Don Mitchell CBE QC talks Constitution at ZJB radio
Don Mitchell CBE QC, visited Montserrat on consultation as he describes, between August 16-20, 2010. Following is his report:
By Don Mitchell CBE QC
[1] I visited Montserrat at the invitation of the Hon Donaldson Romeo MLC to consult with him and members of the public on the new draft Constitution 2010. This has been drafted by a team of Foreign and Commonwealth Office (FCO) lawyers, and agreed by the government of the island. They propose that the Legislative Council should pass a Resolution approving the draft with or without amendment. The present Constitution dates to the year 1989.
[2] During the three days that I was in Montserrat, I met with one youth group, two service clubs, the Rastafarian organization, one church group, and various individuals, including a number of the island’s barristers and solicitors. I also took part in a television interview, a radio call-in programme, and interviews by various members of the press. I am especially grateful to Jean Kelsick Esq, barrister and solicitor of the Eastern Caribbean Supreme Court, for some of his observations on weaknesses in the draft Constitution, some of which I have been happy to adopt.
[3] Montserrat is one of the few British Overseas Territories still receiving financial support from the British Government. The receipt of grant-in-aid, I was told by several Montserratians, makes it difficult for them to believe that their views on the draft constitution will be welcomed. Many believe that the draft Constitution is being offered to them on a “take it or leave” basis. This unfortunate, and wrong, view of theirs is reinforced by recent actions of the local Government. Government has made a concerted effort to rush the draft Constitution through the Legislature without any public consultation. Only reluctantly did the government suspend its efforts to have an approving resolution passed. The public has been given three months to ‘consult’. The resulting consultation process has been deeply flawed. It would appear that no effort is being made to gather any input from the people of Montserrat regarding the draft Constitution. The government has established a Constitution Implementation and Advice Committee whose main function appears to be to sell the draft to the public, rather than to consult and get suggestions for improvement of the draft.
[4] There are many improvements that can and should be made to the draft. First, I make some general observations. The FCO has repeatedly requested that our island governments should practice good governance. We have been urged to establish integrity, accountability, and transparency in public life. These are said to be the three pillars of good governance. The draft Constitution of Montserrat has missed the opportunity to contribute to this movement. It provides the very opposite, as I shall try to show.
[5] The concentrating of power in the Governor’s hands as proposed by this draft Constitution tends towards arbitrary, one-man rule. A good governor is better than a bad local Cabinet. We cannot be confident that our Governors will always be good. Experience, especially in the case of Montserrat, teaches otherwise. We should rather be trying to develop local democratic institutions that will involve the people in their own governance. It is preferable that the Constitution should encourage the development of responsible government in the Overseas Territory, rather than destroying it. This is a better guarantee of democracy, justice, and fairness in government. The draft Constitution provides for absolute power to be concentrated in one person, subject only to the oversight of the Secretary of State far away in London. In this respect the draft Constitution increases the deficit of democracy in Montserrat.
[6] The Preamble: The Preamble to the Constitution has evidently been drafted by the FCO. The Preamble should be a statement of who the people of Montserrat consider themselves to be. It should be an expression of their aspirations. If this were so, it would be written by Montserratians and expressed in the first person. It is not appropriate that the Preamble should have been drafted by a foreigner, and expressed in the third person.
[7] The section 5 fundamental right to protection from arbitrary arrest or detention: This provision is very weak. It does not provide for informing arrested persons promptly of their rights. They need only be told of the reason for their arrest after they have been brought to the station. A person needs to know immediately he is arrested of the reason for his arrest. This is so not least because he has a right to know whether he is being illegally arrested so that he can exercise his right to resist the arrest.
[8] The version of the right in the draft is weakened by the provision that he is to be brought “promptly” before a judicial officer. This provision is capable of abuse, particularly in view of the penchant of the police for arresting persons on a Friday afternoon, and then not bringing them before the Magistrate until the next sitting of the court. They ought to be obliged to bring an arrested person before a judicial officer within 24 hours of the arrest. They should bring him to the home of the Magistrate if necessary. This is, not least, so that the Magistrate can observe the arrested person for signs of physical abuse and to be able to give the necessary directions for a medical examination, and to consider bail.
[9] The section 7 provision to secure protection of law: The wording in the draft makes possible the removal of the right to trial by jury. There is no suggestion that the people of Montserrat consider this new development either advisable or desirable. This proposal may have been stimulated by recent failures in prosecution mainly of sexual cases. Such failures, from what I have been told, spring from patent weaknesses in the prosecution’s cases, and not to any perversity of the jury.
