Ascension : A MODERNISED CONSTITUTION FOR ST HELENA, ASCENSION AND TRISTAN DA CUNHA
Submitted by The Islander (Ascension Island Government) 12.06.2008 (Article Archived on 26.06.2008)

In 2005 a draft new Constitution for St Helena, Ascension and Tristan da Cunha was prepared and published.

APPLICATION TO ASCENSION

In 2005 a draft new Constitution for St Helena, Ascension and Tristan da Cunha was prepared and published.  But in a consultative poll the people of St Helena rejected a central feature of that draft Constitution, a system of ministerial government, and for that reason it was not enacted.  In doing so they also rejected a great deal of potential improvement that had nothing to do with ministerial government.  This included proposed provisions relating to Ascension and Tristan da Cunha.

The present Constitution of St Helena dates from 1988.  It is in many respects outdated or inadequate.  In parts that Constitution applies to Ascension and Tristan da Cunha, which are described as “Dependencies”.  The United Kingdom Government firmly supports the enhancement of good government and fundamental rights protection in St Helena, Ascension and Tristan da Cunha.  Consideration is therefore being given to replacing the 1988 Constitution with a modernised Constitution.  The objective is to arrive at a new Constitution that will better serve St Helena, Ascension and Tristan da Cunha and that is acceptable to those islands and the United Kingdom.

The terms of a Constitution have particular legal significance because the Constitution takes precedence in law over all Ordinances of St Helena, Ascension and Tristan da Cunha and other local laws.

Consultations have recently taken place in St Helena, with elected Councillors, senior officials, interest groups and the public, about a new Constitution for St Helena, Ascension and Tristan da Cunha.  These consultations are expected to continue over the coming months.  Consultations will also be held about a new Constitution with people on Ascension and Tristan da Cunha.

How might a new Constitution apply to Ascension?  In many respects the proposed provisions of the 2005 draft relating to Ascension could still with advantage be introduced.  The following are the main issues under consideration that affect Ascension.

The relationship with St Helena and the designation of Ascension

Ascension forms part of a single British overseas territory with St Helena and Tristan da Cunha.  This reflects the historic connection between the three islands and their relationship with the United Kingdom.  While Ascension and Tristan da Cunha have been described as Dependencies of St Helena, and continue to be so in the 1988 Constitution, a new Constitution could discontinue that description without breaking the historic link between the three islands.  Ascension could therefore be referred to by its own name in a new Constitution, rather than being called a Dependency.

Fundamental rights

The present Constitution contains no bill of rights.  A new Constitution could set out the fundamental rights of the individual, such as the right to life, the right to personal liberty, freedom of conscience, freedom of speech, and freedom from discrimination.  All Ascension laws and government action would have to conform to these rights, and they would be enforceable in the courts.  The bill of rights would reflect international human rights treaties that already apply to Ascension.  The entrenchment of these rights would mark a substantial strengthening of the Constitution and of the legal system in Ascension.

While St Helena and Ascension could very substantially share the same bill of rights, some adjustment for Ascension would be required to reflect the absence there of a permanent right of abode, and to accommodate the treaties with the United States relating to Ascension.

Partnership values

A new Constitution could list a set of values on which the partnership between the United Kingdom and Ascension would be based.  All parts of government would have a duty to give effect to these values. They would include such matters as the rule of law, good government, sound financial management, and the impartial administration of justice.  This too would strengthen the Constitution, which at present contains no such list of values.

The Governor

The Governor of Ascension would continue to be the same person as the Governor of St Helena.  This flows from the maintenance of the link between the two islands.  But a new Constitution could for the first time refer to “the Governor of Ascension”.

Executive Government

The Governor would continue to exercise executive responsibility in Ascension on behalf of The Queen.  But a new Constitution could for the first time expressly acknowledge the role of the Ascension Island Council, with such functions in relation to the government of Ascension as are conferred on it by law.  This would of course be contingent on the Island Council once again being elected and constituted. 

The St Helena Executive Council would continue to have no powers over Ascension.

Legislation

A new Constitution could also, for the first time, require the Governor to consult the Island Council in enacting laws for Ascension.

The St Helena Legislative Council would continue to have no powers over Ascension.

The Judiciary

Ascension could continue to share with St Helena the Supreme Court and Court of Appeal, while having such subordinate courts, in particular magistrates courts, as may be provided for by Ascension Ordinances.  By comparison with the present Constitution, a new Constitution could strengthen the impartiality of the courts by securing the independence of the judges.  This would be an important improvement to the present Constitution and the administration of justice in Ascension.

The Public Service

The impartiality of the Ascension Public Service is of vital importance, and a new Constitution would need to ensure this.  The present Constitution contains no specific provisions on this matter.

Public Finance

The present Constitution makes very limited provision for the control of public finance in Ascension. A new Constitution could entrench the principles of sound financial management, monitored by an independent and impartial Chief Auditor.  This would represent a significant advance at the constitutional level, because all Ascension legislation and government action would have to conform to these principles.

Clarity of application to Ascension

The present Constitution is not very clear about which of its provisions apply to Ascension.  A new Constitution could improve this by setting out in a distinct chapter the provisions that apply to Ascension, thus enhancing legal certainty, transparency and public understanding.

What is the timetable for any change?

Following initial consultation during my visit to Ascension in June, I intend to publish a draft Constitution after which further consultations will be held.  These will include consultations in Ascension during the second half of the year, as well as consultations in St Helena and in Tristan da Cunha.

Following these consultations, a final draft will be prepared in consultation with island representatives for consideration, including by the Ascension Island Council if one is in place.  The final draft Constitution, which will be contained in an Order in Council, will be submitted for approval by Her Majesty in the Privy Council.  I would like this to be done in advance of the General Election in St Helena in July 2009.  Necessary transitional provisions would be adopted in the meantime.

Andrew Gurr

Governor

10 June 2008