Jean Kelsick presents on ZJB radio –
Jean Kelsick (left) after he presents views on draft Constitution on ZJB radio with Don Mitchell, Bennette Roach and Don Romeo
In an impressive display of people power Montserratians spoke recently and in doing so stayed government’s hand from approving, with indecent haste, the new draft constitution. The public has demanded that it be given more time to study and understand what is widely perceived to be an imperfect document, despite claims by both the Governor and the Chief Minister that the draft is well balanced and will pave the way for economic development.
The purpose of this presentation is twofold. It intended to expose some of the more serious flaws in the new draft constitution and to explain why the people of Montserrat should not accept it in its present form. It is also intended to respond to the challenge issued by the Chief Minister on Radio Montserrat recently to the public to say what is wrong with the draft.
It is worthwhile tracing briefly the history of the review process. In 2001 the Governor appointed the Montserrat Constitutional Review Commission comprising Sir Howard Fergus as Chairman, Rev. Florence Daley, Fitzroy Martin, Peter White and me. The Commission consulted widely and thoroughly, after which it submitted a 67 page report to the Governor in which it made over 50 recommendations for improving the constitution. Having regard to the length and breadth of the Commission’s consultation, its report has a powerful mandate and can truly be said to represent the voice of the people. Several of the recommendations were accepted by the Foreign and Commonwealth Office team with responsibility for generating the new draft constitution and incorporated into the draft. Unfortunately, some key recommendations were not.
In 2007, after one of the early drafts was circulated, Mr Raj Rajasingham QC, a former judge and a former Attorney General of Montserrat, and I submitted detailed comments to FCO consisting of some 39 points. These comments were shared with the Government of the day, the Constitutional Review and Advisory & Education Committee constituted by the then Chief Minister, Dr Lowell Lewis, and the then leader of the Opposition, Mr Reuben T Meade. Montserrat was fortunate to have the pro bono assistance of Mr Rajasingham. When he was the Solicitor General of Belize, he was instructed by the government on the eve of independence to meet with a team of legal specialists in Jamaica, including the Attorney General, Carl Rattray QC, to craft a response to the independence constitution being proposed by the British Government for Belize. They came up with over 100 points, all of which were accepted by the British Government.
Receipt of comments submitted by Mr Rajasingham and me was not acknowledged by FCO initially. It was only some months later when I mentioned the non response to the then Leader of the Opposition, who was travelling to London for a further round of constitutional talks, that I suddenly received an acknowledgement. Interestingly, several of the points made by us were incorporated by FCO in subsequent revisions to the draft.
This demonstrates what can be accomplished by making an effective case and underscores the importance of the public debate which has intensified since the people put the brakes on Government in June of this year.
Dr Lewis’ Committee compiled a useful table of the recommendations made by it and the earlier Constitutional Review Commission and how they were treated by FCO and the Legislative Council. Significantly, a number of key recommendations made by both the Commission and the Committee were rejected by Council and FCO.
In the lead up to the current draft constitution several people made contributions and there may have been other initiatives that I have not mentioned.
It has to be said that the draft incorporates many of the suggestions of the Commissioners and the Committee and that in some respects it represents an improvement on the current constitution. However, on certain crucial issues there has been no constitutional advancement where there should have been. Moreover, and alarmingly, as I will explain some of the proposed changes to the current constitution turn the clock back for Montserrat. It is therefore difficult to see how any patriotic Montserratian could accept the draft as it stands.
Let us look at some specifics:
Section 5 – Protection from arbitrary arrest or detention
Section 5 (1) b of the current constitution states that “No person shall be deprived of his or her personal liberty save in any of the following cases and in accordance with a procedure prescribed by law in execution of the order of a court punishing him or her for contempt of that court or of another court or tribunal. The words “or tribunal” have been deleted from the draft. As this represents a dilution of the protection afforded by the current constitution, FCO should explain the reason for the change.
