THE MONTSERRAT CONSTITUTION ORDER 2010
A COMPENDIUM OF CONCERNS
Compiled by
In July 2010, the Government of Montserrat established a Constitutional Implementation and Advisory Committee (CIAC) chaired by former Permanent Secretary, Mr. Alric Taylor. Membership attendance was fitful at public meetings which were held in Salem, St. Peter’s, Brades and Lookout and the proceedings broadcast by Radio Montserrat subsequently. Discussions were hosted by Radio ZJB as well, and the public including attendants at the meetings were invited to submit their comments to Clerk of Councils’ Office or to CIAC. Attendance at the town hall sessions was moderate in some places and decidedly small in others. Some 13 persons submitted written contributions.
While the public encounters were billed as essentially educational, there was an inherent element of consultation. The sessions were interactive and in some cases there were spirited debates, and persons made the recommendation for changes in the Draft Constitution Order in a bid to enhance its democratic quality and make it more acceptable to Montserratians. Members of the Attorney General’s Chambers played a valuable role in providing advice and clarification.
The present document is an endeavour to collate and edit the concerns, issues and suggestions which emanated from the ‘educational’ process. The number of persons making presentations in person or in writing was small, but these were thoughtful as well as impassioned, and in some cases, they elicited applause. The order in which these notes are written is not a reflection of the importance one attaches to each. (The full text of the written submissions is available at the office of the Clerk of Councils).
Preamble
A member of the Legislative Council provided an alternative Preamble which needed ample editing before consideration. (He has since provided a new version).
Fundamental Rights
Fundamental Rights attracted the largest number of comments from the widest range of persons and may have been a critical area in which explanation was (is) needed.
Section 2(1)
One person questioned how the right of life would apply in the event that someone dies as a result of an attack on Montserrat. Is that “a lawful act of war?”
Section 5 – Protection from arbitrary arrest or detention
By omitting the words ‘or tribunal’ from 5(1)b in the current constitution, the protection afforded is diluted. The reason for the change is required. One respondent is seeking a more “finite definition” of “promptly” and “reasonable time”.
Section 6 – Provisions to secure protection of the Law
A member of the legal fraternity seriously questions sub-section (13) which restricts the right of appeal against a conviction. A person is entitled to clear their name ‘minor’ offence or not, he argues. And who decides what is minor? He insists that this be removed.
Section II – Protection of right to education
- One person feels that to avoid doubt (11(3)) it should be spelt out that text books, uniforms etc. are not included in the entitlement.
- The thought was expressed that one child’s right to education (in the case of disruptive behaviour or violence) could negatively affect the rights of others to education. This needs to be addressed.
- An education official advises that the Constitution should limit free education to children of ‘compulsory’ age who reside in the country. This has implications for numbers and cost.
Section 12 – Protection of Freedom of Expression
Objections were raised to 12(2) c which omits the element of protection inherent in the words “reasonably justifiable in a democratic society” – an idea which is sacred to modern constitutions. It has been used as a remedy for political abuse and to good effect, as demonstrated in the famous Antiguan case of de Freitas v The Permanent Secretary. To remove it is to dilute the right to freedom of expression and may well be related to the fact that civil servants in Montserrat have cited the de Freitas case in matters against Ministers of Government and the Governor.
Section 14 – Protection of Freedom of Movement
This section 14(4) gives an undefined “authority” the right to deport a non-Montserratian, it is asserted. A definition is needed and a personal preference is stated for always having deportation sanctioned by the court.
The issue of whether the section offers adequate protection to public officers living or working in a danger zone was raised. Whose judgement call should prevail on the time to leave, in the face of imminent danger?
Section 15 – Protection from discrimination
It is suggested that protection from discrimination for persons suffering from physical or mental disability should be enshrined in the constitution. They allegedly suffer more abuse and discrimination than most.
