(9) Where any question is referred to the Supreme Court in pursuance of subsection (7), the Supreme Court shall give its decision upon the question and the referring court shall dispose of the case in accordance with that decision or, if that decision is the subject of an appeal to the Court of Appeal or to Her Majesty in Council, in accordance with the decision of the Court of Appeal or, as the case may be, of Her Majesty in Council.

(10) An appeal shall lie as of right to the Court of Appeal from any final determination of any application or question by the Supreme Court under this section, and an appeal shall lie as of right to Her Majesty in Council from the final determination by the Court of Appeal of the appeal in any such case; but no appeal shall lie from a determination by the Supreme Court under this section dismissing an application on the ground that it is frivolous or vexatious.

(11) The Governor may by Ordinance confer on the Supreme Court such powers in addition to those conferred by this section as may appear to be necessary or desirable for the purpose of enabling that Court more effectively to exercise the jurisdiction conferred on it by this section.

(12) The Chief Justice or the President of the Court of Appeal, as the case requires, may make Rules of Court with respect to the practice and procedure—

(a) of the Supreme Court in relation to the jurisdiction and powers conferred on it by or under this section;

(b) of the Supreme Court or the Court of Appeal in relation to appeals under this section from determinations of the Supreme Court or the Court of Appeal; and

(c) of subordinate courts in relation to references to the Supreme Court under subsection (7),

including provisions with respect to the time within which any application, reference or appeal shall or may be made or brought.

Application of this Part to the members of a disciplined force

207.—(1) A member of—

(a) any police force of Tristan da Cunha;

(b) any prison service of Tristan de Cunha;

(c) any fire service of Tristan da Cunha; and

(d) any naval, military or air force raised in Tristan da Cunha under the law of Tristan da Cunha,

who is charged with having committed an offence against the law of Tristan da Cunha, other than a disciplinary offence, is entitled to the full protection of this Part.

(2) A member of a force referred to in subsection (1) who is charged with having committed a disciplinary offence is entitled to the protection of sections 188, 189 and 190.

(3) If a member of a force referred to in subsection (1) has been convicted of an offence against the law of Tristan da Cunha other than a disciplinary offence, and is also convicted of a disciplinary offence arising out of the same conduct, the punishment for the first-mentioned offence must be taken into account in determining the punishment for the disciplinary offence.

(4) A member of a visiting force who is charged with having committed an offence again the law of Tristan da Cunha is entitled to the full protection of this Part.

(5) A member of a visiting force who is charged in Tristan da Cunha with having committed a disciplinary offence, including an offence against any criminal law of the sending State which, by virtue of a provision of the disciplinary law of that force, applies to that member while in Tristan da Cunha, is entitled to the protection of sections 188, 189 and 190.

(6) In this section, “sending State”, in relation to a member of a visiting force, means the country, other than Tristan da Cunha, in or under the law of which that force was raised.

PART 3 THE GOVERNOR

The Governor

208.—(1) There shall be a Governor of Tristan da Cunha, who, subject to subsections (3) and (4), shall be the person for the time being holding or lawfully performing the functions of the office of Governor of St Helena.

(2) The Governor shall have such functions as are conferred or imposed on him or her by this Constitution or any other law and such other functions as Her Majesty may from time to time be pleased to assign to him or her through a Secretary of State, and, subject to the provisions of this Constitution and of any other law by which any such functions are conferred or imposed, shall do and execute all things that belong to his or her office according to such instructions, if any, as Her Majesty may from time to time see fit to give him or her through a Secretary of State; but no court shall enquire whether or not he or she has complied with any such instructions.

(3) No person who is acting as Governor shall do so in relation to Tristan da Cunha while the Governor is in Tristan da Cunha.

(4) No person who is appointed as a Governor’s Deputy under section 28 shall discharge any function of the office of Governor in relation to Tristan da Cunha while the Governor is in Tristan da Cunha unless the Governor expressly authorises him or her to do so.

