Constitution of the Falkland Islands
Encyclopedia
The Falkland Islands
Constitution, in its present form, was made on 5 November 2008 by Queen Elizabeth II in a meeting of the Privy Council at Buckingham palace
. It was laid before Parliament
on 12 November 2008 and came into force on 1 January 2009.
The current constitution replaced the 1985 version, which had been amended in 1997. The new constitution modernised the Chapter on fundamental rights and freedoms of the individual, and embedded self-determination
in the main body of the Constitution. It also created an elected Legislative Assembly, which replaced the Legislative Council, set up an Executive Council
composed of three of the elected members of the Assembly and two ex officio members, and better explained the role of the Governor
. The new constitution also provided for finance, the public service, the administration of justice, and a Complaints Commissioner.
. The wording is broadly taken from documents such as the Universal Declaration of Human Rights
and the European Convention on Human Rights
, although there is a much greater emphasis on the right of self-determination.
and describes the appointment process for that office. The chapter also sets out how the duties and powers of the Governor are determined, making reference to the role of the Queen through her Secretary of State
. Section 24 of the chapter describes the times when an Acting Governor is required and the appointment process for that position.
Sections 25 describes the Governor's role in the defence and internal security of the Falklands, giving him or her great authority in such matters (excluding issues relating to policing) on the advice of the Commander of the British Forces. The chapter also states that, before executing any powers of the office, the Governor must take the oath of allegiance
and the oath of office
which are both set out in Annex B.
Sections 26(2) lays out the makeup of the Legislative Assembly, stating that it shall consist of eight members elected by universal suffrage, the Speaker and two ex officio members (Chief Executive
and the Director of Finance). The constituencies of the Legislative Assembly are described in sections 27, which states that five members of the Legislative Assembly will be elected from Stanley
and the remaining three from Camp
. The section also allows for the number of MLAs from each constituency to be amended but subject to a referendum requiring two-thirds approval from the voters in each constituency.
The qualifications (and disqualifications) for those seeking election to the Legislative Assembly are listed in sections 28 and 29, and the qualifications for electors are listed in section 32. Section 30 describes the circumstances under which a seat in the Legislative Assembly becomes vacant, and section 31 describes the procedure in the event of an MLA being sentenced to imprisonment by a court of law.
The procedure for general election
s, as well as the filling of vacant seats between general elections, is set out in section 32, with the dissolution of the Legislative Assembly being described in section 33. Under these sections, the Governor has the power to dissolve the Legislative Assembly at any time, but there must be general election within 70 days of the dissolution and a general election must take place at least once every four years. If there is a vacant seat in the Legislative Assembly, under section 32(2), there must be a by-election
to fill the empty seat within 70 day of the vacancy occurring (unless a dissolution is due within 126 days).
Section 35 gives the Governor the power to recall the Legislative Assembly after its dissolution, but only in the case of an emergency. Section 36 sets out the procedure for resolving any dispute over elections, or membership of the Legislative Assembly, with the Supreme Court of the Falkland Islands having the last word on such issues.
of the Legislative Assembly, as well as detailing the role and election of the Speaker of the Legislative Assembly
.
Section 41 sets out the participation by non-members in proceedings of the Legislative Assembly, stating that the Commander of the British Forces, the Attorney General and any person summoned by the Legislative Assembly are permitted to participate in proceedings, but they are not allowed to vote on any issue of the Assembly.
Members of the Legislative Assembly are granted freedom of speech and expression during the proceedings
of the Legislative Assembly in section 49, and the privileges for Legislative Assembly members are detailed in section 48.
The chapter also states that, before taking part in any proceedings of the Legislative Assembly, all members of the Legislative Assembly must take the oath of allegiance
and the oath of office
which are both set out in Annex B. The Commander of the British Forces and the Attorney General, are only required to take the oath of allegiance
before participating in proceedings of the Legislative Assembly.
