Adoption of a (US) Virgin Islands Constitution and Its Implications for Status
Date: July 12, 2006 | Paper: #06-001
A Presentation to the League of Women Voters
St. Thomas, US Virgin Islands
Dr. Carlyle Corbin
Representative for External Affairs
Government of the US Virgin Islands
22nd April 2006
Introduction
Good Afternoon!
First of all, I wish to thank my friend and former colleague Atty. Rosalie Ballantine for the kind invitation to present some thoughts this afternoon on the matter of our political evolution. Hearing from Rosalie brought back fond memories when we served together in the Farrelly Administration during her tenure of great distinction as Attorney General.
Interestingly, she was not the first woman AG, but the second, as the Honourable J�ada Finch Sheen holds the distinction of being the first, under the Juan Luis Administration. And now we have our third woman AG, Hon. Kerry Drue. It appears to me that we have established a favourable precedent for other jurisdictions to follow � the precedent of dynamic, influential and professional women leaders.
Now for the topic at hand.
I gave considerable thought on how to approach the topic of "Adoption of a Virgin Islands Constitution and its Implications for Status.� A colleague of mine commented that this could well be a short presentation, arguing that the implications of a local constitution are minimal to the development of a political status. I listened with interest.
I also noticed that the topic referred to the adoption of a Virgin Islands Constitution - without the US prefix - and I observed how differently this topic might be treated if we were discussing constitutional and political development in the British Virgin Islands, or another territory or associated country of a European Union nation, where the constitutional and political structure and prospects for evolution are often viewed quite differently.
I decided to try to deal with both of these elements, and provide some examples to clarify the points.
US Virgin Islands
For us in the US Virgin Islands, perhaps the major distinction between the creation of a constitution and the development of a political status is that the constitution would organize our internal structure of government, while the political status is much broader, and deals with territorial-federal relations. More on this in a moment.
A constitution would deal with issues such as the number of legislators and whether they would continue to be elected at-large from each island, or rather by electoral district drawn up for each island. A constitution could also deal with how long the members of the legislature would serve, and establish qualifications for office.
A constitution would most likely confirm issues presently in the existing Revised Organic Act of 1954 such as the length of the term of the Governor and Lieutenant Governor, the limitation of two consecutive terms (Puerto Rico does not have this limitation, by the way); and the two-year term of the Delegate to the US House of Representatives (Puerto Rico�s Resident Commissioner to Washington has a four-year, rather than two-year term).
A constitution would confirm the structure of the judiciary, such as the number of judges and related matters. A constitution would address the need for the decentralization of government, perhaps through the creation of forms of municipal government � although the recent resolution of the Legislature would have the Congress amend the Revised Organic Act to give this authority to the territory. In this case, municipal government would most probably be enshrined in any future constitution.
A constitution could also create a system of elected mayors. Mayor of Frederiksted, mayor of Christiansted, mayor of Charlotte Amalie, mayor of Tutu - with their own budget and administrative machinery.
A constitution would probably deal with voter eligibility and the system of government. Our present system is the republican form of government, with the three branches of executive, legislative and judicial.
This is unlike the ministerial Westminister model in the British territories which combines the duties of the legislative and executive. If we were somehow to adopt this form, our senators would also be the commissioners (interesting prospect), and the very structure of the legislature would be fundamentally different (picture the debates in the House of Commons in London).
A constitution could even deal with cultural issues such as protection of land, the disposition of artifacts which may be discovered, such as shipwrecks and remnants of settlements of the indigenous people of these islands, and the preservation of Virgin Islands culture. It could even deal with matters such as beach access (you may recall that many of these items were contained in previous draft constitutions).
Some of these elements are contained in the existing Revised Organic Act, which is silent on many other elements. In any event, whatever changes a constitution might make to the present Revised Organic Act would ultimately have to be approved by Congress.
The main point is that a constitution would be designed to organize our internal structure of government, within the existing political status. It would not be designed to deal in any appreciable way with the relationship between the territory and the United States.
In the original 1976 federal statute authorizing the creation of a constitution, which was amended in 1980, it is clear that any constitution which we adopt in the US Virgin Islands must be consistent with the present political status as an unincorporated territory under Article IV, Section 3, Clause 2 of the US Constitution. Specifically, the law states that a constitution for the US Virgin Islands:
shall recognize, and be consistent with, the sovereignty of the United States over the (US) Virgin Islands ..., and the supremacy of the provisions of the Constitution, treaties, and laws of the United States applicable to the (US) Virgin Islands ..., including, but not limited to, those provisions of the ... Revised Organic Act of the Virgin Islands ... which do not relate to local self-government.
An in-depth legal explanation of these issues was given by Attorney Judith L. Bourne at a panel discussion held in the Legislature during Transfer Day 2005 when she pointed out that the federal legislation which granted us the authority to write a constitution also emphasized that the constitutional conventions which would be formed would be restricted to matters "within the existing territorial-Federal relationship.�
So, perhaps therein lies the possible brevity of the explanation on the linkage between the local constitution and the political status development of the territory. It is clear that the US Congress meant us to write a constitution, but only one which is linked to the present status as an unincorporated territory.