(5) In subsections (3) and (4), “the Governor” means the person holding the office of Governor.

Powers of pardon, etc

209.  The Governor may, in Her Majesty’s name and on Her Majesty’s behalf—

(a) grant to any person concerned in or convicted of any offence a pardon, either free or subject to lawful conditions;

(b) grant to any person a respite, either indefinite or for a specified period, of the execution of any punishment imposed on that person for any offence;

(c) substitute a less severe form of punishment for any punishment imposed on any person for any offence; or

(d) remit the whole or part of any punishment imposed on any person for any offence or of any penalty or forfeiture otherwise due to Her Majesty on account of any offence.

Powers to dispose of land

210.  Subject to this Constitution and any other law, the Governor or any person duly authorised by him or her in writing under his or her hand may, in Her Majesty’s name and on Her Majesty’s behalf, make and execute grants and other dispositions of any land or other immovable property in Tristan da Cunha that is vested in Her Majesty in right of the Government of Tristan da Cunha.

Public seal

211.—(1) There shall be a public seal of Tristan da Cunha, which shall be the public seal of St Helena.

(2) The Governor shall have custody of the public seal.

(3) The public seal may be used to seal such public documents signed by the Governor or an officer subordinate to the Governor as should be sealed with the public seal.

Constitution of offices

212.—(1) There shall be an Administrator of Tristan da Cunha, who shall be appointed by the Governor, shall be an officer of the Tristan da Cunha Public Service and shall have such functions as may be prescribed by any law.

(2) Subject to this Constitution and any other law, the Governor, in Her Majesty’s name and on Her Majesty’s behalf, may constitute other offices for Tristan da Cunha.

PART 4 THE EXECUTIVE

Executive authority

213.—(1) The executive authority of Tristan da Cunha is vested in Her Majesty.

(2) Subject to this Constitution, the executive authority of Tristan da Cunha shall be exercised on behalf of Her Majesty by the Governor, either directly or through the Administrator of Tristan da Cunha and other officers subordinate to the Governor.

(3) Nothing in this section shall preclude persons or authorities other than the Governor from exercising such functions as are or may be conferred on them by any law.

Island Council

214.  There shall be an Island Council for Tristan da Cunha, which shall be composed, and shall have such functions in relation to the government of Tristan da Cunha, as may be prescribed by any law.

Attorney General

215.—(1) There shall be an Attorney General of Tristan da Cunha, who, subject to subsection (3), shall be the person for the time being holding or acting in the office of Attorney General of St Helena.

(2) The Attorney General shall be the principal legal adviser to the Government of Tristan da Cunha.

(3) No person who is acting as Attorney General of St Helena shall act as Attorney General in relation to Tristan da Cunha while the person holding the office of Attorney General is in Tristan da Cunha.

(4) The Attorney General may, in any case in which he or she considers it desirable to do so—

(a) institute and undertake criminal proceedings against any person before any court in respect of an offence against any law;

(b) take over and continue any such criminal proceedings that have been instituted by any other person or authority; and

(c) discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by himself or herself or any other person or authority.

(5) The powers of the Attorney General under subsection (4) may be exercised by him or her in person or by officers subordinate to him or her acting under and in accordance with his or her general or special instructions.

(6) The powers conferred on the Attorney General by subsection (4)(b) and (c) shall be vested in him or her to the exclusion of any other person or authority; but where any other person or authority has instituted criminal proceedings, nothing in this subsection shall prevent the withdrawal of those proceedings by or at the instance of that person or authority at any stage before the person against whom the proceedings have been instituted has been charged before the court.

(7) For the purposes of this section, any appeal from any determination in any criminal proceedings before any court, or any case stated or question of law reserved for the purpose of any such proceedings to any other court, shall be deemed to be part of those proceedings.

