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Angelo, Tony --- "Constitutional Developments for Pitcairn Islands" [2008] NZYbkIntLaw 11; (2008) 5 New Zealand Yearbook of International Law 267

Constitutional Developments for Pitcairn Islands

Tony Angelo^[∗]

Pitcairn is one of the five remaining Pacific colonies on the United Nations Decolonisation list.^[1] It is an overseas territory of the United Kingdom and is made up of four islands in the South Pacific.^[2] The Head of State is Her Majesty the Queen. The Governor, who is her representative for Pitcairn, is responsible for the external affairs, internal security, defence and public service of Pitcairn^[3] and promulgates the laws for ‘the peace, order and good government of the Islands’.^[4] The Governor also constitutes the courts^[5] and appoints the members of the judiciary.^[6]

At the local sub-gubernatorial level, an Island Council^[7] is the local government body for Pitcairn. Subject to the orders and directions of the Governor, the Council makes regulations for ‘the maintenance of peace, order and public safety and the social and economic betterment of the islanders’.^[8] This includes matters relating to public property, public works, environment, land registration, firearms and explosives, public health, care of children and elderly and local trade with visiting ships.

The Island Council enforces the Pitcairn Ordinances and Regulations.^[9] It has 10 members: the six Island Officers,^[10] the Island Secretary,^[11] one nominated member appointed annually by the Governor, and two advisory members who have no voting rights.^[12] The Island Secretary is an ex officio member of the Council,^[13] is a voting member and is the Clerk to the Council. The Island Council is also involved in the governance of land matters.^[14] The Local Government Ordinance disqualifies certain persons from being elected to or from holding office on the Island Council.^[15]

In the aftermath of the widely reported and divisive sexual offences trials,^[16] the emphasis of the UK government appears to be on building community spirit and strengthening the organs of government. Recent developments suggest changes to Pitcairn’s internal government structure. In July 2007 a draft Pitcairn Island Charter^[17] was proposed to the people of Pitcairn as a basis for encouraging the re-populating of the island and for building a viable future for the colony.

From a legal perspective, the form and content of the Charter is inadequate for it to constitute a founding instrument or Charter of the colony. The Charter is a collection of suggestions and ideas that are often repetitive and sometimes potentially inconsistent inter se or with international law.

The Charter is not divided into parts and is informal in structure. It presents proposals for governance reform. The proposed governance restructuring has two elements. The first is the adoption of the European Convention on Human Rights;^[18] the second is a governance reform through ‘devolving operational responsibility to the Government of Pitcairn Islands’ and through ‘empowering the community’.

The proposal to adopt the European Convention on Human Rights suggests that the Convention does not currently extend to Pitcairn. This is misleading as the Human Rights Act 1998 (UK) is a ‘statute of general application’ for Pitcairn.^[19] Under that Act all UK legislation ‘must be read and given effect in a way which is compatible with the Convention rights’.^[20] The Supreme Court of Pitcairn has confirmed that the rights and freedoms guaranteed under the Convention equally apply to Pitcairn.^[21] The repeated mention in the Charter of the need to recognise human rights appears therefore to be largely rhetorical.

The second proposal is self-contradictory because ‘empowering the community’ may only be possible through devolving responsibility to the community rather than to Government. The details that follow the proposal strengthen the role of Government and increase its involvement in island affairs. The Island Council currently has 10 members: six elected, two by virtue of office, one appointed by the Governor, one appointed by the Island Council. Eight of the members have voting powers. It is proposed to increase the Island Council to 12 members: eight elected, two by virtue of office, two appointed by the Governor. All members will have voting powers. The effect of the recommendation lessens the democratic input into the Island Council. The Governor will effectively appoint four of the members. The Island Council will no longer be able to appoint an advisory member. There is no indication of what or how such developments for ‘government reform and empowering the Pitcairn community’ should occur.

The Charter proposes that the Government of Pitcairn ‘seeks to promote friendly relationships with our neighbours and other nations of the world’. At international law, Pitcairn could exercise such powers only as a sovereign State or to a limited extent as a State in free association with the United Kingdom. Pitcairn’s present status as a colony of the United Kingdom does not allow Pitcairn the exercise of such powers. Whether and how Pitcairn might be established as a sovereign State or as self-governing in free association with the United Kingdom is not addressed in the Charter. This leaves open the question as what relevance the Charter has to the self-determination of Pitcairn or to self-government in accordance with UN norms.^[22]

The Charter’s summary requests ‘expressions of interest from those in the community wishing to be involved in the restructuring process’. This indicates a lack of consultation with the Pitcairn community; hence a lack of the authority necessary for the empowering of the Pitcairn people. The Charter proposals were envisaged to come into force in April 2008, which gave limited time for effective consultation with the community.