Section 16 – Protection from deprivation of property
A lawyer is seeking the rationale for removing 64(1) c iii which demanded that a law be in place giving persons whose property has been compulsory acquired the right to appeal beyond the High Court, as obtains generally in civil proceedings in the High Court.
Section 17 – Provisions for periods of public emergency
It is argued that the test for restricting fundamental rights and freedoms is set lower here than in the existing and proposed constitution. It is no longer to be as “reasonably justified in a democratic society”. This is viewed with some concern given the 2004 successful legal challenge. The matter had to do with mandatory evacuation.
Section 18 – Protection of person detained under emergency laws
It is viewed as alarming that someone can be detained for periods ranging from 30 days to 3 months without access to an independent tribunal; and even then the “undefined” authority which locked them up can ignore the Tribunal’s recommendation. The provision violates the rule of law and ignores the principle of the presumption of innocence. It is unacceptable, it is contended, to give the Governor and the police such alarming powers.
Section 19 – Enforcement of Fundamental Rights
- One should be able to seek remedy on behalf of another whose rights he/she perceives to be abused. The section should reflect this widening.
- Where citizens’ rights have been infringed there should be free legal representation as provided under a European Convention.
Health Care
One person gave as her view, that the citizens’ right to health care should be enshrined in the constitution.
Section 20 – Definitions
It needs to be spelt out that the age of majority is 18, to avoid doubt, it is suggested. Under common law the age of civil liability is 21, so the proposed definition would render drivers, for instance, who receive their license at age 17 unaccountable to civil law for 4 years. Hence, the need to specify the full legal age.
One person is calling for a clearer definition of “reasonable time” (6(1); “juvenile”, “adult” etc. (7(3)) to better ensure the rights of the child under the constitution.
The Governor’s Powers
- The Governor’s powers attracted most of the challenge and controversy. The ‘fact’ that these were not reduced since the 20-year old Constitution Order 1989 was regarded as unacceptable, especially in the context of a move to ‘modernise’ the constitution on a principle of partnership.
- There was strong support for the view that the Chief Minister should be consulted on the person appointed as Governor.
- Section 26 appears to give the Governor an “unfettered right” to sell land and chattels owned by the Crown. Several persons objected to this and recommended that he be obliged to consult the Montserrat Government followed by a debate in the Legislative Assembly.
- Persons found it particularly disturbing that the Governor was exempt from the scrutiny of the Court whenever he or she exercised discretionary powers on behalf of Her Majesty (21(2)). This was condemned as undemocratic and reminiscent of the days of the British Raj. There needs to be judicial safeguard against possible abuse of power by the Governor, it is held.
- Section 73 which gives the Governor the power to Assent to Bills also empowers him or her to withhold Assent or reserve the Bill for the signification of Her Majesty’s pleasure. This prerogative to thwart the will of elected representatives was viewed with grave concern and condemned as undemocratic. It is recommended that where the Governor refuses Assent, it should be stipulated that he or she shall be required to attend the next sitting of the Legislative Assembly and make a statement outlining the reasons for not giving his or her Assent to the said Bill. If this seems untenable, the Governor should at least provide the Legislative Assembly through the Speaker with a proper written explanation. The Governor is not expected to exercise this ostensibly undemocratic option of withholding assent with any frequency. The author of this idea has provided a form of words for amending the section to effect these recommendations, if this were needed.
- It is recommended that International Financial Services 38(1)(c) be removed from the Governor’s Special Responsibilities. This would be consonant with the Constitutional Commissioners’ 2002 recommendation which enjoyed overwhelming support. To deny this “smacks of mistrust and bad faith.” International Financial Services properly belongs to the portfolio of Minister of Finance who should have control over all financial matters.
- Under Section 28 the power of pardon is reposed in the Governor after consultation with Cabinet. While this appears democratic, at least one person is uncomfortable with Government Ministers acting in this role which contravenes the doctrine of the separation of powers. Preference for a Mercy Committee as recommended by the Constitutional Commissioners was stated and supported by this quotation from that document. “The thought that a person, albeit the chief executive, could if he wished, set aside the sentence of the Court after due process drew near universal condemnation?
