18 September, 2010
The proposed new draft Constitution for
Montserrat is filled with anti-democratic provisions. These 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 case of the most senior ranks, this is clearly undesirable;
(b) The Attorney-General, the Financial Secretary and the Deputy-Governor are not elected. As in other
with modern colonial Constitutions, they should have no vote in either the Cabinet or the Legislative Assembly; Overseas Territories
(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 for an indeterminate period into the future. 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
itself; and Britain
(g) The FCO proposes through this draft Constitution to retain draconian and unrestrained powers to legislate for
Montserrat over the heads of the Legislative Council. The new Constitution will preserve (i) the power to enact laws through the UK Parliament; (ii) the use of the Order in Council without prior consultation; (iii) the section 73 power of the Governor to refuse his assent to a Bill that has passed through the Legislative Council without any limitation; and (iv) the section 75 power of disallowance, though this section does require the Secretary of State to refer the offending law back to the Legislature.
These provisions do not increase democracy in
Montserrat. They reduce what little amounts of justice and democracy Montserratians presently enjoy under threat of renewed volcanic activity. As such, they amount to a step backwards in constitutional advance, and are a shame on the constitutional advisers who dreamed them up.