Transcript of Public Meeting on

MONTSERRAT’S CONSTITUTION

Held in Salem, Monday, February 18, 2002 by

The Montserrat Constitutional Review Committee

Commission members present:

Dr. Howard Fergus, Chairman, Moderator & Feature Speaker; Mr. Jean Kelsick, Legal Representative & Lawyer; Mr. Fitzroy Martin, Opposition Representative; Mr. Chedmond Browne, Government Representative & Member of Parliament; Rev. Florence Daley, Women’s Representative.

AUDIENCE:

Mr. Clarence Greaves, Miss Veronica Hickson, Mrs. Claudia Skerritt, Mr. John Wilson; Mr. Herman “Cupid” Francis, Mrs. Camilla Watts, Mr. C.T. John, and three other persons, whose names the transcriber was unable to obtain plus Radio Montserrat’s technician.

H. Fergus: Good evening ladies and gentlemen and welcome to this the first public meeting of the Constitutional Review Commission. What we intend to do in these first meetings is to give information and tell our people to discuss the whole concept of Constitution.

My experience tells me that it isn’t useful to go directly to people and try to elicit recommendations from them about a Constitution. I’ve had some experience—Constitutional Commissions in the Virgin Islands and so on and the success lay with the fact that there is a lot of preliminary discussion on Constitution so that people are familiar with the field and against the background of some sort of knowledge, they can then respond more usefully to the Commissioners.

As you know, this Commission was appointed since last year but for one reason or another it didn’t get off the ground in terms of public participation until now. It doesn’t mean that nothing has been done. In fact, we have already written to several persons, in an out of the island, inviting them to interact with the Constitutional Commissioners. And we have also published a pamphlet about the discussions, called “The Agenda for Discussion.” I just recall now that I have forgotten them in my car. So I guess at some point, I’ll have to get them for you.

Commission Members

Let me though tell you who the Commissioners are even if you know them. The Commissioners are:

§        Mr. Jean Kelsick who is the lawyer on the Commission;

§        Mr. Fitzroy Martin is also a member of the Commission;

§        Reverend Florence Daley is a member of the Commission;

§        Mr. Chedmond Browne, another member; and

§        Mr. Peter White, who resides in the United States but represents overseas Montserratians, so naturally because he is based in the United States, he wouldn’t be able to attend every meeting.

What we plan to do tonight is for me to talk generally about Constitution, about the Montserrat Constitution because by talking about the Montserrat Constitution, I’m talking about Constitution.

Sometime ago, we had a three-part series on Constitution over Radio Montserrat and the reaction and feedback we received indicated that people welcomed these discussions because they felt that were being enlightened on the whole question of Constitution. So there’s a sense in which some of the work has started and what we want to do as we go around is to further enlighten, if we can, on the whole business of Constitution so that people would know:

v     what they are talking about

v     what they are responding to,

v     what they want,

v     what changes they want,

v     what is the present Constitution of Montserrat?

v     what changes do we want?

v     how can we, by changing the Constitution enhance the quality of life?

v     how can the Constitution be a sort of context for development?

What is a Constitution?

What is a Constitution? I’d like to start with that basic question and after I have spoken, if any of the Members would like to chip in and add or embellish, they are pretty well welcome. We have a lawyer among the Commissioners, who may want to supplement what I am saying.

The Constitution is usually described as the supreme law of a country, the highest law of a country. And both the government and the people are expected to abide by the Constitution. Nobody— neither the Chief Minister or any Minister or any Senior Government Official—is above the Constitution.

The Constitution is really a document, a document in which the system of laws, customs, conventions, which describes, which defines the various organs and offices of State, are written. By organs and offices of State, I’m referring, for instance, to the Executive Council, to the Legislative Council, to the Judicial System. Offices of State: Offices of the country like the Governor and the Chief Minister. A Constitution deals with those organs and those offices.

It regulates the relations between them. It deals with the relations between the Executive Council, the Legislative Council and so on. And it deals with the powers of the various Officers: the powers of the Governor, the powers of the Chief Minister, the powers of the Legislative Council and so on. And it is under the Constitution that citizens can claim rights and protection. So a Constitution offers rights and protections.

We didn’t have a Bill of Rights because prior to 1989, we didn’t have a written Constitution, at least, not a written Constitution contained in one document. We had a number of documents, which together, comprised the Constitution but in 1989 we had a document called “The Montserrat Constitution Order 1989.”

The Constitution is so important and so fundamental that whereas you can pass a law in Parliament, in Council, with what is called a simple majority, that is to say, if there were nine members in the Legislative Council and five members voted for a particular law, that law would be carried. I think that’s what we call a simple majority. On the other hand, to alter the Constitution, usually, in most sovereign states, you need something like 66% voting in favor of the change in order to alter the Constitution so that a Constitution is a very serious document. It’s a very important document and that in itself, the fact that you need 2/3rd of the Legislature to effect change, underscores the importance of the document.

Having defined, in a rough and ready way, what a Constitution is, I want to take a quick look at the Montserrat Constitution just really a kind of road map, what it contains.

Preamble

It has a preamble as most Constitutions will have, which is really an introduction to the Constitution and it includes a statement of the power which Her Majesty reserves to herself.

In the beginning of the Constitution, in the preamble, it speaks about powers reserved to Her Majesty. And it states, categorically and clearly, that Her Majesty has power to make laws for the peace, order and good government of Montserrat with the advice of her Privy Council.

And coming with that too, logically, since she has powers to make laws for the peace, order and good government of Montserrat, she also has the power to disallow a law. If a law is passed in the Legislative Council of Montserrat, the Queen can disallow that law; she has that power. Does it happen? It doesn’t happen because one tries to ensure that before it reaches that state of affairs that the differences are settled.

When the Governor assents to a law, the Governor is assenting on behalf of Her Majesty. The Governor may not want to assent to a law and there have been times when the Governor didn’t want to assent to a law. And what the Governor might well do is to refer it to other people at the Foreign and Commonwealth Office for advice. But I think, in practice, steps are taken to avoid an impasse. But the Queen does have power to disallow a law, the power of disallowance.

PART I: The Governor

The Constitution also deals with the Governor in Section I: The Appointment and functions of the Governor and anybody who deputizes for the Governor, whether you call that a person, Acting Governor, whether you call that person, Deputy Governor. And there’s a difference between the two, actually, and the difference is explained in the Constitution.

