Thursday, October 28, 2010

Oral Examination and Judgment Summons

The Oral Examination and the Judgment Summons
[1]     I have been asked to speak to you this afternoon on the twin subjects of the procedure for oral examination of a judgment debtor and the judgment summons procedure.
The Procedure for Oral Examination of a Judgment Debtor.
[2]     Oral examinations are governed by Part 44 of CPR 2000.  An oral examination is notoriously not a method of enforcement of a judgment.  It is merely a tool to assist an attorney to determine which method of enforcement to use.  It is a particularly valuable tool where the judgment creditor is ignorant of the nature and location of the assets, income and liabilities of his judgment debtor.  After the completion of the oral examination procedure, the attorney for the judgment creditor is expected to decide which of the various enforcement options provided by the Rules he will invoke.
[3]     The oral examination procedure is described in the English Supreme Court Practice.  It is essentially, as follows.  The attorney for the judgment creditor, by an application without notice, obtains from a judge an order for oral examination of the judgment debtor.  That order in Form 14 is served personally on the judgment debtor at least 7 days before the date fixed for the examination.  At the same time, a draft financial position notice in Form 16 requiring the judgment debtor to complete a statement of his financial position is served.  An affidavit of service must be filed not less than 3 days before the date fixed for the examination.
[4]     The examination is conducted normally by the Registrar.  The judgment debtor is examined by his attorney and cross-examined by the attorney for the judgment creditor.  The Registrar or her clerk writes out the evidence of the judgment debtor on loose sheets of paper, and at its conclusion reads it back to the judgment debtor, who is then asked to sign it.  The statement of the judgment debtor is placed on the court file.  Parties may receive a copy of it from the Registrar on payment of any necessary photocopying fee.  A copy of it may be exhibited with any affidavit supporting a method of enforcement that may subsequently be filed.
[5]     Rule 44.6 introduced a novel provision that did not exist previously under the 1964 Rules of the Supreme Court: power for the Registrar to record an agreement that the judgment debt be paid by instalments.  The Registrar may draw an order to that effect, which will be served in the usual way. 
[6]     It is important to note that such a consent order under Rule 44.6 is not enforceable in the same way as an order made under a judgment summons.  Due to the restrictions on imprisonment for non-payment of a civil debt established by the Debtor's Act, which we shall examine below, any non-compliance with such an agreement or consent order must be followed by the necessary judgment debtor summons for any order to be enforceable by imprisonment.
[7]     A careful attorney will follow up the oral examination proceedings by an application for one of the enforcement proceedings provided for in the Rules.  Even if an offer is made and accepted at the oral examination, the subsequent order of the Judge, Master or Registrar is not enforceable by imprisonment.  It should be buttressed and given effect by obtaining an order for a judgment summons and having the judge make any order on those subsequent proceedings.  Of course, the attorney for the judgment creditor is free to select any of the other enforcement procedures.
Judgment Debtor Summons procedure
[8]     In the Leeward Islands prior to 1889, the most common method of enforcing a judgment for money was by way of imprisonment.  Before the reforms of the nineteenth century, access to a debtor’s property in satisfaction of a judgment debt both in England and in the Leeward Islands was limited.  Besides the writ of fieri facias, there was only the remedy of imprisoning the debtor in the hope of coercing him to sell his real and other property to settle his debt.  At that time there was no need to allege that the debtor had behaved dishonestly in order to obtain a writ of arrest to enforce a judgment debt.  Reports of the Governors of the Leeward Islands back to the Secretary of State in London remark that common debtors on occasion filled the prisons of Basseterre and St John's[1].  Reform eventually came by way of introducing the UK reforms to the Leeward Islands.
[9]     The Debtor’s Act[2], which came into effect on 31 December 1888, instituted a major reform in the law applicable to civil debts in the Leeward Islands.  This Act was based on the Debtor’s Acts of 1869 and 1878 of the United Kingdom.  The purpose of the Act was to clear the prisons of persons imprisoned for debt.  From the date of that Act no debtor may be imprisoned in the Leeward Islands save under the limited procedure authorised by the Act.  The rule now is that no person may be arrested or imprisoned for making default in the payment of money.
