Written evidence from Jerzy Kolodziej (OTS0080)

Does the rule of law and democracy extent to the Turks and Caicos Islands?

I thank the committee for the open invitation to give evidence. The invitation to give further evidence to the FAC is long overdue. I can only speak on the matters relating to the Turks and Caicos Islands. However, it is likely that similar concerns may exist within of OT’s.

I have been a “belonger” (now referred to as a Turks and Caicos Islander) by virtue of marriage since 1992. I have taken a particular interest in politics, the constitution and the rule of law over many years.  There are several matters that I hope may be addressed that relate to good governance, the rule of law, the constitution and democracy in the Turks and Caicos Islands. I do not have sufficient time to properly cover the areas I would like to, given the deadline for evidence.

The Constitution

The current Constitution of the Turks and Caicos Islands is largely contained within The Turks and Caicos Islands Constitution Order 2011. It is one of several constitutions that have been enacted through Orders in Council under the powers of the West Indies Act 1962 from time to time.

It cannot have escaped attention that this latest iteration our constitution follows the partial suspension of the previous Constitution Order of 2006. The suspension followed the findings of the Commission of Inquiry headed by Sir Robin Auld. The partial suspension precipitated The Turks and Caicos Islands Constitution (Interim Amendment) Order 2009. The order suspended the cabinet or legislative council together with the elected local parliament. It was a move that was unprecedented. The previous Commission of Enquiry headed by Louis Blom-Cooper in 1986 only resulted in the suspension of the legislative council not the elected house of assembly.

The above-mentioned events seem to prove that the UK apparently reserves power to make and unmake law for the Turks and Caicos despite there being no representation of the democratic interests of the islands themselves. If it is not proof enough, I could cite the example of the VAT Ordinance that was enacted under the interim administration, for want or a better word, by fiat of the Governor. Following the resumption of cabinet and Parliament a Bill to repeal the VAT Ordinance was unanimously carried in Parliament. However, the Governor refused to give assent. The Secretary of State then gave unprecedented instructions to the Governor to leave the legislation on the shelf but not to bring it into force.

It is common sense that the current constitutional arrangements do not protect the democratic rights of the people of the Turks and Caicos. It seems that the UK government do not attach great importance to democracy in the OT’s. It is difficult to marry the UK’s (and Turks and Caicos Islands) commitment to the UN Covenant on Civil and Political Rights, or other international treaties and commitments, with the laisse fair attitude of the Foreign Office and DFID towards democracy. For the avoidance of doubt I reproduce the commitment as follows (with emphasis added):
 

“Article 1
1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

PART II
Article 2
1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.

3. Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies when granted.”

…

“Article 25

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

(c) To have access, on general terms of equality, to public service in his country.”

I think it is beyond doubt that the democratic rights of the people of the Turks and Caicos have been breached and remain breached. There are a number of arguments that would seek to justify the appointment of the Governor to rule by fiat or the undemocratic interference with the laws or democratic will of the people. However, these arguments can be dispensed with relatively easily.

Firstly, there is the argument that in times of emergency these rights may be suspended. However, despite the seriousness of the allegation of government corruption, at no material time was an emergency declared in respect of the Turks and Caicos Islands. Therefore, as matter of fact, there was no emergency and no legal basis for suspending these rights.

Secondly, it may be argued that international conventions or treaties do not form part of domestic law. This proposition is, broadly speaking, correct with the exception of EU treaties and law that are given effect inter alia by the European Communities Act 1972. It is also of no doubt true that in order to comply with the EU Conventions, the UK government derogated from Article 3 of the First Protocol of the ECHR. On its face, it seems that the UK government had the legal right to suspend democracy and empower the Governor to, not only make and unmake law, but also assent to his own legislation. In fact, the UK government position was apparently upheld by the ruling in R (on the application of Misick) v Secretary of State for Foreign and Commonwealth Affairs [2009] EWCA Civ 1549. However, it is my belief that the decision of the court was fundamentally wrong for different reasons than were considered by the court. It is a per incuriam decision that should be revisited.