Section 6 – Provisions to secure protection of the law
A number of modifications have been made to Section 6, which deals with the citizen’s right to secure the protection of the law e.g. the right to a fair trial, the right to be presumed innocent etc.
Sections 6 (12) & (13) of the draft are new. They say as follows:
(12) Every person convicted of a criminal offence by a court shall have the right to have his or her conviction or sentence reviewed by a higher court, and the exercise of this right, including the grounds on which it may be exercised, shall be governed by law.
(13) The right referred to in subsection (12) may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest court or was convicted following an appeal against acquittal.
I have grave concerns over sub section (13) because it restricts for the first time a person’s centuries’ old right to appeal against a conviction. Any criminal conviction is a serious matter for the individual because it is a lifelong stain on his or her reputation. A person should be entitled to clear their name by challenging a conviction no matter how minor the offence may be. After all, the individual’s reputation is a precious thing. Who is to decide whether or not an offence is of a minor character? This provision is a very serious curtailment of the fundamental right of appeal and is a step back. I call on FCO to remove it.
Section 12 – Protection of freedom of expression
The current constitution says that restrictions can be placed upon public officers or teachers in the exercise of their right to freedom of expression unless it can be shown that the restriction is not reasonably justifiable in a democratic society. Section 12 (2) c of the draft replaces the protection afforded by the “reasonably justifiable in a democratic society” test with a different test.
The new test states that restrictions can be placed on public officers or teachers in the exercise of their right to freedom of expression if this is reasonably required for the purpose of ensuring the proper performance of their functions. The test in the draft constitution lowers the threshold and makes it easier for government to restrict the right enjoyed by public officers and teachers to freedom of expression.
The well tried and tested constitutional formula of “not reasonably justifiable in a democratic society” is sacred to modern constitutions. It has been used by many a court to shield the individual from draconian conduct on the part of government and to control political abuse. In the celebrated Antiguan case of de Freitas v The Permanent Secretary of the Ministry of Agriculture, one Elroy de Freitas, who was an extension officer in the Ministry, peacefully picketed the Ministry’s headquarters. For this he was sacked by his Minister. The Privy Council subsequently ruled that his sacking was in breach of his constitutional right to freedom of expression and restored him to his job.
In my opinion, the new test in the draft constitution will dilute the right to freedom of expression on the part of civil servants and teachers. It also represents a direct attack on the protection enjoyed by them under the de Freitas decision. The reason for the dilution may very well be that civil servants in Montserrat have successfully argued the de Ferias decision in both the High Court of Montserrat and the Court of Appeal to reverse highhanded and unconstitutional conduct by Ministers of Government and the Governor.
Section 14 – Protection of freedom of movement
Among other things, this section gives a person a right of immunity from expulsion from Montserrat. However, section 14 (4) of the draft gives, and I quote, “an authority” the right to deport a non-Montserratian from Montserrat. The term authority is not defined. As suggested by Mr Rajasingham and me 3 years ago, it should be. As the wording stands, a wide variety of people in government would potentially have the right to deport someone. Personally, I consider that any decision to deport someone should be sanctioned by the court.
Section 15 – Protection from discrimination
Mr Rajasingham and I suggested that persons suffering from a physical or mental disability should be protected from discrimination but this was ignored by the FCO team. The unfortunate truth is that disabled people suffer a lot more abuse and discrimination than most other people.
Section 16 – Protection from deprivation of property
This section protects the individual from the compulsory acquisition of his property by government unless the acquisition is in the public interest. It also provides a means of redress to the citizen when government acquires his property on a compulsory basis.
The draft removes Section 64 (1) c (iii) of the current constitution completely. This section states that government cannot acquire your property on a compulsory basis unless there is a law already in place giving you the same rights of appeal beyond the High Court as are available to you generally in civil proceedings brought in the High Court.
I wonder why this important protection is being removed. It has been in the current constitution for over 20 years and presumably there is a good reason for this. An explanation by the FCO team is required.
