THE MONTSERRAT CONSTITUTION
Dr. Fergus: Good evening listeners and welcome from the University of the West Indies to this 3rd in the series on constitution. We are pleased to bring this to you facilitated by ZJB Radio Montserrat.
We have so far had two lecture discussions: one on the context of the constitution, the historical context, the evolution of the constitution. And last week we heard from lawyer, David Brandt on the definition of a constitution and he drew examples to support his presentation from the Caribbean context and not just the Caribbean context.
Tonight we have another lawyer in Mr. Jean Kelsick to make the presentation and he will be dealing with the Montserrat constitution, with aspects from the Montserrat constitution as he sees fit. At the end of his presentation, I will lead off the discussion and throw open the telephone lines here at ZJB for your comments and your questions.
Mr. Kelsick, welcome to ZJB and the University, so to speak and we are very pleased that you have consented to participate in this series and I’m going to hand the mike over to you to talk to us about aspects of the Montserrat constitution and treat the subject generally as you see fit. Mr. Kelsick.
J. Kelsick: Thank you Sir Howard and good evening ladies and gentlemen. What I propose to do in the relatively short time allotted to me is to attempt to define a constitution, to trace the immediate history of Montserrat’s Constitution, present a brief overview of its provisions and discuss some specific and topical issues which I think may be of interest to you.
What is a constitution? The distinguished English constitutional lawyer Owen Hood Phillips described it as follows:
“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 powers of organs of the state, and regulate the relations of the various organs to one another and to the private citizen. A constitution in the concrete sense is the document in which the most important laws of the constitution are authoritatively ordained”.
The equally eminent constitutional lawyer Stanley de Smith defined a constitution as
“an identifiable document embodying a selection of the most important rules about the Government of a country”
He said further that a constitution is primarily about political authority and power – the location, conferment, distribution, exercise and limitation of authority and power among the organs of a state.
To understand the Montserrat Constitution one must know something about the legal basis for it and the immediate circumstances that give birth to it.
The Montserrat Constitution Order of 1989 was implemented by an order of Her Majesty in Council. It is interesting to note that the British Government may legislate for the Dependent Territories by two methods. The Westminster Parliament may pass an act which is expressed to apply to a Territory. An example of this is the British Nationality Act. The more usual method, however, is for a Parliament to delegate authority to the Crown to make orders in Council. This is how our Constitution was enacted.
You will see this from the preamble of the Constitution (and for those of you who have it in front of you, you can read it along with me). The preamble reads as follows:
“Her Majesty, in exercise of the powers conferred upon Her by section 5 and 7 of the West Indies Act 1962(a) and of all other powers enabling Her in that behalf, is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows:” etc.
As can be seen the Constitution was passed not only pursuant to the general powers reserved by the Crown, which are very wide and described in thoroughly open terms by this provision, but also under the West Indies Act 1962. Section 5 (1) of the Act empowers the Crown to make “laws generally for the peace, order and good Governance of the Colony or for such limited purposes as may be so specified.”
It is important to grasp the significance of the West Indies Act, as it tells us what kind of constitution we have. Some constitutions are said to be made up of fundamental law and also of a kind of higher law. The fundamental law is that which designates the principal organs of government and invests them with authority. The higher law is superior to this and cannot be altered except by a specially prescribed and jealously guarded procedure for amendment. Such constitutions are sometimes described as rigid. An example of one such constitution is that of the United States of America which cannot be easily altered.
Our Constitution contains no such higher law and can therefore be described as a flexible constitution. This is because of the express reservation of legislative authority to Her Majesty contained in Section 8 of the Constitution. It is therefore open to Her Majesty at any time to revoke or vary the Constitution or any provision in it. This would be done in the same manner by which the Constitution was implemented in the first place, namely by an order in Council. Unlike most other constitutions therefore, it cannot be said that any of the provisions in ours are entrenched.