The Legislative Assembly is given the power to make laws in section 37, and the procedure for making laws is described in sections 50-56. The Governor has the power to give Royal Assent
to any law passed by the Legislative Assembly, and can also disallow any law and reserve any Bill but in both cases must inform the Secretary of State
, who can prevent such action.
and is exercised on her behalf by the Governor.
Section 57 sets up the Executive Council of the Falkland Islands
, to advise the Governor on the execution of executive power. The chapter also lays out the qualifications required for membership of the Executive Council as well as the election, tenure and quorum of the Executive Council. Sections 60-63 describes the procedure for the calling and holding of Executive Council meetings, and section 69 requires minutes
to be taken at each meeting. Section 64 states that, before executing any powers of the Executive Council, Councillors must take the oath of secrecy which is set out in Annex B.
Under sections 66 and 67, the Governor is permitted to go against the wishes of the Executive Council, and act without consulting them, but if he or she does this, the Governor must immediately inform the Secretary of State
on the reasons for such action.
Section 70 sets up a Advisory Committee on the Prerogative of Mercy, and describes its makeup and powers. Section 71 gives the Governor the power to grant pardons on the advice of the Advisory Committee. Section 72 details the role of the Attorney General in relation to criminal proceedings.
for the storage of public funds, and section 75 describes the procedure for withdraws from the Consolidated Fund.
Section 76 describes the role of the Director of Finance of the Falkland Islands who lays out the revenues and expenditure of the islands which then must be authorised by the Legislative Assembly. Section 78 sets up a Contingencies Fund
, to be used in the event of an urgent and unforeseen need for expenditure. Use of the fund requires the approval of the Legislative Assembly via an appropriation Bill. A Public Accounts Committee is set up by section 81, which also describes the membership, election and powers of the Committee.
and describes the appointment process for that office. The Chief Executive is appointed by the Governor on the advice of the Executive Council and the main duty of the Chief Executive is to head of the public service. Section 84 states that appointments to such public offices, which are vested in the Governor, can be delegated to the Chief Executive.
Section 85 describes the procedure for the disciplining and removal from office of public officials.
The Court of Appeal is set up by section 87 and consists of a President and two Justices of Appeal. The section goes on to describe the powers and duties of the Court, and sections 93 and 94 set out the Court's practice and procedure. Sections 88-90 details the appointment, powers and tenure of the Judges, Acting Judges and the Senior Magistrate. The chapter also states that, before executing any powers of their offices, all judicial officials must take the oath of allegiance
and the judicial oath which are both set out in Annex B.
The Commissioner cannot be a member of the Legislative Assembly and once appointed, the Commissioner cannot be subject to the direction or control of any other person or authority.
Section 100 gives a list of terms, used in the constitution, with their official interpretations.
, which claims the Falklands to be part of its territory. Jorge Taiana
, the Foreign Minister of Argentina, described the constitution as a "violation of Argentine sovereignty and international law," saying that "the sole objective being pursued by the United Kingdom in approving what it calls reforms is to perpetuate an anachronistic colonial situation."
Falkland Islands
The Falkland Islands are an archipelago in the South Atlantic Ocean, located about from the coast of mainland South America. The archipelago consists of East Falkland, West Falkland and 776 lesser islands. The capital, Stanley, is on East Falkland...
Constitution, in its present form, was made on 5 November 2008 by Queen Elizabeth II in a meeting of the Privy Council at Buckingham palace
Buckingham Palace
Buckingham Palace, in London, is the principal residence and office of the British monarch. Located in the City of Westminster, the palace is a setting for state occasions and royal hospitality...
. It was laid before Parliament
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
on 12 November 2008 and came into force on 1 January 2009.