The reasons for my objections are both arcane and anachronistic; yet they go to the heart of the constitution of the Turks and Caicos Islands (TCI). I started by saying that the Constitution of the TCI are largely contained in the Constitution Orders. However, it is the laws that are not contained within the Orders in Council that absolutely preclude the suspension of the elected house and the conferring of powers to make and unmake law on the Governor. The starting point is not all OT’s are created equal. Some of the OT’s are ceded territories, others are settled territories. 

A ceded territory derives it laws from the laws that were in force immediately before it was ceded, until new laws replace them, through the Royal prerogative. This was usually achieved through letters patent or the like. The peculiarity of this situation was made clear in the series of proceedings over the rights of the people of Chagos. The courts ruled that if the prerogative was used to make the laws of the territory then the prerogative could be used to unmake them. The people Chagos could not rely on the laws of England to protect them from exile. The prerogative allows any law to be made or unmade for the territory. The laws of England simply did not apply unless they were explicitly intended to.

The situation is entirely different for settled territories. The laws of settled territories follow the flag. The prerogative has no more scope than it has in England. A settled territory could rely on every law of England, so far as it was applicable to their circumstances. That is the situation that remains today. For reference, the TCI is accepted by the Crown as being a settled territory.

The laws of England remain in force until they are replaced by a new enactment, either by the English Parliament (or conferred powers) or the local legislature. Had the British Indian Overseas Territories been settled rather than ceded, they could have relied on the Magna Carta XXIX, namely:

NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor [ X5 condemn him,] but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right. [emphasis added]

The right to rely on the laws of England is enshrined in the Colonial Laws Validity Act 1865 (CLVA). However, this act means quite different things for ceded territories than settled territories. The laws of England apply to the extent that they are explicitly intended for a ceded territory. In the case of a settled territory, the laws of England apply to the extent that that they have not been replaced or repealed.

My assertion is simple. The English Bill of Rights 1688[9] applies to the TCI in precisely the same way as it applies to the UK. Namely;

“Dispensing Power.
That the pretended Power of Suspending of Laws or the Execution of Laws by Regall Authority without Consent of Parlyament is illegall.

Late dispensing Power.
That the pretended Power of Dispensing with Laws or the Execution of Laws by Regall Authoritie as it hath beene assumed and exercised of late is illegall.”

The appointment of the Governor is by Regal authority. During the Interim Administration it was by pretence of Regal authority to make and unmake law; worse, the Governor was assenting to his own law. No man should be the judge in his own court. The order in council to suspend the local elected Parliament and replace it with the Governor was clearly repugnant to an Act of Parliament that applied to the TCI; namely the Bill of Rights. In particular, the CLVA provides;

“2 Colonial Law when void for Repugnancy.
Any Colonial Law which is or shall be in any respect repugnant to the Provisions of any Act of Parliament extending to the Colony to which such Law may relate, or repugnant to any Order or Regulation made under Authority of such Act of Parliament, or having in the Colony the Force and Effect of such Act, shall be read subject to such Act, Order, or Regulation, and shall, to the Extent of such Repugnancy, but - not otherwise, be and remain absolutely void and inoperative.”

“Void and inoperative” is a conclusive and powerful provision. The replacement of the elected legislature by the Governor is plainly repugnant provided that the Bill of Rights extended to the TCI.

Any doubts as to the applicability or “extending” of the laws of England, or in particular the Bill of Rights, to the TCI were removed by statute.

“Such as declare the rights, liberties and privileges of the subject” seem to adequately cover the English Bill of Rights 1688[9] as being “of full force and virtue within this colony”. There is really no legal difference between suspending democracy in the TCI than suspending it in the Isle of Dogs or Streatham.

The situation is one that must be addressed. It is difficult to see how the ruling in R (on the application of Misick) v Secretary of State for Foreign and Commonwealth Affairs [2009] EWCA Civ 1549 was correct, or could survive any proper scrutiny. It raises the question of the status of all the laws enacted by the Governor during the Interim Administration.

It is not my purpose to create confusion or to defeat good governance; quite the opposite. I was a leading critic of Misick and his government. Yet, it does not seem to me appropriate to replace one kind of anarchy for another; however well intentioned.

Properly, these arguments should be placed before the courts for adjudication. I would be pleased to do so if I was not to be burdened with the expenses of litigation. Perhaps there is a way that such a case could be brought with the cooperation of the Foreign Office. In any event, I would urge the FAC to raise these issues and recommend a way to avoid such circumstance from repeating themselves.