Montserrat’s Constitution was proposed after problems with its offshore financial industry surfaced in the late 1980’s. It displays a number of constitutionally advanced features. It has the widest delegation of special responsibilities, apart from that of Bermuda. In addition, collective responsibility is required of Exco ministers on all Government matters.
The requirement of collective responsibility is to be found in Section 10(2) of the constitution and I would like to read it because it is a very important concept. What this subsection says is that:
“Subject to the provisions of this Constitution, the Executive Council shall have the general direction and control of the government of Montserrat and shall be collectively responsible therefor to the Legislative Council.”
The concept of collective responsibility is important because Ministers of government are expected to speak with a united voice and that is what this concept is all about.
Our constitution also contains a striking provision in Part IV. The opening paragraph of this Part, entitled ‘Fundamental Rights and Freedom of the Individual’ declares recognition that ‘the realisation of the right of self determination must be promoted and respected in conformity with the provisions of the Charter of the United Nations.” It is interesting to note that although each of the constitutions of Bermuda, the Turks and Caicos Islands and Anguilla makes provision for the protection of fundamental rights and freedoms, none of them contains this Declaration.
Two historical reasons have been offered for the more advanced nature, within a colonial context, of Montserrat’s Constitution. To quote from Elizabeth Davies’ useful book ‘The Legal Status of British Dependent Territories ‘ (page 227):
“A number of other features identified in the Montserrat Constitution show that it is more advanced than most of the others. Two historical features are material to this. First, there is the separate colonial status of Montserrat in 1959 when it became a member of the Federation of the West Indies. Relatively advanced constitutional provision was made for each of the Federation colonies, with a view to their becoming a single independent federal state after a period of five years. The 1959 constitution was replaced in 1989 by the current constitution. Naturally, the 1959 fairly advanced provision was used as a starting-point in the preparation of the new constitution. The second feature of relevance is the more positive stance that has been taken on numerous occasions in Montserrat in the 1980s onwards towards the attainment of independence. More advanced constitutional provision is appropriate in the light of this.”
Another feature, along with Bermuda’s, which singles out Montserrat’s Constitution as more advanced is that it does not reserve legislative authority to the Governor, thereby placing him on a lower power scale than most of his British Dependent Territory counterparts.
In the BVI for instance the Governor may enact a bill which, acting in his discretion, he considers it necessary or expedient for the purposes of any of the matters for which he is responsible. In Anguilla the Governor acting in his discretion may legislate if he considers it expedient in the interests of public order or public faith. The Governor has even wider legislative powers under the Constitutions of the Turks and Caicos Islands and Cayman Islands. One of the direct reasons for the omission of a similar power from the Montserrat Constitution is well summarised in the 1989 publication of Keesings ‘Record of World Events’ in which he stated as follows:
“Timothy Sainsbury, Under-Secretary of State at the UK Foreign and Commonwealth Office, visited Montserrat on Nov.5, presenting a draft constitution which would consolidate the Territory’s various constitutional instruments into a single document, partly as a consequence of UK proposals to improve the regulatory framework of the offshore financial sector. During a visit to London by a delegation from Montserrat led by Chief Minister John Osborne, it was agreed in an exchange of letters on Dec. 7 that a new constitution would be introduced as soon as possible along the lines of the Nov 5 proposal but with amendments including a provision recognising Montserrat’s right to self-determination. In return for accepting the Governor’s supervision of the financial sector, a provision was included recognizing Montserrat’s right to self determination and an article giving certain legislative powers to the Governor was dropped.”
And that right to self determination is embodied in Section 45of our constitution, which is a direct result of these events, and it’s an important section and I’d like to read it. It states that:
“Subject to the provisions of this Constitution, the Legislature shall have power to make laws for the peace, order and good government of Montserrat.”
I would like now to look at the Constitution itself. It is made up of a Preamble and 4 Parts. Parts 1 to 3 constitute and regulate the 3 organs of Government, namely the Governor, the Executive and the Legislature. The provisions contained in these parts are relatively straightforward and uncontroversial. Part 4 introduced into the law of Montserrat for the first time what is effectively a bill of rights. Its provisions are of fundamental importance to everyone, particularly the individual.