The current constitution replaced the 1985 version, which had been amended in 1997. The new constitution modernised the Chapter on fundamental rights and freedoms of the individual, and embedded self-determination
Self-determination
Self-determination is the principle in international law that nations have the right to freely choose their sovereignty and international political status with no external compulsion or external interference...
in the main body of the Constitution. It also created an elected Legislative Assembly, which replaced the Legislative Council, set up an Executive Council
Executive Council of the Falkland Islands
The Executive Council of the Falkland Islands is the policy making body of the Government of the Falkland Islands, exercising executive power by advising the Governor...
composed of three of the elected members of the Assembly and two ex officio members, and better explained the role of the Governor
Governor of the Falkland Islands
The Governor of the Falkland Islands is the representative of the British Crown in the Falkland Islands, acting "in Her Majesty's name and on Her Majesty's behalf" as the islands' de facto head of state in the absence of the British monarch...
. The new constitution also provided for finance, the public service, the administration of justice, and a Complaints Commissioner.
Chapter I: Protection of Fundamental Rights and Freedoms of the Individual
The first chapter of the Constitution, which is made up of sections 1-22, lays out the fundamental rights and freedoms of those in the Falkland IslandsFalkland Islands
The Falkland Islands are an archipelago in the South Atlantic Ocean, located about from the coast of mainland South America. The archipelago consists of East Falkland, West Falkland and 776 lesser islands. The capital, Stanley, is on East Falkland...
. The wording is broadly taken from documents such as the Universal Declaration of Human Rights
Universal Declaration of Human Rights
The Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...
and the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
, although there is a much greater emphasis on the right of self-determination.
Chapter II: The Governor
The second chapter, which is made up of sections 23-25, states that there shall be a Governor of the Falkland IslandsGovernor of the Falkland Islands
The Governor of the Falkland Islands is the representative of the British Crown in the Falkland Islands, acting "in Her Majesty's name and on Her Majesty's behalf" as the islands' de facto head of state in the absence of the British monarch...
and describes the appointment process for that office. The chapter also sets out how the duties and powers of the Governor are determined, making reference to the role of the Queen through her Secretary of State
Secretary of State for Foreign and Commonwealth Affairs
The Secretary of State for Foreign and Commonwealth Affairs, commonly referred to as the Foreign Secretary, is a senior member of Her Majesty's Government heading the Foreign and Commonwealth Office and regarded as one of the Great Offices of State...
. Section 24 of the chapter describes the times when an Acting Governor is required and the appointment process for that position.
Sections 25 describes the Governor's role in the defence and internal security of the Falklands, giving him or her great authority in such matters (excluding issues relating to policing) on the advice of the Commander of the British Forces. The chapter also states that, before executing any powers of the office, the Governor must take the oath of allegiance
Oath of allegiance
An oath of allegiance is an oath whereby a subject or citizen acknowledges a duty of allegiance and swears loyalty to monarch or country. In republics, modern oaths specify allegiance to the country's constitution. For example, officials in the United States, a republic, take an oath of office that...
and the oath of office
Oath of office
An oath of office is an oath or affirmation a person takes before undertaking the duties of an office, usually a position in government or within a religious body, although such oaths are sometimes required of officers of other organizations...
which are both set out in Annex B.
Chapter III: The Legislature
The third chapter, which is made up of sections 26-36, sets out the structure and composition of the Legislature. The chapter creates the Legislative Assembly of the Falkland Islands (which replaced the Legislative Council of the 1985 constitution) and describes the membership of the Legislative Assembly.Sections 26(2) lays out the makeup of the Legislative Assembly, stating that it shall consist of eight members elected by universal suffrage, the Speaker and two ex officio members (Chief Executive
Chief Executive of the Falkland Islands
The Chief Executive of the Falklands Islands is the head of government of the Falkland Islands, as well as head of the public service responsible for the efficient and effective management of the Falkland Islands Government...
and the Director of Finance). The constituencies of the Legislative Assembly are described in sections 27, which states that five members of the Legislative Assembly will be elected from Stanley
Stanley, Falkland Islands
Stanley is the capital and only true cityin the Falkland Islands. It is located on the isle of East Falkland, on a north-facing slope in one of the wettest parts of the islands. At the 2006 census, the city had a population of 2,115...
and the remaining three from Camp
Camp (Falkland Islands)
The camp is the term used in the Falkland Islands to refer to any part of the islands outside of the islands' only significant town, Stanley, and often the large RAF base at Mount Pleasant...