[10]   The principle which the law seeks to enforce is that if any merchant gives credit to a customer who does not have the means to pay for the goods bought, then that is a risk that the merchant chose to take.  If any money lender hands over to a borrower a sum of money without taking adequate security for the loan, then that is a risk that the money lender took.  The careless creditor is not to come to law and expect to find a summary procedure to permit him to enforce his reckless transactions by the imprisonment of the impecunious debtor
[11]   CPR 2000, Part 52 is the Rule governing the issue of a Judgment summons in the jurisdiction of the Eastern Caribbean Supreme Court.  Rule 52.1 applies to applications to commit to prison a judgment debtor for non-payment of a debt where this is not prohibited by any relevant statute.
[12]   The most relevant statute is the Debtor’s Act.  By this Act, the Leeward Islands followed the UK precedent in abolishing imprisonment for debt, except in certain specific cases.  The exceptions are set out in section 3.  They are:
(1) default in the payment of a penalty;
(2) default in the payment of a sum recoverable summarily before a Magistrate;
(3) default by a trustee ordered by the Court to pay any sum;
(4) default by a solicitor in payment of costs for misconduct;
(5) default in payment for the benefit of creditors of any portion of a salary in respect of which a court having jurisdiction in bankruptcy is authorised to make an order; and
(6) defaults in payment of sums in respect of payment of which orders are in this Act authorised to be made.
[13]   We are interested in the exception found at paragraph (6).  Section 4(1) of the Act governs committal for judgment debts.  It provides that the court may commit a judgment debtor to prison for a term not exceeding 6 weeks.  There are conditions.  The order must be made by a judge in open court by an order showing on its face the ground on which it is issued.  Further, the court can only make such an order where it is proved to the satisfaction of the court that the person making default has or has had since the judgment the means to pay the debt and has refused or neglected to do so.
[14]   Subsection (3) authorises the judge to exercise his jurisdiction under this section in Chambers or otherwise in the prescribed manner.  However, subsection (1), as we have seen, requires the order committing the judgment debtor to be made in open court.  In the old days that order was obtained by a contempt motion heard in open court on what was called “Motions Day”.  I am not certain that this practice still continues under the new Rules.
[15]   Section 5 of the Debtor’s Act is an important section, but I believe it is seldom used in the Leeward Islands.  The section authorises the judge hearing a judgment summons, instead of making a committal order, with the consent of the judgment debtor, to make a receiving order against him.  He is deemed at that time to have committed an act of bankruptcy. 
[16]   Bankruptcy has always been viewed as an offence against the state.  Bankruptcy proceedings are proceedings by which the state through the agency of the trustee in bankruptcy assumes control over a debtor's assets.  The advantage of bankrupting a debtor is that the burden of proving his assets or lack of them passes to the debtor. 
[17]   The Debtor’s Act at section 9 et sec deals with persons adjudged bankrupt.  The bankrupted debtor commits a crime punishable with imprisonment merely by concealing one of his assets.  The procedure involves the prosecution of the fraudulent bankrupt and his conviction before a jury.  The last time a bankrupt was hanged in England for failing to disclose an asset was one John Perrott in 1761[3]. 
[18]   The second exception recognised by section 3 of the Debtor’s Act is the summary procedure for imprisonment of a judgment debtor in the Magistrate's Court.  The Magistrate's Code of Procedure[4] came into effect in the Leeward Islands in the year 1892.  The civil jurisdiction of the Magistrate is governed by sections 142 et sec.  There were no civil procedure rules made under the Act, but the Code provided that the Rules made under the Summary Jurisdiction Act should apply to proceedings in the Magistrate's civil court. 
[19]   Section 153 of the Magistrate's Code of Procedure provides a summary mechanism for imprisoning a judgment debtor.  Basically, after the Magistrate has entered a money judgment against the judgment debtor, the judgment creditor takes out a judgment summons.  The debtor is then examined as to his means by the creditor before the Magistrate.  On being satisfied as to the debtor's means, the Magistrate makes an order for periodic or other payment.  In the event that this order is disobeyed, the creditor applies for a Defaulting Debtor Summons.  On hearing this summons, the Magistrate, if satisfied that the debtor has the means and has wrongfully defaulted, may commit the debtor to prison for up to 6 weeks. 
