Bermuda model one of ‘political inequality’, self-governance report says
An international adviser on self-governance suggested the island cannot afford to delay its political evolution, which would include “removal of the final vestiges of colonialism”.
Carlyle Corbin said that the level of delegation to Bermuda by the UK appeared to be at its peak while the Legislature’s ability to govern itself without unnecessary supervision was fully developed.
The remarks came in his Assessment of Self-Governance Sufficiency in conformity with internationally-recognised standardsreport, which was tabled in the House of Assembly yesterday.
In his concluding observations, Dr Corbin wrote: “For Bermuda, the level of delegation appears to have reached its apex whilst simultaneously the capacity of the elected government to govern itself without undue oversight has reached the highest degree of maturity.
“This paradox can result in conflicting opinions and interpretations of the division of power under the current system of delegation played out in a number of examples earlier referenced.
“The sophistication of the modernised dependency arrangement may include consistent negotiation but with the cosmopole [administering country] retaining final decision-making authority.
“However, the very fact that Bermuda maintains a fully self-sufficient, well managed economy and governance structure provides little impetus for the retention of an existent modernised colonial arrangement.”
He added: “Bermuda, thus, is poised to take the next logical step of political evolution to remove the remaining anachronistic unilateral authority, to be replaced with a genuinely modernised political relationship with the UK, and with the rest of the international community, based on the sovereign equality of states.
“Of course, the historic ties between Bermuda and the UK would ensure that a modern relationship would evolve.
“Such political advancement would only be achieved through a process of international self-determination and consequent removal of the final vestiges of colonialism which, if left intact, could result in political and constitutional fossilisation.
“The late president of Ghana, Dr Kwame Nkrumah, cautioned that ‘we cannot afford the luxury of delay’ in relation to the political evolution of the African continent. This advice may be wholly applicable to Bermuda.”
Kathy Lynn Simmons, the Minister of Legal Affairs and Constitutional Reform, told the House of Assembly yesterday that markers were used to assess the level of readiness for full autonomy on the island.
She said: “Bermuda’s scoring across the ten self-governance indicators demonstrates that we have not achieved preparedness for the full measure of self-governance under any of the indicators.”
Ten indicators were used in the study by Carlyle Corbin to assess Bermuda’s preparedness for full measure of self government.
They were attributed a score of one to four, with one representing the lowest level of readiness and four equating to “the culmination” of preparedness for the indicator concerned.
Kathy Lynn Simmons, the Minister of Legal Affairs and Constitutional Reform, said the markers and grades were as follows:
• The UK’s – as the administering state – compliance with international self-determination / decolonisation obligations. Score: 2
• Level of unilateral applicability of laws to the territory. Score: 2
• Degree of awareness of the people of the territory of the legitimate political status options, and of the overall decolonisation process. Score: 2
• Right of the people to determine the internal constitution without outside influence. Score: 2
• Extent of evolution of governance capacity through the exercise of delegated internal self-government. Score: 3
• Extent of evolution of governance capacity through the exercise of external affairs. Score: 2
• Degree of autonomy in economic affairs. Score: 3
• Control and administration of internal security. Score: 3
• Control and administration of military activities. Score: 3
• Indicator of ownership and control of natural resources. Score: 3
Ms Simmons said that the scores showed the island had “not achieved preparedness for the full measure of self-governance under any of the indicators”.
She highlighted that Bermuda scored level two for five of the indicators. Some of these were related to efforts that can be made by the UK.
For example, it was found that the administering country acknowledged the “external right to self-determination” but regarded the non self-governing territory as “subordinate to the domestic laws” of the cosmopole, or country that administers a non-independent jurisdiction.
In terms of the people of Bermuda’s right to determine its internal constitution without outside interference, the study found that the document “can be drafted by the cosmopole following consultations with the territory, with cosmopole retaining final authority on the content”.
Level three scores applied to half of the indicators, including the degree of autonomy in economic affairs, where it was found that the “territory generates and keeps most revenue from its economy and exercises administrative control” subject to the application of certain laws and treaties by the UK.
The assessment also found that there was a “high degree of management” of natural resources by the territory’s elected government.
Dr Corbin explained that the primary intention of his assessment was to examine the level of preparation for self-governance for Bermuda under its elected dependency governance arrangement as a British Overseas Territory.
He said the study was carried out from the perspective that the island, as a non self-governing territory, was “in the preparatory phase of its political status advancement leading to the attainment” of the full measure of self-governance, in line with Article 73 of the UN Charter, and relevant self-determination and human rights instruments.
Dr Corbin, who prepared a report earlier for the Virgin Islands and was commissioned to produce the $50,000 document for Bermuda, said “significant attention” was paid to the extent of power delegated within an elected dependency governance framework, as reflected in the Constitution.
He noted: “It is suggested that the level of delegation of authority to the elected Government of Bermuda as set forth in the Bermuda Constitution Order 1968 had evolved through subsequent amendment to become, essentially, a model of dependency governance as preparatory to independence.
“The model, however, was never intended to be in place indefinitely. This may be borne out in the reluctance of the UK to delegate to other UKOTs anything approaching the level of delegated authority exercised by Bermuda without an expressed timetable for independence.”
Dr Corbin referenced a 2022 Foreign and Commonwealth Office research paper that said Bermuda was among only three territories where constitutions did not allow the Governor to make laws.
He added: “In any case, whether it is a reticence to apply legislation from London or a genuine lack of constitutional authority to do so, the question alone is sufficient enough to distinguish Bermuda from other UKOTs, serving as prima facie determination that Bermuda enjoys an advanced dependency model – perhaps as advanced as it can expect within the present arrangement.”
Dr Corbin pointed out that the model in Bermuda was still one of “political inequality” because delegated powers in the Constitution were reversible.
He said: “For Bermuda, the reversibility of delegated authority by other means may include a creative use of the ‘withhold of assent’ to legislation adopted by the elected government as in the case of the Bermuda cannabis legislation …“
Dr Corbin concluded: “At the end of the day, a democratic dependency is oxymoronic since a dependency cannot, by definition, be a model of democracy – even if the arrangement has been modernised to appear more acceptable.
“If the power imbalance between the cosmopole and the territory remains unchanged, then any argument of ‘modernisation’ is illusory.”
Ms Simmons said earlier that a focus on independence as the only option available to Bermuda “can be viewed as self-limiting”.
She told MPs that full self-governance for territories was defined by UN mandates, ultimately leading to a territory’s achievement of independence or sovereignty; integration with an administering state; or free association with another sovereign state.
David Burt said last month: “It is the current position of the Bermuda Progressive Labour Party, who is the Government, that upon Bermuda becoming a sovereign state, at whatever point in time we may become a sovereign state, that we’ll become full members of the Commonwealth, retain the United Kingdom’s monarch as head of state, and retain the Judicial Committee of the Privy Council as the highest court in the land.”
Mr Burt highlighted that during campaigning for the 2020 General Election, he reiterated that a referendum would be needed for the island to become a sovereign state.
The Premier added that no such vote was planned for this parliamentary term.
• To read the report or remarks from the Minister of Legal Affairs and Constitutional Reform, click on the PDFs under “Related Media”.