As time does not permit a detailed analysis of the Constitution I would like instead to examine a few provisions, which I think are of wider and topical interest.
Section 5 of the Preamble – this section confirms the supremacy of the Constitution. It states that other laws, for instance Acts passed by Legco, will be construed so that they conform with the Constitution. The court has described this process as reading down legislation in order to achieve conformity. It is important to grasp the practical significance of this. Most of the Laws of Montserrat were passed decades before the enactment of a constitution was considered and are not designed to conform to a constitution. Not surprisingly therefore conflict between the two, particularly the Bill of Rights, will arise from time to time. The resolution of such conflicts is essentially a matter for the court.
I would like to point out here that in addition to the three organs of Government, that is to say: the Governor, the Executive and Legislature, the courts play a pivotal constitutional role. Not only do they resolve issues of conflicting laws but they also have the power to interpret a constitution where necessary. The constitutions of the U.S.A, Canada and Australia have been actively interpreted and moulded by the judiciaries of these countries. This is a process which is also likely to take place in Montserrat over time. It is interesting to note that our Constitution does not expressly authorise the court to perform this role, although there can be no doubt that it has jurisdiction to do so.
On the other hand, section 66 expressly empowers the High Court to redress any violation of a citizen’s rights as set out in Part 4. Most challenges under this Part will be brought against Government or the police but occasionally they are brought against large corporations. Just last year a company in Dominica successfully challenged, under Dominica’s Constitution, a monopoly given by Government to a multi- national corporation in an important case that went as far as the Privy Council.
More recently the Privy Council, in a landmark decision centering on the right to freedom of expression which is enshrined in the constitution of Antigua (and ours as well), ordered the Antiguan Government to issue a radio broadcasting licence to a local company. Their Lordships reasoning, which extends to Montserrat demonstrates the organic nature of a constitution. They said as follows:
“ the image of the Constitution as secluded behind closed doors is not one that their Lordships adopt.. Nor would it be right to think of the Constitution as if it were aloof or, in the famous phrase of Mr. Justice Holmes ‘a brooding omnipresence in the sky’ “ On the contrary human rights guaranteed in the Constitution of Antigua and Barbuda are intended to be a major influence upon the practical administration of the law.”
This pronouncement illustrates the fact that the Constitution is very much a living document, one which the private individual should not be reticent about harnessing. In his hands can prove a powerful tool against abuse of authority by Governments and big business. Politicians and parliamentarians alike should never lose sight of its provisions when legislating, entering into contracts which bind the general public and dealing with citizens generally.
Many successful constitutional challenges against Government have been mounted in other Caribbean islands. Unfortunately, I am not aware of any having succeeded in Montserrat as yet, although one is before the High Court as I speak which may have important implications for the island. Why this lack of constitutional action by Montserratians? A former Attorney General put it down to ‘the fact that Montserrat is basically a tranquil, peace loving and law abiding community.’ This may be so but legal challenges on constitutional issues are to be welcomed. They are an important part of the democratic process and a means by which the boundaries of a constitution are tested and defined.
It is interesting to note that even though Montserrat has a constitution which confers a representative legislature it is not free of executive domination from London. In fact, by virtue of The West Indies Act, 1962 and section 8 of the Constitution the Crown enjoys even greater power today. It may legislate upon any issue, even though locally this might be considered to be an issue for the local legislature. This has not generally occurred but the Crown has used its reserve powers to abolish the death penalty for murder and more recently to decriminalise homosexuality against the wishes of the British Dependent Territory Governments and people. This raises the important question of the position of dependent territory citizens and the purpose of the constitutions provided to them by Britain.
Some constitutional lawyers take the view that Orders of Council passed without the approval and consent of the local population may very well be unconstitutional. The reasons advanced are as follows:
1. The Queen is not an absolute monarch and must exercise her powers according to law. It could be argued that it is improper to interfere with self-government by using an Order in Council.