[20]   When I practised in the Magistrate’s Court in Basseterre in the period 1971-1976 this evidence was frequently given by the attorney for the creditor going into the box and being sworn.  He would repeat as evidence some hearsay given to him by his client.  The Magistrate would listen to the excuses of the judgment debtor and, if he thought it appropriate, strong-arm the debtor into making a promise to pay by a certain date failing which he was to be imprisoned for 6 weeks or until he sooner paid the debt.  Imprisonment is subsequently secured by the attorney for the creditor applying for a Warrant of Commitment by which the debtor is imprisoned by the Bailiff without any further hearing. 
[21]   The summary procedure described above was never permitted in the High Court.  I do not know if it still continues in the Magistrate’s Court.  Perhaps unsurprisingly, some attorneys who practise in both the Magistrate's Court and the High Court, have been known to be tempted to apply the principles and procedures of the Magistrate’s Court to the judgment summons procedure in the High Court.
[22]   To emphasise how abhorrent it is to the common law courts to countenance the imprisonment of a judgment debtor for failure to pay the debt, it may be worthwhile noting that in the UK the Judgment Summon procedure for civil debt has been abolished since the early twentieth century.  You will not find detailed notes in the UK Supreme Court Practice of any edition subsequent to the First World War on the judgment summons procedure, as you will for the oral examination.  Unlike the Eastern Caribbean, the judgment summons is retained in the UK only for cases of willful failure to pay a tax debt and similar matters. 
[23]   Rule 52 is the rule governing the issue of a judgment summons in the High Court.  It is to be read in conjunction with the Debtor's Act and the rules made under it.  In particular, the Debtors (Committal) Rules[5] govern the procedure for enforcement of an order made by a judge under a judgment debtor summons.
[24]   Rule 52.2 provides for all applications to commit a judgment debtor to be made by way of a judgment summons in Form 21.  The summons must state certain particulars[6].  The Rule proceeds in sub-rules 3, 4 and 5 to provide for the service, and hearing, of the summons, and the enforcing of any instalment order.
[25]   The extent to which Rule 52 of CPR 2000 can have provided an entirely new procedure for the issue of a judgment summons is open to doubt.  CPR 2000 was made by the Chief Justice and two judges of the court, being the rule-making authority under section 17 of the West Indies Associated States Supreme Court Order 1967 (the Courts Order).  The Courts Order does not empower the authority to amend either a substantive Act or the Rules that may have been made under it.  It is not even clear if the intention was for CPR 2000 Rule 52 to amend or replace the Debtors (Committal) Rules made under the Debtor's Act.  A proper reading of Rule 52 would seem to require that it be read and interpreted in accordance with the Debtor's Act and the Rules made under it, ie, the Debtors (Committal) Rules.
[26]   A careful attorney will follow the Debtors (Committal) Rules in applying for a judgment summons.  Rule 2 requires that the application to commit the judgment debtor to prison must be made by summons and shall specify certain particulars.  By Rule 3 the service of the summons must be personal unless the judge is satisfied that the judgment debtor is evading service.  Rule 4 provides that proof of the means of the debtor shall, whenever practicable, be given by affidavit.  The affidavit should be sworn by the client or someone else knowledgeable about the debtor’s affairs, not by the attorney or his clerk, as is sometimes done in the Magistrate’s Court.  Where it appears to the judge that the debtor or other person should attend, the judge may order the person's attendance for the purpose of being examined on oath.  Rule 5 provides that the judge may then make an order of committal in Form A in the Schedule to the Rules.  These provisions are all essentially the same as those in Rule 52.
[27]   Rule 52 of CPR 2000 introduces some novel features to the judgment summons procedure.  They did not exist under the previous 1964 Rules.  To the extent that these new features protect the debtor, no complaint of substance can be made, as they will not offend against the Debtor’s Act.  To the extent that they may impose new burdens on the debtor, their validity is open to question as described above.  So, Rule 52.4 permits orders for periodic payments to be made, with the hearing of the judgment summons adjourned to a later date presumably to see if the judgment debtor is complying.  Rule 52.5 provides that imprisonment is not automatic in the event of default. 
