THE CONCEPT OF A CONSTITUTION:
WHAT IS IT?
(First part of introduction missing from tape)
Dr. Fergus: …. constitution and perhaps some instances of how it works. This is well within his competence and I am pleased to have him participating in this series. And I am going to hand you over, listeners, to Mr. David Brandt who will make his presentation after which I may or may not pose a number of questions to him but certainly, you, the listeners will have the opportunity to make comments and ask questions. Welcome once again to the series on constitution and over to Mr. David Brandt.
D. Brandt: Thank you very much Sir Howard and good evening, ladies and gentlemen.
The word “constitution” is used in two different senses: the abstract and the concrete. The constitution of a state in the abstract sense is the system of laws, customs and conventions which define the composition and organs of the state, and regulate the relations of the various state organs to one another and to the private citizen. A “constitution” in the concrete sense is a document in which the most important laws of the constitution are authoritatively ordained. Some countries have written constitutions, others have unwritten constitutions.
A constitution is said to be written when the most important constitutional laws are specifically enacted. Probably all civilized states, except the United Kingdom, New Zealand and Israel now have mainly written or enacted constitutions. Those who attain power in a state whether as a result of revolution (e.g. France), war of independence (e.g. United States), federation or confederation of existing units (e.g. Switzerland), or the emergence of a new independent nations (e.g. former British Colonies and Protectorates) put into the form of legislative enactment the manner in which the state is organized, government is carried on, and justice administered. The most important laws constituting the basis of the state are then specified in one formal document or series of formal documents which are binding on the courts and all persons concerned. The constitution is then the supreme law of the state.
A more significant classification of the types of constitution is that into “flexible” and “rigid”. A flexible constitution was defined by Dicey as “one under which every law of every description can legally be changed with the same ease and in the same manner by one and the same body.” Dicey defined a rigid constitution as “one under which laws generally known as constitutional and fundamental laws cannot be changed in the same manner as ordinary laws.” The distinction is of great importance in relation to constitutional amendment.
Where the constitution is rigid, certain provisions are distinguished from others in that some special procedure is necessary for their alteration if they are legally alterable at all. Most European Caribbean constitutions are rigid. The method of amending “fundamental or constitutional” laws varies in different constitutions. It may be the legislature sitting in a special way (as in France) or with a prescribed majority as in the United States, the convention of a special constituent body (as in the United States), the consultation of the component members of a composite state (as in the United States and Swiss Federations) or a referendum of the electorate (as in Switzerland and Australia). Amendment of the United States Constitution, for example, requires either the initiation by two thirds of both houses of Congress and by ratification of the legislators of three-fourths of the states (the usual method) or initiation by two-thirds of the states and ratification by conventions in three-fourths of the states.
In Jamaica some provisions in the constitution can be amended by an ordinary Act of Parliament which is passed by both Houses of Parliament and at a final vote in each House supported by an absolute majority. This is called an ordinary amendment. Then there are some provisions called entrenched provisions. These must be passed in both Houses and at a final vote of two-thirds of all its members. Then there are specially entrenched provisions where their alteration can only be done by two-thirds majority; and in addition, must be submitted to the electorate in a referendum and approved by the majority of the electors who voted.
The provisions falling as ordinary amendments in Jamaica are: the entire chapter on citizenship, the whole of the chapter dealing with the establishment of the office of Governor General and the exercise of his functions; provisions regarding the qualifications of electors and the right to vote.
The provisions falling as entrenched provisions include: those dealing with fundamental rights which are: protection of life; protection from inhumane treatment; protection from slavery or enforced labour; protection from arbitrary arrest or detention; provision to secure protection of the law; protection of privacy of home and other property; protection of freedom of conscience; freedom of expression; freedom of assembly and association.
The entrenched provisions in the Jamaica constitution also include Parliamentary privilege of freedom of speech, the establishment, independence and security of tenure of the Director of Public Prosecution, the Judges, the Service Commissions and the definition section of the constitution dealing with these protected provisions.
The provisions falling as specially entrenched provisions include the provisions respecting the Supremacy of the constitution over inconsistent laws, the establishment and composition of Parliament, the system of appointing senators, and the frequency of Parliamentary meetings.
Sometimes, a constitution, or part of it, may not be legally alterable at all, as certain articles of the constitution of the United States, e.g., the representation of a state in the United States Senate (unless that state consents) or it may be unalterable before a certain date, e.g., certain provisions of the United states constitution before 1808. In such cases any alteration will legally amount to a revolution.