2. There is a potential violation of International Law.
There is a possible legal challenge brewing over the recent Order on homosexuality. Should it be mounted, it could have important consequences for the relationship between Britain and the British Dependent Territories. We shall see.
Well that concludes my little presentation and I will now hand you back to Sir Howard.
H. Fergus: Thank you very much Mr. Kelsick for that interesting presentation and thanks for emphasizing as we have been doing, the importance of the constitution and especially for indicating, for instance, that the laws passed by the legislature should not violate the constitution and where they do, a judge can annul such laws. And all this is part and parcel of democratic governance. People must have redress against arbitrary action by government or other authorities.
So the constitution is very important and this sort of public education is useful for us because a Constitutional Review Commission has been appointed and our people need to be aware of the importance of the constitution, what are the various aspects of the constitution so that they might know what changes they would like to see in the constitution.
I think we are going to be inviting comments from our audience but while they are formulating their comments or questions, perhaps I might start off by asking you, you made reference to the Bill of Rights in the Montserrat Constitution Order, 1989. It was the first time we were having a bill of rights, indeed the first time we were having a written constitution. What happened before that? How were these fundamental principles (because certain fundamental principles had to be observed in dealing with people and their rights before that) what obtained? How were these principles implemented?
J. Kelsick: Well, this is a very good question. We really would have followed the English constitutional model before we were given a bill of rights which rests partly in statutes and in convention. Some of these rights would have been protected by local laws and by the common law which is a general law. But some of them were given existence or brought into being for the first time by the passage of the constitution so this is the importance, that we have a bill of rights that we can look to which very clearly and in a concise, summarized form sets out our individual freedoms and rights. And some of them are new, were enacted for the first time by that bill of rights.
Dr. Fergus: You use the phrase, common law, and we often hear common law. Perhaps you can explain for us what do we understand by common law?
J. Kelsick: Commonly law is basically judge-made law. In fact one of the oldest statutes on the books of the laws of Montserrat (I can’t remember the name of it exactly) but it is a statute which declares that the common law of England applies to Montserrat. I think it was passed in the 17th or 18th century. But basically, common law is judge-made law and unlike statutory law which is to be found in statutes, in numbered sections and judges tend to intervene in situations where there’s no remedy in a statute. So the common law can provide remedies which statute law doesn’t. It’s a more flexible approach to law making.
Dr. Fergus: Thank you. I was interested in something you said about Executive Council and the whole concept of collective responsibility of Ministers. Perhaps you can elaborate a bit on collective responsibility and at the same time, tell me, does collective responsibility mean that the Ministers in Executive Council must have unanimity on a particular issue for that issue to be carried? So there are two parts to my question. I’m asking for a further explanation and elaboration of collective responsibility and whether collective responsibility means ministerial unanimity in Executive Council.
J. Kelsick: Well, you’ve put me on a spot a little bit here Sir Howard because this is more of a political than a legal question but I will do my best. Again this is one of the conventions to be found in the unwritten constitution of England and for the first time, we see it codified here in Montserrat. We see it actually in writing in our constitution but it is an enshrined practice that the Executive Branch of government should try and speak as far as possible with a single voice. Politically it is desirable because governments want to avoid their Ministers sort of breaking ranks and criticizing decisions made by the government.
The other part of your question is quite interesting. It’s really the question of the extent to which Ministers of government are legally bound by this principle of collective responsibility. I’m trying to find the section which sets it out which I actually read in my presentation. But it seems clear from the section. This is Section 10(2). Perhaps I can read it again. It says that:
“Subject to the provisions of this Constitution, the Executive Council shall have the general direction and control of the government of Montserrat and shall (and I stress that word shall because to lawyers it has a very important meaning) be collectively responsible therefor to the Legislative Council.”
Well clearly, that word “shall” places an obligation of collective responsibility on the Executive branch of government.
Dr. Fergus: Perhaps you can hold there. I think we have a caller on the line. Go ahead caller.
Caller: Good evening Sir Howard.
Dr. Fergus: Good evening.
