Categorized | Local, Opinions

Comments on the Montserrat Draft Constitution Order 2010

By: Denzil A West

– September 2010

Denzil West, speaking at the opening of the ICT Roadshow

I wish to preface my comments and suggestions in this document with the clear understanding that I am totally opposed to the notion that our Parliamentarians should pass a resolution in the Legislative Council to essentially approve the Draft Constitution Order 2010. I have no trouble with a Committee of the Whole House having discussions with the FCO Legal Team on the proposed Constitution Order in the spirit of a partnership as outlined in the FCO White Paper “Partnership for Progress and Prosperity” 1999. However, as long as there remain issues that are considered off limits for meaningful discussion and possible change; and as long as there remains in that draft, issues that the Montserrat electorate are not quite happy with; the draft Constitution Order 2010 should not be ratified in our Parliament. The act of ratification in our Parliament will have the effect of saying to the world that we are totally happy and comfortable with our governance arrangements; so much so that we drafted them ourselves and handed them to HMG to pass back to us as an Order in Council. This would only be the correct approach if we in fact drafted the Constitution free from any restrictions and totally in accordance with our wishes; but that clearly is not the case.

My comments and suggestions follow in no particular order of precedence.

Life of the Legislative Assembly

The natural life of the Legislative Assembly is 5 years, but it can be cut short at any time by agreement or collusion between the Premier and Governor. This is undemocratic to say the least. The power to cut short the life of the Assembly should rest only with the people by some mechanism which allows the electorate to recall a government. Others may be better able to propose how the people can be empowered to deal with a rogue government. I will focus therefore on what I consider to be undue power that the Premier and the Governor have.

Prorogation and dissolution

66.-(1) The Governor, acting in accordance with the advice of the Premier, may at any time, by proclamation published in the Gazette, prorogue the Legislative Assembly.

(2) The Governor, acting after consultation with the Premier, may at any time, by proclamation published in the Gazette, dissolve the Legislative Assembly.

(3) The Governor shall dissolve the Legislative Assembly at the expiration of five years from the date of the first sitting of the Assembly after any general election unless it has been sooner dissolved.

My submission is that Parliament should have a ‘fixed term’. That is to say, members of Parliament should be elected for a fixed period of 4 or 5 years. No early General Elections except when forced by the people. Consequently the provisions whereby a Premier has the power to „call early elections‟ with the consent of the Governor should be removed.

A ruling party or coalition government should not have the opportunity of attempting to „wrong-foot‟ the opposition and call an election early with a view towards catching them off guard. Only the electorate loses with a rushed political campaign period. It is also interesting to note that for the most part it is usually a floundering government that attempts this manoeuvre, and if they are successful they end up squeaking back into office for an extended period rather than being rejected in a regularly scheduled poll. „Snap Elections‟ should be consigned to the dustbin of history. Section 66.(2) should be removed altogether.

Also this move to early elections is sometimes precipitated by a Chief Minister who is losing the support of his party or coalition. This leads me to a vexing provision in the Constitution which essentially allows for a Premier who has lost the support of his colleagues to still make recommendations on the way forward.

Appointment of Ministers

32.-(1) The Governor shall appoint as the Premier the elected member of the Legislative Assembly who demonstrates to the satisfaction of the Governor that he or she commands the confidence of a majority of the elected members of the Assembly.

So here it is clear that an individual can only attain the office of Premier through the support of the majority of the other elected members. I am therefore suggesting that if at any time the Premier loses that majority support which caused him to become ‗first among equals‘, some other elected member of the Assembly should be allowed to take over the office. That is to say, if another elected member of the Assembly can prove that he or she has the support of a majority of the elected members, then he or she should be automatically allowed to become the Premier.

Tenure of office of Ministers

33.-(1) If a motion that the Legislative Assembly should declare a lack of confidence in the Government receives in the Assembly the affirmative votes of a majority of all the elected members of the Assembly, the Governor shall, by instrument under the public seal, revoke the appointment of the Premier and appoint another person as Premier in accordance with section 32(1); but before so revoking the Premier‘s appointment the Governor shall consult the Premier and may, acting in his or her discretion, dissolve the Legislative Assembly instead of revoking the appointment.

This clause makes two rather undemocratic provisions which should be removed in the interest of good governance.

Firstly it allows someone who was rejected by his colleagues, (who gave him the power in the first instance) to have a final say that could adversely affect the others. What is the purpose of consulting a rejected leader who is by now very bitter and possibly vindictive?

And secondly it gives the Governor undue power over the electoral process.

The Governor should not be allowed the prerogative to dissolve the Assembly if someone has a majority. It cannot be considered democratic for a Governor on his own to decide if the majority grouping of duly elected representatives that is presented to form the Government meets his or her approval. Suppose for argument sake that the Governor of the day has a personal issue with an individual member of the Assembly, and as a result rejects a legitimate proposal to form the Government simply because it comes from a group which includes that out of favour individual. Can that be considered „good governance‟ and a democratic practice? Section 8.16 of the Constitution Commissioners‟ Report speaks directly to this issue and stated among other things the following; ―…dissolution should not depend on the wishes of a ‗defeated‘ Chief Minister. The Governor should dissolve only after a failure to secure an alternative government. This seemed to be fairer and more democratic… In recommending this new and reasonable procedure, the Commission claims important support.‖ We should now take the opportunity to include this recommendation in the draft Constitution.

Powers of the Governor

In general I understand the argument for The Governor‟s Reserve Powers given our present Constitutional status; except to say that any notion that the Governor is above the law of the land should be dispensed with through proper legal drafting. Surely there is a way to give the Crown and its representative the protection sought and to protect matters of national security without appearing to give the Governor immunity from the law.
I have some difficulty understanding the Governors power to refuse to assent to a law duly passed in the Legislative Assembly.

73-(2) When a Bill is presented to the Governor for assent the Governor shall declare that he or she assents or refuses to assent to it or that he or she reserves the Bill for the signification of Her Majesty‘s pleasure; but, unless he or she has been authorised by a Secretary of State to assent to it, the Governor shall reserve for the signification of Her Majesty‘s pleasure any Bill which appears to him or her, acting in his or her discretion –
(a) to be inconsistent with any international obligation of Her Majesty‘s Government in the United Kingdom;
(b) to be likely to prejudice the Royal prerogative, or the efficiency of the judiciary, or to affect any of the matters mentioned in section 38; or

(c) to be in any way repugnant to or inconsistent with this Constitution.