The Parliament of Montserrat cannot amend the constitution. This must be done by Her Majesty with the advice of the Privy Council. (Section 8 of the Montserrat Constitution Order 1989).
Those who frame a rigid constitution are in a dilemma. They may give the power to interpret the constitution and to declare legislation invalid, afterwards, as being repugnant thereto, to ordinary courts or to a special constitutional court. Here the final and supreme power would appear to be vested in the courts, which would usually be contrary to the intention of the framers of the constitution. Why should Judges whose function is primarily judicial, set up their own views in opposition to the will of a popularly elected assembly? Two answers may be suggested: First, the Judges may be appointed by the executive which initiates legislation, and presumably keeps in touch with public opinion; or alternatively the “will of the people” is supposed to be embodied in the constitution in a more permanent way than it is represented in the legislative assembly of the day.
On the other hand, if the legislature is given the power to interpret the constitution, what guarantee is there that it will ever hold itself to be wrong?
In most states it is either the ordinary courts (e.g. in the United States and in the former British Colonies) or a special constitutional court as in the constitutions of the Republic of Cyprus (1960) or West Germany and Italy. Another device is to establish a constitutional council to which bills may be referred before being submitted to the Head of State for his assent.
In all British Caribbean Countries and the U.S.A. the courts are made guardians of the constitution. They are invested with the power of construing the constitution and so determining the constitutionality of executive and legislative actions. They have the power to declare any law which is inconsistent with the constitution to be void to the extent of such inconsistency. (I will give a few examples)
The Antigua Parliament passed a law called the Public Order Amendment Act which made it an offence, among other things, for any person to print or to distribute any false statement which is likely to cause fear or alarm in or to the public, or to disturb the public peace or to undermine public confidence in the conduct of public affairs.
Mr. Tim Hector was charged in respect of an article published in the OUTLET newspaper with an offence under the Act. He challenged the prosecution on the ground that the specific provision under which the charge was laid violated his constitutional right to freedom of expression. The Judge at first instance ordered that the conviction be quashed. The Court of Appeal reversed the Judgement and Mr. Hector appealed to the Privy Council who ruled that the charges offended against the constitution. The Privy Council, in that judgement said, that “in a free democratic society, it is almost too obvious to need stating that those who hold offices in Government and who are responsible for public administration must always be open to criticism. Any attempt to stifle or fetter such criticism amounts to political censorship of the most insidious and objectionable kind. At the same time, it is no less obvious that the very purpose of criticism leveled at those who have the conduct of public affairs by their political opponents is to undermine public confidence in their stewardship and to persuade the electorate that their opponents would make a better job of it than those who are presently holding public office. In light of these considerations, their Lordships cannot but help viewing a statutory provision which criminalises statements likely to undermine public confidence in the conduct of public affairs with the utmost suspicion”
In Anguilla, Radio Anguilla is a Radio station owned by the Government of Anguilla within the responsibility of the Minister of Information and Broadcasting. The Government suspended a Radio Programme which was hosted by Mr. Benjamin, a private citizen. Mr. Benjamin applied to the High Court and sought a declaration that the suspension of the programme was a contravention, active suppression, an abridgement of his rights to freedom of thought, freedom of expression and freedom from discrimination as guaranteed and enshrined in the Anguillan constitution. Mr. Justice Saunders held that the Minister’s decision to suspend the programme was a contravention of Mr. Benjamin’s right to freedom of expression guaranteed and enshrined in the constitution. The court of appeal set aside Mr. Justice Saunders decision and Mr. Benjamin appealed to the Privy council who held that Mr. Justice Saunders was right and the Minister was wrong to suspend the programme and ordered the Government to pay damages to Mr. Benjamin and his legal costs in the High Court, Court of Appeal, and the Privy Council. We have a like provision in our present constitution. Anguilla is a dependent territory like Montserrat.
In a decision delivered the 30th October 2000, the Privy Council agreed with a judge in Dominica that the monopoly conferred by Cable and Wireless’ licence of the 29th April, 1995 was in contravention of the provision of the constitution of Dominica, which states: “Except with his own consent, a person shall not be hindered in the enjoyment of his freedom of expression, including freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or class of persons), and freedom from interference with his correspondence” and accordingly, the monopoly was invalid. Likewise, the court said that Section 7 of the Telecommunications Act of Dominica, which was passed by the government, to the extent that the minister is prohibited from issuing a licence to any person other than Cable and Wireless is in contravention of the provisions of the constitution. This means that any monopoly granted to any entity can now be challenged in the courts in an appropriate case in any country that has such a clause in its constitution. We have such a clause in our constitution.