Somebody who is appointed as Acting Governor can exercise all the powers of the Governor. Somebody who is serving as the Governor’s deputy or the Deputy Governor should take instructions from the Governor. The power is limited. A few days ago, the Governor was off island and the head of office was Deputy Governor. He did not have all of the powers of the Governor. I imagine if some serious decision came up, he would confer with the Governor. So the Constitution deals with that kind of situation.

The Governor’s powers are outlined in the Constitution:

§        His power to appoint Civil Servants

§        He has power to appoint the Officers of the Court, the Magistrate Court and so on

§        He has powers to grant pardon

§        Power to dispose of crown lands

These are just some of the powers, which he has.

The Governor is required, sometimes, to consult with the Executive Council but one has to be careful, as I think, Mr. Jean Kelsick, would agree, even when the Governor is required to consult, he doesn’t necessarily have to abide by the recommendation stemming from that consultation.

So Section I of the Constitution deals with the power of the Governor, I think, maybe exclusively.

PART II: THE EXECUTIVE

Then there is Section II. It perhaps reads as Part II in the actual text of the Constitution.

(And incidentally, we hare hoping that people would acquire copies of the Constitution or, at least, read the Constitution. And in order to facilitate this, I purchased today a number of copies of the Constitution and I intend to put about three copies at the Public Library, not to be taken away so that people can read the Constitution. Because if people are to make recommendations, if people are to discuss the Constitution, then they’d have to be familiar with the Constitution.)

Section II then deals with the Executive and the Constitution makes it clear that Executive power in Montserrat is vested in Her Majesty the Queen. Executive power is vested in Her Majesty the Queen and the Governor acts, in fact, on behalf of the Queen.

It deals with the membership of the Executive Council, how they are appointed and so on. And it is really the Executive Council … The Executive Council is a very powerful body and is parallel to a Cabinet in a sovereign state.

The Governor presides over Executive Council in Montserrat. In a sovereign state, in Antigua, the Governor would not preside. In St. Lucia, in Barbados, the Governor would not preside but in a British Overseas Territory where you have an Executive Council, the Governor presides.

I think Bermuda is a bit different. Although Bermuda is a British Overseas Territory, Bermuda, in fact, has a Cabinet and not an Executive Council.

So the Executive Council is really the powerful body, which manages the affairs of Government. But Executive Council, the members are collectively responsible to the Legislative Council, as I understand it. They are collectively responsible to the Legislative Council.

According to the Constitution, only the Governor can summon Executive Council, but the Governor is expected to summon Executive Council if the Chief Minister requests that he summons Executive Council.

Section II of the Constitution also deals with those matters, it outlines, it details those matters over which the Governor has discretionary powers because the governor is part of the Executive and it’s a powerful part of the Executive in contrast to what obtains, say in Antigua.

He has discretionary powers over matters such as:

§        Defense

§        Internal security

§        Police

§        International finances

But he may, if he wishes to, he can delegate those powers. I don’t think, he can, in the case of international finances but I could check that. But he can delegate. He can delegate powers to a Minister. He would first have the prior permission of the Secretary of State. So that would signal to you that the Secretary of State, because this is not a sovereign state, the Secretary of State also features in the Constitution.

Let me leave the Executive there and I’ll open it for questions and comments and go on to the Legislature, which is Section III of the Constitution.

PART III: THE LEGISLATURE

Section III deals with the composition of and the election of the Legislative Council, how many members. The present Constitution is amended. The 1989 Order would have spoken about the nominated members and seven elected members. You will be aware that that has been amended to read nine members. And for the first time in our history of 300 and whatever years, we don’t have Nominated Membership.

That Section also deals with the qualifications of Members, what you have be or possess or whatever to become a Member of the Legislative Council and how you can become disqualified as a Member of the Legislative Council.

This Section also outlines provision for the election of the Speaker and Deputy Speaker. Prior to the Amendment, the Deputy Speaker, for instance, used to be a Nominated Member, by practice, but with the termination of nominative membership, the Deputy Speaker is a Member in his or her own right.

It also sets out, to some extent, the rules for the conduct of the Legislative Council. Of course, the Legislative Council—there’s a Statutory Rules and Order, which govern the Legislative Council. I leave the Legislative Council and go on to Section IV or Part IV of the Constitution.

PART IV: FUNDAMENTAL RIGHTS & FREEDOMS OF THE INDIVIDUAL

This deals with fundamental rights and freedoms of the individual. This is what is referred to in most Constitutions— it tends to come earlier in Constitutions— as the Bill of Rights, fundamental rights and freedoms of the individual.

And what it really does, it outlines those human rights of the individual, which the Constitution protects, that people have certain rights. And it really, these came in for the first time in the 1989 Constitution Order. Although they would have existed, to some extent— I think Jean would confirm this, in the Law, Common Law— some of these rights would have been there before:

§        Protection

§        The right to life

§        From inhuman treatment

§        From slavery and forced labor

§        Arbitrary arrest and detention. For instance, if a citizen were arrested, I think the Authorities arresting would have to indicate to him or her after a reasonable time, what he has been detained or arrested for.

§        Privacy of home and property

§        Freedom of expression

§        Freedom of assembly

§        Freedom of association and so on.

So much for Fundamental Rights and Freedoms, for now.

The Montserrat Constitution document really stops there. It has a preamble; it has a section dealing with the Governor, his functions and power; one dealing with the Executive; one dealing with the Legislature; one dealing with fundamental rights and freedoms of the individual.

But, I would expect that in this Constitutional Review that the people of Montserrat would want to go outside, or might want to go outside those areas and this is part of the whole process of public awareness that we are engaged in. And some of the matters are indicated, I think, in this pamphlet.

Some of the areas that people might be interested in, for instance, are:

§        The Public Service. The public service has its own rules but in many a Constitution, the Public Service is inscribed—the rules governing the Public Service are enshrined in the Constitution.

§        The Public Service Commission. We may or may not want the Public Service Commission to be governed by the Constitution.

§        An Ombudsman. An Ombudsman is an impartial umpire, so to speak, to which citizens can apply, citizens with grievances, grievances sustained from the Public Service, or wherever. And this is another area of democratic governance that some countries have. There are some Caribbean countries that have an Ombudsman. And that may be one subject that we may want to look into at the time when we are looking at recommendations.