[28]   The practice of delegating judgment summonses to a Master or the Registrar that had begun to creep in after the advent of CPR 2000 is not a proper one[7].  While the Registrar or Master frequently handles oral examinations only the judge should hear a judgment summons.
[29]   If a suspended committal order has been made on a judgment summons, and there has been default, the judgment creditor must follow the provisions of Rule 53 in obtaining a committal order.  Rule 53 provides the requirements that must be met before a judgment debtor may be committed.  So, at Rule 53.3 the original order under Rule 52 must generally have been served personally on the judgment debtor.  The order must have been endorsed with the usual penal notice.  There must have been sufficient time after service of the order afforded to the judgment debtor to comply.  The application for the committal order must specify the exact nature of the alleged breach, be verified by affidavit, and be served, and there must be an affidavit of service.
[30]   In conclusion, the oral examination procedure should never be used as a mechanism to obtain an order for periodic payments by a judgment debtor.  In my opinion, such an order is unenforceable as being an illegal avoidance of the protections introduced by the Debtor’s Act since 1888.  An illegal imprisoning of a judgment debtor may have the consequence of making the State liable to a claim in damages. 
[31]   There is a contrary view popularly held by judges and attorneys throughout the region.  It is that it is open to a court to imprison for contempt in a case where there is a failure or refusal to pay a judgment or an instalment on a judgment in circumstances where the court considers that the judgment debtor has the means to pay the same and an order has been made, and served, and then flouted.  In my humble opinion that is a wrong view if we are considering any proceedings other than a judgment summons.  When I began the practice of law in the High Court some 39 years ago, that was the conventional wisdom.  The interpretation and practice of the law has only been altered in the succeeding years.
[32]   It is my opinion that evidence of the flouting of an order to pay a judgment debt can only be properly adduced under the judgment summons procedure.  That is the correct proceeding not because it is right or just, but because the Debtor’s Act says so.  Until the Debtor’s Act is overturned by parliament it remains binding law. 
[33]   To admit otherwise, to permit what may be described as a back-door mechanism for imprisoning judgment debtors who fail or neglect to pay their judgment debts, would be to subvert the reforms to the enforcement regime introduced by the Debtor’s Act over one hundred years ago.  It would make it virtually unnecessary for a judgment creditor to go through the more onerous procedures introduced by the Debtor’s Act.  Every judgment creditor would prefer the easier procedure of obtaining a consent order under the oral examination procedure, and then to have the debtor imprisoned on some proof short of that required under the judgment summons procedure.
[34]   Finally, once the detailed provisions of the Debtors (Committal) Rules and Rule 53 of CPR 2000 are followed by the attorney for the judgment creditor, and credible evidence of willful default produced to the judge, there should be no difficulty in obtaining a committal order.  Of course, where the debtor’s oral examination produced evidence of his ownership of land or valuable personal possessions, the court will expect alternative enforcement proceedings to be preferred.
A talk to the Antigua and Barbuda Bar Association on Thursday, 28 October 2010
- By Don Mitchell CBE QC

[1]      The Quaker missionary John Candler who visited the West Indies in 1841 reported 6 of the 56 prisoners in the Basseterre gaol at the time of his visit to be debtors.
[2]      An Act of the Federal Assembly of the Colony of the Leeward Islands [No 2/1888] which came into effect on 31 December 1888.
[3]      Halsbury's Laws of England, 2nd Edition, Vol 2, page 4 dealing with “Bankruptcy and Insolvency”.
[4]      An enactment of the Leeward Islands Federal Legislature [10/1891] which came into effect on 10 February 1892.
[5]      Made on 24 November 1890 under section 8.
[6]      It may be worth noting here that there appear to be two printer's errors in sub-rule 2:  (i) The sub-rule (2) commences with the words “The court order must” when what is meant is “The court office must”.  Then, paragraph (c) reads “return the order” when what is meant is “return the summons”.  It can be certain that these printing errors do not aid in the interpretation of the Rule.
[7]      Practice Direction 2 of 2007 made by the Chief Justice under Rule 4.2(2) of CPR 2000.

