The Turks and Caicos Islands Constitution Order 2011

• (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

• (c) delegate any of the powers vested in the Governor by subsection (3) or (4) to the Deputy Governor,

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

• (c) any office in the Police Force.

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;

• (c) Auditor General;

• (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;

• (c) a Director of Public Prosecutions;

• (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

• (c) to do anything incidental or conducive to any of the Auditor General’s functions.

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;

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

• (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;

• (c) provide a forum for dealing with complaints by mediation or conciliation or by making recommendations;

• (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;

• (c) compel any person to do anything against his or her will;

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

• (c) levels of reserves relative to public expenditure.

• (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

• (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