In a case called Spence and Hughes vs. The Queen, which was recently decided by our Court of Appeal, two men were convicted of murder and sentenced to death in St. Vincent and St. Lucia, respectively. They raised constitutional arguments against the mandatory death sentence. The grounds for their appeal were; among other things, that the law which states upon a conviction for murder, the Judge was bound to pronounce the death penalty in every case without consideration of the character, the record of the individual offender or the circumstance of the particular offence was inconsistent with the fundamental respect for human dignity underlying the constitution which prohibits the imposition of inhumane punishment and treatment. The Court of Appeal agreed and stated that in the future upon finding a man guilty of murder, before the death penalty can be imposed the court has to conduct a judicial hearing, and that the jury should hear evidence in mitigation and could then decide on a lesser sentence than the imposition of the death penalty. For those already convicted and are waiting execution they must be brought back to the court and the Judge will conduct a judicial enquiry and decide what penalty to give them. This made the death penalty no longer automatic.
In the premises, Parliament cannot pass any law it likes neither can a Minister, Civil Servant, the Police or anyone who holds public office do whatever they like, whenever they like. Whatever they do must be in accordance with the constitution or the citizen can apply to the court for redress.
In closing, the constitutional law of the state is a law relating to the constitution, more specifically, those which relate to the following topics, among others: the method of choosing the Head of State, whether king or president; his power and prerogatives; the constitution of the legislature; its powers and the privileges of its members; where there are two Chambers, the relations between them; the status of the Ministers and the positions of the Civil Servants who act under them; the relations between the Central Government and local authorities (if any); treaty-making power; citizenship; the raising and spending of public money; the general system of courts, and the tenure and immunity of judges; civil liberties and their limitations; the parliamentary franchise and electoral boundaries; and the procedure, if any, for amending the constitution.
What goes into a constitution ought to depend on the people of the particular country. This is what gives the constitution its validity and authority. Professor Wheare says it should be “home grown”, ….. “sprung from their own soil.” I agree with Llyod Barnett when he says that there should be an opportunity for the masses of the people to feel that their constitution was their own creation and belonged to them. Could this happen in our case when Britian has a veto power?
Although our constitution follows the Monarchical form, and the Westminster model of parliamentary government, we must not necessarily reject it as foreign. We may wish to make adjustments to it that would best meet our needs.
In my view, it is better to follow a form with which we are conversant and which has roots in our history. In commenting on this point regarding the approach which Jamaica took in writing its new constitution, Barnett said “the constitutional tree has grown from a seed which belongs to a common Commonwealth species, but sown in Jamaica three centuries ago and has been pruned in accordance with the requirements of the local climate. Its manner of growth is therefore distinguishable from that of the Imperial engrafting or direct transplantation from Westminster.” I hope that in the end, our views will be reflected in the new constitution.
Dr. Fergus: Thank you very much, Mr. Brandt. And there you are ladies and gentlemen. You have been given an elaborate definition of constitution with some illustrations as to how it works and how important it is for a people. I’m going to open the lines and invite you to participate by posing questions or making comments. Before you start, I’ll just say that I noted that according to you Mr. Brandt that the Jamaican prescribes the frequency of parliamentary meetings. I’m pleased to note that because one of the problems with many Caribbean parliaments is the infrequency with which they sit. And when parliament does not sit frequently it robs the opposition of opportunities to question Ministers about their policies and the provisions they make for the country. And when this happens, it really abridges the scope of democracy. So I just thought I’d make that comment because I am a believer in frequent and regular sittings of parliament.
D. Brandt: The object of the opposition really is to keep the government on its toes and a skillful speaker like you, if parliament is not called frequently, I know for certain, that in your practice you enlarged the time given to the opposition to ask questions of the government
Dr. Fergus: Yes. Hold that point. I think we have a caller. Could you come in caller? We are listening.
Caller: Good night. I just want to clarify two things. One is in relation to your comment, Mr. Brandt: The radio station in Anguilla – Are you saying then that the producer of Labour Speaks if he can take action against the government for the removal of his program? And the second one is the monopoly which Cable & Wireless has, is it illegal?