(8) In the exercise of the powers conferred on him or her by this section, the Attorney General, and any person acting under his or her authority, shall act independently and shall not be subject to the direction or control of the Governor, the Island Council or any other person or authority.

PART 5 THE LEGISLATURE

Power to make laws

216.—(1) The Governor, acting after consultation with the Island Council, may make laws for the peace, order and good government of Tristan da Cunha.

(2) The Governor shall not be obliged to act in accordance with the advice of the Island Council in exercising his or her powers under subsection (1), but in any case where the Governor acts contrary to the advice of the Council any member of the Council shall have the right to submit his or her views on the matter to a Secretary of State.

Disallowance of laws

217.—(1) Any law made by the Governor may be disallowed by Her Majesty through a Secretary of State.

(2) Whenever a law has been disallowed by Her Majesty the Governor shall, as soon as practicable, cause notice of the disallowance to be published in the Gazette, and the law shall be annulled with effect from the date of the publication of that notice.

(3) Section 16(1) of the Interpretation Act 1978(8) shall apply to the annulment of any law under this section as it applies to the repeal of an Act of Parliament, save that any enactment repealed or amended by or in pursuance of that law shall have effect as from the date of the annulment as if that law had not been made.

PART 6 THE ADMINISTRATION OF JUSTICE

The Courts of Tristan da Cunha

218.—(1) The courts of Tristan da Cunha shall be the Supreme Court of St Helena, the Court of Appeal of St Helena, and such courts subordinate to the Supreme Court as may be established by law.

(2) Her Majesty in Council continues to have such jurisdiction in respect of Tristan da Cunha as is provided by law.

Independence of the judiciary

219.  The judges and judicial officers appointed to preside or sit in any court of Tristan da Cunha shall exercise their judicial functions independently from the legislative and executive branches of government.

Supreme Court
Jurisdiction of Supreme Court

220.—(1) Subject to this Constitution, the Supreme Court shall have and may exercise all such jurisdiction in and in relation to Tristan da Cunha as is necessary to administer the law of Tristan da Cunha.

(2) Without prejudice to the generality of subsection (1), the Supreme Court shall possess and may exercise in and in relation to Tristan da Cunha, subject to this Constitution and to any other law, all the jurisdiction which is vested in, or is capable of being exercised by, Her Majesty’s High Court of Justice in and in relation to England.

Sittings of Supreme Court

221.—(1) Subject to subsection (2), the Supreme Court may sit in Tristan da Cunha or outside Tristan da Cunha.

(2) The Chief Justice and any other judge or acting judge of the Supreme Court may hold sittings of the Court when outside Tristan da Cunha, if satisfied that—

(a) a matter arising in a proceeding before the Court needs to be dealt with promptly;

(b) every party to the proceeding is able to participate, in person or through a legal representative, by teleconference or other means of electronic, oral or written communication;

(c) no injustice will result; and

(d) the course proposed in the public interest.

(3) The Chief Justice when outside Tristan da Cunha may exercise such powers of revision, variation, confirmation or setting aside of any sentence or order made by a subordinate court as are conferred on him or her by any law.

Exercise of jurisdiction of Supreme Court

222.—(1) The Chief Justice or any other judge or acting judge of the Supreme Court may hold the Supreme Court.

(2) A judge holding the Supreme Court has, in exercise of the jurisdiction of that Court, all the powers and authority of the Court, and, if not the Chief Justice, has the jurisdiction, powers, authority, privileges and immunities conferred on the Chief Justice.

(3) If, at any time, there are two or more judges who may hold the Supreme Court, each of them may hold sittings of the Court simultaneously.

(4) In this section, “Chief Justice” means the person holding the office of Chief Justice.

Court of Appeal
Jurisdiction of Court of Appeal

223.—(1) The Court of Appeal shall have jurisdiction to hear and determine such appeals from the courts of Tristan da Cunha as may be prescribed by this Constitution or any other law.