At first I thought that this section was saying that the Governor is obligated to forward any law that they are not comfortable signing themselves to the Secretary of State. However, the legal minds tell me that the Governor can in fact exercise any one of the three options – Assent; or Refuse to Assent; or Reserve the Bill for the signification of Her Majesty‘s pleasure. This means that the Governor on his or her own can thwart the wishes of our Elected Representatives and by extension the will of the people of Montserrat by choosing the second option. This prerogative is undemocratic in the extreme. One may recall that the Refusal to Assent was exercised not so long ago with the Pension and Salary Bill, and the stated rationale for the Governor‟s refusal to Assent certainly did not rise to the high threshold set out in the Constitution Order 2010 section 72 (2)(a)(b) and (c) as highlighted above.

In any event, I think an addition should be made to the clause along the following lines;
―In the case where the Governor refuses to Assent to a Bill, 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.‖

Or an alternative for those who get squeamish when the Governor is required to do something entirely reasonable;
―In the case where the Governor refuses to Assent to a Bill, he or she shall be required to submit in writing, a statement outlining the reasons for not giving his or her Assent to the said Bill to the Speaker of the Legislative Assembly who shall cause such statement to be read at the next sitting of the Legislative Assembly‖
The Governor is not elected, so any exercise of this ultimate and undemocratic power over the wishes of the duly elected Legislators must be properly explained if and when executed. This should be an extremely rare occurrence, and therefore it should not be too onerous a task to require that the Governor speak to the Legislative Assembly and more importantly the people of Montserrat in clear and precise terms on such a momentous occasion.
One may recall that the Governor has a right to address the Legislative Assembly.

Governor’s right to address Legislative Assembly.

61. The Governor shall have the right to address the Legislative Assembly.

Consultation should mean Consultation in the spirit of Partnership
Here is an excerpt from a recent speech by Premier Ralph O‟Neal at the welcoming ceremony for their new Governor.

Premier Pushing for More Constitutional Changes

Melissa French, Staff Reporter August 21, 2010

{…In mentioning one or two of the areas in the Constitution that need amending, Premier O´Neal said that there has to be a new understanding of the words “consult” and “consultation”. “When the Governor is bound to consult with the Premier, if this consultation is to be meaningful to the people of the Virgin Islands and to be in keeping with the spirit and the meaning of the Constitution”…}
I don‟t think I need to add anymore to that warning from someone who has firsthand experience.

Special Responsibilities of the Governor

38.-(1) The Governor, acting in his or her discretion, shall be responsible for the conduct, subject to this Constitution, of any business of the Government with respect to the following matters –

(a) defence;

(b) external affairs;

(c) the regulation of international financial services;

(d) internal security, including the Police Force;

(e) the functions conferred on the Governor by this Constitution or any other law in relation to the public service; This clause needs to be amended to remove this particular provision;

(g) the regulation of international financial services;
Regulation of the Financial Services sector should be left to a totally independent body – the Financial Services Commission, and that body ought not to be related to the Governor. The responsibility for Offshore Financial Services should revert back to the Minister of Finance, as leaving this responsibility with the Governor is no longer necessary or desirable. The Government of Montserrat should have unfettered control of all financial matters, whether internal or external, with the independent FSC maintaining the oversight role in accordance with International best practices. Sequestering Offshore Financial Services under the Special Responsibilities of the Governor has had the debilitating effect of stifling the industry in Montserrat for 20+ years. Other countries coped with this move better than Montserrat, but for many administrative and organisational reasons we still struggle with the stigma of a bygone era. There now needs to be a fresh start. If we are to truly operate in partnership, this is one measure which smacks of mistrust and bad faith and should be repealed forthwith.

The introduction of Integrity Legislation and the Proceeds of Crime Act etc. should be sufficient to deter corrupt practices, and the Montserrat citizenry and HMG representatives must treat our Elected Representatives as mature and responsible individuals who are themselves concerned with „good governance‟ and the preservation of Montserrat‟s image and reputation in all areas.

Mechanism to change the Constitution

The proposed provisions for amendments to the Constitution Order as set out in section 114 do not go far enough. First of all the Premier should be compelled to take a matter forward if there is a two-thirds majority; his or her personal concerns should not matter. Remembering the concept of ‘first among equals’ the Premier must never be considered or consider himself superior to his or her fellow Parliamentarians. Then I would like to see a very broad provision to allow for the citizens to trigger a review of proposed amendments to the Constitution.
Amendment

114.-(1) The Electoral Commission shall keep under review the operation of this Constitution and report as it considers necessary to the Legislative Assembly.

(2) The Premier, if authorised by resolution of the Legislative Assembly adopted by a two-thirds majority of the elected members of the Assembly, may request discussion of amendment of this Constitution with Her Majesty‘s Government in the United Kingdom.

An additional section 3 might therefore read as follows.
(3) The citizens of Montserrat may initiate a review of a proposed amendment or amendments to the Constitution by making a submission in writing to the Electoral Commission; provided that such submission is accompanied by a petition containing a minimum of 500 Montserratian signatories.

I am mindful of being too prescriptive and ending up being unintentionally restrictive, so consider this to be a first shot at empowering the people. The legal minds could perhaps draft it differently and capture the essence of my suggestion.

Definition of Montserratian and ‘Qualifications for Elected Membership’

I have heard many persons state that they are unhappy with the definition of a „Montserratian‟ in the draft Constitution, and quite frankly most can‟t say what their precise issue is. Through extensive discussion and debate amongst friends and with some legal minds, I am now satisfied that the reservations are not so much with the broad definition of Montserratian, (although some reservations do remain) but rather the question marks and raised eyebrows are about how being a Montserratian relates to the right to become a member of the Legislative Assembly or the Deputy Governor. To be sure, the ‗Qualifications for Elected Membership‘ in the draft Constitution Order 2010 are much better suited to the „indigenous‟ Montserrat national and the protection of „Montserratianess‟ than the current Constitution Order. Recall that the current Constitution seems to allow Commonwealth Citizens to run for office even if they have not yet reached the qualifying years for Naturalisation.