Outside of the legal objections to the disregard of the democratic rights of the people of the TCI, there is a fundamental political difficulty between the powers of the UK and those of the local legislature in the OT’s. I have my own ideas of how these problems may be addresses but this is not the place to canvass them. I would rather simply identify that there is a fundamental legal and political problem that should be solved. In the only comprehensive work (to my knowledge) on colonial laws[1], Sir Kenneth Roberts-Wray suggested that the role of the UK is to create constituent laws rather than dabble in local legislation. It is my belief that any such constituent law should always preserve the political rights of the local population. A belief in democracy demands it.

It is of passing interest that the recent referendum on EU membership excluded the democratic rights of the Overseas Territories and the Crown Dependencies, with the exception of Gibraltar. The rights and laws of the OT’s and CD’s are directly affected by leaving the EU. Yet, how have our democratic interests been taken into account by Parliament or the executive? It is yet another example of the total disregard for the democratic rights or interests of the OT’s.
 

Failure to follow the provisions of the West Indies Act 1962

It was clear, following the failure of the Misick administration, the finances of the TCI government were in a precarious condition. At the time, the expression “bankrupt” was bandied about by the Governor and UK officials. It is true that the government could not pay their bills as the fell due. However, it is simply not possible for the TCI to be bankrupt. The UK has absolute financial responsibility for the debts of the TCI or other OT’s. It is often referred to as “contingent liability” in government circles. The UK had failed to manage risk properly due to a rogue government in the TCI and poor oversight. A useful reference for the kinds of risks are set out by the National Audit Office – Managing Risk in the Overseas Territories[2]. Failure to meet the debts of the TCI would amount to a default on sovereign debt by the UK government. The West Indies Act (WIA) makes provision under s.8 for this very situation.

“8 Grants for benefit of certain West Indian colonies.

The Secretary of State may—

(a)   from time to time make, to the government of any colony to which section five of this Act applies, being a government whose resources are, in his opinion, insufficient to enable it to defray its administrative expenses, grants of such amounts as he may, with the approval of the Treasury, determine;”

Instead of following that provision, the Secretary of State made an emergency loan from UK funds (DFID) intended for another purpose. I am uncertain of the legality of using those funds, but it certainly seems to diverge from the clear statutory provisions of the WIA.

It was not the only divergence from the WIA. Under s. 6 there is provision for establishing a new form of government. There is little doubt that conferring the “fiat” on the Governor was a ‘new form of government”. What the UK government failed to do was to properly enact the Order in Council that established the “new form of Government”. The Turks and Caicos Islands Constitution (Interim Amendment) Order 2009 was required to go through full Parliamentary approval under s.7 (4):

“(4) The last foregoing subsection shall not apply to an instrument containing an Order in Council under section six of this Act making provision for the federation of, or the establishment of any other new form of government for, any colonies, but no recommendation shall be made to Her Majesty in Council to make an Order under the said section six making such provision unless a draft of the Order has been laid before Parliament and approved by resolution of each House of Parliament.” [emphasis added]

Unless giving the Governor the power to make and unmake law and also to give assent to his own laws was not a new form of government, then the Order in Council was not properly approved by both houses. It is not the first time that a mistake of this nature has occurred. The government failed to lay the first TCI Constitution Order before Parliament in 1962 and the matter had to be rectified by retrospective legislation some years later.

Criminal Prosecution of former Premier Michael Misick and others

There is no need to for me to reiterate the concerns the complaints regarding the investigation and trial in detail. These matters have been addressed previously in evidence to the FAC. Both Sir Robin Auld and Helen Garlick took the unusual step of giving evidence to the FAC suggesting that the investigation should be largely funded by the UK. Both the FAC recommendations and Garlick and Auld were apparently ignored by the government.