(2) Except as otherwise provided by this Constitution, an appeal shall lie to the Court of Appeal from the Supreme Court—

(a) as of right, if the Supreme Court certifies that the case involves a substantial question of law as to the interpretation or effect of any provision of this Constitution;

(b) as of right, or, as the case may be, with the leave of the Supreme Court, in such other cases involving the exercise of the criminal, civil or appellate jurisdiction of the Supreme Court as may be provided by this Constitution or any other law;

(c) with the leave of the Supreme Court in any other case, if in the opinion of that Court the question involved in the appeal is one which by reason of its general or public importance, or of the magnitude of the interests affected, or for any other reason, ought to be submitted to the Court of Appeal for decision; and

(d) subject to such limitations as may be provided by law, if the Court of Appeal, in any case in which it thinks fit, and at any time, grants special leave to appeal to that Court from a judgment of the Supreme Court, subject to such conditions as to security for costs or otherwise as the Court of Appeal thinks fit.

(3) In connection with any appeal from a court of Tristan da Cunha, the Court of Appeal shall, subject to this Constitution and any other law, have all the powers and jurisdiction that are possessed by that court under any law; and decisions of the Court of Appeal in respect of any appeal from a court of Tristan da Cunha shall, subject as aforesaid, be enforced in Tristan da Cunha in the same way as decisions of that court.

Practice and procedure on appeals

224.—(1) Rules made under section 89 may fix the number of judges of the Court of Appeal who may sit for any purpose; but, subject to subsection (2)—

(a) an uneven number shall sit, which for the purposes of any final determination by the Court other than the summary dismissal of an appeal, shall not be fewer than three; and

(b) any determination by the Court on any matter (whether final or otherwise) shall, where more than one judge sits, be according to the opinion of a majority of the judges who sit for the purpose of determining that matter.

(2) If, in a circumstance referred to in section 86(6), it is not practicable for the Governor to make any appointment under section 90(3), two judges of the Court of Appeal may hear, or continue to hear, and may determine, an appeal that has been set down for hearing; but—

(a) if those judges are not in agreement about the determination of any matter arising in the course of the proceedings, the presiding judge shall decide; and

(b) if those judges are not in agreement as to whether the appeal should be allowed, the presiding judge shall discontinue the appeal, and the matter shall be required to be reheard before the Court of Appeal consisting of three or a greater uneven number of judges of the Court.

(3) Subject to subsections (1) and (2), rules made under section 89 may provide for a reference from a decision of a single judge to the Court of Appeal.

(4) Subject to subsection (5), the Court of Appeal may sit in Tristan da Cunha or outside Tristan da Cunha.

(5) The Court of Appeal may sit outside Tristan da Cunha, if satisfied that—

(a) every party to the proceeding is able to participate, in person or through a legal representative, by teleconference or other means of electronic, oral or written communication;

(b) no injustice will result; and

(c) the course proposed is in the public interest.

General
Rules of Court

225.  Rules of Court made under section 89 shall apply in Tristan da Cunha with such modifications as the President of the Court of Appeal or, as the case may be, the Chief Justice may prescribe, and in particular such Rules may regulate the practice and procedure of the Court of Appeal or the Supreme Court with respect to proceedings held outside Tristan da Cunha.

PART 7 PUBLIC SERVICE

Appointments etc of officers of Tristan da Cunha Public Service

226.—(1) Subject to this Constitution, the Governor, acting after consultation with such persons or such independent authority (if any) as may be prescribed by Ordinance, may, in Her Majesty’s name and on Her Majesty’s behalf—

(a) make appointments to any office in the Tristan da Cunha Public Service; and

(b) remove and exercise disciplinary control over persons holding or acting in any such office.

(2) The Governor may by directions in writing delegate the power conferred on him or her by subsection (1) to any officer or officers of the Tristan da Cunha Public Service to such extent, and subject to such conditions, as may be specified in the directions.