[10] The same section 6 contains a provision contemplating abolition of the right to appeal from some or all convictions in the Magistrate’s Court. Such a drastic curtailment of this fundamental right is inappropriate without thorough consultation with and support from the people of Montserrat, of which there is no evidence. Such a proposal is so offensive as to be incredible in a draft Constitution proposed by an FCO legal team.
[11] The section 9 provision for the protection of the right to marry: The opportunity has been lost in this or some other provision to ensure that persons born outside of wedlock are not discriminated against under the law. The Constitution should stipulate equal treatment before the law for all children whether they are born in or out of wedlock or are adopted.
[12] The section 12 provision for the protection of freedom of expression: This contains the usual exception relating to public servants and teachers. The previous provision that it must be “reasonably justifiable in a democratic society” has been removed without any explanation. It is proposed that the freedom can be taken away if it is reasonably required “for the purpose of ensuring the proper performance of their functions”. The intention appears to be to water down the previously enjoyed right, with a view to making it easier to gag teachers and public servants through General Orders. Restrictions on permanent secretaries and other confidential advisers of government ministers of their public expression of political views may be justifiable. It is generally understood in the West Indies today that a blanket ban on public expression of political views by the general mass of public servants is highly objectionable.
[13] The section 14 provision for freedom of movement contains a sting in the tail. It would give “an authority” the right to deport a non-Montserratian. The authority is not defined. It should be. As it presently stands, if this provision is passed, it will give a wide variety of people in Government the right to deport someone. It is clearly preferable that any decision to deport someone should be sanctioned by the court.
[14] The section 17 provision for periods of public emergency is anti-democratic in that the Governor alone decides. The section should provide as in the British Virgin Islands that he acts on the advice of Cabinet unless otherwise instructed by the Secretary of State.
[15] The test for restricting the rights and freedoms of the individual is generally expressed as having to be “reasonably justifiable in a democratic society”. However, in relation to the Governor’s emergency powers the standard would be set considerably lower. The new test would be “reasonably justifiable for dealing with the situation that exists.” The alteration of the test is undesirable, particularly as that provision has been judicially reviewed in Montserrat. One inference for the alteration of the test is that it is designed to enable the Governor to act in a heavy-handed way in the future without his being accountable to the Courts. Such a deplorable development in a proposed Constitution for a British Overseas Territory is much to be regretted.
[16] The section 18 provision for protection of persons detained under emergency laws will significantly curtail the rights of the detained person. There is no good reason why the family and the public should wait 10 days to be notified of the identities of persons detained. It should be no more than 3 days. Nor is there any reason why persons should be able to be detained for up to 30 days without an appearance before the court. This should be no more than 5 days. Nor is there any need for any other tribunal but the established courts of the island. The provision vests draconian and dictatorial powers in the hands of the Governor and the police.
[17] The draft states that if an independent tribunal recommends that a detainee be released, the authority that locked them up in the first place can ignore the Tribunal’s recommendation. This provision would mean that the authority could ignore a decision of someone such as a judge appointed by the Chief Justice to preside over the tribunal. This should be a frightening prospect.
[18] The section 51 restriction on Montserratians who have travelled, and been so lucky and enterprising as to have acquired a second passport, from being able to be nominated and elected to the Legislature is an anachronism, and should form no part of a modern Constitution.
[19] Section 81 and the following sections set up a Public Service Commission, but it is a powerless institution. No FCO-appointed Governor or his deputy should have total power over the appointment and discipline of public servants in a British Overseas Territory. He should be obliged to follow the advice of a PSC, except, perhaps, for the highest ranks, where consultation with the Chief Minister might be appropriate. Similarly for teachers and the police force.
[20] There is a hope expressed in section 84 that a Public Service Act might one day be passed that will oblige the Governor to act on the advice of the PSC, but that hope is not good enough. The Constitution should require it to be done.
[21] The section 104-105 provisions relating to the Ombudsman are unsatisfactory. The office is not constituted by the Constitution but is left for a law, which may or may not be passed, to do so. The Constitution should constitute the office and set out his, functions, tenure and immunities in the usual way, as exemplified by the Constitution of Antigua and Barbuda.
[22] Section 106 provides a hope that there will be a continuing Interests Commissioner and an effective Integrity in Public Life Act. This is not satisfactory. The Constitution should entrench the office and make it clear that the provisions are to apply to all members of the Legislature, the Cabinet, Statutory Boards and Committees, and their immediate families. The disclosure should be public, and failures should be subject to serious penalties. Integrity, accountability and transparency require this.