- A former Chief Minister questioned the advisability of assigning to the Governor discretionary power to appoint the Deputy Governor and Financial Secretary (section 84(1)). He should be obliged to consult the Premier and Public Service Commission. Similarly, in appointing the Attorney General these two entities should also be consulted (84(2)). This recommendation had strong concurrence.
The Executive
The constitution should make provision for recourse and remedy in a situation where the Executive refuse to change policies which are seriously detrimental to the people. There should be a mechanism for recall based on a Petition and Referendum.
Legislative Council (Assembly)
That the Attorney General and Financial Secretary should be non-voting members of Council drew just about universal support on democratic grounds. The fact that this was a recommendation of the Constitutional Commissioners was alluded to, as strengthening the demand for change.
Very strong objections were raised to the idea that Commonwealth citizens without birth-ties to the island could after a year’s residence contest elections and in the medium run, their descendants can become Deputy Governor. The recommended position is that of the British Virgin Islands where it is clear that to be a member of the House of Assembly, the person has to be born in that country or be a direct descendant of someone born in the country.
In this vein, a clearer definition of “ordinarily resident” is called for (68(2) iii & iv). One respondent takes these sub-sections to mean that:
a person who was born or naturalised in Gibraltar or the Falkland Islands and who is already in their own right a British Overseas Territory Citizen (BOTC) can automatically become a Montserratian by virtue of their parents or grandparents becoming a BOTC in Montserrat via lawful adoption. The grandson, for example, can then in subsequent years travel to Montserrat, and after one year living in the territory be eligible to become a Member of the Legislative Assembly or the Deputy Governor.
- The required change can be made in the relevant section that deals with qualifications for election. There is appreciation though for the fact that according to the draft Constitution Order, to qualify to be an elected member, one has to be a Montserratian either by birth or naturalisation. In defining Montserratian though it would be prudent, it is suggested, if we remove the reference to grandparents and stipulate that children over 12 be naturalised in their own right.
A possible replacement of Section 50 is offered below:
Qualifications for elected membership
50. (1) Subject to this section and section 51, a person shall be qualified to be elected as a member of the Legislative Assembly if, and shall not be qualified to be so elected unless, he or she-
(a) is a person who-
(i) is a Montserrat Islander who has attained the age of 21 years; and
(ii) is otherwise qualified as a voter under Elections Act.
(2) Subject to subsections (3) and (4), for the purposes of subsection (1)(a)(i) a “Montserrat Islander” is a person who belongs to Montserrat by birth or descent who was-
(a) born in Montserrat of a father or mother who at the time of the birth was a British Overseas Territories citizen (or a British Dependent Territories citizen) by virtue of birth in Montserrat or by virtue of descent from a father or mother who was born in Montserrat;
(b) born in Montserrat of a father or mother who at the time of the birth belonged to Montserrat by birth or descent; or
(c) born outside Montserrat of a father or mother who at the time of the birth belonged to Montserrat by birth or descent.
(3) A person born outside Montserrat who belongs to Montserrat by descent shall not be qualified to be elected as a member of the Legislative Assembly unless one of his or her grandparents belonged to Montserrat by birth.
(4) A person, whether born in or outside Montserrat, who would otherwise be qualified to be elected as an elected member of the Legislative Assembly by virtue of subsection (1)(b) shall not be qualified unless-
(a) where that person has never been domiciled in Montserrat, he or she has resided in Montserrat for at least five years immediately before the date of his or her nomination for election; or
(b) where that person was formerly domiciled in Montserrat but has lived outside Montserrat for a continuous period of at least ten years (excluding periods related to medical or educational purposes), he or she has resided in Montserrat for at least one year immediately before the date of his or her nomination for election and is domiciled in Montserrat at that date.