(3) Subject to this Constitution, an Ordinance may provide for the establishment of an independent authority to exercise any of the following functions—

(a) advising the Governor about procedures for the exercise of the powers referred to in subsection (1), including recruitment, grievance and appeal procedures;

(b) advising the Governor on public service management, performance, conduct and ethics policies, and monitoring the implementation of such policies;

(c) carrying out annual reviews of the procedures and policies referred to in paragraphs (a) and (b), and reporting on such reviews to the Governor; and

(d) such other functions as may contribute to the efficiency and integrity of the Tristan da Cunha Public Service.

Terms and conditions of employment

227.—(1) The Governor shall approve (and may from time to time amend) a Code of Management by or under which the terms and conditions of employment of officers of the Tristan da Cunha Public Service, or any branch of it, shall be determined.

(2) Subject to any such Code of Management, the terms and conditions of the employment of any individual officer of the Tristan da Cunha Public Service shall be as agreed in that officer’s contract of employment or implied by any rule of law.

PART 8 AUDIT

Audit

228.—(1) The Governor shall make appropriate arrangements for the audit of the public accounts of Tristan da Cunha and of all courts of Tristan da Cunha and all authorities and offices of the Government of Tristan da Cunha; and any person or authority conducting such an audit shall have access to all books, records, reports and other documents relating to those accounts.

(2) Any person or authority conducting an audit pursuant to subsection (1) shall act independently and shall not be subject to the direction or control of the Governor, the Island Council or any other person or authority.

PART 9 MISCELLANEOUS

Interpretation

229.  In this Chapter, unless it is otherwise provided or required by the context—

“Ascension” means Ascension Island;

“breach”, in relation to any provision of this Chapter, includes a failure to comply with that provision, and cognate expressions shall be construed accordingly;

“court” means any subordinate court, the Supreme Court or the Court of Appeal, and includes Her Majesty in Council;

“disciplinary law”, in relation to a disciplined force, means the law regulating the discipline of that force;

“disciplinary offence” means an offence against the disciplinary law;

“disciplined force” means any police force of Tristan da Cunha, any prison service of Tristan da Cunha, any fire service of Tristan da Cunha, any naval, military or air force raised in Tristan da Cunha under the law of Tristan da Cunha, or any visiting force;

“functions” includes powers and duties;

Gazette” means the St Helena Government Gazette;

“Island Council” means the Island Council of Tristan da Cunha established by section 214;

“judge” means the Chief Justice or another judge of the Supreme Court, the President of the Court of Appeal, a Justice of Appeal, an acting judge of the Supreme Court, or an Acting Justice of Appeal;

“judicial officer” means a justice of the peace, a judge of a subordinate court, a Coroner or other person who is authorised to exercise the powers of a judge of a subordinate court;

“law” means law in force in Tristan da Cunha, and “lawful” and “lawfully” shall be construed accordingly;

“legal representative” means a person who—

(a)

is entitled to practise before the court or other tribunal or authority at the hearing of the proceeding or the process through which it is exercising that jurisdiction or power, in Tristan da Cunha or in any place outside Tristan da Cunha where it may lawfully sit; or

(b)

in the case of a proceeding in the Supreme Court or the Court of Appeal when sitting in a place outside Tristan da Cunha, by participating in that proceeding by teleconference or other means of electronic, oral or written communication;

“member”, in relation to a disciplined force, includes any person who, under the disciplinary law, is subject to that discipline;

“minor” means a person who has not attained the age of eighteen years or such other age as may be prescribed for the purposes of this Chapter by any other law;

“officer of the Tristan da Cunha Public Service” means the holder of any office in the Tristan da Cunha Public Service and any other employee of the Public Service (except a casual worker), and includes a person appointed to act as an officer of the Tristan da Cunha Public Service;

“Ordinance” means a law made by the Governor in respect of Tristan da Cunha;