Caller: Good evening Mr. Kelsick.
J. Kelsick Good evening.
Caller: One or two questions. You mentioned something about the government and being able to let’s say take action against the government if one’s constitutional rights are violated. What mechanisms are in place for this? Because generally we would hear that if the government does something, well, government is powerful, you can’t win government in court. What mechanisms are there, let’s say that if one feels that their rights have been violated by the government to take the government to court and can these mechanisms be extended to, let’s say, hiring a lawyer from outside the region or outside of the island?
J. Kelsick: Now, this is a question which I like because this is the kind of thing that is bread and butter for lawyers. First of all, let me say that no one out there should be laboring under the misconception that government is all-powerful, that is to say, government in a democratic society. The decisions of government can always be challenged and this is why there is a constitution. If your rights are violated you can take government to court. And as you raised this important question, I would like to read what Section 66 of the constitution says. It reads as follows:
“If any person alleges that any of the foregoing provisions of this Part has been, is being or is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for redress.”
So the private citizen can take government to court. There is no question about that; it happens frequently and it’s unfortunate that people are sometimes fooled into thinking that government is above the law. That is not so and I’ve just referred to two Privy Council decisions that went against two different Caribbean governments. I think you asked caller about how you would go about doing this and whether you can bring in a lawyer from outside. You certainly can. That doesn’t happen often in Montserrat but it happens in many of the other islands. Specialist lawyers, constitutional experts are brought in. I hope that answers your question.
Caller: Would they have to work with a local lawyer?
J. Kelsick: Legally, you need to have an office in Montserrat, a lawyer’s office to receive and serve papers and so on. So yes there is a requirement that a lawyer who comes in from outside must work alongside with a local lawyer for the purpose of establishing an office.
Caller: Okay. Thank you very much sir.
Dr. Fergus: In your presentation apropos that same question, you did say that a lawsuit can be brought against the police, the government or maybe even large corporations. And by saying the government you are indicating that against the Attorney General for instance. It may be even against some action taken by the governor and somebody can bring a case against the Attorney General. Am I correct in that?
J. Kelsick: That is perfectly right Sir Howard.
Dr. Fergus: Let’s hold that. There is another caller.
Caller: Dr. Fergus It is a very good program. I would like to add that in addition to the constitutional provision there’s the Crown Proceedings act which gives the individual the right to sue the government in the same terms as if you were suing another individual. And the second point I would like to make is that the question of collective responsibility. Dr. Barnett did his doctorate in the constitution and he’s saying that the principle doesn’t require every minister to agree with all the decisions of the Cabinet but it implies that once the cabinet as a body has come to a decision, each Minister is bound by it so long as he remains in office. As a corollary, therefore, he should not criticize the cabinet publicly nor should he give the impression that he did not agree, that he is not a party to the decision. And there are several writings which support this proposition. I would just like to make that intervention at this time.
Dr. Fergus. Yes. Thank you very much because the reason I brought it up: I know that there are some Executive Councils which require unanimity but I myself do not regard unanimity as necessary. I certainly concur with your view that even all six or seven cabinet members did not agree then the agreement which ensued is binding, so to speak on all and therefore as you rightly said, if I may say so, they are not allowed to go and criticize the government in public.
Caller: Jennings said so as well; Wade & Phillips said so. So it’s an accepted principle. And further it says that “in practice the doctrine of collective cabinet responsibility in so far as an individual minister is concerned means he must vote with the government, speak in defense of it and he cannot afterwards reject criticism of his act either in Parliament in the Constituencies on the ground that he did not agree with the decision.” That is my contribution up to this point.
Dr. Fergus: Thank you very much. Perhaps we ought to introduce maybe this notion of an ombudsman. I’m referring to the intervention before the last in terms of redress. This is a different type of redress but there are some jurisdictions even in the Caribbean that have an ombudsman to whom citizens with grievances can take those grievances and get some king of redress. It is not the same thing as taking somebody to court but usually an ombudsman tends to be a retired lawyer or somebody learned in jurisprudence in most jurisdictions.