To emphasise the point of the objection one person presented a scenario in which it would not be very difficult for individuals whose parents have been naturalised, to return to the island and be elected to political office and be our Chief Minister. This can result in a parliament with no one who has lived in Montserrat except for the three years stipulated.
Under Section 51 – Disqualification for elected membership, a candidate is not duly qualified to be elected as a member of the Legislative Assembly if he/she has not complied with the stated stipulation. Under the current constitution the relevant candidate had to do so within 30 days of the nomination. Many strongly object to the proposed reduction to ten days, finding it worrying and even impractical given the requirement to publish the disclosures in the Gazette and a newspaper. This scrutiny of candidates is regarded as important and this abridgment of the time is to be rejected.
- On the other hand, one person, and only one, was of the view that disqualification clause could be dropped in view of the Integrity Legislation now extant. It merely exposes to the public someone’s private affairs, he averred.
- Unlike the current constitution, the proposed Constitution Order 2010 is silent on whether or not Ministers of religion can contest elections. This suggests that they can, and many persons object, citing the need to separate church and state. It may be noted that the Constitutional Commissioners of 2002 did recommend that that limitation be lifted.
- The appointment of Parliamentary Secretaries attached to Ministries with responsibilities for government business has implication for healthy parliamentary democracy, a source pointed out. It undermines the principle which seeks to avoid an automatic majority for the Executive in the Legislative Assembly. In effect the new Constitution Order has increased the number in the Executive without a corresponding increase in the Legislature. This needs to be addressed.
- A call has been made for a fixed term for the Legislature, thus terminating snap elections which rest on the decision of the Premier and the Governor. This has been described as undemocratic, allowing as it does the Premier to ‘wrong-foot’ the Opposition. Only the people should have the power to recall a government and some mechanism should be devised to facilitate this.
- Some thought was given to the appointment of Ministers 32(1). If for some reason, the Premier loses the support of the majority of elected members, the Governor should be obliged to appoint another elected member who demonstrates that he or she has majority support. Consequently after a successful No Confidence Motion, the Governor should appoint as Premier a member who has majority support and not necessarily dissolve the Assembly at the wishes of a “rejected leader”. This procedure, more in keeping with the democratic ideal, was recommended by the Constitutional Commissioners (8.16).
- A former Chief Minister also wishes 52(1)(b) to specify that a Member of the Assembly shall vacate his seat if he or she is absent, without the approval of the Speaker, from the sittings, for a period exceeding four months.
He is also recommending an amendment to 58(1) 3 to replace ‘Cabinet’ with ‘Assembly’.
New Electoral System
One person was of the view that the Constitution should include provision for a new electoral system.
The National Advisory Council
- It was suggested that the National Advisory Council should fulfil the role of an Upper House and be an independent guardian of the constitution and democracy. To better perform this role it should be differently constituted. The source recommends that the Deputy Governor and two respected members of civil society be added to its membership and that the civil society members double up and fulfil the functions of an Integrity Commission, to effect savings.
- It was recommended also that the National Advisory Council should itself be empowered to initiate action.
Diasporic Participation
Although there were no specific guidelines on the modalities, some persons expressed the view that Montserratians overseas should be allowed to participate in the electoral system. They were forced to migrate by the volcano, some still owned property and paid taxes in their home country and should not be disfranchised. The 2002 Constitutional Commissioner attempted to address this contentious issue and found that:
“Montserratians at home have continued to oppose the voting of their overseas compatriots on the ground that the latter can determine an election outcome while not having to live under the regime they have helped to institute. The Commissioners found no easy answer to the problem, and they do recognise the legitimacy of all Montserratians claim to vote.”
The compromise recommended then for the 2006 elections was not implemented. Some Montserratians overseas are making strident calls to reconsider the matter.
Financial Matters
Objections were raised to vesting discretionary power in the Governor to reduce or suspend pension (87(1)). This raised the issue as to whether or not pension was an entitlement.