D. Brandt: In relation to Labour Speaks, I would have to get a briefing as to the circumstances under which his program was taken off before I can render a legal opinion. And of course, a lawyer’s office is always open for him or for anyone who feel aggrieved to brief the lawyer and in such a case, I am sure if he has case, at least this lawyer would be fearless in putting it forward. You see, it is very important that there are these fundamental clauses in a constitution because when you have these clauses in a constitution, politicians who believe they could do what they like, they could pass whatever laws they like, they could interfere in whatever they like, there is a control: the control of the courts. And it so important because in our system you have the separation of powers where you have the legislative, the executive and the courts. And the courts are very jealous of persons interfering in their sphere. I could give you an example. Someone under 18 was convicted in St. Kitts for murder. And under the constitution in St. Kitts, he could not be executed or the sentence of death could not have been pronounced upon him but there was a law passed which gave the governor-general the authority to commit him for the queen’s pleasure. And the matter was taken to court and the judges said, the question of the imposition of the sentence belongs to us, you are the executive, you cannot interfere in the judiciary. So every law that is passed must be passed according and consistent with the constitution. And the words are written wide enough so that anything that is done, there is this yardstick against which you can judge it.
In relation to Cable & Wireless, what the judges were saying is that to give somebody the right of an exclusive licence in the circumstances was unconstitutional and further, the judges have a right and the authority to strike down legislation that is not constitutional. They do no have to strike down the whole law, as they did in this case. What they did, they said that section 7(1) was unconstitutional and when something is unconstitutional, it does not become unconstitutional just upon the pronouncement by the judge but it goes back to the time when the law was passed.
Dr. Fergus: Following up on that, Mr. Brandt, would you say that in a sense, judges make laws? Because I would think that when they make some of these decisions they become precedents and people like yourself refer to them and after a while, they become, in an operational sense, a part of the law. I’m speaking from the point of view of a layman, could you comment on that?
D. Brandt: In several instances, in dealing with ordinary legislation, a judge is said to interpret an ordinary law. In relation to a constitution, he construes what the constitution means. And, in my presentation, I said that sometimes something is written in the law that is intended to be lasting and it should outlive any popular feeling on a specific day. The law is always alive. In fact one of the judges said that it never passes the age of child bearing. So having regard to the evolution of the society, the forces in the society, the judge interprets the law, he never makes the law. And when he interprets the law, they say that is what parliament meant when it passed the law. They do not make it; they interpret it but they say this what parliament meant and the politicians had it wrong.
Dr. Fergus: Still taking your calls and comments for Mr. Brandt. On the matter of the judges, it is interesting that a judge may come up with a ruling; another panel of judges can set that aside and in each case, they base their rules on rational argument but in the end when it reaches the court of final instance, in our case at the moment, the privy council, that’s the end of it. That’s the one that stands.
D. Brandt: Precisely. That’s the one that stands. Sometimes, as is shown in the ……
Dr. Fergus: We have a call. Could you come in please.
Caller: Good evening. My limited knowledge on the subject tells me that there was an order called the Letters Patent of Montserrat and then we heard later on about the Constitutional Order of 1989. I would like if Mr. Brandt can link them if there’s any relevance at all.
D. Brandt: I think last week, Dr. Fergus, in his presentation of historical developments in Montserrat stated in that presentation that there were several documents before 1989 in which the constitution of Montserrat were written. And then after 1989 all those documents, including the Letters Patent, that they were done away and a new constitution was written and some of the ideas that were in the old constitution were written into the new one but especially, the fundamental rights provisions, they were entrenched in the constitution for the first time. So we no longer have this Letters Patent. And I believe Dr. Fergus may want to comment on this as well.
Caller: I’d like to ask you another question, Mr. Brandt, before I leave. We are on the verge of a constitutional review. I wonder if you can let the listening public know some of the areas that we might look at, the public might be looking at or need to think that may be examined in a review of the constitution because I suppose that most people are not very familiar with all the tenets in a constitution. And hearing of a constitutional review, many of us would be anxious to know some of the areas which very likely would be looked at and examined or possibly changed. Thank you.