It doesn’t have the weight of a judge and a court but at a certain level citizens can get redress from an ombudsman and that maybe one of the innovations that can be brought into our constitution. And I would hope that the Commission can explain at greater length and in greater detail the work and function of an ombudsman so that Montserratians can decide whether they would like such an office in the constitution of the country. I don’t know whether you want to comment.
J. Kelsick: Yes, perhaps I can add to that. I think that would be a good idea. I think that one of the failings in Montserrat is that many of us are not sufficiently aware of our constitutional rights and we don’t enforce them sufficiently. And I would say that even of us lawyers that we tend not to invoke the constitution enough in court and I think that the point that Sir Howard made is a valid one. By appointing someone such as an ombudsman the constitution might be made more accessible to the private citizen. He might be more encouraged to get advice on it and to inform himself on his rights and this is essential. The constitution is a people’s document and they really should be aware of what it says.
Dr. Fergus: And even back to that question raised about people getting redress for their grievances, it must be said and I think that you have said it that even though we have not seen this much in Montserrat, citizens have been taking governments to court all around the Caribbean. Media people, if there are draconian laws that would appear to muzzle the media, they go to court all the time and private citizens, civil servants if they feel that their constitutional rights have been violated, they go to court. So it’s just that we may not be as litigation conscious as other people and I feel that we are moving into an age now where we will be because you yourself have cited the fact that there is a case before the court that will test the constitution in a measure.
J. Kelsick: In fact, perhaps I can amplify on that important point because there is something in our constitution in Section 66 which is very interesting which says that “ the High Court shall not exercise its powers…..”
Dr. Fergus: Let’s take this call and we’ll get back to it.
Caller: Hello, good evening. I just have one comment to make. Mr. Kelsick you did mention that lawyers do not invoke the constitution enough in court. I beg to differ. In fact, I would submit that it is as a result of last week’s program why “Labor Speaks” is now back on the air. The knowledge that members of government would have received as a result of Mr. Brandt’s presentation in terms of freedom of speech is one of the fundamental rights under the constitution.
Further, in fact, several weeks ago I remember there was a young lady who was charged with a certain offence. That offence was hanging over her head for two years and we went to court and argued that the constitution says: a person who is charged must be brought to trial within a reasonable time. The judge therefore asked that the matter be dismissed against that young lady.
And of course there are two cases pending right now where two prisoners are seeking redress before the high court in that they are claiming that they were subjected to inhumane and degrading treatment which is also violating the section under the constitution on the fundamental rights. So I really beg to differ that lawyers are not invoking the constitution enough in courts.
J. Kelsick: Well, I think the point is well taken. I think that I was thinking in terms of the fact that the constitution has been around now since 1989. I think that recently you’re quite right in saying that invoking its provisions has been on the increase but still we don’t have any jurisprudence, no case law on our constitution and this is what I’d like to see because I think really for us to have legal guidance on the constitution we need to have some case law on it. And this really will only result as more significant constitutional challenges being mounted.
Dr. Fergus: Well, thank you. I’m finding this myself very interesting. Wonder if the other callers out there would like to come in on this interesting discussion on the constitution? Perhaps we can…. Yes, there is another caller and there was a matter that’s pending. You’re on the air.
Caller: Good evening. Earlier on, listening to Radio Montserrat there was a notice which said that persons leaving Montserrat must have a valid exit certificate to present to immigration officials. I am taking it that if they do not have such they could be prevented from leaving. What I’d like to find out from Mr. Kelsick is: if according to the constitution of Montserrat this is an abridgement of the person’s right to freedom of movement?
J. Kelsick: Well, that question is music to my ears because I’ve been saying this for a long time. I believe that that provision is unconstitutional and it is an example of just the sort of thing that I was discussing: the conflict between legislative provisions and the constitution. Where such conflict takes place, generally speaking, the constitution being supreme, it will prevail. But this is a legislative enactment which I would love to see challenged in Montserrat.
