Montserrat 7

It is accepted that Montserratians live in a country under threat by volcanic eruptions as well as hurricanes.  States of emergency may have to be declared from time to time.  The traditional constitutional provisions are well known, and have been tested in the courts.  There is no need to weaken the rights of the average Montserratian only because there is a risk of more natural disasters striking.

The draft Constitution would have the section 18 provision for protection of persons detained under emergency laws 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.  Except in a police state, the courts are the most reliable protector of the rights and freedoms of the citizen.

The evil does not stop there.  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.

This new provision vests draconian and dictatorial powers in the hands of the Governor and the police.  It is completely unacceptable in a modern Constitution of a British Overseas Territory in the West Indies.

Montserrat 6

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. 

Such a deplorable development in a proposed Constitution for a British Overseas Territory is much to be regretted.