. The section also allows for the number of MLAs from each constituency to be amended but subject to a referendum requiring two-thirds approval from the voters in each constituency.
The qualifications (and disqualifications) for those seeking election to the Legislative Assembly are listed in sections 28 and 29, and the qualifications for electors are listed in section 32. Section 30 describes the circumstances under which a seat in the Legislative Assembly becomes vacant, and section 31 describes the procedure in the event of an MLA being sentenced to imprisonment by a court of law.
The procedure for general election
General election
In a parliamentary political system, a general election is an election in which all or most members of a given political body are chosen. The term is usually used to refer to elections held for a nation's primary legislative body, as distinguished from by-elections and local elections.The term...
s, as well as the filling of vacant seats between general elections, is set out in section 32, with the dissolution of the Legislative Assembly being described in section 33. Under these sections, the Governor has the power to dissolve the Legislative Assembly at any time, but there must be general election within 70 days of the dissolution and a general election must take place at least once every four years. If there is a vacant seat in the Legislative Assembly, under section 32(2), there must be a by-election
By-election
A by-election is an election held to fill a political office that has become vacant between regularly scheduled elections....
to fill the empty seat within 70 day of the vacancy occurring (unless a dissolution is due within 126 days).
Section 35 gives the Governor the power to recall the Legislative Assembly after its dissolution, but only in the case of an emergency. Section 36 sets out the procedure for resolving any dispute over elections, or membership of the Legislative Assembly, with the Supreme Court of the Falkland Islands having the last word on such issues.
Chapter IV: Powers and Procedures of the Legislative Assembly
The fourth chapter, which is made up of sections 37-55, lays out the powers and procedures of the Legislative Assembly, giving the Legislative Assembly the power to make laws, describing the sittings, voting and the quorumQuorum
A quorum is the minimum number of members of a deliberative assembly necessary to conduct the business of that group...
of the Legislative Assembly, as well as detailing the role and election of the Speaker of the Legislative Assembly
Speaker of the Legislative Assembly
Speaker of the Legislative Assembly may refer to any of the following presiding officers of parliamentary bodies styled legislative assemblies: Australia*Speaker of the Australian Capital Territory Legislative Assembly...
.
Section 41 sets out the participation by non-members in proceedings of the Legislative Assembly, stating that the Commander of the British Forces, the Attorney General and any person summoned by the Legislative Assembly are permitted to participate in proceedings, but they are not allowed to vote on any issue of the Assembly.
Members of the Legislative Assembly are granted freedom of speech and expression during the proceedings
Parliamentary privilege
Parliamentary privilege is a legal immunity enjoyed by members of certain legislatures, in which legislators are granted protection against civil or criminal liability for actions done or statements made related to one's duties as a legislator. It is common in countries whose constitutions are...
of the Legislative Assembly in section 49, and the privileges for Legislative Assembly members are detailed in section 48.
The chapter also states that, before taking part in any proceedings of the Legislative Assembly, all members of the Legislative Assembly must take the oath of allegiance
Oath of allegiance
An oath of allegiance is an oath whereby a subject or citizen acknowledges a duty of allegiance and swears loyalty to monarch or country. In republics, modern oaths specify allegiance to the country's constitution. For example, officials in the United States, a republic, take an oath of office that...
and the oath of office
Oath of office
An oath of office is an oath or affirmation a person takes before undertaking the duties of an office, usually a position in government or within a religious body, although such oaths are sometimes required of officers of other organizations...
which are both set out in Annex B. The Commander of the British Forces and the Attorney General, are only required to take the oath of allegiance
Oath of allegiance
An oath of allegiance is an oath whereby a subject or citizen acknowledges a duty of allegiance and swears loyalty to monarch or country. In republics, modern oaths specify allegiance to the country's constitution. For example, officials in the United States, a republic, take an oath of office that...
before participating in proceedings of the Legislative Assembly.