Writer Gaylord Sprauve expressed his perspective on this issue when he told the 25th Legislature�s Committee on Government Operations in 2003 that a constitution "would not put under local control the vast land and marine resources currently under the management and control of the Virgin Islands National Park system.�
He pointed to the some 30,000 acres of submerged lands that were now off-limits to local fishermen and boaters, except by special permit issued by the park and for limited use. He concluded that a constitution alone would not "restore our recreational fishing grounds to local control,�
Political Status Development
On the matter of political status, my colleague Dr. Paul Leary wrote in his Daily News column last September that under the present political status "the Congress can govern the Virgin Islands as it wishes, with the sole exception being violation of basic human rights.
Dr. Leary went on to point out that "a major irony created by the Virgin Islands status is that we are subject to the will of a legislature (the Congress) in which we do not enjoy a vote.�
Dr. Leary in his article went on to say that "the achievement of statehood would erase (such) political inequalities.� But he also reminded that "unincorporated territories are not eligible for statehood (and) are condemned to a perpetual political limbo, attached to a country in whose affairs they can never fully participate.�
Indeed, this unilateral federal authority is the hallmark of our present political arrangement � these territorial arrangements were never meant to be permanent. They were always meant to be transitional to what Governor Turnbull referred to in this year�s Transfer Day ceremonies as "the ultimate achievement of a permanent political status.�
These are all interesting and critical points, not generally discussed in our daily political dialogue, certainly not in a sustained fashion. We have a few important panel discussions put on by interested organisations, with the "usual suspects� in attendance. But nothing sustainable, over a period years like, say, in the case of Guam which has a standing governmental commission for the purpose of dealing with the political status future.
The Humanities Council under the dynamic leadership of Ms. Mabel Maduro has done the most to bring these items to the attention of the community in the last several years, through in depth seminars and a fine documentary that I understand is being used as a teaching tool for our young people who would be the most affected by decisions taken regarding this entire process of political development.
Interestingly, these issues are the very basis of the political dialogue in neighboring Puerto Rico where, of course, the political parties "live and breathe� issues of political status on a daily basis. The three main political parties support either political integration for Puerto Rico as the 51st state, independence or enhanced commonwealth (such enhancements can only be achieved under Free Association, according to the White House Task Force Report released last December. In fact, I will probably miss the final days of Carnival because of House of Representatives committee hearings on Puerto Rico status in the coming week).
At this point, it is also useful to note that these three options: integration, free association and independence have long been considered under international law as the three alternatives providing for a full measure of self-government with absolute political equality for all remaining territories, including the US territories of American Samoa, Guam, and the US Virgin Islands.
Now I know that many would say that there is no interest in changing the status quo, and in any event, the voters in the 1993 political status referendum voted to retain the present status. I offer two clarifications in response to this assessment.
Firstly, the law required 50% plus one vote of the electorate to legitimize the result of the 1993 referendum. The turnout was 27.4 %, rendering the result null and void. Thus, we reverted to the status quo, by default. We did not vote for it. I am not arguing that the majority of people would not choose the status quo in a referendum if they were asked today. I am only saying that the 1993 referendum did not confirm this.
Secondly, the majority of the 27.4% voted in favour of a category which contained not one, but three options: an autonomous commonwealth status, the status quo, and a compact of federal relations. It could therefore be argued that the majority of these voters were voting for the autonomous commonwealth status, or the compact of federal relations, just as much as retaining the status quo. We will never know. The only way to find out would be to revisit the issue again, this time, with a far more sustained public education programme. The political will of our future leaders will determine when we do revisit this issue in the future.
At this point, it is important to recall that while there were four attempts to draft a local constitution, there were actually three attempts to address our political status.
The first began in 1980 with the establishment of the first Virgin Islands Status Commission headed by former Senator Earle B. Ottley, and chaired by Hon. Verne Hodge, two stalwarts in the political evolution of our territory. This Commission was formed as a result of a federal policy review of the Jimmy Carter Administration which gave authorization to the US territorial governments to make recommendations or modifications in their political status relationship with the United States. Senator Ottley�s 1981 Report of this first Status Commission served as the genesis of much of the present international organisation participation of the territory.
As a result of a lack of resources, however, the public education phase leading to a referendum on various political options was never implemented and the Commission was dissolved in 1982 � the same year that the electorate decided in a non-binding referendum held simultaneously with the general elections of that year that the political status should be addressed before a constitution was written.
The following year, Gov. Juan Luis introduced legislation to create a Fifth Constitutional Convention, but it was not adopted by the Legislature, mainly for budgetary reasons.
Also in 1983, a number of new proposals were introduced to deal with the status issue, and by 1984 a Select Committee on Status and Federal Relations of the Fifteenth Legislature was created under the chairmanship of the Hon. Senator Lorraine L. Berry. This Committee held a series of public hearings that year, and published an important report in 1985. However, the subsequent 16th Legislature did not re-create the Select Committee.
