They’re At It Again: British Restore Colonial Rule on Islands

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No, we’re not in Jamaica 1655, Gibraltar 1705 or even the Falkands 1982. This time it’s the Turks and Caicos Islands, and the takeover is taking place as you read.

Chris Bryant of the Foreign and Commonwealth Office announced Friday the enforcement of a Royal Order that will, for a period of at least two years, dissolve the democratically elected House of Assembly, grant what are essentially dictatorial powers to the Crown-appointed Governor and suspend portions of the Constitution, including the right of Islanders to a jury in criminal proceedings.

I suppose “takeover” is actually a bit harsh; it’s really more like a “take back”.  Under the British thumb for the last 300-odd years (with the occasional invasion by pirates, Spaniards and Frenchmen), Turks and Caicos just recently attained the lofty status of a dependent “territory”, and was only granted a limited constitution in 1976, replaced by a somewhat more expansive Constitutional Order in 2006.

The constitution established a limited democracy for the 36,000 person community, giving them the right to elect an emasculated local House of Assembly. Well, in reality, only 13,000 of these are “Belongers” – descendants primarily of the English colonists and their slaves – with the right to vote, and only 7,000 are actually registered to vote. But a step towards self-determination nonetheless.

The constitution also guaranteed the Islanders certain inalienable rights, such as the right to life, liberty and security of the person; freedom of conscience, expression and assembly; and protection against invasions of privacy and deprivation of one’s property without compensation.

No commonwealth democracy is without its Platonic guardians, however – and the constitution gave the fledgling Island democracy very little breathing space.  The official head of state remained Her Majesty Queen Elizabeth II, represented by her appointed Governor (currently His Excellency Mr. Gordon Wetherall).  The Governor in turn was empowered to appoint the entire judiciary and all public officers, including: the Attorney General, the Secretary of Finance, the Deputy Governor, the Chief Auditor and the Commissioner of Police. The Governor’s seal of approval was also required for any law to be introduced by local parliamentarians, and, most importantly, the Queen reserved for herself the power “to make laws for the peace, order and good government of the Turks and Caicos Islands”.

Don't let that goofy smile fool you: Gordon Wetherall is the new dictator of Turks and Caicos.

Peace order and good government also apparently meant that the Queen could abrogate the entire constitution itself and restore direct British hegemony over all facets of political life on the Islands, as she did last week.  The reason for such drastic remedy? A two year commission of inquiry (parts I, II, and III) recently concluded by the venerable retired justice Sir Robin Auld has reported — wait for it — widespread and systemic corruption at multiple levels of government!

This from a territory whose former premier, Norman Saunders, was caught accepting bribes from Colombian narco-cartels to look the other way while drug-runners used the islands as a refueling station. The bribery has not stopped there – although the archipelago may no longer be a cocaine conduit, officials have apparently been accepting ‘political contributions’ from land developers in return for selling off prime beach real estate in closed auctions for outrageously low prices. This, of course, is not so great for the British Crown, which happens to “own” a lot of the land being virtually given away at no profit to England.

The UK clearly has a substantial political interest in stepping into Providenciales to “clean up public life”. Leaving aside the Crown’s financial interest in its colonial possessions and the substantial investment by British citizens in development in the Islands (which may or may not be the primary reasons for the takeover), it would not sit well for the reputation of the Kingdom for a territory under its oversight to seem overtly corrupt or go into severe debt or poverty.

True, the intervention of the British in a state nearing independence belies a neo-colonialist and highly paternalist attitude more appropriate to the 19^th century, but maybe, in the long run, an intervention at this stage could actually be good for the Turks and Caicos residents in that it could arrest the development of a political culture of corruption. Many of the problems that occurred in former colonial territories that were rapidly abandoned during the Cold War and essentially hijacked by armed and thoroughly corrupt megalomaniacs may be avoided by a slow and measured withdrawal. Aside from a few abortive attempts to annex the Islands into Canada, there does not seem to have been much of an impetus for armed rebellion by the residents. Maybe its just as well that the Brits take their time to exit right.