What I am hoping to do tonight, having given this sort of exposition, is to explore these issues, not in the sense yet of saying, of making firm recommendations, but of conceptualizing, broadly, the whole area of Constitution.

In some Constitutions, the Courts and the Administration of Justice—and logically so, because a Government is usually the Governor, the Legislature, the Executive (not the Governor) the Executive, the Legislature and the Judiciary—the judiciary is a critical part of the governmental machinery. And in my view, this is one area in which the present Constitution can be considered as defective.

The whole issue of citizenship, citizenship of Montserrat: In Constitutions, in most Constitutions, the issue of citizenship is dealt with. Who is a citizen? How do you become a citizen of Montserrat?

Now, with that short presentation, I would like to stop and just to say again that I want to invite people to read the Constitution. I’m making copies available at the Public Library. Incidentally, there are copies for sale at the Office of the Clerk of Council. I bought a number of them there today. They cost $15.00 so they are available. People need to read them because we may want to make recommendations in relation to the present Constitution. We need to know what we are changing.

And it doesn’t mean that we are confined to just the Montserrat Constitution Order. This is why I signaled, in the last bit on other matters, that there are other areas of Constitution and in this little document, which we label Agenda for Discussion, it deals with some of those other matters:

§        Qualifications to vote, for instance. The qualification to vote: Is it belongership? Is it British Overseas Territory Citizen, or whatever?

§        Even the whole business of constituencies and boundaries.

So if any of the Members of the Commission, in particular, Mr. Kelsick, would like to make any comments, I’d welcome that now and then I’ll throw it open.

J. Kelsick: Very briefly, by way of comment, first of all I’d like to say that Sir Howard outlined the Constitution quite ably in simple terms. But I think that we need to be able to explain what is, in some respects, a fairly complicated document as simply as possible so that it is accessible to everyone.

By way of comment, I have just two things to say. On the question of International Finance, I would like to point out that the Governor has recently delegated his powers with respect to offshore banks to what is called the Financial Services Commission and I see that one of the Commissioners is with us tonight. It’s made up of—is it three or four people? I believe it’s four.

C.T. John: One Commissioner and three Members of the Commission.

J. Kelsick: We’re not sure yet whether—we know with certainty that the workings of the Commission extend to Offshore Banking but we are not sure if they also extend to International Business Companies. That is something— I see—because when I spoke to the Commissioner a few days ago, he seemed a bit unsure about that issue. So just to raise that point.

The Bill of Rights: Sir Howard raised a very interesting question: the extent to which the rights, which are now enshrined in the Bill, existed at Common Law or in the Statutes of Montserrat, previously.

I can say that some of them were protected at Common Law but it’s important to grasp that a lot of them are actually set out for the first time, stated for the first time in the Bill of Rights, which is what makes it so important. And even those, which may have existed, previously did not exist in the form of a right to do something. So I think that a lot of these are now stated for the first time as actual rights.

Lastly, Sir Howard raised another point which is interesting: the question of citizenship and whether the Constitutional Review should take that into consideration so that this issue, the question of how one becomes a citizen of Montserrat, etc, whether this should also be enshrined in the Constitution?

And that’s a good question because right now, that whole matter is regulated by the British Nationality Act of 1981 and I’m not really sure—That’s an Imperial Act, that’s an Act of the English Parliament, which was extended to Montserrat in the same way, by an order of Privy Council, extended to Montserrat in the same way that The Constitution Order has been extended.

So, I’m not really sure, from a constitutional point of view, whether we in Montserrat would have the right to request this. I think this is something which needs to be explored because it is something that would entail, probably, an amendment by the British Parliament to the British Nationality Act. So that’s an interesting point. As a lawyer, I don’t have an answer for it so I think it’s worthwhile exploring. Thank you.

H. Fergus: Thanks for clarifying that, particularly the bit on international finance and the financial services center. Any questions? Yes, yes, please.

C. Browne: Good evening. It’s a little disappointing to see the turnout. Being that we are listening public more than a reading public, I would have expected that more people would have made some time to come and listen to a discussion of this nature, being as this whole exercise holds in it, our entire future, not just today, not just tomorrow.

Our children, our great grandchildren, our grandchildren, they are going to inherit whatever it is the Commission—not puts together, because I don’t know if Dr. Fergus was clear in his position that at the end of the day, making these recommendations when we are finished—the British Government is not bound to adhere to or agree to or accept either, any or all of the recommendations put forth by the Commission.

But the reality is that whatever we put together, whatever comes out of this is going to affect us, the present generation, those of us who now hold the mantles of leadership, present parents and grown people in this society, our children, but also our grandchildren and our great grandchildren.

And it is extremely important that we do pay some close attention to this document, what it entails, what it is that we would like to see, and what it actually is.

I’ve never head anybody clarify—I’ve listened to many discussions, I’ve lectured on this Constitution from before it was given to us, when it was given to us and after it has been given to us. I believe I practically know it by heart. I’m one of the people that have been involved in it from its inception because it’s an imposed document. We need to understand that. By imposition, it means, it was written for us without discussion, it was given to us with little or no discussion, and it was an order, again, from Privy Council, which magnifies the acute position that we find ourselves in, at this point in time in our history.

If you listen to what has been said here and you see what we have here, now I don’t know how many of you have ever seen, in the big cities, they have big buildings next to each other like this and you’ll find a demolition crew will go in and they will scrape out the area between a skyscraper here and a skyscraper here and in those narrow constraints there, they will build a brand new building that fits exactly between those constraints without affecting what’s on either side. And we are in the same position now.

We are in a position here where we are not—what was term you used for Antigua or St. Lucia—a sovereign state. We are not a sovereign state and we are not a Dependent Territory or a British Overseas Territory. According to this document, we are a Colony. They changed the name but it doesn’t change anything because you haven’t changed this.

This was given to us when we were a Colony. Since that point in time, they have changed the name twice. They have made it Dependent Territory and now they have made it British Overseas Territory. That change is absolutely nothing. The reality is that we are a Colony.

We’ve been a Colony since forever and based on what is happening, based on our current mentality, based upon the lack of education and the lack of concern of the citizens of this country, it is apparent that we might be bound to remain a colony forever based on the British Citizenship Act, which my good friend here didn’t touch on.