Tuesday, August 24, 2010

Montserrat Trip Report

Trip Report on a visit to Montserrat 
16-20 August 2010

By Don Mitchell CBE QC
[1]        Last week I visited Montserrat at the invitation of the Hon Donaldson Romeo MLC to consult with him and members of the public on the new draft Constitution 2010.  This has been drafted by a team of Foreign and Commonwealth Office (FCO) lawyers, and agreed by the Government of the island.  The FCO legal team and the Government propose that the Legislative Council should pass a Resolution approving the draft with or without amendment.  The present Constitution dates to the year 1989. 
[2]        During the three days that I was in Montserrat, I met with one youth group, two service clubs, the Rastafarian organization, one church group, and various individuals, including a number of the island’s barristers and solicitors.  I also took part in a television interview, a radio call-in programme, and interviews by various members of the press.  I am especially grateful to Jean Kelsick Esq, barrister and solicitor of the Eastern Caribbean Supreme Court, for some of his observations on weaknesses in the draft Constitution, some of which I have been happy to adopt.
[3]        Montserrat is one of the few British Overseas Territories still receiving financial support from the British Government.  The receipt of grant-in-aid, I was told by several Montserratians, makes it difficult for them to believe that their views on the draft constitution will be welcomed.  Many believe that the draft Constitution is being offered to them on a “take it or leave” basis.  This unfortunate, and wrong, view of theirs is reinforced by recent actions of the local Government. 
[4]        Government has made a concerted effort to rush the draft Constitution through the Legislature without any public consultation.  Only reluctantly did the government suspend its efforts to have an approving resolution passed.  The public has been given three months to ‘consult’.  The resulting consultation process has been deeply flawed.  It would appear that no effort is being made to gather any input from the people of Montserrat regarding the draft Constitution. 
[5]        The government has established a Constitution Implementation and Advice Committee whose main function appears to be to sell the draft to the public, rather than to get suggestions for improvement of the draft.  This is no way to secure the approval and support of the majority of the people to the proposed new Constitution. 
[6]        The process chosen for the introduction of a new Constitution shows an attitude of pure contempt on the part of the FCO and the local administration towards the people of Montserrat.
[7]        I have come to the conclusion that the draft is bereft of any sign of an interest in good governance on the part of the FCO.  It is devoid of any of the principles of integrity, accountability or transparency, as I shall attempt to show.  These principles are routinely touted by the same FCO as the three pillars of good governance.  The draft Constitution of Montserrat has missed the opportunity to contribute to this movement.
[8]        The concentrating of power in the Governor’s hands, as proposed by this draft Constitution, tends towards arbitrary, one-man rule.  It may be true that a good governor is better than a bad local Cabinet.  We cannot be confident that our Governors will always be good.  Experience, especially in the case of Montserrat, teaches otherwise. 
[9]        A new Constitution should rather be trying to develop local democratic institutions that will involve the people in their own governance.  It is preferable that the Constitution should encourage responsible government in the Overseas Territory, rather than destroying it.  Responsible government is a better guarantee of democracy, justice, and fairness in government than one-man rule.  The draft Constitution provides for absolute power to be concentrated in one person, subject only to the oversight of the Secretary of State far away in London. 
[10]      In this respect, in my view, the draft Constitution increases the deficit of democracy in Montserrat.
[11] The Preamble:  The draft Constitution starts with a preamble to the Constitution.  This preamble has evidently been drafted by the FCO legal team.  A preamble to a Constitution should be a statement of who the people of Montserrat consider themselves to be.  It should be an expression of their aspirations.  If this were so, it would be written by Montserratians, and it would be expressed in the first person.  It is not appropriate that this preamble should have been drafted by a foreigner, and expressed in the third person.
[12]      The FCO proposes to weaken many of the fundamental rights of the Montserratian people.  We see this first in the section 5 fundamental right to protection from arbitrary arrest or detention.  This provision in the draft Constitution is very weak.  It does not provide for informing arrested persons promptly of their rights.  They need be told of the reason for their arrest only after they have been brought to the station. 
[13]      A person needs to know immediately he is arrested of the reason for his arrest.  This is so not least because he has a right to know whether he is being illegally arrested so that he can exercise his right to resist the arrest.