[23] Various provisions throughout the draft Constitution invest the Governor with almost total power over the administration. He is controlled by secret and unaccountable instructions from the FCO, which are multiplied by associated discretionary powers. This is anti-democratic, is not conducive to good governance, and is the polar opposite of integrity, accountability and transparency. In particular,
(a) The section 21 use of his discretionary and reserve powers must be subject to democratic accountability. Except where otherwise instructed by the Secretary of State, the draft Constitution should be amended to provide that he ought to first consult the Cabinet and be subject to review by the High Court;
(b) Integrity, accountability and transparency require that the section 26 power to dispose of land should be subject to a resolution of the Legislature;
(c) The section 28 power of pardon should be exercised on the advice of a Mercy Committee;
(d) The section 87 power to grant or withhold pensions, gratuities and allowances ought to be exercised on the advice of the Public Service Commission;
(e) The section 100 power to appoint the Auditor General is exercised after consultation with the Public Accounts Committee. Greater accountability and transparency would be achieved if this were to be done after consultation with the Public Service Commission and the Integrity Commission;
(f) Extraordinarily for the twenty-first century, the Governor retains the power to amend or to disallow a law passed by the Legislature without any reference back to the Legislature.
[24] Other anti-democratic provisions include:
(a) The Deputy Governor will be able to act in relation to the public service without being obliged to take the advice of the Public Service Commission. Except in the most senior ranks, this is clearly undesirable;
(b) The Attorney-General, the Financial Secretary and the Deputy-Governor are not elected and, as in other Overseas Territories with modern Constitutions, should have no vote in either the Cabinet nor the Legislative Assembly;
(c) The need for a Director of Public Prosecutions has clearly been recognised by the section 45 provision enabling his appointment. It appears from the wording of the section that the intention is to have the Attorney-General continue to act in that position. The draft should be amended to establish the office and to require the appointment to be made;
(d) A Magistrate in Montserrat has considerable power, and can impose fines of up to $100,000.00 and prison sentences of up to 10 years. As Montserrat does not have a High Court judge, the Magistrate plays an enhanced role. He or she routinely hears cases that would normally be tried by a judge and jury. The section 84 appointment of the island’s Magistrate is by the Governor after consultation with the Chief Justice. This is unacceptable in a modern democracy. It does not insulate the Magistrate from the Executive as should be the case. For a Magistrate to do a proper job in Montserrat he or she needs to be shielded from influence and pressure from both the Ministers and the Governor. Additionally, there is a well-known current regional initiative to integrate the Magistracy into the judiciary. The provision in the draft should be that the appointment and discipline of the Magistrate is by the Governor acting on the advice of the regional Judicial and Legal Services Commission, of which the Chief Justice is the head;
(e) The thought that the Director of Public Prosecutions and the Magistrate can be removed from office by the Governor and the Secretary of State is a frightening one. These are both judicial officers. The rule of law demands that both their appointment and removal be out of the hands of the Executive and be either by, or on the recommendation of, the regional Judicial and Legal Services Commission.
(f) Currently, the police police themselves. Complaints about police misconduct made to the Commisioner of Police and the Governor are notoriously not investigated impartially. Such complaints invariable attract hostile responses from the police. The absence of any provision in the draft for a Police Complaints Board is regrettable. Such a Board is a vital tool for controlling police misconduct. Such a Board will effect greater transparency and justice for all. There is no reason why Montserrat should have a lower standard of governance in this respect than Bermuda or Britain itself.
[25] It is to be regretted that no thought has been given in this draft Constitution to providing for a Freedom of Information Act. Without such a law, no one in Montserrat would have the right to obtain information that should be available to the public. Secret government, which is an enabler of corruption and bad government, is in this way encouraged.
[26] Amendment of the Constitution. Section 114 of the draft provides that only the Premier, in very limited circumstances, may request an amendment of the Constitution. The FCO reserves unlimited right itself to amend the Constitution without any reference to the people or government of Montserrat. This is clearly highly undesirable. In the recent Cayman Islands constitutional negotiations the FCO accepted that it would never again amend the Cayman Islands Constitution without first putting it to a referendum of the people. No person can suggest that there is a good reason why some lower standard of democracy should be enjoyed by Montserratians.
[27] A Constitution is the supreme law of any people, subject, in the case of a British Overseas Territory, to the Parliament of the United Kingdom. A Constitution that is imposed on a people by a foreign power lacks validity and respect. In my view, it is the duty of every patriotic Montserratian to insist in the strongest possible terms for a right to comment on and criticise any terms in this draft Constitution that appear unacceptable to them. Montserratians have a right to demand that the draft Constitution be put to them for their approval by a referendum. Only after this has been done would it be proper for the Governor to pass it to the Privy Council for enactment by an Order in Council. The British Government has frequently promised that it expects no less than evidence that the people of an Overseas Territory have expressed their support for any amendment to a Constitution. There is no reason why Montserrat should be given a second-class Constitution.
Dated 22 August 2010