“period of public emergency” means any period during which—

(a)

there is, in or affecting Tristan da Cunha, a war or other public emergency threatening the life of the nation; and

(b)

a proclamation of a state of emergency is in force under a law;

“subordinate court” means a court of Tristan da Cunha subordinate to the Supreme Court that has been established by Ordinance, and includes the exercise of any power or jurisdiction in relation to an inquiry conferred on a Coroner by the Coroners Ordinance or any Ordinance replacing or amending that Ordinance;

“Tristan da Cunha” means the Island of Tristan da Cunha, Gough Island, Nightingale Island and Inaccessible Island;

“Tristan da Cunha Public Service” means the service of the Crown in a civil capacity in respect of the government of Tristan da Cunha, and includes service as a member of any police force, prison service or fire service of Tristan da Cunha; but does not include service as a judge or judicial officer or service as a member of the Island Council, any committee of the Council or, unless otherwise provided by a law, of any other public authority;

“visiting force” means any naval, military or air force raised in, or under the law of, a country other than Tristan da Cunha, one or more members of which are lawfully in Tristan da Cunha while on service in that capacity;

“wrongfully removed or retained child” means a child under the age of sixteen years who has been wrongfully removed to or retained in the territory of a state that is a contracting party to the Convention on the Civil Aspects of International Child Abduction, signed at The Hague on 25 October 1980.

References to the holder of an office to include a person acting in the office

230.  In this Chapter, unless it is otherwise provided or required by the context, a reference to the holder of an office by the term designating his or her office shall be construed as including a reference to any person acting in that office or, to the extent of his or her authority, otherwise performing the functions of that office.

Power to amend and revoke instruments, etc

231.—(1) Any power conferred by this Chapter to make any subsidiary instrument or to give any instructions or directions shall be construed as including a power exercisable in like manner to amend or revoke any such instrument, instructions or directions.

(2) For the purposes of this section, “subsidiary instrument” means any proclamation, regulation, order, rule or other like instrument having the force of law.

Appointments

232.—(1) Where any person has vacated any office established by this Chapter, he or she may, if qualified, again be appointed or elected or otherwise selected to hold that office in accordance with this Chapter.

(2) Where a power is conferred by this Chapter on any person to make any appointment to any office, a person may be appointed to that office even though some other person may be holding that office, when that other person is on leave of absence pending relinquishment of that office; and where two or more persons are holding the same office by reason of an appointment made in pursuance of this subsection, then, for the purposes of any function conferred on the holder of that office, the person last appointed to that office shall be deemed to be the sole holder of the office.

(3) In this Chapter, unless it is otherwise provided or required by the context, any reference to power to make appointments to an office shall be construed as including reference to power to make appointments on promotion and transfer to that office and power to appoint a person to act in that office during any period when it is vacant or the holder of it is unable (whether by reason of absence or infirmity of body or mind or any other cause) to perform the functions of that office.

(4) Where by this Chapter any person is directed, or power is conferred on any person or authority to appoint a person, to act in an office if the holder of it is unable to perform the functions of that office, the validity of any performance of those functions by the person so directed or of any appointment made in exercise of that power shall not be called into question in any court on the grounds that the holder of the office is not unable to perform the functions of the office.

Removal from office

233.  References in this Chapter to the power to remove an officer of the Tristan da Cunha Public Service from his or her office shall be construed as including references to any power conferred by any law to require or permit that officer to retire from the Public Service and to any power or right to terminate a contract on which a person is employed in the Public Service and to determine whether any such contract shall or shall not be renewed.

Resignations

234.—(1) Any person who is appointed to any office established by or under this Chapter may resign from that office by writing under his or her hand addressed to the person or authority by whom he or she was appointed.

(2) The resignation of any person from any office established by or under this Chapter takes effect when the writing signifying the resignation is received by the person or authority to whom it is addressed or by any other person authorised by that person or authority to receive it.

(8)

1978 c.30. Back [8]