He went all the way back to 1981. There’s one being written one that supersedes 1981 that incorporates and supersedes 1981 that is about to make us British citizens against our will. Little or no discussion, again; little or no understanding of the dynamics involved, but how are you going to put in this document, a nationality clause or a Montserrat citizen clause when you already have, coming from Britain—they’ve read the Act twice now, they haven’t read it a 3rd time yet so it’s not officially a law yet but it’s very close to becoming a law—and everybody is acting as if it is a law—officially, from Privy Council, again, an imposed law that is going to make you, whether you want to be or not, a citizen of Britain?

How then do you fit that contradiction into a document like this when in this document, which should say, the “Constitution of Montserrat,” you’re going to define who is a Montserratian? There are going to be no Montserratians so how are you going to define it? These are the realities that we are going to have to address. We have to understand what it is we are attempting to do and what it is that we have here.

A Constitution—I started to say before, I’ve never heard it clearly defined—but let me give my definition of a Constitution. A Constitution is an instrument, a written instrument that places in the hands of the elected officials of any country, legal authority to govern, that is what a Constitution is. The elected officials of the country are empowered through the popular masses and an election to legally govern the country based upon the laws, rules and regulations enshrined in your Constitution. This is the reality. Now, this document doesn’t do this.

It doesn’t do that. If you listen to Dr. Fergus clearly, it is the powers of the Governor, the powers of the Governor in all three of them except for the Bill of Rights, which they lifted, 99% of it, from the United Nations Bill on Human Rights. Every thing in here is about the powers of the Governor.

Now the Governor is not an elected official of this country. He was not elected by anyone in this country. But here you have a document that should give your elected officials complete authority, you’ve given them the political power through electing them; this is the authority.

You must have power and authority seated in the one seat in order to have good governance and proper governance. It doesn’t exist here. So herein, lies your contradiction.

§        What is it that we are going to do?

§        Are we going to sit here and discuss nicely how can change a few phrases in here to be diplomatically and be termed politically correct and continue straight on down the road?

§        Or are we going to look at this thing realistically and determine what kind of future we want, not only for ourselves but also for our children, our grandchildren, and our great grandchildren who are going to inherit it.

§        Do we, in fact, want to continue to be ruled and governed by a Governor who is not elected by the people of this country, who does not come from this country here, who don’t even know nothing about us, till 6 months after he reaches here?

§        Are we going to continue down that road?

§        Or are we going to modify and again recommend changes necessary for us to see, realistically, how and when we are going to rule and govern ourselves for ourselves because we have a document, an instrument of authority, not power—power comes through the political platform and political elections?

Authority comes through your Constitution. Power lies in the hands of nine Legislative Council Members or the eleven with the two other members. Authority lies in the hands of the Governor. This is a total and utter contradiction. It is a thorough contradiction and it cannot work. It has not worked and it will not work. And you all know that.

Audience member: As (not clear) said already, we have no choice; it has been imposed upon us.

C. Browne: We have choices. This is forced upon us but now we have a choice. This is what I am getting at. We have a choice now. We have a choice now to properly recommend what is due us through the Bill of Human Rights. It says so right in here. It says right in here that there should—what does it say the first clause, there, I can’t read it because I don’t have my glasses. It says something to the effect that every country should be moving towards their independence. Excuse me.

J. Kelsick: It doesn’t quite say that.

C. Browne: Tell me what it says.

J. Kelsick: “Whereas the realization of the right of self-determination must be promoted and respected in conformity with the provisions of the Charter of the United Nations.”

C. Browne: Exactly, must be promoted.

H. Fergus: And incidentally, since there has been a break, your presentation— very interesting and very eloquent— but we still have to marry eloquence with accuracy. We mustn’t give the impression that a Constitution has to do exclusively with elected members. There are several countries …

C. Browne: I didn’t say that.

H. Fergus: … that have Constitutions—I’m sorry I didn’t write it down.

C. Browne: I didn’t say that. I’ll repeat it for you. I’m very good at repeating my own words. I said a Constitution places, gives the authority to the elected officials of the country to govern.

(Several people talking at same time.)

H. Fergus: You said that but … (several people talking) … you have a good memory. Anyway …

C. Watts: Your definition of Constitution really confused me because it lead me to believe it only had to do with the elected officials.

C. Browne: It can’t only have to do with them. What I am saying is that it places authority in their hands

C. Watts: Anyway, we don’t have to get upset about it, it’s just the way your definition …

C. Browne: No, it can’t be that alone but my point is that it doesn’t place any in our hands. That’s my whole point.

H. Fergus: You made that point but I just mentioned that in the interest of accuracy …

C. Browne: Now this is one of our major problems when we attempt to speak to each other

C. Watts: Excuse me. The point I’m making is that your opening statement confused me, which I termed to be a definition of Constitution.

C. Browne: I said, “my” definition.

C. Watts: Oh, your definition.

C. Browne: I never said “a” definition. I said, let me give you my definition of what a Constitution should be. That is what I said. I’m very good at remembering the things that I say. What I’m trying to address, my friend here, is that it states in here that we have a right to be a self-determined people, in this exact same Bill of Rights here. It also states, initially, the first memo that I got from the previous Governor, which was Governor …

(Side one of tape ends)

C. Browne: I haven’t gotten a memo to that effect. Have you? The memo that I got, as a Member of the Commission, limited the areas that we could address in this Constitution here and it said specifically that none of the powers of the Governor could be touched or addressed.

H. Fergus: I’ve responded to the terms of reference that were given to me and to the Members, which says that we are to make recommendations after wide consultation, we are to make recommendations to modernize the Constitution and to ensure its compatibility with the present aspirations and expectations of people of Montserrat. I’m responding to that mandate.

C. Browne: Good. Well I never got that. The one that I have …

H. Fergus: … the terms of reference.

C. Browne: I am not talking about what you have written there. I have never got that term officially. I got a terms of reference from the Governor that said that the powers of the Governors cannot be touched and, as a matter of fact, they want more powers for the Governor than what already is. If this supersedes that, all the better.

But what I am saying is that we have now a golden opportunity to, again, express our aspirations, our aspirations.

§        Do we have any?

§        Do we have any vision of a future for ourselves?

§        Or is our vision for our future going to be mandated for us, handed down to us, written for us in Privy Council up in England and sent to us?

§        Or are we going to put together a document of recommendations, which, as I’ve said before, the British Government, whoever represents them, is not bound to take or adhere to or to go along with?