Constitution Order of 1989 says:

Qualifications for elected membership

27. Subject to section 28 of this Constitution, any person who—
(a) is a Commonwealth citizen of the age of twenty-one years or upwards; and…

(b) has resided in Montserrat for a period of three years immediately preceding the date of his nomination for election, or is domiciled in Montserrat and is resident therein at the date aforesaid, shall be qualified to be elected as an elected member of the Legislative Council, and no other person shall be qualified to be so elected or, having been so elected, shall sit or vote in the Council.

While the Draft Constitution Oder of 2010 says: Qualifications for elected membership

50. Subject to section 51, any person who –

(a) is a Montserratian who has attained the age of 21 years; and

(b) is a registered voter at, and has resided in Montserrat for a period of one year immediately preceding, the date of his or her nomination for election, shall be qualified to be elected as an elected member of the Legislative Assembly, and no other person shall be qualified to be so elected or, having been so elected, shall sit or vote in the Assembly.

So we can see that currently a Commonwealth Citizen who is not even naturalised in Montserrat is right now eligible to be elected, while the draft document limits eligibility to a „Montserratian‟. I can honestly say that this is one of the few progressive changes I have noted in the entire document to date. (the other supposed advances are for the most part formalisations of common and long standing practices)

But some people have picked up on the fact that someone can be a Montserratian if their Grandparent was naturalised or adopted in Montserrat, even if they themselves never came here but were born or naturalised in another BOTC. The way the definition of a Montserratian is written, it would seem as if the adult child of someone who is naturalised in Montserrat automatically becomes a Montserratian as well. Surely, this cannot be the intent, so that particular bit of drafting needs to be revisited. To become a Montserratian, one should meet the naturalisation criteria in their own right.

The definition of “Virgin Islander‟ in the 2007 Constitution of the BVI and the definition of Anguillan in the current Draft Constitution for Anguilla 2009 are markedly different from our definition of Montserratian. It would be interesting to know why the Montserrat drafters made such a departure. I would like to suggest that we can have two very distinct definitions in our Constitution. That is to say one definition for who is “Qualified for Elected Membership‟ and qualified to be the Deputy Governor, and another definition which states who is generally considered to be a Montserratian.

For example we could leave the Definition of Montserratian as is, save for removing the reference to grandparents; and perhaps stipulating that children over 12 must be naturalised in their own right. That would satisfy most people.

And change the elected office eligibility clause as follows: (revised in line with the Virgin Islands Constitution Order 2007)

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 so 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.

Disqualification from Elected Membership

I note that a couple of changes have been made between the Constitution Order of 1989 and the Draft Constitution of 2010.

Constitution Order of 1989:
28. (1) No person shall be qualified to be elected as a member of the Legislative Council who—

(c) is a minister of religion;

The Draft Constitution Order of 2010 does not contain this clause.
I will reserve my arguments supporting the reintroduction of this clause for offline debates, simply because it is not a deal breaker for me. However I think it is important that I mention it from the perspective of due procedure and the process of including or excluding a recommendation from the Constitution Commission or indeed from the public. The issue is to do with how this recommendation was taken on board even though the Commission reported it as something that not many people expressed a view on. On the other hand some other proposed changes which were recommended and widely talked about, such as the voting rights of ex-officio members were not taken on board. It begs the question as to whose values and wishes should prevail. And it gives rise to the notion that there should be a referendum on whether certain clauses should be included or omitted from the draft Constitution, or indeed whether a referendum is needed on the overall Constitution. Some persons will point out that we practice representative Government, but I don‟t think anyone would seriously suggest that the FCO Lawyers and the „Joint Committee of the whole

House‟ have truly captured the views and wishes of the people Montserrat in the present draft Constitution Order 2010. I feel safe in making the following statement. The change that allows for Ministers of Religion to run for election to the Assembly has a minority support of Montserratians; while continuing to allow Ex-Officio members to vote in the Assembly goes contrary to the majority view. How therefore do we democratise the process even as we strive to democratise the Constitution itself?

The Challenge Clause
One cannot review and comment on the Constitutions without having a look at the historic „challenge clause‟.

The Constitution Order of 1989 says:

28. (1) No person shall be qualified to be elected as a member of the Legislative Council who—

(e) is a party to, or a partner in a firm or a director or manager of a company which is a party to, any contract with the Government of Montserrat for or on account of the public service and—(i) repealed; (ii) has not within one month before the date of election published in the Gazette and in a newspaper circulating in the electoral district for which he seeks election a notice of setting out the nature of such contract and his interest, or the interest of such firm or company, therein;

The Draft Constitution of 2010 states: 51.-(1) No person shall be qualified to be elected as a member of the Legislative Assembly who –

(d) is a party to, or a partner in a firm or a director or manager of a company which is a party to, any contract with the Government and has not within ten days of his or her nomination for election delivered a notice to the Electoral Commission setting out the nature of such contract and his or her interest, or the interest of such firm or company, in it;

Note here that the timeline for disclosure has been reduced from one month (say 30 days) to 10 days, and the requirement to “…published in the Gazette and in a newspaper circulating in the electoral district for which he seeks election…‖ has been dropped. The prevailing wisdom is that since the candidate cannot ensure that a Gazette or Newspaper would be available in which to publish the notice according to the timeline stipulated then the requirement may be unfair. This is a valid concern. However, it is reasonable to assume that the objective of the provision in the current Constitution Order 1989 was to make sure that the voting public was made aware of the candidate‟s connections to Government up front before they decided whether to vote for the individual or not. Delivering the notice to the Electoral Commission 10 days before will not result in the public being properly informed of the existing contractual or business relationships. Even though there is provision for the notifications to be published in an effort to notify the electorate; the realities that prevail in Montserrat mean that what would amount to 9 days to publicise something received by the deadline date may be woefully inadequate.

51 (3) The Electoral Commission shall forthwith publish any notice delivered to it under subsection (1)(d) in such manner as it considers effective for the purpose of informing the electorate before the date of election.
Would the Electoral Commission be forced to resort to using radio spots for informing the electorate of candidate‟s business affairs?