The FAC concluded in the Seventh Report 2010[3] the following:

“6.  We note the Government's argument that the UK taxpayer should not fund the SIPT, on the grounds that the former TCI Government was responsible for the present parlous economic state of the Islands, and therefore it is the Islanders who should pay to clean up the mess they have created. We conclude that this argument is flawed, for four reasons. First, on grounds of principle: it ignores the extent to which the UK Government was also culpable in allowing a culture of systemic corruption to develop in TCI unchecked, thereby neglecting its duty of responsible oversight of the Overseas Territories. Second, on grounds of pragmatism: if the funding of the SIPT has to be borne by the TCI Government, diverting resources which would otherwise be spent on healthcare, law and order, or public-sector salaries, it is likely that this will lead to an erosion of popular support for the reform process, which will be eagerly exploited by the opponents of reform. Third, we share the Special Prosecutor's concern that there is an important principle at stake as to who should fund the work of the SIPT. The UK Government, having intervened in the Turks and Caicos Islands, has a responsibility to follow through with the required financial commitment. Not to do so would be to risk the UK Government's credibility in its use of reserved powers. Fourth, it is unreasonable to expect the small population of the TCI to bear the financial burden, through debt or taxation, for funding the investigation and prosecution of corruption for which they were not responsible. We recommend that the UK Government fully fund the work of the SIPT or risk severely undermining its own credibility in its use of reserved powers, both in the TCI and in all the Overseas Territories. (Paragraph 33)

Sir Robin Auld's letter of 23 March 2010

7.  We conclude that Sir Robin Auld's comments in his letter to the Foreign Secretary of 23 March reinforce our own conclusions set out in this Report. We urge the Government to commit the resources necessary to ensure that the process of reform in the Turks and Caicos Islands does not unravel, at a great cost to the international reputation of the United Kingdom. (Paragraph 36)”

Astonishingly the matter has dragged on for almost 10 years. It is difficult to imagine that justice can be served by such long and drawn out proceedings. The maxim that justice delayed is justice denied seems to be a useless phrase in these circumstances.

I do not have an accurate figure of the costs of the investigation and prosecution, but it may well be between $50M and $100M, there does not seem to be a complete figure. Much of the costs have been borne by the TCI. Given the catastrophic damages and cost of the hurricanes of Ike, Irma and Maria, the costs are difficult to bear. The cost of the investigation and prosecution are quite simply disproportionate to the annual revenue of the government of the TCI. Given the choice, any rational government would have abandoned the proceedings long ago. It is a matter of fact that the local government have been forced to continue the investigation and proceedings by the UK government without adequate financial support.

Quite why the prosecution decided to make multiple discrete charges rather than charge the Ministers with ‘misconduct in public office’ is beyond me. The case for misconduct appears to be relatively simple and carries a maximum penalty of life imprisonment. We now seem to be at the stage that we need an investigation into the investigation!

The net effect is that the people of the TCI had to suffer the effects; of a corrupt government, under Misick, that left the local finances in disarray and unable to meet commitments as they fell due, suffer the costs and personal financial losses caused by three devastating hurricanes and then be forced to pay for an extravagant investigation and prosecution costs. We simply cannot afford it and should receive additional financial support from the UK. Meanwhile, the infrastructure and businesses are largely in disarray and much of the growth that could have improved government revenue has been lost through no fault of the people, or their newly local governments.

I hope you will revisit these issues and establish quantum of how much financial support has actually been provided by the UK government and how much the investigation and prosecution has actually cost all concerned. Perhaps they can be shamed into action.

However, these are not the matters that I would most like to bring to your attention. The issue that I would like to raise is trial is without jury. I do not have any objection to trial without jury provided that it is fair. For example, it is possible to have a trial without jury in the UK. This matter was considered in some detail in R (on the application of Misick) v Secretary of State for Foreign and Commonwealth Affairs [2009] EWCA Civ 1549 and Broadly speaking the ruling was correct with respect to the trial without jury issue. However, the court did not have sufficient information to decide whether the trial without jury legislation was law of general application, or ad hoc law that was targeted specifically at the Minister’s charged as a result of the Auld Inquiry. Similar matters were considered by the Privy Council in Don John Francis Douglas Liyanage and others (Appeal No. 25 of 1965) v The Queen (Ceylon) [1965] UKPC 39 (2 December 1965). The court decided that targeted legislation was unconstitutional and ultra vires.

