes any subsidiary instrument;

• “Leader of the Opposition” means the person appointed as such under section 56;

• “Legislature” means, subject to section 72, the Legislature established by section 42;

• “meeting” in relation to the House of Assembly means any sitting or sittings of the House commencing when the House first meets after being summoned at any time and terminating when the House is adjourned sine die or at the conclusion of a session;

• “Minister” means a person appointed as Premier or other Minister under section 31;

• “Minister of Finance” means the Minister for the time being responsible for finance;

• “Ordinance” means a law enacted by the Legislature or in pursuance of section 72;

• “political party” means a political party formed in accordance with the Ordinance regulating political parties for the time being in force in the Islands;

• “Premier” means the person appointed as such under section 31(2);

• “Public Accounts Committee” means the Committee established by section 122;

• “public office” means, subject to section 133, an office of emolument in the public service;

• “public officer” means the holder of any public office, and includes a person appointed to act in any public office;

• “public service” means the service of the Crown in a civil capacity in respect of the government of the Islands;

• “session” in relation to the House of Assembly means the sittings of the House commencing when the House first meets after its prorogation or dissolution at any time, and terminating when the House is next prorogued or dissolved without having been prorogued;

• “sitting” in relation to the House of Assembly means a period during which the House is sitting continuously without adjournment, and includes any period during which the House is in committee;

• “Speaker” means the person elected by the House of Assembly as Speaker under section 44;

• “Standing Orders” means the Standing Orders of the House of Assembly made under section 63;

• “Statement of Governance Principles” means a Statement issued under section 28;

• “subsidiary instrument” means any proclamation, regulation, order, rule or other like instrument having the force of law;

• “Supreme Court” means the Supreme Court constituted by section 77;

• “Turks and Caicos Islander” has the meaning prescribed in section 132(1).

• (2) Unless it is otherwise provided or the context otherwise requires, a reference in this Constitution to the holder of an office by the term designating his or her office shall be construed as a reference to any person for the time being lawfully performing the functions of that office.

• (3) For the purposes of this Constitution, a person shall not be regarded as absent from the Islands or as unable to perform the functions of his or her office by reason only that he or she is in passage from one part of the Islands to another.

Turks and Caicos Islander

132

• (1) For the purposes of this Constitution, a person shall be regarded as a Turks and Caicos Islander if that person—

• (a) had immediately before the commencement of this Constitution the status of Belonger or Turks and Caicos Islander by virtue of any law then in force in the Islands; or

• (b) has the status of Belonger or Turks and Caicos Islander under any law for the time being in force in the Islands.

• (2) An Ordinance shall prescribe the conditions under which a person may be granted the status of Turks and Caicos Islander, and (except in the case of a person who has a family connection with a Turks and Caicos Islander) those conditions shall include, but need not be limited to, the conditions set out in subsection (3).

• (3) The conditions referred to in subsection (2) are that—

• (a) an applicant is a British overseas territories citizen by virtue of a connection with the Islands or a British citizen who either—

• (i) has held a permanent residence certificate for a period of at least five years; or

• (ii) has been legally resident in the Islands for a period of at least ten years; and

• (b) an applicant is neither serving a sentence imposed by a court for an offence against the law in force in any country nor has been adjudged or otherwise declared bankrupt under any law in force in any country and has not been discharged.

References to public office

133

• (1) In this Constitution, references to public offices shall not be construed as including—

• (a) references to the office of Speaker, Deputy Speaker or member of the House of Assembly, Premier or other Minister, Leader of the Opposition, member of the Public Service Commission, the Judicial Service Commission, the Integrity Commission, the Human Rights Commission or the Mercy Committee, or Complaints Commissioner; or

• (b) except in sections 94 and 96, references to the office of judge of the Supreme Court or the Court of Appeal or magistrate.

• (2) For the purposes of this Constitution, a person shall not be considered as holding or acting in a public office by reason only that he or she—

• (a) is in receipt of a pension or other like allowance in respect of service under the Crown; or

• (b) is on leave of absence pending relinquishment of a public office.