Therefore, one may ask what the purpose of the clause is in its diluted form. In fact one might ask what purpose would be served for someone to declare their business interests to the Electoral Commission and then not be elected. Having regard to the fact that there is now Integrity Legislation on the books which calls for Elected Members (and other Public Officers) to declare their interests to an Integrity Commission; then I submit that the „challenge clause‟ is now redundant and can be removed in its entirety. It serves no meaningful purpose in its proposed form. A candidate‟s legitimate business dealings with Government really should not have any bearing on whether they can run for election or not. It is what the individual does after a successful candidacy that matters. Elected Members of the Legislative Assembly would be bound by the Integrity Legislation to divest certain interests and/or make full declarations to the Integrity Commission. These requirements would to my mind be sufficient to satisfy transparency and good governance efforts. Dispense with Clause 51 (1)(d)

Voting Rights of Non-Elected Members

The Ex-Officio members of the Legislative Assembly should not have voting powers in the Assembly. A non-elected Member of the Legislative Assembly should not be in a position to exercise a vote to create the Laws of the country, since they cannot be sanctioned by the voters at any time. The Financial Secretary and the Attorney General should remain in the Legislative Assembly but only as very important and respected advisors.

Consideration can be given to including the Deputy Governor as an ex-officio member of the Legislative Assembly instead of, or in addition to the Financial Secretary. The provision that the Deputy Governor simply has a right to sit in the Assembly while not being a member does not sit well with me; either you are a member in your own right or you visit only at the invitation of the Speaker.

Appointment of an Attorney General

84- (2) Power to make appointments to the offices of Attorney-General, Director of Public Prosecutions, Magistrate and Registrar of the High Court, and to any other office requiring legal qualifications as may be prescribed by law, and to remove or exercise disciplinary control over any person holding or acting in any such office, is vested in the Governor, acting after consultation with the Chief Justice.

The Government of the day should have a major say in the initial appointment of a new Attorney General. The Governor should not be the one appointing the Attorney General, since he has access to the FCO legal team. The Governor should not by himself have the power to remove or discipline the Attorney General. The reference to consultation with the Chief Justice clearly is just a formality which places no limits on the Governor‟s discretion. The Attorney General should be the Legal Advisor to the Government Ministers in the Councils and the Government Ministries and Departments. It is a fallacy and a fantasy to say that the same individual can advise the Government while at the same time advising the Governor. This is the equivalent of saying that a Lawyer can advise 2 clients on opposing sides of a civil matter in court. The notion that it is a single Government that includes the Governor and the Ministers is a utopian dream that we have yet to realise, so perish the thought for now. Let us not fool ourselves, if somebody gives you a job and is responsible for whether your contract gets extended or not, you will be sympathetic to their stated or even perceived views and will side with him or her on any and every marginal issue. To suggest otherwise would be to play Ostrich. On many matters the advice may be the same regardless of any loyalties, but not every legal opinion is based on a clear cut black and white issue that one can apply strict objectivity to. A Lawyer can argue a case based on which client gets to him first; it is what they are trained to do, and it does not necessarily impugn their integrity. It cannot hurt to have the Government of the day directly involved in appointing an Attorney General, as long as they are afforded sufficient protection from arbitrary dismissal once in post. Continued opposition to this suggestion infers to me that some party understands the notion of the unspoken allegiance I refer to above and is keen on retaining it.

Protection of freedom of movement

14.-(1) Except with his or her consent, no person shall be hindered in the enjoyment of his or her freedom of movement, that is to say, the right to move freely throughout Montserrat, the right to reside in any part of Montserrat, the right to enter or leave Montserrat and immunity from expulsion from Montserrat.

(2) Nothing in any law or done under its authority shall be held to contravene this section to the extent that the law in question makes provision –

(a) for the removal of a person from Montserrat to be tried or punished in some other country for a criminal offence under the law of that country;

(b) for the removal of a person from Montserrat to undergo imprisonment in some other country in execution of the sentence of a court in respect of a criminal offence under the law of Montserrat of which he or she has been convicted;

(c) for the imposition of restrictions on the movement or residence within Montserrat or the right to leave Montserrat of public officers that are reasonably required for the purpose of ensuring the proper performance of their functions;

It would appear as if section 14-(2)(c) leaves a public officer vulnerable since he can be lawfully restricted in his movements against his or her will. Whose reasoning will hold sway? The public officer who feels it is time to move from a particular place due to perceived imminent danger, or his or her superior who thinks they should hang on a little longer at a particular place or remain living or working in a danger zone.

Public Officers Resignation to run for Elected Office

The Constitution Order or 1989 and the draft of 2010 are silent on this matter; but there is apparently other legislation or regulations which supposedly require Civil Servants / Public Officers to resign their posts in order to declare themselves as candidates in the General Elections.

I think it is unfair to individuals to place them in a situation in where they are forced to gamble their accumulated pensionable years against the chance to be elected or not. In fact a situation could arise where the individual may not be able to find employment within the public service after a failed election bid. In the case where the individual is fortunate enough to get their old job back or some other job within the Public Service, it is my understanding that the act of resignation would have cut off their pensionable years and they are deemed to have in effect started new employment starting back at zero pensionable years.

I have heard it said that many eminently qualified individuals who may have had a lot to offer at the Ministerial level never got into the race because of this draconian requirement.

I suggest therefore that Civil Servants should be allowed to take unpaid leave from their regular employment if they are desirous of contesting the Elections. Perhaps a maximum period of 3 months would suffice.

How the Constitution Order 2010 should protect this right is a matter for the legal drafters; but it seems to me that a document which is all about defining and protecting various rights should protect Civil Servants from this clearly discriminatory act.

Free Vote

If the Government insists on proceeding with a Resolution on the draft Constitution, it must be clear to all that it is a „Free Vote‟ or „Conscience Vote‟. That is to say, it must be made abundantly clear that no Member of Parliament should feel obligated to vote along party lines and no „collective responsibility‟ rules should be suggested or enforced. The Constitution is bigger than Party politics and will outlast the current Parliament.

Note: This is not meant to be an exhaustive list of all my concerns with the draft Constitution Order 2010, but a written submission of some of the issues I have already raised in various fora. I trust my comments are clear enough to at least prompt some further discussion and review of the various clauses addressed.
Disclaimer: The extent of my legal training is an O‟Level Certificate in Law from the University of Cambridge.