Disagreeable or not, the political motives for the takeover are at least understandable and not really that surprising.  What is far more troubling, however, is the cavalier manner in which the British courts have given their blessing to this colonial adventure.  In April of this year, former premier of Turks and Caicos Michael Misick had challenged the proposed Order in the High Court of Justice of England and Wales before a two-judge panel. Their decision, denying his appeal on all counts, can be found here.

Don't even THINK of trying that Convention nonsense on Her.

Misick objected to the dissolution of the democratically elected legislature of Turks and Caicos, stating that it was contrary to the “right of peoples to self-determination”, which the court acknowledged is “one of the essential principles of contemporary international law”. Ah but wait, say the British judges – that right may be protected in England, but our Queen has not deigned to incorporate it into Turks and Caicos domestic law.

Misick pointed to the European Convention of Human Rights, which both the UK and Turks and Caicos are signatories to. Article 3, Protocol 1 states: “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” Moreover, the European Court of Human Rights has interpreted this to mean “once the wishes of the people have been freely and democratically expressed, no subsequent amendment to the organisation of the electoral system may call that choice into question, except in the presence of compelling grounds for the democratic order.”

Nice try, say the judges. Apparently, the Foreign Office assured the court after the hearing (see: behind closed doors) that it would immediately submit a reservation to the Convention – meaning that England would basically strike Turks and Caicos off the list of signatories to the Convention. So sure, although Turks and Caicos’s right to a free and fair election is technically protected by the Convention, the Queen has the power to remove that protection, opening the way for her to flagrantly abuse that right. Temporarily, of course.

Which brings me to perhaps the most unneccesary and offensive (and remarkably unreported) abuse of rights in this entire affair: the suspension of the right to a jury trial.  Again, the political reason for this is clear.  If the British are going to make sure Turks and Caicos is run the way they like it when they give back the reigns of power in a couple years, they need to get those impertinent politicians out of the House and into the jails.  Meaning they need convictions.  And with only 7,000 to 10,000 Belongers capable of serving on a jury, staunch political patronage systems and clan loyalties, and the necessity for a unanimous verdict, there is just too much of a risk that political targets like Misick will walk away free and more popular than before.

The solution is clear: fly in some hanging judges from England, suspend the right to a jury and success is all but guaranteed.

Trial no jury: Samurai Justice

This can’t be right.  No one is disputing that there would be a high risk of impartial juries or even outright jury-tampering.  And it is just as likely that there are a lot of corrupt politicians in Turks and Caicos who deserve to be punished.  But couldn’t some other, less authoritarian approach be taken? Say, like flying a jury in from England or other British territories? Or perhaps allowing non-Belongers to serve on the jury?

Apparently these suggestions were not made to the High Court, which enthusiastically approved of the government’s plan to deprive the Islanders of a fundamental right.  They justified this in two ways. First: precedent, meaning “we did it before so we can do it again.” Well, it was wrong when the Diplock courts did it and it is wrong now. Besides, those cases dealt with terrorism, where jurors’ lives were threatened.  Second, the court pointed to other countries who have rejected the jury trial. Oh, like Japan maybe.  Japan, coincidentally, has a 99.8% conviction rate.  Very good.

The court, citing Wikipedia (!), relativized the belief in the jury system, comparing the view of the US to that of other countries who consider it “bizarre and risky for issues of liberty to be entrusted to untrained laymen.” Right. Let’s not forget why the US considers the jury system to be such a fundamental element of a free trial. You see, two hundred years ago, the US was ruled by a colonial master who ensured that his accusations were always followed by convictions.  For the U.S., the jury is the final protection against the tyrannical State: which, for the American revolutionnaires as for Michael Misick, was and is embodied in the Queen herself.  It is precisely in situations like this one that the jury trial is most crucial.