• (3) A provision of any law that a person shall not be disqualified for election as a member of the House of Assembly by reason of his or her holding or acting in any public office or class of public office specified in that law shall have effect as if it were included in this Constitution.

Appointments

134

• (1) In this Constitution, unless it is otherwise provided or the context otherwise requires, any reference to power to make appointments to any public office shall be construed as including a reference to power to make appointments on promotion and transfer, appointments on contract and appointments to act in an office during any period when it is vacant or the holder of that office is absent from the Islands or is for any other reason unable to perform the functions of the office.

• (2) Where the holder of any office constituted by or under this Constitution is on leave of absence pending the relinquishment of that office, the person or authority having power to make appointments to that office may appoint another person to that office; and where two or more persons concurrently hold the same office by virtue of an appointment made in pursuance of this subsection, the person last appointed shall, in respect of any function conferred on the holder of that office, be deemed to be the sole holder of that office.

• (3) Where by this Constitution any person is directed, or power is conferred on any person or authority to appoint a person, to act in an office if the holder of that office is unable to perform the functions of that office, the validity of any performance of those functions by the person so directed or of any appointment made in exercise of that power shall not be called in question in any court on the ground that the holder of the office is not unable to perform the functions of the office.

Re-election or reappointment

135

Any person who has vacated his or her seat in the House of Assembly or has vacated any office constituted by or under this Constitution may, if qualified, again be elected to the House or appointed to that office, as the case may be, from time to time.

Removal from office

136

In this Constitution, unless it is otherwise provided or the context otherwise requires, any reference to power to remove a public officer from office shall be construed as including a reference to any power conferred by any law to require or permit that officer to retire from the public service and to any power or right to terminate a contract on which a person is employed as a public officer and to determine whether any such contract shall or shall not be renewed.

Resignations

137

For the purposes of this Constitution, the resignation of a member of the House of Assembly or the holder of any office constituted by this Constitution that is required to be addressed to any person shall, unless otherwise expressly provided, be deemed to have effect from the time at which it is received by that person.

Oaths and affirmations

138

Where a person is required by this Constitution to make an oath he or she shall, if he or she so desires, be permitted to comply with that requirement by making an affirmation in the form provided for in the Schedule to this Constitution.

Power to amend or revoke instruments

139

Any power conferred by this Constitution to make any subsidiary instrument or to give any instructions or directions or make any designation shall be construed as including a power exercisable in like manner to amend or revoke any such instrument, instructions, directions or designation.

SCHEDULE TO THE CONSTITUTION — FORMS OF OATHS AND AFFIRMATIONS

Signed

Judith Simpson — Clerk of the Privy Council

Explanatory note

(This note is not part of the Order)

EXPLANATORY NOTE

This Order establishes a new Constitution of the Turks and Caicos Islands. The new Constitution sets out a catalogue of fundamental rights and freedoms of the individual and provisions for their enforcement. It provides for a Governor as Her Majesty’s representative in the Islands, for a House of Assembly composed of elected and appointed members and the Attorney General, for a Cabinet and for Ministers appointed from among the elected or appointed members of the House. It also provides for the judiciary, the public service, and a number of institutions protecting good governance, notably an Integrity Commission, a Human Rights Commission, an Auditor General and a Director of Public Prosecutions. Provision is also made regarding Crown land and for public financial management, including the independent audit of public accounts.

The Order revokes the Turks and Caicos Islands Constitution Order 2006, as well as two Orders in Council of 2009 and 2010 that modified and supplemented it, which together form the present Constitution of the Islands.

Footnotes

[^f00001]: 1962 c.19.

[^f00002]: S.I. 2006/1913.

[^f00003]: S.I. 2009/701.

[^f00004]: S.I. 2010/2966.

[^f00005]: See S.I. 1952/2031 (1952 I. p.620). The relevant amending instruments are S.I. 1956/731, 1963/88, 1633, 1964/267, 1199, 1965/131, 1968/724, 1973/759.

[^f00006]: 1978 c.30.

[^f00007]: Ordinance No. 5 of 1997.

[^f00008]: 1833 c.41.

[^f00009]: Ordinance No. 7 of 1986.