Denzil A West St. Peters Montserrat denzil.west@mninet.ms

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A Moment with the Registrar of Lands

By: Denzil A West

– September 2010

Denzil West, speaking at the opening of the ICT Roadshow

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I wish to preface my comments and suggestions in this document with the clear understanding that I am totally opposed to the notion that our Parliamentarians should pass a resolution in the Legislative Council to essentially approve the Draft Constitution Order 2010. I have no trouble with a Committee of the Whole House having discussions with the FCO Legal Team on the proposed Constitution Order in the spirit of a partnership as outlined in the FCO White Paper “Partnership for Progress and Prosperity” 1999. However, as long as there remain issues that are considered off limits for meaningful discussion and possible change; and as long as there remains in that draft, issues that the Montserrat electorate are not quite happy with; the draft Constitution Order 2010 should not be ratified in our Parliament. The act of ratification in our Parliament will have the effect of saying to the world that we are totally happy and comfortable with our governance arrangements; so much so that we drafted them ourselves and handed them to HMG to pass back to us as an Order in Council. This would only be the correct approach if we in fact drafted the Constitution free from any restrictions and totally in accordance with our wishes; but that clearly is not the case.

My comments and suggestions follow in no particular order of precedence.

Life of the Legislative Assembly

The natural life of the Legislative Assembly is 5 years, but it can be cut short at any time by agreement or collusion between the Premier and Governor. This is undemocratic to say the least. The power to cut short the life of the Assembly should rest only with the people by some mechanism which allows the electorate to recall a government. Others may be better able to propose how the people can be empowered to deal with a rogue government. I will focus therefore on what I consider to be undue power that the Premier and the Governor have.

Prorogation and dissolution

66.-(1) The Governor, acting in accordance with the advice of the Premier, may at any time, by proclamation published in the Gazette, prorogue the Legislative Assembly.

(2) The Governor, acting after consultation with the Premier, may at any time, by proclamation published in the Gazette, dissolve the Legislative Assembly.

(3) The Governor shall dissolve the Legislative Assembly at the expiration of five years from the date of the first sitting of the Assembly after any general election unless it has been sooner dissolved.

My submission is that Parliament should have a ‘fixed term’. That is to say, members of Parliament should be elected for a fixed period of 4 or 5 years. No early General Elections except when forced by the people. Consequently the provisions whereby a Premier has the power to „call early elections‟ with the consent of the Governor should be removed.

A ruling party or coalition government should not have the opportunity of attempting to „wrong-foot‟ the opposition and call an election early with a view towards catching them off guard. Only the electorate loses with a rushed political campaign period. It is also interesting to note that for the most part it is usually a floundering government that attempts this manoeuvre, and if they are successful they end up squeaking back into office for an extended period rather than being rejected in a regularly scheduled poll. „Snap Elections‟ should be consigned to the dustbin of history. Section 66.(2) should be removed altogether.

Also this move to early elections is sometimes precipitated by a Chief Minister who is losing the support of his party or coalition. This leads me to a vexing provision in the Constitution which essentially allows for a Premier who has lost the support of his colleagues to still make recommendations on the way forward.

Appointment of Ministers

32.-(1) The Governor shall appoint as the Premier the elected member of the Legislative Assembly who demonstrates to the satisfaction of the Governor that he or she commands the confidence of a majority of the elected members of the Assembly.

So here it is clear that an individual can only attain the office of Premier through the support of the majority of the other elected members. I am therefore suggesting that if at any time the Premier loses that majority support which caused him to become ‗first among equals‘, some other elected member of the Assembly should be allowed to take over the office. That is to say, if another elected member of the Assembly can prove that he or she has the support of a majority of the elected members, then he or she should be automatically allowed to become the Premier.

Tenure of office of Ministers

33.-(1) If a motion that the Legislative Assembly should declare a lack of confidence in the Government receives in the Assembly the affirmative votes of a majority of all the elected members of the Assembly, the Governor shall, by instrument under the public seal, revoke the appointment of the Premier and appoint another person as Premier in accordance with section 32(1); but before so revoking the Premier‘s appointment the Governor shall consult the Premier and may, acting in his or her discretion, dissolve the Legislative Assembly instead of revoking the appointment.

This clause makes two rather undemocratic provisions which should be removed in the interest of good governance.

Firstly it allows someone who was rejected by his colleagues, (who gave him the power in the first instance) to have a final say that could adversely affect the others. What is the purpose of consulting a rejected leader who is by now very bitter and possibly vindictive?

And secondly it gives the Governor undue power over the electoral process.

The Governor should not be allowed the prerogative to dissolve the Assembly if someone has a majority. It cannot be considered democratic for a Governor on his own to decide if the majority grouping of duly elected representatives that is presented to form the Government meets his or her approval. Suppose for argument sake that the Governor of the day has a personal issue with an individual member of the Assembly, and as a result rejects a legitimate proposal to form the Government simply because it comes from a group which includes that out of favour individual. Can that be considered „good governance‟ and a democratic practice? Section 8.16 of the Constitution Commissioners‟ Report speaks directly to this issue and stated among other things the following; ―…dissolution should not depend on the wishes of a ‗defeated‘ Chief Minister. The Governor should dissolve only after a failure to secure an alternative government. This seemed to be fairer and more democratic… In recommending this new and reasonable procedure, the Commission claims important support.‖ We should now take the opportunity to include this recommendation in the draft Constitution.

Powers of the Governor

In general I understand the argument for The Governor‟s Reserve Powers given our present Constitutional status; except to say that any notion that the Governor is above the law of the land should be dispensed with through proper legal drafting. Surely there is a way to give the Crown and its representative the protection sought and to protect matters of national security without appearing to give the Governor immunity from the law.
I have some difficulty understanding the Governors power to refuse to assent to a law duly passed in the Legislative Assembly.

73-(2) When a Bill is presented to the Governor for assent the Governor shall declare that he or she assents or refuses to assent to it or that he or she reserves the Bill for the signification of Her Majesty‘s pleasure; but, unless he or she has been authorised by a Secretary of State to assent to it, the Governor shall reserve for the signification of Her Majesty‘s pleasure any Bill which appears to him or her, acting in his or her discretion –
(a) to be inconsistent with any international obligation of Her Majesty‘s Government in the United Kingdom;
(b) to be likely to prejudice the Royal prerogative, or the efficiency of the judiciary, or to affect any of the matters mentioned in section 38; or

(c) to be in any way repugnant to or inconsistent with this Constitution.