The TCI is a peculiarly small jurisdiction of around 35,000 people. In many trials by jury, the jurors are related or know witnesses or the parties. It is almost impossible to have a fair trial by jury in the Turks and Caicos because of the difficulty finding an impartial jury. It is therefore surprising that the only people that have been tried without jury are the persons identified in the Auld report. It would seem to be possible to maintain an argument that the Trial Without a Jury Ordinance 2010 is contrary to the TCI Constitution. It could be argued that the ordinance was passed with the specific intent of making it easier to convict certain specific individuals. The constitution requires that the statutory law is compatible with the constitution and protects the right to a fair trial and equality under the law. A law intended to target certain individuals is obviously questionable and may be ultra vires.

The more significant problem is that the ordinance enabling trial without jury was enacted by the Governor during the Interim Administration. If my earlier arguments on the legality of law made by the Governor by fiat are correct, all the laws purported to be made by the Governor, during this period, are void and of no effect and the trial must be abandoned.

It may well be that all of the costs that the people of the TCI have suffered are simply wasted costs. Worse, justice may never be served.

Judicial system, rule of law and statute

There are considerable weaknesses in the whole system of laws in the TCI. There is no convenient access to law online. The Attorney General (AG) has now placed statutory laws online[4], a step forward, but many laws are missing; for example Trial Without a Jury Ordinance 2010. Much very important legislation is simply not published at all and is largely forgotten. Examples are; the law of probate, limitation of action, Colonial Laws Validity Act, but there are hundreds more. As a rule of thumb all English law that was suitable to the circumstances of the TCI was passed into law in 1848 as if it “had been made and enacted by the legislative council of these islands”. Track has not been kept of which old laws remain in force and those that have been repealed or amended. Many of these old laws have been repealed in the UK, but due to the reception of laws in the TCI they usually remain in force locally.

In addition, the AG chose to provide the laws, so much as have been selected, in a format that is inconvenient to use as a reference. They cannot be saved, printed or easily searched. No doubt this policy has been adopted to avoid copyright infringement and to protect the sale of legislation. I would argue that the revenue provided by the sale of legislation is far outweighed by the need for legislation the be publicly accessible.

The situation is even worse with regard to the common law. There is no regular local law review or reporting. Consequently, many local rulings are simply not accessible from the two courts of record (Supreme Court and Court of Appeal). The poor access to ratio decendi or obiter makes it all but impossible to ensure the court makes consistent rulings. Necessarily, there must be many cases were great injustice has occurred. Justice is a crapshoot.

The laws of procedure are also in some difficulty. As a result of the Woolf reforms the UK introduced the new CPR rules. Presumably, because of lack of resources the old RSC rules still apply with some local alterations. Since 2000, there has been a divergence between TCI law and laws in the UK. Many recent UK decisions are not easily adapted to the old rules that remain in the TCI. Gradually the development of law is diverging, leaving the TCI without a solid resource of rulings and authorities to aid the administration of justice.

Legislative process

The whole legislative process is equally flawed. There is simply not sufficient scrutiny or drafting expertise to arrive at competent legislation. There is a plethora of laws that require urgent repeal or amendment. This subject is far too wide to address in this submission, but it may be useful to give a few examples.

Quite how such wide and arbitrary power were allowed to be enacted into legislation is astonishing. I should not have to point out that such powers are fundamental breach of rights (inter alia Article 8 of the EHCR and Article 9 of the Constitution). The authorities have interpreted these and other provision widely and have carried out countless illegal searches and seizures.

Laws that are contrary to the Constitution are ultra vires and must not be followed. More importantly these kinds of laws should be prevented from coming into force in the first place. The persons involved in the process should have known that any exceptions to search of premises must be construed narrowly and with adequate reference to the numerous authorities in the UK courts and the ECHR.

The next example is related to emergency powers. These powers are substantively controlled by The Emergency Powers (Overseas Territories) Order 2017. This legislation was put to an early test following the hurricanes of Irma and Maria in September 2017. It is important to note that there was a clear legislative intention to ensure that local legislation was neutered:

“Effect of Regulations on law of the Territory

10.—(1) Subject to paragraph (2), Regulations made under article 6(1) shall have effect despite any inconsistent provision in the law of the Territory, and any inconsistent provision shall have no effect for the period that the Regulations are in force.

(2) In their application to the Sovereign Base Areas of Akrotiri and Dhekelia, Regulations made under article 6(1) may not contain provision that is inconsistent with the Human Rights Ordinance2004 and, to the extent of any such inconsistency, the Regulations shall have no effect.”