[14]      The version of the right in the draft is weakened by the provision that he is to be brought “promptly” before a judicial officer.  This provision is capable of abuse, particularly in view of the penchant of the police for arresting persons on a Friday afternoon, and then not bringing them before the Magistrate until the next sitting of the court.  They ought to be obliged to bring an arrested person before a judicial officer within 24 hours of the arrest.  They should bring him to the home of the Magistrate if necessary. 
[15]      This is, not least, so that the Magistrate can observe the arrested person for signs of physical abuse and to be able to give the necessary directions for a medical examination, and to consider bail.
[16]      The FCO proposes to have the Constitution of Montserrat permit the removal of trial by jury:  The wording of section 6 of the draft Constitution makes possible the removal of the right to trial by jury.  There is no suggestion that the people of Montserrat consider this new development either advisable or desirable.  This proposal may have been stimulated by recent failures in prosecution mainly of sexual cases.  Such failures, from what I have been told, spring from patent weaknesses in the prosecution’s cases, and not to any perversity of the jury.
[17]      This is not the only assault on the fundamental right of the people of Montserrat to the protection of law.  The same section 6 contains a provision contemplating abolition of the right to appeal from some or all convictions in the Magistrate’s Court.  Such a drastic curtailment of this fundamental right is inappropriate without thorough consultation with and support from the people of Montserrat, of which there is no evidence. 
[18]      Such a proposal is so offensive as to be incredible in a draft Constitution proposed by an FCO legal team.
[19] The section 9 provision for the protection of the right to marry:  The opportunity has been lost in this or some other provision to ensure that persons born outside of wedlock are not discriminated against under the law.  The Constitution should stipulate equal treatment before the law for all children whether they are born in or out of wedlock or are adopted.
[20]      The FCO legal advisers propose to take away the right of public servants to express a political opinion.  This fundamental right is found in section 12 of the draft Constitution.  It is the provision for the protection of freedom of expression:  In colonial constitutions the fundamental right was traditionally constrained in relation to public servants.  The thinking was that if you are working for Government, you should not be permitted to come out and express views opposed to the Government of the day.
[21]      The way that the right has traditionally been curtailed is by placing in General Orders, the contractual document binding all public servants, a term prohibiting the public or private expression of any political opinion by any public servant.  This was so draconian and absolute a restriction of a fundamental right that it has long been the subject of interpretation by the courts. 
[22]      Restrictions on permanent secretaries and other confidential advisers of government ministers of their public expression of political views may be justifiable.  Ministers need to be confident that their highest advisers will not appear suddenly on a political platform betraying the confidences previously shared.  The same does not apply to the lower ranks of the public service.  It is generally understood in the West Indies today that a blanket ban on public expression of political views by the general mass of public servants is highly objectionable.
[23]      The earlier provision in the Constitution of Montserrat was that the prohibition on expressing a political opinion must be “reasonably justifiable in a democratic society”.  Such a wording has been held by the courts of the West Indies to make it illegal to restrict the lower ranks of the public service from expressing their political opinions. 
[24]      The draft Constitution proposes to remove the need for the prohibition to be reasonably justifiable in a democratic society.  It is to be replaced by a need for Government to show only that the restriction “is reasonably required for the purpose of ensuring the proper performance of their functions.”  This is clearly a lower threshold than previously.  And, the higher test has been removed without any explanation. 
[25]      The intention appears to be to water down the previously enjoyed right, with a view to making it easier to gag teachers and public servants through General Orders.  There is absolutely no justification for this proposed curtailment of this fundamental right of all Montserratians to freedom of expression.
[26] The section 14 provision for freedom of movement contains a sting in the tail.  It would give “an authority” the right to deport a non-Montserratian.  The authority is not defined.  It should be.  As it presently stands, if this provision is passed, it will give a wide variety of people in Government the right to deport someone.  It is clearly preferable that any decision to deport someone should be sanctioned by the court.
[27]      The section 17 provision in the draft Constitution for declaring periods of public emergency is anti-democratic in that the Governor alone decides.  The section should provide as in the British Virgin Islands that he acts in declaring a state of emergency on the advice of Cabinet unless otherwise instructed by the Secretary of State.