^[∗] Professor of Law, Victoria University of Wellington, New Zealand.

^[1] The others are American Samoa, Guam, New Caledonia and Tokelau. For decolonisation information, see: United Nations and Decolonisation, Pitcairn working paper prepared by the UN Secretariat, A/AC.109/2007/6, online: <www.un.org/Depts/dpi/decolonization> at 14 January 2008.

^[2] The Pitcairn Islands consists of Henderson, Ducie, Oeno and Pitcairn Islands. Pitcairn Island is five square kilometres in land size with a total population of 48. For further discussion on Pitcairn self-government, see Caitlyn Ryan, ‘Towards Self-determination: A Self-government Document for Pitcairn’ (2006) 12 Revue Juridique Polynesienne 83; Sue Farran ‘The “Re-Colonising” of Pitcairn’ (2007) 38 VUWLR 435. The official Government of Pitcairn website is Pitcairn Islands Office <www.government.pn>. The laws of Pitcairn are also available on this website.

^[3] Pitcairn Royal Instructions 1970, ss 3-4; Pitcairn Order 1970.

^[4] Pitcairn Order 1970, s 5(1).

^[5] The Judicature (Courts) Ordinance 2000 establishes the Supreme Court as the superior court and a Magistrates Court as the subordinate court.

^[6] Judicature (Courts) Ordinance 2000, ss 5(1) and 11(1).

^[7] Local Government Ordinance 1964 (2001 ed.), s 6(1).

^[8] Local Government Ordinance 1964, s 7(1).

^[9] Local Government Ordinance 1964.

^[10] Local Government Ordinance 1964, s 3(1): ‘There shall be the following officials to be known as Island Officers- (a) the Mayor; (b) the Chairman of the Internal Committee; (c) four councillors. Section 4(1) provides for the election of a mayor every three years’.

^[11] See Local Government Ordinance 1964 (2001 ed.), s 2: ‘Island Officer means and includes any person from time to time appointed by the Governor to hold the public office of Island Secretary’.

^[12] Local Government Ordinance 1964, s 6(1).

^[13] Local Government Ordinance 1964, s 6(1)(b).

^[14] The Land Court consists of the President, the Mayor ex officio, who presides over all sittings and four other members appointed by the Island Council for a fixed term: Lands Court Ordinance (2001 ed.), s 3(3). The Land Commission, which oversees Pitcairn land tenure, is comprised of the Island Council and appointed members of resident extended families: Land Tenure Reform Ordinance 2001, s 3(1).

^[15] Local Government Ordinance 1964, s 14A. Ordinance No 1 of 2007 which introduced this new section to the Ordinance repealed the earlier Local Government (Special Electoral Provisions) Ordinance 2004. See Fran Wright and Tony Angelo, ‘The Pitcairn Trials Act 2003 (NZ), Ordinance 6 of 2004 (PIT), and the bounty of the mutiny’ (2005) 21 New Zealand Universities Law Review 486.

^[16] See R v Christian and others [2006] UKPC 47.

^[17] The Pitcairn Islands Charter is available at ‘Pitcairn Island’, online: <www.onlinepitcairn.com/information/GPIreform.doc> at 11 February 2008.

^[18] Pitcairn is the only UK overseas territory to which the European Convention on Human Rights 1950 or its subsequent Protocols were not extended.

^[19] The Judicature (Courts) Ordinance 2000 lists the sources of law for Pitcairn, s 16(1): ‘Subject to the provisions of subsection (2), the common law, the rules of equity and the statutes of general application as in force in and for England for the time being shall be in force in the Islands. (2) All the laws of England extended to the Islands by subsection (1) shall be in force therein so far only as the local circumstances and the limits of local jurisdiction permit’.

^[20] Human Rights Act 1998 (UK), s 3(1).

^[21] R v Christian (No 2) [2005] LRC 745 (24 May 2005).

^[22] United Nations Charter 1945, art 73; GA Res 742(VIII) 27 November 1953 Factors which should be taken into account in deciding whether a territory is or is not a territory whose people not yet attained a full measure of self-government; GA Res 1514(XV) 14 December 1960 Declaration on the granting of independence to colonial countries and peoples, GA Res 1541(XV) 15 December 1960 Principles which should guide members in determining whether or not an obligation exists to transmit the information called for under article 73e of the Charter and GA Res 2625 (XXV) 24 October 1970 Declaration on principles of international law concerning friendly relations and cooperation among states in accordance with the charter of the United Nations.