At first I thought that this section was saying that the Governor is obligated to forward any law that they are not comfortable signing themselves to the Secretary of State. However, the legal minds tell me that the Governor can in fact exercise any one of the three options – Assent; or Refuse to Assent; or Reserve the Bill for the signification of Her Majesty‘s pleasure. This means that the Governor on his or her own can thwart the wishes of our Elected Representatives and by extension the will of the people of Montserrat by choosing the second option. This prerogative is undemocratic in the extreme. One may recall that the Refusal to Assent was exercised not so long ago with the Pension and Salary Bill, and the stated rationale for the Governor‟s refusal to Assent certainly did not rise to the high threshold set out in the Constitution Order 2010 section 72 (2)(a)(b) and (c) as highlighted above.

In any event, I think an addition should be made to the clause along the following lines;
―In the case where the Governor refuses to Assent to a Bill, 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.‖

Or an alternative for those who get squeamish when the Governor is required to do something entirely reasonable;
―In the case where the Governor refuses to Assent to a Bill, he or she shall be required to submit in writing, a statement outlining the reasons for not giving his or her Assent to the said Bill to the Speaker of the Legislative Assembly who shall cause such statement to be read at the next sitting of the Legislative Assembly‖
The Governor is not elected, so any exercise of this ultimate and undemocratic power over the wishes of the duly elected Legislators must be properly explained if and when executed. This should be an extremely rare occurrence, and therefore it should not be too onerous a task to require that the Governor speak to the Legislative Assembly and more importantly the people of Montserrat in clear and precise terms on such a momentous occasion.
One may recall that the Governor has a right to address the Legislative Assembly.

Governor’s right to address Legislative Assembly.

61. The Governor shall have the right to address the Legislative Assembly.

Consultation should mean Consultation in the spirit of Partnership
Here is an excerpt from a recent speech by Premier Ralph O‟Neal at the welcoming ceremony for their new Governor.

Premier Pushing for More Constitutional Changes

Melissa French, Staff Reporter August 21, 2010

{…In mentioning one or two of the areas in the Constitution that need amending, Premier O´Neal said that there has to be a new understanding of the words “consult” and “consultation”. “When the Governor is bound to consult with the Premier, if this consultation is to be meaningful to the people of the Virgin Islands and to be in keeping with the spirit and the meaning of the Constitution”…}
I don‟t think I need to add anymore to that warning from someone who has firsthand experience.

Special Responsibilities of the Governor

38.-(1) The Governor, acting in his or her discretion, shall be responsible for the conduct, subject to this Constitution, of any business of the Government with respect to the following matters –

(a) defence;

(b) external affairs;

(c) the regulation of international financial services;

(d) internal security, including the Police Force;

(e) the functions conferred on the Governor by this Constitution or any other law in relation to the public service; This clause needs to be amended to remove this particular provision;

(g) the regulation of international financial services;
Regulation of the Financial Services sector should be left to a totally independent body – the Financial Services Commission, and that body ought not to be related to the Governor. The responsibility for Offshore Financial Services should revert back to the Minister of Finance, as leaving this responsibility with the Governor is no longer necessary or desirable. The Government of Montserrat should have unfettered control of all financial matters, whether internal or external, with the independent FSC maintaining the oversight role in accordance with International best practices. Sequestering Offshore Financial Services under the Special Responsibilities of the Governor has had the debilitating effect of stifling the industry in Montserrat for 20+ years. Other countries coped with this move better than Montserrat, but for many administrative and organisational reasons we still struggle with the stigma of a bygone era. There now needs to be a fresh start. If we are to truly operate in partnership, this is one measure which smacks of mistrust and bad faith and should be repealed forthwith.

The introduction of Integrity Legislation and the Proceeds of Crime Act etc. should be sufficient to deter corrupt practices, and the Montserrat citizenry and HMG representatives must treat our Elected Representatives as mature and responsible individuals who are themselves concerned with „good governance‟ and the preservation of Montserrat‟s image and reputation in all areas.

Mechanism to change the Constitution

The proposed provisions for amendments to the Constitution Order as set out in section 114 do not go far enough. First of all the Premier should be compelled to take a matter forward if there is a two-thirds majority; his or her personal concerns should not matter. Remembering the concept of ‘first among equals’ the Premier must never be considered or consider himself superior to his or her fellow Parliamentarians. Then I would like to see a very broad provision to allow for the citizens to trigger a review of proposed amendments to the Constitution.
Amendment

114.-(1) The Electoral Commission shall keep under review the operation of this Constitution and report as it considers necessary to the Legislative Assembly.

(2) The Premier, if authorised by resolution of the Legislative Assembly adopted by a two-thirds majority of the elected members of the Assembly, may request discussion of amendment of this Constitution with Her Majesty‘s Government in the United Kingdom.

An additional section 3 might therefore read as follows.
(3) The citizens of Montserrat may initiate a review of a proposed amendment or amendments to the Constitution by making a submission in writing to the Electoral Commission; provided that such submission is accompanied by a petition containing a minimum of 500 Montserratian signatories.

I am mindful of being too prescriptive and ending up being unintentionally restrictive, so consider this to be a first shot at empowering the people. The legal minds could perhaps draft it differently and capture the essence of my suggestion.

Definition of Montserratian and ‘Qualifications for Elected Membership’

I have heard many persons state that they are unhappy with the definition of a „Montserratian‟ in the draft Constitution, and quite frankly most can‟t say what their precise issue is. Through extensive discussion and debate amongst friends and with some legal minds, I am now satisfied that the reservations are not so much with the broad definition of Montserratian, (although some reservations do remain) but rather the question marks and raised eyebrows are about how being a Montserratian relates to the right to become a member of the Legislative Assembly or the Deputy Governor. To be sure, the ‗Qualifications for Elected Membership‘ in the draft Constitution Order 2010 are much better suited to the „indigenous‟ Montserrat national and the protection of „Montserratianess‟ than the current Constitution Order. Recall that the current Constitution seems to allow Commonwealth Citizens to run for office even if they have not yet reached the qualifying years for Naturalisation.