[28]      That is not all.  There is a further whittling away of the rights of Montserratians in the section.  The traditional test for restricting the rights and freedoms of the individual is generally expressed as having to be “reasonably justifiable in a democratic society”.  However, in relation to the Governor’s emergency powers, the standard would be set considerably lower in the draft Constitution.  The new test would be “reasonably justifiable for dealing with the situation that exists.” 
[29]      The alteration of the test for justifying a declaration of a state of emergency is undesirable, particularly as that provision has been judicially reviewed in Montserrat.  One may infer that the reason for the watering down of the test is that it is designed to enable the Governor to act in a heavy-handed way in the future without his being accountable to the Courts. 
[30]      Such a deplorable development in a proposed Constitution for a British Overseas Territory is much to be regretted.
[31]      It is accepted that Montserratians live in a country under threat by volcanic eruptions as well as hurricanes.  States of emergency may have to be declared from time to time.  The traditional constitutional provisions are well known, and have been tested in the courts.  There is no need to weaken the rights of the average Montserratian only because there is a risk of more natural disasters striking.
[32]      The draft Constitution would have the section 18 provision for protection of persons detained under emergency laws significantly curtail the rights of the detained person. 
[33]      There is no good reason why the family and the public should wait 10 days to be notified of the identities of persons detained.  It should be no more than 3 days. 
[34]      Nor is there any reason why persons should be able to be detained for up to 30 days without an appearance before the court.  This should be no more than 5 days. 
[35]      Nor is there any need for any other tribunal but the established courts of the island.  Except in a police state, the courts are the most reliable protector of the rights and freedoms of the citizen.
[36]      The evil does not stop there.  The draft states that if an independent tribunal were to recommend that a detainee be released, the authority that locked them up in the first place could ignore the Tribunal’s recommendation.  This provision would mean that the authority could ignore a decision of someone such as a judge appointed by the Chief Justice to preside over the tribunal.  This should be a frightening prospect.
[37]      This new provision vests draconian and dictatorial powers in the hands of the Governor and the police.  It is completely unacceptable in a modern Constitution of a British Overseas Territory in the West Indies.
[38]      There are other objectionable provisions in the draft Constitution that are familiar from the earlier Constitution.  The section 51 restriction on Montserratians who have travelled, and been so lucky and enterprising as to have acquired a second passport, from being able to be nominated and elected to the Legislature is most objectionable.  It repeats the provision in the old Constitution.  One would have thought that preparing a brand new Constitution would have been the opportunity to remove such an anachronism.  It should form no part of a modern Overseas Territory Constitution.
[39]      Section 81 and the following sections set up a Public Service Commission, but it is a powerless institution.  It has the right to consult only on public service appointments and on matters of discipline.
[40]      No FCO-appointed Governor or his deputy should have total power over the appointment and discipline of public servants in a British Overseas Territory.  He should be obliged to follow the advice of a PSC, except, perhaps, for the highest ranks, where consultation with the Chief Minister might be appropriate.  Similarly for teachers and the police force. 
[41]      One notes that section 84 expresses a hope that one day a Public Service Act might be passed that will oblige the Governor to act on the advice of the PSC.  Such a hope is not good enough.  The Constitution should require it to be done.
[42]      One sees with regret that there is no intention to entrench the Ombudsman in the new Montserrat Constitution.  The section 104-105 provisions relating to the Ombudsman are most unsatisfactory.  The office is not to be constituted by the Constitution but is left for a law, which may or may not be passed, to do so. 
[43]      This supervisory officer of the Legislature is one of the most important watchdog institutions that a free people can ever have.  The people of the British Overseas Territories in the West Indies have been exposed to arbitrary and despotic decisions by government departments for decades.  Without the resources to fund a High Court action, the victims have been without remedy. 
[44]      This office is generally recognized as one of the most liberating that a Constitution can provide.  The Constitution should establish the office and set out his functions, tenure and immunities in the usual way, as exemplified by the Constitution of Antigua and Barbuda.
[45]      The draft Montserrat Constitution does not entrench an Interests Commissioner.  Section 106 provides at best a hope that there will be a continuing Interests Commissioner and an effective Integrity in Public Life Act, after it comes into effect.  This is not satisfactory. 