The Legislative Assembly is given the power to make laws in section 37, and the procedure for making laws is described in sections 50-56. The Governor has the power to give Royal Assent
Royal Assent
The granting of royal assent refers to the method by which any constitutional monarch formally approves and promulgates an act of his or her nation's parliament, thus making it a law...
to any law passed by the Legislative Assembly, and can also disallow any law and reserve any Bill but in both cases must inform the Secretary of State
Secretary of State for Foreign and Commonwealth Affairs
The Secretary of State for Foreign and Commonwealth Affairs, commonly referred to as the Foreign Secretary, is a senior member of Her Majesty's Government heading the Foreign and Commonwealth Office and regarded as one of the Great Offices of State...
, who can prevent such action.
Chapter V: The Executive
The structure and powers of the executive is laid out in the fifth chapter, which is made up of sections 56-73. The chapter states that executive authority in the Falkland Islands is vested in the QueenMonarchy of the United Kingdom
The monarchy of the United Kingdom is the constitutional monarchy of the United Kingdom and its overseas territories. The present monarch, Queen Elizabeth II, has reigned since 6 February 1952. She and her immediate family undertake various official, ceremonial and representational duties...
and is exercised on her behalf by the Governor.
Section 57 sets up the Executive Council of the Falkland Islands
Executive Council of the Falkland Islands
The Executive Council of the Falkland Islands is the policy making body of the Government of the Falkland Islands, exercising executive power by advising the Governor...
, to advise the Governor on the execution of executive power. The chapter also lays out the qualifications required for membership of the Executive Council as well as the election, tenure and quorum of the Executive Council. Sections 60-63 describes the procedure for the calling and holding of Executive Council meetings, and section 69 requires minutes
Minutes
Minutes, also known as protocols, are the instant written record of a meeting or hearing. They typically describe the events of the meeting, starting with a list of attendees, a statement of the issues considered by the participants, and related responses or decisions for the issues.Minutes may be...
to be taken at each meeting. Section 64 states that, before executing any powers of the Executive Council, Councillors must take the oath of secrecy which is set out in Annex B.
Under sections 66 and 67, the Governor is permitted to go against the wishes of the Executive Council, and act without consulting them, but if he or she does this, the Governor must immediately inform the Secretary of State
Secretary of State for Foreign and Commonwealth Affairs
The Secretary of State for Foreign and Commonwealth Affairs, commonly referred to as the Foreign Secretary, is a senior member of Her Majesty's Government heading the Foreign and Commonwealth Office and regarded as one of the Great Offices of State...
on the reasons for such action.
Section 70 sets up a Advisory Committee on the Prerogative of Mercy, and describes its makeup and powers. Section 71 gives the Governor the power to grant pardons on the advice of the Advisory Committee. Section 72 details the role of the Attorney General in relation to criminal proceedings.
Chapter VI: Finance
The sixth chapter, which is made up of sections 74-81, describes the powers of the Government of the Falkland Islands over the public finances. The chapter sets up a Consolidated FundConsolidated Fund
Consolidated Fund or the Consolidated Revenue Fund is the term used for the main bank account of the government in many of the countries in the Commonwealth of Nations.-Establishment:...
for the storage of public funds, and section 75 describes the procedure for withdraws from the Consolidated Fund.
Section 76 describes the role of the Director of Finance of the Falkland Islands who lays out the revenues and expenditure of the islands which then must be authorised by the Legislative Assembly. Section 78 sets up a Contingencies Fund
Contingencies fund
A contingencies fund or contingency fund is a fund for emergencies or unexpected outflows, mainly economic crises.- History :In the early part of the nineteenth Century the Civil Contingencies Fund was created in the United Kingdom. It is held by the Treasury, and its use is regulated by the...