But the reality is that we must present them with something that allows them to recognize:

·        That we understand where we are supposed to go and

·        We do, in fact, have aspirations,

·        That we do, in fact, have a vision for a future for ourselves and

·        We know the only way that the only way that we are going to accomplish that vision is through the document that gives us the authority, which is this document here.

This document here is an utter and thorough contradiction. It is. And if we’re just going to sit and change a couple of clauses and a couple of phrases in it and then hand it back to the British government, we are definitely doing ourselves, our children and our great grandchildren, our grandchildren a huge disservice. And we need to start thinking about that.

Now I’m going to finish now because we have a lot to cover, I imagine. But I’d just like to say one more thing. I don’t know how many of you eat manciport, but I have been told that it takes a manciport tree 30 years to bear. I don’t know if it’s true or not. But a lot us eat manciport and if that it the truth, we didn’t plant them seeds there. We didn’t plant them manciport trees there. And if somebody didn’t have the vision to plant that seed, 30 years later, we would not be eating manciport in this country the way we eat it.

What I am saying is that we need to have the vision now. Don’t come up with this nancie story about it can’t happen now and it can’t happen today. What can’t happen now and can’t happen today is immaterial. A seed needs to be planted and that seed needs to be planted so that at the point in time that it is ready to bear fruit, when the children are ready to pick that fruit, the foundation has been laid that allows them to pick it. They are not supposed to plant the seed 30 years from now.

We are the ones that have the responsibility for planting that seed and it needs to be planted in this document. A lot of work has to go into this. All the other islands up the road there, they’ve been working on theirs for over two years, some of them. We are not going to do this in three months. And anybody who attempts to rush it in three months, it can’t work. Some of them have been working for over two years on theirs.

We need to spend a lot of time on this document. We need to know what it is we’re going to put in here and we need to start thinking seriously about the future of this country here and where it is going and don’t continue to allow people to lead us like we have on neck-rope and we don’t know where we are going.

H. Fergus: Thank you Mr. Browne, for your usual spirited contribution. I would advise, though, that we don’t want to make an assumption that we are going to just change phrases. There’s nothing in my experience and background to suggest that we are going to change phrases and a few sentences. I’m not starting out with that assumption at all. I’m for listening to the people as it says, wide consultation. We have done that before.

We have just brought in an innovation for election where we made this country one constituency. So there’s nothing. I’ve served on a Constitutional Commission in the BVI and the government did not like some of the recommendations but the recommendations stood. We brought in voting-at-large in the BVI. So, let all the voices contend. Let all the ideas contend. We are to listen to what the people are saying to us and I am prepared to listen to what the people are saying to us.

What we want to do and you have helped us along the way by pointing to the origin of the Constitution and some of its limitations—that’s in order. What we want to do is to expose the population to the whole idea of the Constitution so that they can make up their own minds and tell us where they want changes, where they want power redistributed and so on.

So thanks and anyone else wishes to say anything? Any comments or ask any questions? Yes.

C. Greaves: I don’t know if I understand the honorable Mr. Browne correctly but if the British government does not have to agree to any suggestion that we make, what’s the purpose of this exercise?

H. Fergus: Well the answer for that, if they are not going to agree to any or all, then yes, it was a futile exercise. But I’m not starting with that standpoint at all. I expect us to come up with a reasoned and reasonable document based on wide consultation and it’s for whomever to do what they want with it. But we are going to have to be reasonable ourselves.

Nothing you or I say or anybody said, will change the fact that right now, we are a British Overseas Territory, call it what you like. It is just a reality and I can’t change that unless the people of Montserrat and the leaders of Montserrat ask for Constitutional independence and get it. It’s a reality and I’m not going to stay here and pretend otherwise. Call it Colony. I agree with him that however you dress up the nomenclature, it’s the same animal. But that is a reality. That is a reality.

And it’s up to the people of Montserrat, in their wisdom or otherwise, to decide, let’s change it right away. And that will circumscribe what will happen. But the people— We have a mandate to consult widely and we intend to consult widely.

And the reason why we are here tonight is because we want the consultation to be effective so we didn’t just come dry to the people, and say, What do you want? We want to encourage them to go and read the Constitution. We actually bought copies to put in the Library. Read the Constitution. We hope that people will even discuss it in their groups, in their own community groups, in youth groups, and whatever. And form ideas as to how much power you think this officer should hold, or whatever. What should be the composition of the Legislative Council? Whatever. So I’m open minded.

C. Greaves: So, in other words, we are limited as to what we could suggest?

H. Fergus: No. You’re not limited as to what you could suggest. As a matter of fact, I would expect— I didn’t put that— That may not even be down here but I would expect the whole question of independence to come up.

C. Browne: It’s on the end. Didn’t you put it there? There’s a line there: The Question of Independence.

H. Fergus: Yes, the question of Independence has a right to be there.

Audience member: When we become British citizens, would anybody from Britain coming to Montserrat have the same rights as we in Montserrat? Because …

Audience members: (Several people talking – some saying yes and others saying no.)

J. Kelsick: I don’t think it is intended to work that way. The British government has assured the Dependent Territories or Colonies, whichever you prefer, that …

Audience member: (Several people talking)

J. Kelsick: We’ve been promised that this will not be so, that we will have the right to travel there but our smaller societies will be protected because it wouldn’t be limited just to British citizens but also anyone who is a European citizen which would potentially encompass all of the European countries. So we have been assured that this is one of the …

H. Fergus: Apart from being assured, you have a right as a Montserratian to tell this Commission that you don’t want that and ask them that if a preponderant number of persons agree with you, to write that into their recommendations. You have a right.

C. Greaves: It seems to me that we will have to do that because with our small size of the population, if according to what the gentleman is saying, if that happens, you could easily see a situation where eight, nine, ten thousand people come down from Britain and they just change everything to … because they would be more than us.

C. Browne: It’s going to happen anyway.

H. Fergus: That’s precisely why it was agreed that there’s no mutuality.

C. Browne: Dr. Fergus, that is not what they agreed to. They did not agree to no mutuality, reciprocity. They didn’t agree to that. They said that they would not allow other EU citizens, reciprocity. And they can’t hold it up because the EU “green paper” contradicts that British position. The British government is going to have to … The same way the British government is giving Gibraltar back to Spain right now, it’s the same way the British government is going to have back off that reciprocity clause and anytime it incorporates Montserrat into it’s territory, it’s going to have to open up Montserrat to the European Union in the same way. It cannot guarantee it because it signed the “green paper” and the “green paper” allows free movements of people across all territories exclusive of none. So they can’t hold it up.