Caller: Okay. Thank you very much.
Dr. Fergus: I’m not in a position to comment on that.
J. Kelsick: If we have a spare moment perhaps I can get back to a point I was trying to make earlier on.
Dr. Fergus: But feel free to come in if you are a caller wanting to make a comment and ask a question.
J. Kelsick: Just very quickly, the constitution says that if there is redress under some other law then the high court shall not exercise its powers under Section 66 of the constitution. And what I want to say is that this provision was effectively circumvented by that landmark decision of the Privy Council in Antigua recently. The judges there said that the constitution is so important that people don’t even have to bother with whether they have remedies in other laws so they can go straight to their remedies in the constitution. That is the extent of its importance in a democratic society.
Dr. Fergus: Yes. Thank you very much. I would just like to say that it appears to me that this kind of public information is so important that even if we discontinue the series in its present form we need to find some way of coming back to the people on the whole business of constitution even before we begin to ask people what do you want? What powers do you want to give the legislature? What powers do you want to give the governor? And so on. It seems to me as if we need more general education on the constitution. What it consists of? What it means? How it affects the day-to-day lives of citizens? Because it does affect the day-to-day lives of citizens.
If there are no further questions we are going to wrap up for this session.
Caller: Dr. Fergus I would like to ask my colleague if he could speak a little more about the powers of the governor and the governor’s discretion not to take people’s advice even when they say that he is supposed to take it, etc. I would like him to talk on that whole section regarding the governor’s powers.
J. Kelsick: Mr. Brandt is opening up a bit of a Pandora’s box. That’s a large topic but it’s an interesting issue. The constitution actually talks about the extent to which a governor can be challenged in the court and we were talking about that earlier on so I think it’s relevant. I believe it is Section 4—Exercise of Governor’s Functions. The constitution specifically says that in certain areas, decisions of the governor cannot be challenged in a court of law. There’s a similar statement as well in the—I believe it’s called the Public Service Commission Ordinance.
And it’s interesting to note that an action recently brought against the governor, a decision made by the governor in the High Court of Montserrat dealt with just this precise question. The Attorney General brought a preliminary application to have the action struck out on the basis of a section in that Ordinance, the Public Service Commission Ordinance (I believe it’s called that, I may be wrong) which appears to give the governor complete protection against legal action. And on a preliminary hearing that application was dismissed. So here is where the courts play a very important role in interpreting the constitution and perhaps even creating new law.
On the wider question of the extent to which the governor should take the advice of the Executive Council and the Legislative Council well, I think that is highly desirable. That’s my own opinion. The constitution says that in certain circumstances he doesn’t have to. Mr. Brandt being a constitutional expert is undoubtedly more familiar with those circumstances than I am.
Dr. Fergus: Okay, we have another caller.
Caller: I just want to ask how can you really take the Attorney General to court when generally he is basically an officer in the government and he is probably carrying forward things that are probably dictated to him by the government if he is working for the government, can you really sue him or would it be the government that you would sue since he or she is working for the government?
J. Kelsick: Under the Crown Proceeding Act, as was pointed out earlier on by one of the callers, legal proceedings against government are brought against the attorney general. The attorney general is the government party who is sued. So for instance if you are involved in a road accident and a government employee driving a government vehicle is responsible for the accident you would sue the attorney general. It happens all the time in every democratic country. Usually, the attorney general settles out of court.
Caller: One final question: We hear of somebody in the government who they call a legal draftsman or something like that. What is the role of that person since I think they are the ones, probably with the government, make up the laws?
J. Kelsick: Well, a legal draftsman prepares laws, puts them before the legislative council for debate and usually amendment and passage. But the attorney general is government’s primary legal officer. He also is an ex-officio member of the Legislative council. So he really is the big legal man.
Dr. Fergus: And has a constitutional position, a constitutional function whereas the draftsman is really a functionary in a sense.
J. Kelsick: That’s quite right. The constitutional role of the attorney general is spelt out in the constitution very clearly.