, to be used in the event of an urgent and unforeseen need for expenditure. Use of the fund requires the approval of the Legislative Assembly via an appropriation Bill. A Public Accounts Committee is set up by section 81, which also describes the membership, election and powers of the Committee.
Chapter VII: The Public Service
The seventh chapter, which is made up of sections 82-85, states that there shall be a Chief Executive of the Falkland IslandsChief Executive of the Falkland Islands
The Chief Executive of the Falklands Islands is the head of government of the Falkland Islands, as well as head of the public service responsible for the efficient and effective management of the Falkland Islands Government...
and describes the appointment process for that office. The Chief Executive is appointed by the Governor on the advice of the Executive Council and the main duty of the Chief Executive is to head of the public service. Section 84 states that appointments to such public offices, which are vested in the Governor, can be delegated to the Chief Executive.
Section 85 describes the procedure for the disciplining and removal from office of public officials.
Chapter VIII: The Administration of Justice
The eighth chapter, which is made up of sections 86-94, sets out the structure and composition of the judiciary. Section 86 creates the Supreme Court of the Falkland Islands and gives it unlimited jurisdiction to hear and determine any civil or criminal proceedings. Under section 86(2), the Supreme Court consists of the Chief Justice of the Falkland Islands who is determined by section 89.The Court of Appeal is set up by section 87 and consists of a President and two Justices of Appeal. The section goes on to describe the powers and duties of the Court, and sections 93 and 94 set out the Court's practice and procedure. Sections 88-90 details the appointment, powers and tenure of the Judges, Acting Judges and the Senior Magistrate. The chapter also states that, before executing any powers of their offices, all judicial officials must take the oath of allegiance
Oath of allegiance
An oath of allegiance is an oath whereby a subject or citizen acknowledges a duty of allegiance and swears loyalty to monarch or country. In republics, modern oaths specify allegiance to the country's constitution. For example, officials in the United States, a republic, take an oath of office that...
and the judicial oath which are both set out in Annex B.
Chapter IX: Complaints Commissioner
The ninth chapter, which is made up of sections 95 and 96, lays out the procedure appointment of a Complaints Commissioner and describes its process and function. Under section 95, the Governor has the right to appoint a Complaints Commissioner to investigate any complaint about the Government of the Falkland Islands.The Commissioner cannot be a member of the Legislative Assembly and once appointed, the Commissioner cannot be subject to the direction or control of any other person or authority.
Chapter X: Miscellaneous
The tenth and finial chapter, which is made up of sections 97-100, describes the Public Seal as well as the procedure for reappointments, concurrent appointments and resignations of any office or post established by the constitution.Section 100 gives a list of terms, used in the constitution, with their official interpretations.
Annexes
Annex A details the rules for the enactment of laws. Annex B gives the wording of the oaths and affirmations mandated by the constitution, which are the oath and affirmation of allegiance, the oath and affirmation for due execution of office, the oath and affirmation of Secrecy, and the Judicial oath and affirmation.Criticism
The new constitution was criticised by ArgentinaArgentina
Argentina , officially the Argentine Republic , is the second largest country in South America by land area, after Brazil. It is constituted as a federation of 23 provinces and an autonomous city, Buenos Aires...
, which claims the Falklands to be part of its territory. Jorge Taiana
Jorge Taiana
Jorge Enrique Taiana is an Argentine Justicialist Party politician, formerly Foreign Minister in the government of President Cristina Fernández de Kirchner, after occupying the same post during the previous government of Néstor Kirchner...
, the Foreign Minister of Argentina, described the constitution as a "violation of Argentine sovereignty and international law," saying that "the sole objective being pursued by the United Kingdom in approving what it calls reforms is to perpetuate an anachronistic colonial situation."