D. Brandt: I would not like to be too extensive in relation to it because next week Mr. Jean Kelsick will be a presenter on the Montserrat constitution. But in respect to what you say, I think that we should embody in that constitution, the provision for the leader of the opposition. In our constitution, people are called the leader of the opposition but there’s no such provision in it. We may wish as well … Some time last week a citizen was discussing with me, this issue. They said that in St. Thomas because of the composition of the people from the islands that you find that more people from outside St. Thomas live in St. Thomas and are entitled to vote and there is no bar upon anyone of them becoming chief minister or senator or whatever it is. And, that he was suggesting to me that when the time for the constitutional revision comes, that we should put in the constitution that a person who holds the office of chief minister should be a Montserrat born. That is not an unusual provision because in the United States you have to be an American born in America to become a president of the United States. I think those are two of the things that I can think of, off hand. It may be too, that the people may say they want an ombudsman. An ombudsman is a person that would look into grievances by civil servants and officials. And in many instances when he examines those, they are put right and it is not necessary to go to court and those officials know that what they do is subject to scrutiny so they might act in a better way.
Dr. Fergus: All I’d like to add to that is that I believe that the commission will be explaining to persons some of the areas that might be examined in a review of the commission.
D. Brandt: I would like to add as well that in order for people to understand what is in the constitution and what they may like to see, I feel that before the commission actually sits, that the government should make it possible to have lectures in the byways and hedges for people to understand the animal because how could I make a recommendation about something if I don’t know what it is. In several countries, you have people who belong to the reading public. In Montserrat, the majority of the people listen. And if you ask the majority of the people what is in the constitution, they do not know. So I believe before this commission sits that an opportunity should be given whereby the people are schooled in the provisions of the constitution. I think it would be more meaningful. Otherwise, you will find that mostly it is the more educated people whose views may be reflected in it and not the masses and I am for the masses, of course.
Dr. Fergus: Any other comments or questions? We did have an extensive lecture on the definition of the constitution and some illustrations, as I said of its importance and the way it works. Yes, I think we have another caller.
Caller: Yes. You said that we will have a talk on the Montserrat constitution next week, I gather. The question I’d like to ask though: will this be the first time we will be actually talking to our constitution or a constitution that affects us because normally the constitution that we have now who gave us that constitution or what part did we play in writing that constitution?
Dr. Fergus: We didn’t any play any part in writing that constitution. That constitution was imposed, as it were. So, this is the first time, in fact, that we are being asked to participate in formulating our constitution. We intend to consult people so that their views will be reflected in whatever recommendations are made to the people who will put together the constitution.
D. Brandt: I wonder if the remit if the commission would be to go to Montserratians whereever they are as was done when we were amending the law in relation to the elections because as we are aware, most Montserratians are overseas. And I feel that an opportunity should be given whereby the commission should be allowed to go to different cities to talk to Montserratians to canvass their views in addition to getting information by electronic means. I know that is not within your power, but I’d like to make the point that those who can hear, let them hear.
Caller: I think the point that you raised there about going to Montserratians wherever they are and overseas is something that I imagine will very well come up in the next constitution because with regards to the election that just went out. Yet, there was always the strong view about people not being able to vote and so forth so I can well imagine that that in itself will be an issue that will form part of the constitution and big discussion as to what will prevail for the next 5 to 10 years where Montserratians who are not in Montserrat are concerned and what role they will play in matters affecting Montserrat.
Dr. Fergus: Yes. You certainly raised a very interesting issue. I wouldn’t want to pre-empt any answers, but it is a very interesting issue and I expect that the remit of the commission should be published so that people know what their remit is. My remembrance, my memory is that it speaks of wide consultation.
D. Brandt: I would like to say as well that the names of the commissioners should soon be published. Without any disrespect, I feel that the more stature that this commission has, the more understanding that the members have about the constitutions conventions, the more respect that Britain would give it. For example, I know when the Grenada constitution was being written that professors from the University of the West Indies were invited from the faculty of law, were invited to sit on the commission. When the Barbados independence thing was being done, the University was invited to participate, the faculty of law, the faculty of government. And that is why when my government set up the commission, we invited the University of the West Indies as well in addition to Sir Howard. So, I think this is a very serious exercise and this document that we are going to draw, it is going to last for a long time. Remember that the American constitution is about 200 years old. And it is a document that is very small but it is well put together. And we have this opportunity and we cannot use it just by giving people political patronage or whatever it is. We have to choose the best persons who would sit on this commission, to understand what we want, to understand what is possible, to understand what are in other constitutions so that we have the best document in the circumstances.