Caller: Now how can to take the crown to court? Let’s say whether it’s the governor, how do you go about that?
J. Kelsick: Well, you issue what is called a writ in which you name the attorney general as the defendant. In some cases as well you may go further. You may name a Minister of government. You may name some other government person. There was a case in Grenada recently brought by Eric Geary in which I think he had got judgment against the government and they refused to pay and he subsequently brought proceedings against the Minister of Finance and it went as far as certainly the Court of Appeal and may have gone to the Privy Council. But our Court of Appeal ruled that the judgment could be enforced against the Minister of Finance just like any other private person and that included contempt proceedings, seizure of assets, and so on an so forth.
Caller: Okay. Thank you very much.
J. Kelsick: You’re welcome.
Dr. Fergus: Thank you very much. Do we have another question? No? I think we can wrap up.
I think we had a very interesting session. Okay, we have room for yet another question, why not?
Caller: Good night. I would like to posit two questions. How do you reconcile Rastafarians using marijuana in their religious practices and being charged for it? And two: the section in the constitution which says that one should not be prevented from propagating his religious beliefs and worship and his religious practices?
J. Kelsick: Well, that is a very topical question. I think that in western democracies the attitude towards the use of marijuana is mellowing. It has not in Montserrat. The Misuse of Drugs Ordinance that we have is quite draconian. What can I say? It’s against the law still to use or traffic marijuana. The penalties are quite stiff. There is no constitutional conflict because the relevant provision in the constitution which gives people the right to express themselves in certain ways, specifically says that laws which impose criminal penalties shall not be deemed to be in conflict with this provision. So from a strict legal point of view, there is no conflict. My own view? I think the law is a bit too tough. I think that we need to rethink our position a little bit but we shall see.
Dr. Fergus: Yes. I think we have another caller on the line. Let’s take this other caller.
Caller: What is the function of the attorney general? What role does the elected government have in terms of appointing him or her? And what are the functions or roles of the ex-officio members that serve on the Executive Council and the Legislative Council when they are not elected by the people?
J. Kelsick: The role of the attorney general and his constitutional position are set out in Section 21 of the Constitution which is not exhaustive. This says that he is entitled to institute and undertake criminal proceedings, for instance. He is entitled to take appeals on behalf of the government. Selection of the Attorney General: that I suppose takes place by a process of consultation between the governor and the elected government. Sometimes it can be political.
Dr. Fergus: I think there’s final approval, I think, from the Secretary of State. There’s an interest there in her majesty’s government because the attorney general I think is regarded as the queen’s principal law officer. So in addition to the consultation which you correctly described between the governor and the Chief Minister, I think some ratification or approval is sought from the secretary of state. The caller also wanted to know the role of ex-officio, of course the ex-officio members of council, one of whom is the attorney general; the other one is the Financial Secretary.
J. Kelsick: Well Sir Howard I might pass that question back to you as far as the Financial Secretary is concerned.
Dr. Fergus: Well I think the Financial Secretary has a very important position in cabinet as the person in control of the finances of the country. This doesn’t say that the position is inevitable. I mean, there are some people who question the voting powers of the ex-officio members. There are some people who think they should just be there as advisors and not as members in their own right with powers to vote and take part in the debate. Interestingly enough, if there’s a motion of no confidence, if there’s a censure motion I don’t think they are allowed to vote in a censure motion. In other words, they can’t help to topple the government or save the government, so to speak. And it’s partly historical, a historical expedient. In fact, our constitution recently stopped nominated members; these were members who were not elected. Well I hope that we have given that caller some notion of the role and function of these officers and how they are appointed.
Okay, I think we can wrap up and I’d like to thank you Mr. Kelsick for a very interesting presentation which stimulated equally interesting discussion. I’d like to thank ZJB for facilitating us and in particular Mr. West, who is here with us in the studios. And thank you listeners and a special thanks to those of you who called in and made comments and posed questions so that we could have had an interesting evening. I’m sure that the other listeners benefited from the comments of our callers and from their questions. Thank you very much. Good night.