Section 17 – Provisions for periods of public emergency
The test for restricting fundamental rights and freedoms of the individual is generally expressed throughout the current and the draft constitution as having to be “reasonably justifiable in a democratic society.” However, in relation to the Governor’s emergency powers the standard is set considerably lower by the Section 17 (9), which describes the test as “reasonably justifiable for dealing with the situation that exists……….” I think that a uniform test should be maintained throughout the new constitution. This is particularly so respecting the exercise by the Governor of his emergency powers, which has proven heavy handed in the past and resulted in 2004 in a legal challenge and a decision of the Montserrat High Court declaring that the Governor acted unconstitutionally during the 2002-2003 mandatory evacuation.
Section 18 – Protection of persons detained under emergency laws
This states, among other things, that when a person is detained under an emergency law, within 30 days of their detention and thereafter at intervals of three months, their detention must be reviewed by an independent and impartial tribunal established by law and presided over by a person appointed by the Chief Justice. This means that someone can be imprisoned for up to periods ranging from 30 days to 3 months without any access to an independent tribunal. This is an extraordinary and frightening power.
Moreover, the draft states that if an independent tribunal recommends that a detainee be released, the authority that locked them up in first place (presumably the police acting on the Governor’s instructions) can ignore the Tribunal’s recommendation. Once again the word “authority” is undefined. It should be defined so that we know who exactly has these drastic powers of arrest and detention reposed in them. Section 18 means that “the authority” can ignore a decision of someone like a judge appointed by the Chief Justice to preside over the tribunal.
This provision, which is contrary to the rule of law and the presumption of innocence, gives the Governor and the police alarming powers to deprive the individual of his liberty. In my view, it is unacceptable.
Section 19 – Enforcement of fundamental rights
The right to seek a remedy under the constitution under Section 19 should not be restricted to oneself, as there may be those who suffer from an abuse of their constitutional rights who either do not know what their rights are or what redress is available to them. The wording of this section should be widened to permit fair minded people (such as caring Counsel) to take up cudgels on behalf of the disadvantaged. Surprisingly, FCO ignored this neutral suggestion.
Section 20 (1) defines a minor as someone under 18 for the purposes of the interpretation of Part 1 of the draft constitution. The definition does not seem to go as far as saying that the age of majority is 18. Under the common law the age of civil liability in Montserrat is 21. This is particularly undesirable in the context of drivers who are licensed at age 17 and are unaccountable to the civil law for a period of 4 years. I think that the draft should state clearly that the full legal age is 18.
The Governor’s powers
One of the most controversial aspects of the draft constitution is the Governor’s powers. Although the current constitution was enacted over 20 years ago, the draft does not reduce the Governor’s powers. This is in contrast to the new constitutions of some of the other British Overseas Territories. Many of the Montserratians interviewed by the Commission were appalled by the fact that the Governor has the right to amend and disallow legislation passed by the Legislative Council without any reference to the Council.
Section 26 gives the Governor an unfettered right to sell land and chattels owned by the Crown. This is unacceptable. The Governor should be required to consult the Montserrat Government before exercising this power and the matter should then be debated in the Legislative Council.
One of the central recommendations of the report of the Constitutional Commissioners was that the Chief Minister should be involved in the process of appointing new Governors. This important recommendation has been rejected. The Governor is in effect an unelected minister of government with wide and important powers, particularly during a state of emergency. For this reason it is imperative that suitable persons are appointed to the position. Appointees should have an adequate understanding of the culture of the Caribbean and Montserrat, the requisite expertise and administrative skills and the ability to manage a state of emergency and the civil service and police. Involving the Chief Minister in the vetting process can only improve the quality and calibre of our Governors. Moreover, there should be some mechanism in place in the draft constitution for the Montserrat Government to complain Governors to the British Government who are incompetent or underperforming or are otherwise unsuitable for the position.
The absolute and unchecked power concentrated in the hands of the Governor is a hangover from a by-gone era of the British Raj and Lord Cromer’s Egypt, when colonial governors ruled with a mailed fist. They are out of date in a modern constitution. True democracy is about checks and balances. In the case of the Governor and his substantial constitutional powers, this begs the question who guards the guard, who protects the people against Governors who abuse their powers? Perhaps the FCO team can tell us.
