SUMMARY REPORT ON MEETING OF COMMITTEE OF THE WHOLE HOUSE CONVENED TO REVIEW THE REPORT OF THE CONSTITUTIONAL COMMISSIONERS 2002
26th
January and 2nd February, 2005
(10:00
a.m.)
MEMBERSHIP:
Hon. Joseph S. Meade - Chairman
Finance and Economic
Development
Hon. Margaret M. Dyer-Howe - Minister for Agriculture, Land,
Housing and the Environment
Hon. Idabelle M. Meade - Minister of Education, Health
and Community Services
Hon. John E. Wilson - Minister for Communications
and Works
Hon Claude Hogan - Member of Parliament
Hon. Reuben T. Meade - Member of Parliament
Hon. Roselyn Cassell-Sealy - Member of Parliament
Hon. Dr. Lowell L. Lewis - Member
of Parliament
Hon.
Chedmond Browne - Member of Parliament
Hon.
Esco Henry-Greer - Attorney General
Hon.
John Skerritt - Financial Secretary
The Committee met on the 26th January and 2nd February, 2005. There was 100% attendance on the first day and 84% attendance on the second day when the Hon Reuben T Meade and the Hon Dr Lowell Lewis were absent.
The following recommendations were accepted:
1. (i) - The Constitution should begin with a Preamble which links
it more closely to the values and hopes of the people of Montserrat (paras 4.1 – 4.3).
2. (ii) - The fundamental rights section should be placed at the
front rather than at the end of the document (para 5.2)
3. (iii) - Dense and convoluted phrases in the fundamental rights
section should be revised. Some in particular have attracted appeals to the Privy Council and complex judgments (paras 5.6 – 5.7)
4. (vii) - Section 63(4) c of the Constitution should be amended to
protect persons born out of wedlock from discrimination (para 5.15). This could be provided for by local legislation however.
5. (x) - Regional affairs and international finances should
be assigned to the portfolio of Ministers (para 6.10 – 6.12).
6. (xiv) - It should be possible to ‘review’ the manner in which the
Governor exercises his powers under the Constitution (para
6.17)
7. (xvii) - The one-constituency system should continue (para 8.7 –
8.8)
8. (xix) - The Constitution should recognize the position of Leader of
the Opposition (para 8.13)
9. (xx) - The Attorney General and Financial Secretary should be
non-voting members of the Legislative Council (para 8.14)
10. (xxii) - A Chief Minister who loses a ‘No Confidence’ Motion
should not be allowed to determine whether or not the Council is consequently dissolved (para 8.16)
11. (xxiii) - LEGCO should be required to sit at least once monthly
except in the month designated for recess (para 8.17)
12. (xxvi) - Members of the clergy should be allowed to contest
elections and become MLCs (para 8.23)
13. (xxvii) - The Constitution should require the Legislative Council to
establish a number of Standing Committees which shadow key portfolios (para 8.25)
14. (xxviii) - The power of the Governor to ‘impose’ legislation should
be abolished let alone proposing amendments without debate (para 8.28)
15. (xxix) - No laws passed by LEGCO should be disallowed by HMG
or her agents without reference to Council for further consideration (para 8.29)
16. (xxx) - Members of Council should be required to swear on oath of
allegiance to the people of Montserrat as well as to the sovereign (para 8.30)
17. (xxxv) - The Government of Montserrat should explore with Her
Majesty’s Government the possibility of entering into a Free Association arrangement (para 10.7).
18. (xxxvi) - The role of Director of Public Prosecution should not be
combined with that of Attorney General (para 11.5)
19. (xxxvii) - A section on Finance should be included in the revised
Constitution (para 12.1)
20. (xxxix) - A section on Audit be included in the Constitution (para
12.4).
21. (xlii) - The Constitution should provide for an Elections and
Boundaries Commission even if there is no immediate need to appoint one (para 13.4).
22. (xlvii) - The age of legal responsibility should be reduced from age
21 to 18 (para 13.16).
23. (xlix) - The Report should be debated in the Legislative Council to
allow members to express their views qua parliamentarians on the proposed changes (paras 14.3 – 14.4).
The following recommendations were accepted with
amendments:
1. (vi) - The Governor should be required to consult with the Chief
Minister before invoking his Emergency Powers (para 5.13)
Amendment
The Governor shall be required to
consult and have the
agreement
of the Executive Council before invoking his emergency powers.
2. (xviii) - The Speaker should continue to be elected from outside the
elected membership but by a 66.6 majority at least (para 8.12)
Amendment
elected membership by a 66.6% majority
3. (xxxii) - In appointing the very senior public servants the Governor
should seek the concurrence of the Chief Minister, as far as possible (para 9.5)
Amendment
In
appointing the very senior public servants, the concurrence of the Chief
Minister must be sought.