H. Fergus: I can only convey my understanding. I know that the leaders of the British Overseas Territories in the Caribbean have all made a point of asking that there be no reciprocity and I know that at some point or other the British government agreed.

C. Browne: Let me make another point to show you that all of this stuff where the British government is telling you this and promising you this, it’s all just icing on cake that they take off any time when they want.

The first thing they said when they were dealing with the passports is that we could have held two passports. We would have acquired a British citizen’s passport and we could have maintained our Montserrat national passport. They said that and they promised it and they promised it. And the same day that they had the second reading of British Overseas Territories Citizens Bill, they sent down a memorandum to all the Governors in the Colonies stating that there will be only one passport issued a person. You either hold one or the other; you cannot have two. They already changed that.

H. Fergus: Yes, but I …

C. Browne: It’s the same thing. They’re going to tell us anything we want to hear so that they could get through what they want to get through and as soon as they have it and a soon as they have you in the position where they want you, they go and do what they want. And in any case, they tell you, it’s on order from Privy Council and there’s nothing you can do about it because you are a Colony.

J. Kelsick: Cheddie, we have an opportunity now to …

H. Fergus: Ok. Let me hear somebody else. Jean.

J. Kelsick: I’m saying we have an opportunity now with this review to address that point and we can address it vigorously because it is a very important point and if enough people are distrustful of the assurance that we have apparently been given, well ever the more reason, as I say, to recommend it, you see.

V. Hickson: So it has actually been changed then because it was my understanding that we could have had your Montserrat passport as well as …

J. Kelsick: No, no. I’m talking about the other issue, the question of access by English and the European citizens …

H. Fergus: On that point, Cheddie is correct. I mean, I’m not about to say Cheddie is correct for everything he says if I don’t think so but where he is correct, in my view, I’m prepared to support what he says.

V. Hickson: I’m certain I read something that come out in the Newsletter that is published from Government House. At one time, it said, you could have had your Montserrat passport as well as a British passport.

C. Greaves: That was my understanding.

J. Kelsick: That is correct. That is the position that was originally put forward.

V. Hickson: Well I think that we can continue to have our Montserrat passport.

(Many members of audience speaking simultaneously)

F. Daley: The United States and St. Thomas and St. Croix, St. Thomas and St. Croix do not have different passports. They have an American passport.

J. Kelsick: I don’t see a big advantage to having a Montserrat passport, either.

Audience member: You don’t?

(Several people talking at same time)

Audience member: You have a CARICOM document …

J. Kelsick: You need an American visa, for instance, to travel to the US, which is becoming increasingly difficult to get and the British passport …

C. Browne: You’re going to need one with that same passport.

V. Hickson: You can’t just pick up and go to the States. (Many people talking at same time) I think, what I read, if you’re coming from England, you can go in but if you’re coming from one of these islands down here, you can’t just go with that British passport and get in.

C. Browne: But it goes beyond that

H. Fergus: Let me take somebody else. Let me take Mrs. Watts and then Mr. Wilson

C. Watts: Permit me to (?) with what the honorable Minister, sorry, the honorable Member was saying, but I was trying to look at this in light of our discussions and trying to get from him what are you suggesting to us that we do? Because you are saying that they agree to one thing at one time and another minute, they change. So how do we, in our discussions now, represent that or be forceful enough to …

C. Browne: Exactly what Mr. Kelsick said: be explicit in our recommendations. That is as far as we are allowed to go isn’t it? We are allowed to recommend on any particular issue that we feel that we need expressed. We can be explicit on those recommendations.

H. Fergus: Providing it’s germane to Constitution.

J. Kelsick: It is because of the whole issue of freedom of movement, which is one of the expressed rights in the Constitution. So it’s within the compass of our Constitutional Review. But I think we have to remember that we are a British Dependent Territory, whether we like it or not and I think it is better of us. We already have one of the most advanced Constitutions, whether you like it or not—ours with Bermuda’s is one of the most advanced and I think we—even if we lose the war, according to Cheddie—it’s important to win a couple of battles and try to advance it even a bit further. That is how I look at it.

H. Fergus: And you see, there are events which overtake decisions. I suspect that (noise on tape) I suspect the whole issue of passports and travel became a rather vexed question.

J. Kelsick: Right now, the American government is reviewing the open arrangement that it has right now with holders of European passports to travel, to enter the US without requiring a visa because of the September 11th. It’s a shame.

V. Hickson: Sir Howard, Mrs. Skerritt was about to say something because (can’t make out words) the question because you can just get the British passport and get into the USA and apparently you can’t.

C. Skerritt: You can’t because as far as I am aware of, well, what Cheddie is correct. But in addition, I think also a decision was taken that the Montserrat passport should include an observation page where it would say that you are a Montserratian or you are British and that comes back to the same thing where it is not really British …

V. Hickson: Oh, so you are going to have something designated?

(Several people talking at same time)

C. Skerritt: But I just wanted to comment on the topic this evening and to say how useful this session has been or is, at least, for me. And we need to find ways of reaching, at least, for me and must public officers I think these things are (can’t make out words)— The review of the Constitution are so important.

I don’t think public officers and citizens, as a matter of fact are aware of the importance of the review that is going to take place. And I think in addition to the public forum which has started, I think we need to look at other ways of reaching these people so that they too can have an integral part.

I think, I’m saying public officers because I know in our Constitution presently, we do not have a section on public service and the importance of the public service. Part of this is omitted and sometimes, oftentimes, General Orders, which is an important Order in the Public Service contradicts some of the things in the Constitution and I think a lot of discussion needs to take place so that some of these things can be included in the Constitution thereby changing the General Orders and some of the other regulations that do keep public officers.

H. Fergus: Yeah. But you see we are open and anybody dealing with me on these matters—I’m always open to invitations to organizations, always open. Church people have invited, the Men’s Fellowship here invited us the last time, so we are open. But people also need to avail themselves of the opportunity. We have scheduled meetings across the island and hope to go a second time and this is demanding. So we hope that people would come out and air their views and ask questions. Get things clarified.