Constitution Order of 1989 says:

Qualifications for elected membership

27. Subject to section 28 of this Constitution, any person who—
(a) is a Commonwealth citizen of the age of twenty-one years or upwards; and…

(b) has resided in Montserrat for a period of three years immediately preceding the date of his nomination for election, or is domiciled in Montserrat and is resident therein at the date aforesaid, shall be qualified to be elected as an elected member of the Legislative Council, and no other person shall be qualified to be so elected or, having been so elected, shall sit or vote in the Council.

While the Draft Constitution Oder of 2010 says: Qualifications for elected membership

50. Subject to section 51, any person who –

(a) is a Montserratian who has attained the age of 21 years; and

(b) is a registered voter at, and has resided in Montserrat for a period of one year immediately preceding, the date of his or her nomination for election, shall be qualified to be elected as an elected member of the Legislative Assembly, and no other person shall be qualified to be so elected or, having been so elected, shall sit or vote in the Assembly.

So we can see that currently a Commonwealth Citizen who is not even naturalised in Montserrat is right now eligible to be elected, while the draft document limits eligibility to a „Montserratian‟. I can honestly say that this is one of the few progressive changes I have noted in the entire document to date. (the other supposed advances are for the most part formalisations of common and long standing practices)

But some people have picked up on the fact that someone can be a Montserratian if their Grandparent was naturalised or adopted in Montserrat, even if they themselves never came here but were born or naturalised in another BOTC. The way the definition of a Montserratian is written, it would seem as if the adult child of someone who is naturalised in Montserrat automatically becomes a Montserratian as well. Surely, this cannot be the intent, so that particular bit of drafting needs to be revisited. To become a Montserratian, one should meet the naturalisation criteria in their own right.

The definition of “Virgin Islander‟ in the 2007 Constitution of the BVI and the definition of Anguillan in the current Draft Constitution for Anguilla 2009 are markedly different from our definition of Montserratian. It would be interesting to know why the Montserrat drafters made such a departure. I would like to suggest that we can have two very distinct definitions in our Constitution. That is to say one definition for who is “Qualified for Elected Membership‟ and qualified to be the Deputy Governor, and another definition which states who is generally considered to be a Montserratian.

For example we could leave the Definition of Montserratian as is, save for removing the reference to grandparents; and perhaps stipulating that children over 12 must be naturalised in their own right. That would satisfy most people.

And change the elected office eligibility clause as follows: (revised in line with the Virgin Islands Constitution Order 2007)

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 so 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.

Disqualification from Elected Membership

I note that a couple of changes have been made between the Constitution Order of 1989 and the Draft Constitution of 2010.

Constitution Order of 1989:
28. (1) No person shall be qualified to be elected as a member of the Legislative Council who—

(c) is a minister of religion;

The Draft Constitution Order of 2010 does not contain this clause.
I will reserve my arguments supporting the reintroduction of this clause for offline debates, simply because it is not a deal breaker for me. However I think it is important that I mention it from the perspective of due procedure and the process of including or excluding a recommendation from the Constitution Commission or indeed from the public. The issue is to do with how this recommendation was taken on board even though the Commission reported it as something that not many people expressed a view on. On the other hand some other proposed changes which were recommended and widely talked about, such as the voting rights of ex-officio members were not taken on board. It begs the question as to whose values and wishes should prevail. And it gives rise to the notion that there should be a referendum on whether certain clauses should be included or omitted from the draft Constitution, or indeed whether a referendum is needed on the overall Constitution. Some persons will point out that we practice representative Government, but I don‟t think anyone would seriously suggest that the FCO Lawyers and the „Joint Committee of the whole

House‟ have truly captured the views and wishes of the people Montserrat in the present draft Constitution Order 2010. I feel safe in making the following statement. The change that allows for Ministers of Religion to run for election to the Assembly has a minority support of Montserratians; while continuing to allow Ex-Officio members to vote in the Assembly goes contrary to the majority view. How therefore do we democratise the process even as we strive to democratise the Constitution itself?

The Challenge Clause
One cannot review and comment on the Constitutions without having a look at the historic „challenge clause‟.

The Constitution Order of 1989 says:

28. (1) No person shall be qualified to be elected as a member of the Legislative Council who—

(e) is a party to, or a partner in a firm or a director or manager of a company which is a party to, any contract with the Government of Montserrat for or on account of the public service and—(i) repealed; (ii) has not within one month before the date of election published in the Gazette and in a newspaper circulating in the electoral district for which he seeks election a notice of setting out the nature of such contract and his interest, or the interest of such firm or company, therein;

The Draft Constitution of 2010 states: 51.-(1) No person shall be qualified to be elected as a member of the Legislative Assembly who –

(d) is a party to, or a partner in a firm or a director or manager of a company which is a party to, any contract with the Government and has not within ten days of his or her nomination for election delivered a notice to the Electoral Commission setting out the nature of such contract and his or her interest, or the interest of such firm or company, in it;

Note here that the timeline for disclosure has been reduced from one month (say 30 days) to 10 days, and the requirement to “…published in the Gazette and in a newspaper circulating in the electoral district for which he seeks election…‖ has been dropped. The prevailing wisdom is that since the candidate cannot ensure that a Gazette or Newspaper would be available in which to publish the notice according to the timeline stipulated then the requirement may be unfair. This is a valid concern. However, it is reasonable to assume that the objective of the provision in the current Constitution Order 1989 was to make sure that the voting public was made aware of the candidate‟s connections to Government up front before they decided whether to vote for the individual or not. Delivering the notice to the Electoral Commission 10 days before will not result in the public being properly informed of the existing contractual or business relationships. Even though there is provision for the notifications to be published in an effort to notify the electorate; the realities that prevail in Montserrat mean that what would amount to 9 days to publicise something received by the deadline date may be woefully inadequate.

51 (3) The Electoral Commission shall forthwith publish any notice delivered to it under subsection (1)(d) in such manner as it considers effective for the purpose of informing the electorate before the date of election.
Would the Electoral Commission be forced to resort to using radio spots for informing the electorate of candidate‟s business affairs?