4 (xliv) More importance should be given to birth as a criterion for
citizenship. This does not necessarily mean that citizenship by birth should be automatic (para 13.11).
Birth should be a criterion
for citizenship of Montserrat.
5. (xlx) - The Constitution should be modernized and brought into
effect before the next elections which are constitutionally due in 2006 (para 14.6).
Amendment
The
Constitution should be modernized and brought into effect as soon as possible.
6. (ix) - The Chief Minister should be involved in the appointment
of
the Governor (para 6.9). (GoM
should look at short list
of nominees and make recommendations to HMG).
7. (xxxi) - The Public Service Commission should be assigned an
executive function and enshrined in the Constitution (paras
9.2
-8) with special adoption of Para 9.5.
Recommendations should now be made to Governor-In-
The following recommendations were rejected:
1. (iv) - Section (ii) 2(a) of the Constitution should be amended to
avoid any suggestion of conflict with the right of presumption of innocence. ‘Reverse burden’ is recommended (para 5.11)
2. (v) - The rights of public officers and teachers to exercise
freedom of expression should not normally be restricted. The Antiguan de Freitas case applies (para 5.12).
The
Committee recommended that guidelines be
incorporated
as amendments to General Orders
3. (vi) - Section (ii) 2(a) of the Constitution should be amended to
avoid any suggestion of conflict with the right of presumption of innocence. ‘Reverse burden’ is recommended (para 5.11)
4. (viii) - Victims of unlawful arrest and detention should
have an enforceable right to compensation (para 5.17)
5. (xi) - The Governor should retain ultimate authority for the
public service but with modifications (paras 6.13 – 6.14).
6. (xii) - The Governor should establish a suitably constituted Mercy
Committee through which the prerogative of mercy would be exercised (para 6.15).
7. (xiii) - The Governor should seek to delegate some of his reserved
powers as the 1989 Constitution enjoined (para 6.16).
The Committee recommended that (xiii) be replaced with the following:-
“These
reserved powers as set down in the 1989 Constitution, should properly be vested
in the Governor-in-Council”.
8. (xv) - There should be a Deputy Governor who would function
for practical purposes as Head of the pubic service (paras 6.19 – 6.23)
9. (xvi) - There should be no increase in the number of ministries at
this time (para 7.2)
The Committee recommended that (xvi) be replaced with the following:-
Other
Offices of ministers of Government may be established as required.
10. (xxiv) - Montserratians overseas who migrated since the volcanic
crisis and were registered, should be allowed to vote at the next election under certain stipulated conditions (paras 8.18 – 8.19).
11. (xxxiii) - The Civil Service should nominate one member of the
Public Service Commission (para 9.7)
12. (xxxiv) - There should be provision in the Constitution for a Police
Complaints Board (para 9.9)
13. (xxxviii) - That constitutional arrangements be made for emergency
budgetary assistance from the UK government when the circumstances demand it (para 12.3)
14. (xl) - There should be a Register of Interest for Legislative
Council members and senior public servants (paras 13.1 – 13.2)
15. (xli) - The Constitution should provide for an Ombudsman who
can be employed on a fee basis (para 13.3)
16. (xliii) - A civil servant should be required as at present to resign to
pursue a political career, but pension entitlements should be
credited to him if he were to return to the service on the
pensionable establishment (paras 13.5 – 13.9)
17. (xlv) - The qualifying residential period for naturalization should
be no longer than seven years (paras 13.12 – 13.13)
18. (xlvi) - Persons who migrated during the volcanic crisis after
having lived in Montserrat for over 20 years should qualify for Montserratian citizenship (para 13.14); and the Governor should be given discretionary power to consider persons who held Montserrat passports for up to 20 years for renewal provided they had not obtained them fraudulently (para 13.17 – 13.18).
19. (xlviii) - The UK should make certain international agreements and
conventions
applicable to Montserrat (paras 13.17 – 13.18)
1. Section 27 (a). It was recommended that this section be amended to reflect the following:
A candidate
for election should be a BOT citizen of Montserrat and should have resided in
Montserrat for 24 months immediately preceding the date of his nomination for
election.
2. The Committee registered its strong objection to the second
Paragraph, under Para. 9.2 (Report of the Constitutional Commissioners 2002), with respect to “The Public Service Commission”
“I believe
that there is almost universal consensus in Montserrat that this responsibility
should not form part of a Government Minister’s portfolio as the temptation to
victimise some civil servants would be almost irresistible.”
It was the view of the Committee that the assertion that elected representatives were given to victimization was totally unfounded.
3. The committee articulated its concerns over the figures shown in Appendix 3 – Data On Consultative Sessions Overseas and Appendix 4 – Data on Consultative Sessions In Montserrat. It was felt that the figures were not representative of the views of all Montserratians.
The Committee commended the work of the Constitutional Commissioners 2002, in general.
Respectfully submitted
………………………….……..
Hon John Osborne
Chief Minister