V. Hickson: For instance, tonight, I expected to see more people because here is a central place.

H. Fergus: We could get more people in England. (Seems to be break in recording) … recommendations based on strong support, you know. I myself, may not agree, clearly if out of consultation, the people of Montserrat are saying, this is what we want, then one would at least say that.

J. Wilson: Indeed, it’s very disappointing, the turnout here. (Unable to make out words due to quality of recording and number of people speaking at same time.)

H. Fergus: I find that these have been aired more than I thought they would be. They come in news; they make it news more than once. They have aired it a lot. But typically, as Mr. Greaves was saying, it’s this kind of number that comes. Maybe a couple more came during the elections.

J. Wilson: I want to address your attention to something which my colleague said. I do recall a letter being circulated by the Governor suggesting that the discussion on the review would be restricted or limited to certain areas. I’m not at all questioning your terms of reference here but that letter was circulated. There were some clear guidelines as to what areas the discussion could take place in.

(Many people talking simultaneously)

F. Daley: … highlighting certain areas but it didn’t restrict you.

(Many people talking simultaneously)

H. Fergus: I’d rather follow the terms of reference but I agree with you. I know what you are talking about.

J. Wilson: And then maybe lastly, at least to me, my colleague gave a rather interesting interpretation of what he thought a constitution is but I always felt that a constitutional review was—always had to come … (very loud noise) … to (?) advancement … Of course, a review to my mind, is the transferring of authority and power from maybe a (?) colonial power to a (a lot of noise and people talking at same time).

H. Fergus: Maybe not in those specific terms but I agree with your basic point that if you are going to review the Constitution, it’s almost logical and reasonable to expect there’ll be some sort of advancement which has to do with power. I would expect advancement in the area of more power to the people through their representatives.

J. Wilson: I’m very concerned about this particular time of our history. This is a rather delicate time for us.

H. Fergus: It is because the fact is there is a sense in which we are more dependent than ever. That is also a reality.

(Several people talking at same time)

H. Fergus: They are all doing theirs. I’ll fly to Anguilla to talk to the Chairman at some stage.

J. Wilson: I wouldn’t be so presumptuous as to ask what our next step might be but that question surely will arise as to whether we just mark time on the spot or indeed we will see any meaningful advancement.

H. Fergus: (Noise blocking out first part of statement) … I mean if the people or the people of Montserrat want independence, they must say so—as a Commissioner, a preference for that. It’s the people (?) say and the people must look at, must carefully examine everything. I mean I have faith in the people’s views and the people’s thinking.

(Everyone talking at same time)

C. Skerritt: Some clarification. From my understanding, most of the Commonwealth Caribbean Constitutions came as a result of various things. And it appears to me that this constitutional review was initiated at the Governments, Governor’s (noise blocking out words) exposition we are on. How does …

H. Fergus: At the Governor’s level?

Mrs. C. Skerritt: Yes. You said that the Commission was appointed by …

H. Fergus: Which mean ours?

Mrs. C. Skerritt: The Constitutional Review was not initiated by the political directorate. Normally, what is the difference and why is it …

H. Fergus: Make your question clear because I want to be very clear on what I say on that.

Mrs. C. Skerritt: Yes. Usually, from my understanding, the Constitution comes out as a result of independence so most of the Commonwealth Caribbean islands developed their Constitution as a result of their independence or it came right about that time. In our case, we are reviewing The Constitution Order 1989 by a directive or under the direction of the Governor. From here I’m saying it—

Shouldn’t it have come from the political directorate? Isn’t it coming as a result—It is not coming as a result of the direction from the political directorate but from the Governor.

H. Fergus: Clearly, there is a difference between the Montserrat situation and sovereign states. When the British government responded to Jamaica’s desire to become independent, then the politicians, the Leader of Government and the Opposition would go to England, usually they go to England, and agree on the Constitution. There’s a mutual agreement there because they are about, a Colony—because they were a Colony—a Colony is about to become a nation. And they go to England and the British assist them—a British input, even then, in the Constitution that they’ve come back with.

Some of them are now looking at their Constitutions. Some have revised their Constitutions since that but there was sort of mutual agreement as to the nature of that Constitution.

In the case of these Overseas Territories, it is possible for an elected government to ask that the Constitution be reviewed. It is possible and some have done that. Some have wanted advancement. The people of BVI wanted their Constitution changed. They wanted to be like Bermuda. The Chief Minister wanted more power. He wanted a Cabinet rather than Executive Council. He wanted to preside over the Cabinet and he asked. He really didn’t get that but there were certain changes in the Constitution.

But as it is, where you have, at the moment, you cannot rule out, even when, even if the elected government were to ask, you can’t rule out the British input and authority in that Montserrat being a Colony or whatever nomenclature you use, British Overseas Territory—authority is vested in the British Government, in the Queen.

It doesn’t mean that you can’t ask, but when you ask, the appointment in 2002, it would be a brave Governor who decides to set up a Commission and chooses all of the members. So a prudent Governor would involve the Government of the day and say we want a Constitutional Commission of a certain number. You appoint a representative, appoint well. I think that’s how it’s done and there is a difference between the dependent territory or whatever territory it’s called and a sovereign state. Cheddie.

C. Browne: Let me try and make it a little clearer for you. Dr. Fergus went through a little thing there but the “white paper” was written in 1999. Now the position of the “white paper” was partnership—that’s the key word for the “white paper”—partnership with the remaining Colonies and the British government.

They know that that document, (the Montserrat Constitution Order) wherever it is, does not entail any degree of partnership. So initially, the initial objective when the “white paper” was written and constitutional review became a part of the “white paper,” part and parcel, the objective was to create a document that allowed for some degree of partnership between the elected government of the day and the Governor as opposed to the absolute powers that the Governor has in this particular document.

And this is the reason why the whole thrust of the whole thing was generated by … They are embarrassed. That was an utter and thorough embarrassment to them, internationally. It cannot stand up in the year 2000, in the 2000s. It is a colonial document that dates back to the 1800s. It is anachronistic and it is an embarrassment. And they have to change it. And this is where it gives us a golden opportunity.

H. Fergus: (Both people speaking at same time) …and we’re saying that they’re saying that you mustn’t change anything?

C. Browne: They are saying you mustn’t change the powers of the Governor but they want you to change all the rest of it that allows it to appear that you have some degree of equality, that you have some power sharing. There is absolutely no sharing of power now between the Elected Officials of this country and the Governor when it comes to constitutional authority and legal authority and for good governance in this country.