Section 28 – The power of pardon
The recommendation of the Constitutional Commissioners that the power to pardon someone sent to prison by the court be exercised by the Governor through a mercy committee was rejected by FCO. Under the draft constitution the Governor is required to consult the “Cabinet”. I doubt that many Montserratians are comfortable about Ministers of Government being entrusted with this role. Their involvement is also contrary to the doctrine of the separation of powers.
Exercising the power of pardon is a serious matter, given that it rescinds a sentence of the court. As the report of the Commission put it, quote “The thought that a person, albeit the chief executive, could if he wished set aside the sentence of the court after due process drew near universal condemnation”, unquote. Surely, it is preferable to have a mercy committee made up of reputable persons commanding the confidence of the public to act fairly and dispassionately.
Section 51- Disqualifications for elected membership
Section 51 (1) d – 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;
Montserratians should be fully aware that under the new draft constitution the period of notice that a political aspirant is required to give prior to their nomination will be reduced from one month as it now is in the current constitution, to 10 days. This will make it easier for individuals who have government contracts or are connected with firms or companies that do, to avoid scrutiny and hoodwink the electorate before an election. It is interesting that the early drafts retained the one month period but that somewhere along the line, the FCO team in their wisdom, reduced the period to 10 days. Having regard to the recent opposition to the nomination of the Chief Minister at the last general election and the subsequent legal challenge mounted against him, which did not go to a substantive hearing purely because of a technicality, I find the reduction of the period worrying. We must insist that FCO explain the reason for the reduced period and when it was incorporated into the draft and at whose request. The period should be restored to 30 days.
It was also recommended to FCO that this section stipulates that a person convicted of an offence of dishonesty should be disqualified for at least 7 years from sitting in government. Many countries have such a provision. It encourages honesty in those who seek political power. Unfortunately, the common sense recommendation was refused.
Section 76 – The Public Service Commission
It is unfortunate that the British Government has not agreed to a more independent Public Service Commission (PSC) as recommended by the Constitutional Commissioners and the Committee. This is particularly so as the ongoing decline in the quality and productivity of the civil service (which some say is crippling the island) is attributable in part to poor leadership by recent crop of Governors.
I recommend that in keeping with the past practice, provision be made in the new constitution for a lawyer to sit on the PSC. The latter is to a large extent for the public sector what the Labour Tribunal (which is chaired by a legally qualified Magistrate) is for the private sector. The PSC exercises far reaching quasi-judicial powers and it is important that its members understand these powers. There have been occasions in the past when the PSC has failed to give civil servants appearing before it a fair hearing and a full opportunity to make their defence in accordance with the principles of natural justice. Moreover, local PSC statutory law is in some instances in conflict with the existing and draft constitutions. A number of successful constitutional challenges have already been brought against the decisions of the PSC. They are likely to continue unless the PSC has the benefit of sound legal advice.
A Police Complaints Board
The establishment of a police complaints board was recommended by the Commission but unfortunately it was rejected by FCO. This is peculiar given that a police complaints board has been a fixture in the UK for many years now, where it plays an active role in controlling police misconduct. Why is the British Government applying a lower standard to Montserrat? Cost should not be a concern. I have no doubt that suitable Montserratians would be willing to sit on the board voluntarily.
There is a pressing need for a police complaints board. Currently, the police police themselves. Some of the complaints that are being made to the Commissioner of Police and the Governor about police misconduct are not being investigated impartially and in some instances attract hostile responses from the police. As the report of the Commission put it, a police complaints board will effect greater transparency and justice all around.
