Legal Report by the Hon. Attorney General on the Opening of the Supreme Court of the Turks and Caicos Islands for the Year 2018
May it please you my Lady Chief Justice,
My Lady Justice Joyner,
I am pleased to rise once again at your invitation to move the motion for the traditional Opening of the Legal term for the Supreme Court of the Turks and Caicos Islands.
My Lady with your leave, I would wish to recognize the presence of the specially invited guests –
HE the Acting Governor Mrs. Anya Williams
Hon. Premier Mrs. Sharlene Cartwright Robinson
Hon. Deputy Premier Mr. Sean Astwood
Hon. Ministers of Health Mr. Edwin Astwood
His Honour the Speaker of the House of Assembly Mr. Dwayne Taylor
Hon. Elected and Appointed members of the House of Assembly
Hon. Chief Magistrate Mrs. Tonya Loban-Jackson and other Hon. Magistrates
Madam Director of Public Prosecutions
President of the Bar Council and other colleagues at the Public
and Private Bars
Acting Commissioner of Police Mr. Trevor Botting and senior ranks present
Superintendent of Prisons Mr. Steve Barrett
Canon Mark Kendall
Distinguished ladies and gentlemen all
At the opening of the legal term on 11th January 2017, I remarked that as the service in Westminster Abbey where judges prayed for guidance at the start of the legal term, in these Islands, years ago, this tradition was marked by a church service and included the judiciary and attorneys walking through the streets back to the courts, that practice alternated between Grand Turk and Providenciales. I urged my Lady Chief Justice to consider holding this year’s ceremonies on Grand Turk. It therefore gives me great pleasure to rise this morning here in the nation’s capital of Cockburn Town, Grand Turk on this fourth year since my Lady has restored this important and meaningful tradition.
With my Lady’s leave, I propose in moving this motion, to reflect on 2017 as well as to make a few observations on some of the work before us for 2018.
My Lady, 2017 was a year tremendous challenge, especially following the two storms that ravaged our islands in September and caused so many to lose their lives along with the tremendous damage done across our region. But, we are a resilient people.
My Lady, my Chambers legal staff compliment has grown from 9 to 12 by the introduction of three new counsel into our fold and one promotion. I take this opportunity to welcome the three top candidates for the post of senior crown counsel following an open competition in Ms. Shayone Handfield Gardiner, Ms. Vanica Sobers Joseph and Ms. Libby Charlston whose appointments were somewhat overshadowed by the arrival of hurricanes Irma and Maria. Each new Senior Crown Counsel has added tremendous value to the work of my Chambers since taking up their appointments particularly in respect of the civil, commercial and international divisions. I take this opportunity to especially congratulate Mrs. Shayone Handfield-Gardiner on the successful completion of her master’s degree in international law. Her achievements are a testament to her own strong work ethic and determination. I am very pleased to welcome Ms. Chassidy Swan into my Chambers as Crown Counsel following her period of in service training and admission to the TCI Bar. Ms. Swan was also appointed to the post of Crown Counsel as the top candidate in open competition. These appointments and promotions form part of my efforts at institutional strengthening and succession planning. These officers have worked with due diligence and admirable determination in the performance of their duties and I am very grateful for the professionalism and comradery of all of my team in Chambers.
My Lady, I am pleased to report that 2017 was yet another very active legislative year and with the cooperation and involvement of members of the legal profession, associations and the general public, the House of Assembly saw through to passage some 21 Ordinances whilst the executive made some 82 pieces of subsidiary legislation in accordance with the Government’s legislative agenda. Whilst the elected Government and the public officers who work in the various Ministries and departments are to be credited for this laudable achievement, it is appropriate for me to also publicly recognize the tremendous efforts of my Legislative Drafting division for their commitment to the highest standards of professionalism and their willingness to go beyond the call of duty on many occasions to ensure that the Government’s agenda was delivered.
It is worth making special mention of some of these legislative initiatives in this setting –
The Companies Ordinance 2017 which will repeal and replace a 1981 Ordinance and modernizes the company law in the Turks and Caicos Islands. It also establishes a beneficial ownership registry in the Islands. It further establishes a better business environment for the incorporation of companies in the islands.
The Insolvency Ordinance 2017 establishes a new regime providing for the insolvency of companies, individuals and partnerships. The Ordinance is the result of extensive consultation with the Financial Services Commission and the industry, the first draft having been released for comments in December 2016 and finally passed in the House in December 2017.
Before this Ordinance, there has never been a personal insolvency regime or a regime for insolvent partnerships in the Turks and Caicos Islands. The Ordinance empowers the Financial Services Commission (the Commission) to appoint an Official Assignee. This is an important development for the credibility of the Insolvency regime in the Turks and Caicos Islands, and the reputation of the Islands, that somebody or person has responsibility for acting as the liquidator of companies, and the trustee in bankruptcy of individuals, in cases where no licensed insolvency practitioner is willing or able to act. This will usually be the case if the insolvent company or individual has insufficient assets to fund the costs of the liquidation or bankruptcy. Without a liquidator and trustee of last resort, companies and individuals that dissipate or hide their assets would be unlikely to enter into liquidation or bankruptcy and would never be investigated. It is also important that there is a person or body with responsibility for investigating insolvencies where the public interest requires, even where an insolvency practitioner has been appointed. The Official Assignee fulfils these roles, as an officer of the Court and with a right of audience before the Court for directions.