H. Fergus: I’m not sure about the embarrassment, eh. You see, I can talk on that. I was responding to a general question about how you generate a Constitution. What you have said about the “white paper” is correct and I have written more, critically—I mean I let you talk, but I have written more critically on this Order, this Constitution than anybody else has, published, read by the British. I can give you copies of articles.

So this business of embarrassment—yes; you are right in saying that the “white paper” on partnership did write another a number of things in, and Constitutional Review is one but Constitutional Review did not necessarily have to wait on a “white paper” which deals with partnership.

The British Virgin Islands had their Constitution reviewed in 1993 or thereabouts without partnership. And, yes, these Constitutions needed to be reviewed. I will agree with that. They needed to be reviewed and therefore, a number of them are being reviewed: Anguilla, Turks and Caicos, as well—a number of them are being reviewed at the moment.

But you’ll find that as a student of the thing that I know where you are coming from—that the situation in the sovereign states is different—but even then, the phrase was like Britain granting them independence. They were granted independence. You’ll see that term.

They were granted independence, just as all Britain has said, that if the people of Montserrat were to express, constitutionally, their desire for independence, they would get it. I don’t whether that obtains, today, today, today. I think may be it still does but that certainly was the position. So that there is really nothing, in theory, to prevent us from raising independence if that is what the people of Montserrat wanted and expressing it constitutionally. And by expressing it constitutionally, (I’m coming to you) I mean where a party writes sovereignty into it’s platform, into its Manifesto, campaigns on it and goes on to win the election—the British government, my understanding would respect that kind of constitutional expression by the people.

Audience member: Could it be a referendum as well?

H. Fergus: Yes.

H. Francis: Going back to Mrs. Skerritt’s question, if I interpret her well, I think she was questioning the intentions of the Governor. If I understand her question, she was saying that she would expect that if there is to be a new Constitution for Montserrat that it would be Montserratians, well she said the Political Directorate, who I think should be—sort of put forward the views of Montserratians—who would have been asking for it rather than the Governor asking for it. I think it is something …

Mr. C. Skerritt: That point was clarified when Cheddie also spoke about the partnership and Dr. Fergus …

H. Fergus: The Constitutional Commission has to be appointed by the Governor. If the government of the day wanted to set up a body, they could do that, but for it to have a certain kind of status—status in the sense of authority and a basis for action—because the British government would have to also accept, then it has to be appointed by the Governor.

H. Francis: Yes it would have to be appointed by the Governor but I don’t think it was the appointment that (a lot of noise). I think your question was initiation but you’re saying now that Cheddie answered (Several people talking) so you are saying that, in essence, the answer was that they made the “white paper” in 1999 and they were embarrassed and as such they have to …

C. Skerritt: I wasn’t saying that at all. I was saying that. (Both people talking at same time) He clarified things in terms of telling me where it may have originated and Sir Fergus elaborating again the examples of BVI, where, for example it was done where the government … I accept that.

(Several people talking at same time)

C. Skerritt: But, he used the term embarrassment and I’m not quite sure that I’d agree to it because it may not be embarrassment but it was ...

H. Francis: But it came out of that, you admit that it came out of that? It was a shortcoming of the “white paper.”

Mrs. C. Skerritt: Well, I would not say it in the term that you want.

H. Fergus: It’s not a shortcoming of the “white paper.” It came out the “white paper.” I think that’s what he really said. There are some other things that none of the Territories like about the “white paper.”

J. Kelsick: The important thing is that the review is going on. I think the origin—It would be desirable if it had been instigated by local government but the point is now we have an opportunity to carry out the review. I think it’s important to highlight what Sir Howard said: the question of involvement of the British Government.

This is a Constitution that is derived from the British government by virtue of our Colonial status and the local government has no authority to change it at all. I mean, we can recommend certain things but the changes would have to be put in place by the British government. It is very important to grasp that fact. I mean, if you read the preamble to the Constitution, it says that.

This is an Order, this is a Constitution which is given to us by the British government so from a constitutionally legal point of view, you should never lose sight of that. Whether you like it or not, that’s the legal position.

The other issue that I would like to raise because it was touched on by John Wilson: the question of the Governor’s powers because I think this is something that I hope people of Montserrat are going to raise with us.

§        Whether these should be curtailed because they are quite broad right now.

§        The extent to which the governor should be required to consult with local government and perhaps mandated to do so.

§        The extent to which he can ignore the expressed wishes of elected government officials.

I mean, right now, it’s a very topical issue.

H. Fergus: We’ll raise this issue; we’ll be going to all of them. I set up the Commission to see the Chief Minister, Ministers, the Governor.

J. Kelsick: The last point I’d like to make is this because I don’t think anyone has really considered it tonight. England does not have a Constitution; it has no written Constitution. I say England now because remember that the so-called UK is becoming fragmented and the Scottish will tell you that there is no such thing as the United Kingdom but the English Parliament has never enacted a written Constitution and in that respect, it can be said that we are constitutionally, a bit more advanced than them, certainly where our Bill of Rights is concerned because a lot of the rights which we have in Montserrat which exist as rights, as fundamental rights, do not exist as such in England. And I think that’s a point to bear in mind.

H. Fergus: They are party to a lot of European conventions and UN, which constrain their actions.

J. Wilson: This question of partnership and in playing with the word “partnership” somebody’s comment of course, is that there is always a junior partner and a senior partner, so there is no need for a partnership.

H. Fergus: I listened to those comments and you know, I understand them. It isn’t that I don’t agree with them. I can tell you plainly and openly that I went to a Conference at Wilton Park—it’s a famous place where they have these conferences—and it was chaired by Baroness Scotland and that conference—and if you are to read the minutes of the conference, it doesn’t name names, but the question was raised—I raised it, that I questioned this concept of partnership because what I contended was that the terms of the partnership, the parameters are unilaterally, you know, it’s not …

(Tape ends)

 

Transcriber’s Note: This is a transcription of the proceedings from a tape recorded by Radio ZJB. Aside from the premature ending of the tape recording, the noise, people speaking simultaneously, and typographical and other errors possibly made in transcribing the tape, two members of the audience told me that parts of the proceedings were not recorded so this is not a complete representation of all that was said at this meeting.

 

Signed,

 

Sylvia White 

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