by Shirley Osborne
Whereas it is my understanding that the Constitution is the highest law of the land,
Whereas it is also my wish that Montserrat be a democratic society,
Whereas I admit to reservations about the democratic-ness of the United Kingdom, and
Whereas I fully subscribe to the notion of “the Rule of Law”
I hereby request clarification.
Indeed, I crave clarification.
Did I misunderstand what I was taught? Did my teachers misunderstand and therefore have rendered me now, mis-taught?
Here’s my concern.
My understanding of democracy is that it is grounded in, inter alia, the rule of law. In papers published by the University of Iowa Center for International Finance and Development, The Rule of Law is addressed in the following manner:
“it can be understood as a legal-political regime under which the law restrains the government by promoting certain liberties and creating order and predictability regarding how a country functions. In the most basic sense, the rule of law is a system that attempts to protect the rights of citizens from arbitrary and abusive use of government power.”
I like this definition. But, who knows, the University of Iowa might be wrong, too.
There is a book entitled, The Morality of Law, by Lon Fuller, which discusses eight (8) elements of law that, it is commonly believed, must be true of societies aspiring to democracy and the rule of law. He believes that “the law must avoid contradiction.” I wrote last week about the first important contradiction I noticed in the new proposed Constitution for Montserrat, so I will let this point just stand for the moment.
However, another condition that the Morality of Law believes must also be true of the laws of the society, and the very first one that Fuller identifies, is that “Laws must exist and those laws should be obeyed by all, including government officials.” Is the Governor of Montserrat not a government official? Royal Majesty is not government?
I ask the questions because I read in the proposed Constitution, the document that aspires to be the formal statement of highest law of my Montserrat that,
(3) “Subject to this Constitution and any law by which any functions are conferred on the Governor, the Governor shall perform all his or her functions (including functions which are expressed by this Constitution to be exercisable in his or her discretion or in his or her judgement) according to such instructions, if any, as may be given to him or her by Her Majesty; but the question whether or not the Governor has in any matter complied with any such instructions shall not be enquired into by any court.”
And, moreover, in the section entitled “The Exercise of Governor’s Functions”,
(4) “Where the Governor is by this Constitution or any other law directed to exercise any function in accordance with the advice of, or after consultation with, any person or authority, the question whether he or she has so exercised that function shall not be enquired into by any court.”
I am partly culturally British, I suppose, so let me first say this – “I beg your pardon?”
But, I think that Americans, those ex-British subversives, are infinitely better at exclamations and expletives, so let me say also this – “ARE YOU FREEKING KIDDING ME??!!” “SHALL NOT BE ENQUIRED INTO BY ANY COURT??!! NO £&@£%£@ WAY!!”
The compliance, or failures to comply, of the Governor, “shall not be enquired into by any court.”
Let me see if I got this right. The governor of Montserrat is not bound by the Rule of Law or the Laws of Montserrat. The Governor of Montserrat, who is not Montserratian, is above the law of Montserrat. Above the Constitution of Montserrat. Why? Because the Governor of Montserrat is, “of the Crown”? Or, because after all, this is the Constitution of only Montserrat?
But, No!? It’s not just the Governor. Her Majesty is also above the law. Her Majesty cannot be “enquired into.” And that makes perfect sense since Great Britain is, among other things, a monarchical society. Monarchy is not democratic. Monarchy is even anti-democratic. Majesty and Royalty are not elements of democratic societies and this is one example of royalty empowered and promulgated by ill-begotten gains, to wit, invasion, imperialism, oppression, slavery, colonialism, and now, apparently neo-colonialism. The antithesis of a democracy, if ever there was one.
But, I’m smart. I get it. Britain is not a democracy, so it follows that Montserrat is also not a democracy. And, apparently, not going to be one, either, if certain people have their way.
Man! What was I thinking? There I went again, expecting too much for my little island.
Just who do I think we are?
Let’s think about this for a moment shall we?
The proposed Constitution stipulates that there are actions or failures to act, on the part of the Governor that cannot be enquired into by any court, that are outside of the jurisdiction of any court. So, the Governor is above the law. Not bound by the Constitution, as all citizens of Montserrat are.
The Governor, however, is not a citizen of Montserrat. The Governor of the people is not one of the people. Does that matter? But Montserrat shall have a Governor, and there is a special class of privileged being that gets that honour, and which class has no Montserratian members. Does that matter?
The Constitution does not say that the Governor shall not be Montserratian. The Governor could be Montserratian since Montserratians are not expressly excluded, but the clear implication here, it seems obvious to me, is that the Governor really, “shall be not Montserratian.” I get this partly because the Constitution does bother to state quite clearly that the Deputy Governor “shall be Montserratian.” The British are magnanimous. Very gracious of them to be so generous and sensitive and democratic, I’m sure.
So, the Montserratian Deputy Governor is appointed by the not-Montserratian Governor of Montserrat only with the prior approval of the (not-Montserratian) Secretary of State, and acts only “under the authority” and “at the discretion” of the not-Montserratian Governor of Montserrat and, one assumes, the person or office by whose pleasure the governor holds office.
It boggles my mind. The people of Montserrat can deputise or “act” Governor. Just not “be” Governor. In this day and age!
In this day and age, some still believe that we are not smart enough, good enough, or something else enough to “Governor” ourselves. Not that the Governor-ing of Montserrat is such a demanding job! And, with all due respect, it’s not as if the Crown or who for it, ever sends its bright sparks “to governor” little, insignificant, not-democratic Montserrat. And, in any case, I know lots of Montserratian sparks who are significantly brighter than any that have ever come from the “Crown”, and I don’t know about anybody else, but if I have to have a governor at all, especially one whose actions cannot be enquired into by any court, I want that person to be the brightest available spark. And I want, even more especially, that person to be “wan oo awee.” Famoolay.
I know some very bright and capable and trustworthy Montserratians by whom I would be governored. Not necessarily gladly, I would have to clarify, but only because the idea of being governed in this way irks me at my core. However, since, evidently, I have no choice but to be governed, I will accept to be, but with conditions.
I want a Montserratian Governor of Montserrat.