The Insolvency Ordinance also establishes a regime for the licensing, regulation and supervision of insolvency practitioners by the Commission. Insolvency is a specialised and technical area of work. If insolvencies are handled incompetently or fraudulently, it is likely that the interests of creditors will be adversely impacted and the reputation of the Islands will be damaged. In the circumstances, only individuals licensed by the Commission as insolvency practitioners will be able to act in most of the insolvency proceedings established under the Ordinance. Recognising that international companies operate outside the Islands, the Ordinance allows foreign insolvency practitioners to act, but only jointly with a licensed insolvency practitioner.
The Ordinance also establishes a new administration procedure for companies as an alternative to liquidation. The administrator, who must be a licensed insolvency practitioner, unlike a liquidator, has the power to trade the company with a view to rescuing it or obtaining a better outcome for creditors, for example by selling the business as a going concern. The principle difference between an administrator and a supervisor is that an administrator takes over the management of the company from the directors.
Additionally, Receivership in the Islands is currently governed principally by common law. The Ordinance codifies the common law provisions and makes specific provision for administrative receiverships in respect of the property of a company. Insolvency Rules that will contain the detailed procedures necessary to support the Ordinance are currently being finalised.
The Rehabilitation of Offenders Ordinance was enacted in 2014 and has been in force since 1 August 2014. Since its enactment, there has been uncertainty amongst stakeholders and the users of the legislation on the interpretation of certain provisions. In particular, clarity of section 3(c) of the Ordinance was required, as issues arose, amongst others, whether a person who was convicted and sentenced during the rehabilitation period of his first conviction is excluded from rehabilitation.
The uncertainty of the above provision in addition to the absence of forms and regulations to be used by the Police for police clearance certificates and guidelines to explain the Ordinance has hampered the effective implementation of the Ordinance.
In an attempt to address the issue of the requisite guidelines, my Chambers produced draft of the Rehabilitation of Offenders Guidelines in June 2016 and those guidelines have been the subject of lengthy consultation amongst the relevant stakeholders for comments and feedback. A review of the Ordinance was made and this necessitated the passage of the Rehabilitation of Offenders (Amendment) Ordinance 2017, the making of the Rehabilitation of Offenders Order and an update of the draft guidelines. Valuable feedback was received from the relevant stakeholders including the Police, the Judiciary, the Office of the Director of Public Prosecutions and the Bar Council and Association.
In December 2017, the Rehabilitation of Offenders (Amendment) Ordinance made further provisions for rehabilitation by clarifying the entitlement to rehabilitation and providing for the applicable rehabilitation periods. The amendment also introduced the provisions for the process of application of criminal records certificate and explicitly set out the types of certificate to be issued, dependent on what the criminals records are required for.
The Amendment Ordinance clarified section 3 of the principal Ordinance so that a person is excluded from rehabilitation if he or she commits another offence and is convicted and sentenced during the rehabilitation period of a previous unspent conviction. The Bill also provides further provisions of the applicable rehabilitation period where a person has more than one sentence imposed on a conviction.
In the year ahead, work on a number of important initiatives continues, including new Gaming Control provisions to demonstrate the Government’s strong commitment to a well-regulated, transparent gaming industry that serves the best interests of the people of the Islands. The Government has been developing and revamping the regulatory environment of the gaming Industry for some time and the new provisions would seek to make the regulatory environment consistent with international standards for best practices, which are also tailored to meet the specific needs of Islands. The Government intends to propose a regulatory structure which will provide a strong basis for business investment, job creation and the promotion of tourism. It will ensure that gaming is conducted responsibly, that protections are in place for the vulnerable and the industry is a strong financial contributor to the continuing development and success of the Islands.
Other changes include improvements to the liquor licensing regime and our planning laws.
The Turks and Caicos Islands has completed a successful year as chair of the Caribbean Financial Action Task Force leaving that organization better off for its stewardship, particularly as it relates to its governance structures. The Turks and Caicos Islands has commenced its mutual evaluation process by the Caribbean Financial Action Task Force. The CFATF assessments are used by investment bodies to determine the viability of investments in a jurisdiction and to indicate the strength of the regulatory framework within the jurisdiction’s financial sector. Beneficial interest transparency is key to the work being done in this area. Public and Private sector cooperation will be vital to achieving compliance with current international standards.
The establishment of a central registry in accordance with the Government’s action plan which is now underway requires the participation of all stakeholders, especially the legal profession.
I always like to take the opportunity to highlight the importance of respect for the rule of law. These ideals are alive and well here in the Turks and Caicos Islands and the presence of members of the executive and legislative branches showing strong support for the work of the judiciary is a testament to their commitment to working closely with and ensuring the viability of our courts systems throughout the islands.
My Lady, as law officers, we stand in full support of the work of the court and wish you, my Lady Justice Joyner, the Honourable Magistrates, the Hon. Registrar and the entire judiciary a prosperous and productive New Year.
May the Almighty God abundantly bless our collective pursuits in 2018 and always.
I now formally move the motion for the opening of the Turks and Caicos Islands Supreme Court for the year 2018.
May it so please you my Lady.
Rhondalee Braithwaite-Knowles, OBE
Hon. Attorney General
10th January 2018