Section 84 – The Magistrate
Under the draft constitution, the Governor has the power to appoint and remove a magistrate, albeit after consulting with the Chief Justice. It was pointed out to the FCO team that this is arrangement undesirable as it offends against the doctrine of the separation of powers and is unacceptable in a modern democracy. The magistrate should be appointed by an independent judicial and legal services commission from within the region and removed by the Chief Justice only. This is to only way to insulate him or her from pressure or influence by the Executive branch of government or the perception of such pressure or influence. Contrary to a pronouncement by someone from the Attorney General’s Cambers at a recent public meeting in Salem, there is a need to shield the magistrate from both the Ministers and the Governor. It would be naïve to think otherwise.
A magistrate in Montserrat has considerable powers and can impose fines of up to $100,000 and prison sentences of up to 10 years. As Montserrat does not have a resident judge, its magistrate plays an enhanced role and routinely hears cases that would normally be tried by a judge but are downgraded in order to give the magistrate jurisdiction. The magistrate cannot be regarded as being truly independent of the Executive if he or her is obliged to keep an eye on the renewal of their contracts by the very Executive by whom they are appointed.
Sections 83 (3) & 84 (3) allow the Governor to override decisions made by the Deputy Governor and the PSC where the interest of “Her Majesty’s service” will be prejudiced. The archaic term “Her Majesty’s service” should be defined. What does it mean? It cannot mean the civil service of Montserrat, which is referred to in the draft [82 (30)] as the Public Service.
Section 104 -The Ombudsman
There is an anomaly in Section 104. Subsection 1 says that the Legislature may make provision by Act for an Ombudsman for Montserrat, while sub-section 2 says that an Ombudsman shall be appointed by the Governor. The first is discretionary and the other is mandatory. The sub-sections are uncomfortably juxtaposed. This drafting error can be cured by amending subsection 1 so that it makes it mandatory for the Legislature to make provision for an Ombudsman, failing which Section 104 will be toothless.
Section 107 – Interpretation
As suggested to FCO, the definition of “misbehavior” in the context of Government Ministers should include a conflict of interest situation.
The definition of “judiciary” as “including any member or officer of such court” goes too wide. Officers of the court include non-legal persons such as clerks and even ushers.
Conclusion
Reading the new constitution as a whole, one notes that almost all of the recommendations of the Constitutional Commissioners for a greater participation by civil society in the machinery of the constitution have been rejected. This is a mistake as such participation would provide for a more balanced constitution. It is unconvincing to say that the British Government’s hands are tied by the wishes of the elected government. A constitution is, after all, a document of and for the people, hence the mandate given to the Commissioners in 2001 to consult the people far and wide. The peoples’ unanimous answer was for a greater involvement of civil society. What was the purpose of this exhaustive consultative exercise if the British Government is going to subordinate it entirely to the wishes of the elected representatives? The revision process presents the British Government with a golden opportunity to formulate a balanced constitution that will withstand close scrutiny and the test of time. This should take precedence over the wishes of the elected representatives. The British Government should apply an independent and objective international standard to arrive at the best possible constitution for the people of Montserrat.
The many shortcomings I have identified in the draft constitution are by no means exhaustive but time does not permit me to discuss them all. Having regard to these shortcomings and the widespread and vocal condemnation of the draft by Montserratians as a whole, it would be sheer folly for the Reuben Meade administration to approve it. Doing so would be nothing short of selling out the people of Montserrat.
As far as the British Government is concerned, it has given its Overseas Territories an assurance that it will only enact new constitutions for them if it is satisfied that those constitutions have the approval not only of the elected governments but also the people themselves. As there can be no doubt about the disenchantment of a majority of Montserratians with the draft, the British Government should refrain from passing it into law and should continue the review process.
If the review process is to continue, I strongly recommend that Government change its approach by including on its negotiating team experts in constitutional law and that those experts be permitted to negotiate directly with the FCO team. This approach was profitably adopted by some of the other Overseas Territories. By failing to do likewise, successive administrations in Montserrat, culminating in the present one, have made a colossal mistake and have served the interests of the people poorly. Unless our Ministers of Government recognise their limitations, the wool will continue to be pulled over their eyes.
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I thank you for listening and would welcome your comments.
