06 September, 2010
The section 17 provision in the draft Constitution for declaring 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 in declaring a state of emergency on the advice of Cabinet unless otherwise instructed by the Secretary of State.
That is not all. There is a further whittling away of the rights of Montserratians in the section. The traditional 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 in the draft Constitution. The new test would be “reasonably justifiable for dealing with the situation that exists.”
The alteration of the test for justifying a declaration of a state of emergency is undesirable, particularly as that provision has been judicially reviewed in
Montserrat. One may infer that the reason for the watering down 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.