Caller: Doctor, I suppose this is all in preparation for the review on the constitutional airing that you’ll probably have.
Dr. Fergus: Only, indirectly, really because as a University representative carrying out public education, this falls within that remit and we have undertaken similar activities but it is timely because as I said last week, the whole issue of constitutional review was in the air and it is being carried out in several countries, certainly in nearly all of the British overseas territories and in a couple of independent states in the Caribbean, as well. So it’s indirectly related, really, to give people background information.
Caller: So we can expect perhaps then, you’ll probably be continuing this education and perhaps help people understand what the role is of our members of the legislative council and the executive council as we have it so that people know what different people’s responsibilities and what their duties are.
Dr. Fergus: Well, the approach will have to be formulated in association with all of the members of the commission. So I wouldn’t want to elaborate here on the methodology without the benefit of the input of the other members of the commission. Thank you very much. We have another caller.
Caller: Good evening. Changing the constitution, as we’re about to do, that as Mr. Brandt says, it may last 200 years if we live that long. I don’t believe that you should have a 5 wise man as learned as it’s going to be, voice their opinion on the majority of the public. I believe each commissioner should have a duty to inform, to explain to people what it’s about and the decision should never be left to the five. ??? . Mr. Brandt was right. We should have a wide cross-section of the public that is concerned and have meetings and discuss the changing of this constitution, otherwise, if we are going to have five wise men who are prepared to voice their opinion on the rest of us or the rest of the public, it will just cause a lot of problems. So we really need a wide cross-section of the people involved in this exercise rather than having five wise men who probably will decide on a constitution to suit theirselves or their views. So I like the line Mr. Brandt is taking.
Dr. Fergus: Well I agree with your comment. Thank you. We are still open for a few more questions. We have until 9 o’clock. Can we take another caller?
Caller: I for one am very glad to hear about this constitutional review because I think that over the past four or so years, I’ve been an advocate for a review of the Montserrat constitution. First I’d like to ask Mr. Brandt, if a constitution makes provision for according a person … (tape cut off)
D. Brandt: …. It is one that one that is going to be given to us by sufferance and even though – and that is why I asked the question in my presentation, how much of our views will be placed in this document? Is it a matter of form? Because even though we put forward proposals, Britain may say no.
Caller: So, in essence, Mr. Brandt, we are going to get another artificial – or what I would term, artificial nationality, so to speak.
D. Brandt: I cannot say that we are going to get it. I can’t see in the future. I have to wait to see what this animal is. But I say that having regard to history that one has to be mindful of these things because it is possible for us to go through this exercise and we want this – and then when we go to Britain, Britain says, no, you can’t have this. And, they have the power through the West Indies Act of 1962—it’s the same power that gave independence to other countries and they have a reserve power under it. And if you look in the front part of our constitution, you will see, her majesty reserves the right. So until we become independent, what we are putting forward would have to be negotiated with the British.
Dr. Fergus: The caller is right, though. What he is, in fact, saying is that there are limitations, however it’s expressed, there are limitations because even now we operate under the British Nationality Act, of what, 1981 probably.
D. Brandt: Yes. And the animal that is giving us this right is just an amendment of that act. I might say here that even if we were to get the British nationality, the question is we may not be entitled to all the rights of British people who are resident in England. They may require us to have a period of residency first. They might say, if you don’t live in England for three years or two years, that you can’t housing, that you can’t get whatever it is, that you can’t get education for your children. And which one of our poor people could go and live in England for three years on our own income? As one of our judges said, I think it was Williard Denning when he was talking about freedom and freedom of people, of movement, etc. He said, the Ritz in England is open to everyone, but who can enter? So there may be practical difficulties. It may be that we have it – the citizenship. And there may be limitations, for example, I know that people who are living on the main land in England, they get a certain right through the United States in terms of going to America. Would that be accorded to us? As British citizens just because we were granted it or would have to be renegotiated?
Dr. Fergus: I doubt it, I doubt it.
Caller: Mr. Brandt, I realized in your presentation that you dwelt a lot on those rights that are being accorded to people under the constitution and I just want to comment here and say, well that one with freedom of expression, which is very dear to me, I think that I’ll take you up on your tomorrow, in office.