Section 6. (3) (b), (e) – (j) explicitly provides for powers necessary for curfew and detention to the exclusion of all other law. Section 7. provides conditions for making such regulations including that the “provision is proportionate”. Section 11. provides that the powers shall be exercised by the Governor “in his or her discretion”; not by some other person.

However, during the aftermath of the hurricanes these powers were purported to have been exercised under local legislation (Emergency Powers Ordinance and Disaster Management Ordinance). During this period quite a number of people were detained by the Police believing that a legitimate curfew was in force. It is clear that the Governor and other persons in government should have known that these powers could only be exercised in accordance with the provisions of The Emergency Powers (Overseas Territories) Order 2017.

It is beyond doubt that the curfew did not have the force of law. It is also of considerable doubt whether there were any circumstances that justified a curfew or people being apprehended and detained at gunpoint at all. There is no evidence of a substantive breakdown of law and order. Most people did not have any idea there was purportedly a curfew because communications were virtually none existent. The curfew materially interfered with the legitimate efforts of people to make themselves and their property safe; especially because hurricane Maria was heading for Grand Turk at the time.

Grand Turk, Salt Key and South Caicos have the dubious distinction of having been hit by three major hurricanes in the space of a few years. We have experience and knowledge of how to protect life and property that cannot easily be gained by “experts” who simply do not have the practical experience. Partly by luck and partly by judgment nobody lost their lives during these storms. It is a fact that government is virtually useless during the hurricanes and the immediate aftermath. Much of the responsibility is taken by individuals and businesses. Government simply does not have the resources, expertise or infrastructure to successfully respond.

Careful consideration should be given before exercising draconian powers. These powers should only be used when it is genuinely necessary and of benefit. On a practical note, most able people are out from down to dusk helping friends, neighbours and family to prepare, recover and repair. People must eat following a hard day’s work. After a hurricane everyone does their bit. This includes places popping up that can provide food and water. The curfew literally interfered with people’s ability to eat and drink following a day’s work. Following the Grand Turk prison being secured, there was no legitimate need for a curfew; if there ever was one.

Speaking for myself, I was detained at gunpoint while trying to repair a generator at a local restaurant (free of charge). I simply did not know that there was a curfew. Without a generator, their food spoiled, they were left without security and could not serve food or water. I am not alone in saying that the authorities failed to recognise the community spirit and need to assist ordinary people rather than obstruct and endanger them. The situation is made worse because the curfew did not even have the force of law through the incompetence of the authorities.

After hurricane Ike in 2008 a group of us managed to put out a major fire in one of the hotels. The fire service was not yet in operation. Without people on the ground and able to respond, lives and property will be lost. It is necessary for a balance to be struck by the authorities and common sense to apply. Much of the assistance provided by the authorities in the aftermath, while well intentioned, did not significantly help. I know that many of the forces brought in to assist, found themselves embarrassed and unable to contribute a great deal because of poor management and red tape. Similarly, tents, food, water and other supplies more often went to waste or simply were not needed. The needs following hurricanes are not accurately identified and poorly managed. Most of all, the need to support the local population is not properly recognised.

I hope the FAC may suggest that there is more consideration given to how to manage and assist the resource of the local population during an emergency, rather than to obstruct it. Critically, it underlines the importance of proper adherence to the rule of law, use of discretion and the disciplined application of the law.

Conclusion

There is a great deal more that I would like to share with the FAC but alas I am out of time. I would like to conclude by saying that the Governor is in a very difficult position. It seems that he is reliant on the legal advice of the Attorney General; the same person responsible for drafting legislation. Many laws that the Governor should refer to the Secretary of State, are not referred according to the requirements of the constitution. Our AG is simply not up to the task of producing well drafted legislation and would benefit from much greater drafting assistance from the UK. There are hundreds of unworkable enactments and many that simply are illegal and void. The injustice that pervades the Turks and Caicos Islands does not go unnoticed. I do not think that the rise in serious crime is unconnected with diminishing respect for the institutions in our jurisdiction. The UK needs to lead the way by fully respecting the rule of law and democracy. I suspect that the TCI has “unravelled” to some extent as feared by the FAC in 2010. Justice must be seen to be done to maintain the necessary respect and confidence of those governed by law.

September 2018