It was three years later, in 1988, that the (U.S.) Virgin Islands Commission on Status and Federal Relations was created under the late Gov. Alexander A. Farrelly to conduct a comprehensive program of public education leading to a referendum which was to have been held in 1989. Of course, Hurricane Hugo had other plans. The Commission resumed again in 1990 with considerable activity, leading to the first and only political status referendum in our history. We have already discussed the outcome of that event which in retrospect was an important step in our dealing with this issue in the future.
Constitutional and Political Evolution in Other Territories
British Territories
Early in this presentation, I mentioned that constitutional development in other territories is viewed somewhat differently. In the interest of time, I will only deal with the Caribbean, but would be happy to answer any questions on the Pacific territories.
In our region, five of the six British territories in the Atlantic/Caribbean � BVI, Turks and Caicos Islands, Cayman Islands, Montserrat, and Anguilla - are in varying stages of constitutional review, while Bermuda is in the midst of organised public discussion on independence.
Under the British system, the constitutions for the territories are written by the British, following consultations with the territories. In 1999, for the first time, the British Government decided to permit their territories to review those existing constitutions that had been written for them.
The caveat was that no changes would be considered in these constitutions that would remove any of the powers of the British representative in the Territory, known as the Governor. (Herein lies some difference in nomenclature, as the British territories have governors appointed from London, while our governor is elected. This causes some degree of confusion, from time to time. It is the Chief Minister or Premier in the case of Bermuda who is the highest elected official in the British territory, not the appointed governor).
Ironically, all of the British territories agree that the powers of the London-appointed governor need to be reduced and devolved to the elected government. Recommendations for these reductions in the powers of the British in these territories are featured in all of the constitutional reviews emerging from the British territories.
Further, with the notable exception of the Cayman Islands, the leadership of the other four territories do not dismiss ultimate independence "out of hand,� but rather see it as an eventuality and a natural political progression. They insist on the need for further devolution of power from the British as an essential preparatory phase, which must be open-ended. The British counter that further devolution of power must come within the context of a rather short timetable for independence. This is the basis of the ongoing discussions between the British territories and the United Kingdom.
Dutch Associated Countries
Constitutional evolution in the Dutch associated countries has an even more complex meaning, given that the five-island grouping of the Netherlands Antilles is scheduled to be fragmented by 2007. Present negotiations between the Dutch Government and the island governments of Curacao, Bonaire, Saba, St. Eustatius, and Sint Maarten, in a roundtable format, are quite intense.
In these cases, it is the continued autonomy which is the basis of the discussions, particularly for Sint Maarten and Curacao both of whose people have voted for separate country status in the Kingdom. The Dutch, however, do not wish to grant each of two islands the same autonomy they previously enjoyed as part of the Netherlands Antilles. Neither Sint Maarten nor Curacao wish to relinquish these powers. This is basis of the negotiations.
Meanwhile, Saba, St. Eustatius and Bonaire would opt for an integrated status, as overseas provinces of Holland. But since such a status does not exist at present, they are seeking to create it, with a keen eye on the political rights which they would gain.
Of course, Guadeloupe, Martinique and French Guyana are fully integrated as overseas department of France, whose people have full political rights � perhaps this would ultimately serve as the model for future Dutch overseas provinces.
Conclusion
As you can see, the debate on constitutional evolution and political status development means different things in different places. For us, constitutional development means a locally written constitution based on the present status and under the territorial clause of the US Constitution. The issue of political status development is not discussed in any sustained fashion at this point of political evolution. But this could change.
On the other hand, constitutional evolution and political status in other Caribbean territories is viewed as inter-connected, with much broader and more long-term implications to achieving a permanent status.
In a practical sense, we are operating under the present local law which has mandated that we go the route of the Fifth Constitutional Convention, after significant public education. The Univ. of the Virgin Islands has been tasked with that responsibility, and I wish them all the best in this important work.
If there is any advice that I would offer regarding this chosen approach, it is to remind that it should be made clear to the people that the adoption of a local constitution does not end the quest for a full measure of self-government, although it is an important incremental step in that direction.
In the year 2000, the Congress made this very same distinction in legislation introduced by Congressman Don. Young of Alaska (the Chairman of the House of Representatives Committee), joined in co-sponsorship by our Delegate to Congress Donna Christensen and the American Samoa Delegate Eni Faleomavaega. The legislation entitled Virgin Islands and Guam Constitutional Self-Government Act of 2000 made the following clarification:
Establishment of local constitutional self-government pursuant to this Act shall not preclude or prejudice the further exercise in the future by the people of Guam or the Virgin Islands of the right of self-determination regarding the ultimate political status of either such territory.
It is my concerted view that this realisation must be central to the discussions which to be generated by the constitutional convention in 2007.
With the adoption of a constitution, which I remain confident we will achieve, we must be mindful that this would not be the end of political advancement, but rather one more significant step towards a full measure of self-government.
With these few words, I wish to thank you sincerely for this opportunity to address you this afternoon, and I would be pleased to answer any questions on these and related issues that you may have.