Therefore, one may ask what the purpose of the clause is in its diluted form. In fact one might ask what purpose would be served for someone to declare their business interests to the Electoral Commission and then not be elected. Having regard to the fact that there is now Integrity Legislation on the books which calls for Elected Members (and other Public Officers) to declare their interests to an Integrity Commission; then I submit that the „challenge clause‟ is now redundant and can be removed in its entirety. It serves no meaningful purpose in its proposed form. A candidate‟s legitimate business dealings with Government really should not have any bearing on whether they can run for election or not. It is what the individual does after a successful candidacy that matters. Elected Members of the Legislative Assembly would be bound by the Integrity Legislation to divest certain interests and/or make full declarations to the Integrity Commission. These requirements would to my mind be sufficient to satisfy transparency and good governance efforts. Dispense with Clause 51 (1)(d)

Voting Rights of Non-Elected Members

The Ex-Officio members of the Legislative Assembly should not have voting powers in the Assembly. A non-elected Member of the Legislative Assembly should not be in a position to exercise a vote to create the Laws of the country, since they cannot be sanctioned by the voters at any time. The Financial Secretary and the Attorney General should remain in the Legislative Assembly but only as very important and respected advisors.

Consideration can be given to including the Deputy Governor as an ex-officio member of the Legislative Assembly instead of, or in addition to the Financial Secretary. The provision that the Deputy Governor simply has a right to sit in the Assembly while not being a member does not sit well with me; either you are a member in your own right or you visit only at the invitation of the Speaker.

Appointment of an Attorney General

84- (2) Power to make appointments to the offices of Attorney-General, Director of Public Prosecutions, Magistrate and Registrar of the High Court, and to any other office requiring legal qualifications as may be prescribed by law, and to remove or exercise disciplinary control over any person holding or acting in any such office, is vested in the Governor, acting after consultation with the Chief Justice.

The Government of the day should have a major say in the initial appointment of a new Attorney General. The Governor should not be the one appointing the Attorney General, since he has access to the FCO legal team. The Governor should not by himself have the power to remove or discipline the Attorney General. The reference to consultation with the Chief Justice clearly is just a formality which places no limits on the Governor‟s discretion. The Attorney General should be the Legal Advisor to the Government Ministers in the Councils and the Government Ministries and Departments. It is a fallacy and a fantasy to say that the same individual can advise the Government while at the same time advising the Governor. This is the equivalent of saying that a Lawyer can advise 2 clients on opposing sides of a civil matter in court. The notion that it is a single Government that includes the Governor and the Ministers is a utopian dream that we have yet to realise, so perish the thought for now. Let us not fool ourselves, if somebody gives you a job and is responsible for whether your contract gets extended or not, you will be sympathetic to their stated or even perceived views and will side with him or her on any and every marginal issue. To suggest otherwise would be to play Ostrich. On many matters the advice may be the same regardless of any loyalties, but not every legal opinion is based on a clear cut black and white issue that one can apply strict objectivity to. A Lawyer can argue a case based on which client gets to him first; it is what they are trained to do, and it does not necessarily impugn their integrity. It cannot hurt to have the Government of the day directly involved in appointing an Attorney General, as long as they are afforded sufficient protection from arbitrary dismissal once in post. Continued opposition to this suggestion infers to me that some party understands the notion of the unspoken allegiance I refer to above and is keen on retaining it.

Protection of freedom of movement

14.-(1) Except with his or her consent, no person shall be hindered in the enjoyment of his or her freedom of movement, that is to say, the right to move freely throughout Montserrat, the right to reside in any part of Montserrat, the right to enter or leave Montserrat and immunity from expulsion from Montserrat.

(2) Nothing in any law or done under its authority shall be held to contravene this section to the extent that the law in question makes provision –

(a) for the removal of a person from Montserrat to be tried or punished in some other country for a criminal offence under the law of that country;

(b) for the removal of a person from Montserrat to undergo imprisonment in some other country in execution of the sentence of a court in respect of a criminal offence under the law of Montserrat of which he or she has been convicted;

(c) for the imposition of restrictions on the movement or residence within Montserrat or the right to leave Montserrat of public officers that are reasonably required for the purpose of ensuring the proper performance of their functions;

It would appear as if section 14-(2)(c) leaves a public officer vulnerable since he can be lawfully restricted in his movements against his or her will. Whose reasoning will hold sway? The public officer who feels it is time to move from a particular place due to perceived imminent danger, or his or her superior who thinks they should hang on a little longer at a particular place or remain living or working in a danger zone.

Public Officers Resignation to run for Elected Office

The Constitution Order or 1989 and the draft of 2010 are silent on this matter; but there is apparently other legislation or regulations which supposedly require Civil Servants / Public Officers to resign their posts in order to declare themselves as candidates in the General Elections.

I think it is unfair to individuals to place them in a situation in where they are forced to gamble their accumulated pensionable years against the chance to be elected or not. In fact a situation could arise where the individual may not be able to find employment within the public service after a failed election bid. In the case where the individual is fortunate enough to get their old job back or some other job within the Public Service, it is my understanding that the act of resignation would have cut off their pensionable years and they are deemed to have in effect started new employment starting back at zero pensionable years.

I have heard it said that many eminently qualified individuals who may have had a lot to offer at the Ministerial level never got into the race because of this draconian requirement.

I suggest therefore that Civil Servants should be allowed to take unpaid leave from their regular employment if they are desirous of contesting the Elections. Perhaps a maximum period of 3 months would suffice.

How the Constitution Order 2010 should protect this right is a matter for the legal drafters; but it seems to me that a document which is all about defining and protecting various rights should protect Civil Servants from this clearly discriminatory act.

Free Vote

If the Government insists on proceeding with a Resolution on the draft Constitution, it must be clear to all that it is a „Free Vote‟ or „Conscience Vote‟. That is to say, it must be made abundantly clear that no Member of Parliament should feel obligated to vote along party lines and no „collective responsibility‟ rules should be suggested or enforced. The Constitution is bigger than Party politics and will outlast the current Parliament.

Note: This is not meant to be an exhaustive list of all my concerns with the draft Constitution Order 2010, but a written submission of some of the issues I have already raised in various fora. I trust my comments are clear enough to at least prompt some further discussion and review of the various clauses addressed.
Disclaimer: The extent of my legal training is an O‟Level Certificate in Law from the University of Cambridge.

Denzil A West St. Peters Montserrat denzil.west@mninet.ms