D. Brandt: And I am sure that you will come well prepared.
Caller: I will do that. The next question, Mr. Fergus: I am not really au fait with the whole constitutional review committee and so forth – so my question to you is who makes up that committee and how were the persons who make up that committee chosen?
Dr. Fergus: I can only tell you as far as I know, because I was asked to be a member of the Commission by the governor. And listening to our newscast tonight, it said, Executive Council. So I can only conclude that the members of the commission were chosen by the government of Montserrat meaning the governor-in-council. And the other thing that I think I know and I think I can say is that one of the members that the – in fact, to correct what I just said, I think the opposition was asked to name one of the members. So it wouldn’t be totally true to say that the members were all determined by the government. I think the opposition has a representative on the commission.
Caller: Will this commission be sitting and speaking with groups, people, something along the lines similar to what was done with the election commission?
Dr. Fergus: Sir, it has to else it wouldn’t make a single sense. It has to. It has to speak with civil society. It has to talk to important groups. It has to invite memoranda from important groups: the trade unions, chambers of commerce and industry, youth organisations and so on. It has to be a people’s thing. People would have to own it in that sense to the extent that people can own it because as Mr. Brandt indicated that we are still a British overseas territory and that itself has limitations. But yes, it has to, it has to do exactly what you are describing.
D. Brant: And that is why, caller, I was saying that the prestige of the persons who sit on the Commission is very important. If a Professor Carnegie sits on the commission and somebody else like that and they make a report with Sir Howard, the British will find it difficult to resist. And those people, those in government who study West Indian history in relation to the British, they will know what strings to push and in the international arena, make it difficult. I don’t know the members. I didn’t listen to Radio Montserrat this afternoon because I was engaged. And that it is very important.
Dr. Fergus: But I feel that that’s one side, the point you are making. But I feel that persons who can speak for the people, who have the heart-throb of the people, so to speak, ought to be included as well.
D. Brandt: Oh, no. What I was saying was not to the exclusion of those people. The point is so obvious that I didn’t think I needed to say it explicitly. But the representatives of the people have a right to choose. And in my presentation, I said that in some instances they even a right to choose judges. So I am sorry if I was misunderstood. But I said, in addition to those you have people who are consultants to commissions – that it’s not only the commissioners, you have people who areconsultants. You have a lawyer may be who is a consultant to the commission.
Dr. Fergus: You raise an interesting point. I recall that in discussion with the governor, he did indicate that if one thought it necessary, one could engage relevant consultants, one could consult.
Caller: I’m only hoping that seeing that we are a British colony as Mr. Brandt has been stating for the night, that definitely at the end of the day, that the views of Montserratians will definitely be taken on board when the final constitutional document comes out.
D. Brandt: I would like to say that somebody asked me a question earlier, what would I like to see? I would like to see that when the constitution is written that even Britain chooses the governor that the governor should be a Montserratian. I think that we should try to put that in the constitution. And the reason for that is that we are in this stage of tutelage and Britain has undertaken not only to develop us economically, but to develop us as a people maybe to take the position of independence when the time comes. And how are we going to take that position if we never had practice in those areas? And I feel as well, there are other things that I feel which I will put to the commission – there are certain offices which are staffed in a particular way that should be staffed in another way. I don’t want to …
Dr. Fergus: I don’t want to pre-empt the other presentation next week when Mr. Jean Kelsick will be talking on the Montserrat Constitution.
D. Brandt: Yes. I will abstain.
Caller: Anyway, thank you very much for listening to me.
Dr. Fergus: Well, yes -- thanks for your very valuable input. And if there is no final question I think that we had a very profitable night. We have even gone on to discuss the constitutional commission and its work. And that’s all to the good because some of us are getting insights and guidance. And we are grateful to those persons who called in and shared their views, made comments and asked questions. And we’re extremely grateful to lawyer, David Brandt and former chief minister. It appears as though he has a job tomorrow as a result of this program.
D. Brandt: Well there are several fundamental rights. Even in respect of our constitution, I know that cases have been thrown out of court because the constitution talks about unreasonable delay and the cases have been brought two years after and a constitutional point was raised and the judge accepted that this was contrary to the constitution. And we have those fundamental rights in it.
Dr. Fergus: Thanks. You’re not just a lawyer but a politician. But I did say you were a former chief minister. Thank you for your input and thank you ZJB, thank you Mr. West, for the part you have played. And good night, ladies and gentlemen.