- It was recommended that a new clause be inserted in the Finance section to deal with Tender Bills. This is intended to guard against inappropriate behaviour. There should be a regulation that all tenders with an estimated value in excess of 100,000; 500,000 or 1,000,000 EC dollars shall be subject to competitive tender. Neither the Governor nor the Executive should have the power to override the decision.
Section 76 – The Public Service Commission (PSC)
Given the quasi-judicial powers of the PSC, it is recommended that, in keeping with past practice, provision be made for a lawyer to sit on it. Attention is drawn to what obtains in the Labour Tribunal which deals with the public section and is chaired by a Magistrate. It is instructive also that successful constitutional challenges have been brought against decisions of the PSC.
A Police Complaints Board
A number of persons especially in the legal fraternity saw the need for a Police Complaints Board as obtains in the UK and as recommended by the 2002 Commission. This will allow for complaints made to the Commissioner of Police and the Governor about police misconduct to be investigated impartially. Such a Board makes for fairness and transparency. If cost is a concern, suitable volunteers can be found.
Appointment of the Magistrate
There is a call for the Magistrate to be appointed by an independent judicial and legal services commission, as was pointed out to the FCO team. We need to ensure that the Magistrate’s independence is not compromised; and the present practice offends the doctrine of the separation of powers. It is pointed out that a Magistrate has considerable powers in an island without a resident judge and can impose heavy fines and prison sentences. His or her action must not be informed by renewal of contract considerations.
Miscellaneous Matters
- Regulations should be made to facilitate the participation of public officers in electoral politics. The disabilities and limitations should be removed by granting them no-pay leave of about three months.
- The anomaly in Section 104 regarding the appointment of Ombudsman needs to be addressed in the re-draft. His or her appointment by the Legislative is discretionary according to subsection 1. They may appoint. Then in sub-section 2, it is said the Governor shall appoint.
- A Definition is needed for the archaic term “Her Majesty’s Service” in Sections 83(3) & 84(3). The civil service is referred to as the Public Service (82(30)).
- In the Interpretation of section (107), the definition of “misbehaviour” should include a conflict of interest situation; and “judiciary” as “including any member or officer of such court” is obviously too wide since it includes non-legal persons – ushers even.
- A third mechanism should be added for the Amendment of the Constitution. The citizens should of themselves be empowered to trigger amendments. A petition containing a minimum of 500 Montserratian signatories submitted to the Electoral Commission should suffice.
- The Constitution should reflect the development management imperatives generated by an ongoing volcanic eruption which has placed the island in continuing crisis, it is said. One citizen recommends the establishment of a Development Coordinating Committee with the capability to:
(i) assess performance
(ii) break bottlenecks
(iii) reset priorities, where necessary
Self – Determination
There was support for the view that the Constitution should affirm the right of the people to self-determination and their desire “for a relationship, with the United Kingdom which is one of Free Association as defined by the United Nations.” It should also confirm the right to progress to full self-determination, if the people so choose, by a referendum.
Amending the Constitution
A former Chief Minister is unhappy with using a two thirds majority in the Assembly as the authority for initiating discussions on the amendment of the Constitution (114) (2). He prefers instead, to have public consultation precede any request to HMG for amendment. There was some support for this view.
‘Adopting’ the Constitution
A number of persons strongly advised against ratifying the Constitution “in our Parliament… as long as there remain issues that are considered off limits for meaningful discussion and possible change; and as long as there remain in the draft, issues which Montserrat are not happy with.” This stated preference is for HMG to pass down a Constitution Order, as was done in 1989 after the ‘negotiations’ are complete.
In the event, however, that Government proceeds with a Resolution on the draft Constitution, the vote should be Free, meaning members should not feel obligated to vote along party lines. A number of persons cautioned delay in the interest of properly addressing the deficiencies of the draft and getting the document right so that Montserratians can proudly own it.