[46]      The new Constitution should entrench the office and make it clear that the provisions are to apply to all members of the Legislature, the Cabinet, Statutory Boards and Committees, and their immediate families.  The disclosures to be made by public officers should not be secret.  They should be public, and failures to obey the law should be subject to serious penalties.  Integrity, accountability and transparency require this.
[47]      Having the Constitution give absolute and dictatorial powers to one man is the opposite of providing for good governance.  A read of the draft Constitution reveals an intention to give the Governor almost total power over the administration.  He is controlled only by secret and unaccountable instructions from the FCO.  This secrecy and lack of accountability are then multiplied by giving him associated discretionary powers. 
[48]      The result is an anti-democratic Constitution.  The system it sets up is not conducive to good governance.  It is the polar opposite of integrity, accountability and transparency.  In particular,
(a) The section 21 use of his discretionary and reserve powers is not subject to democratic accountability.  The draft Constitution should be amended to provide that, except where otherwise instructed by the Secretary of State, he ought first to consult the Cabinet and be subject to review by the High Court in the exercise of his discretionary and reserve powers;
(b) Integrity, accountability and transparency require that the section 26 power to dispose of Crown Land should be subject to a resolution of the Legislature;
(c) The section 28 power of pardon should be exercised on the advice of a Mercy Committee;
(d) The section 87 power to grant or withhold pensions, gratuities and allowances ought to be exercised on the advice of the Public Service Commission;
(e) The section 100 power to appoint the Auditor General is exercised after consultation with the Public Accounts Committee.  Greater accountability and transparency would be achieved if this were to be done after consultation with the Public Service Commission and the Integrity Commission;
(f) Extraordinarily for the twenty-first century, the Governor will retain the power to amend or to disallow a law passed by the Legislature without any reference back to the Legislature. 
[49]      The proposed new draft Constitution for Montserrat is filled with anti-democratic provisions.  These include:
            (a) The Deputy Governor will be able to act in relation to the public service without being obliged to take the advice of the Public Service Commission.  Except in the case of the most senior ranks, this is clearly undesirable;
            (b) The Attorney-General, the Financial Secretary and the Deputy-Governor are not elected.  As in other Overseas Territories with modern colonial Constitutions, they should have no vote in either the Cabinet or the Legislative Assembly;
            (c) The need for a Director of Public Prosecutions has clearly been recognised by the section 45 provision enabling his appointment.  It appears from the wording of the section that the intention is to have the Attorney-General continue to act in that position for an indeterminate period into the future.  The draft should be amended to establish the office and to require the appointment to be made;
            (d) A Magistrate in Montserrat has considerable power, and can impose fines of up to $100,000.00 and prison sentences of up to 10 years.  As Montserrat does not have a High Court judge, the Magistrate plays an enhanced role.  He or she routinely hears cases that would normally be tried by a judge and jury.  The section 84 appointment of the island’s Magistrate is by the Governor after consultation with the Chief Justice.  This is unacceptable in a modern democracy.  It does not insulate the Magistrate from the Executive as should be the case.  For a Magistrate to do a proper job in Montserrat he or she needs to be shielded from influence and pressure from both the Ministers and the Governor.  Additionally, there is a well-known current regional initiative to integrate the Magistracy into the judiciary.  The provision in the draft should be that the appointment and discipline of the Magistrate is by the Governor acting on the advice of the regional Judicial and Legal Services Commission, of which the Chief Justice is the head;
            (e) The thought that the Director of Public Prosecutions and the Magistrate can be removed from office by the Governor and the Secretary of State is a frightening one.  These are both judicial officers.  The rule of law demands that both their appointment and removal be out of the hands of the Executive and be either by, or on the recommendation of, the regional Judicial and Legal Services Commission;
            (f) Currently, the police police themselves.  Complaints about police misconduct made to the Commissioner of Police and the Governor are notoriously not investigated impartially.  Such complaints invariable attract hostile responses from the police.  The absence of any provision in the draft for a Police Complaints Board is regrettable.  Such a Board is a vital tool for controlling police misconduct.  Such a Board will effect greater transparency and justice for all.  There is no reason why Montserrat should have a lower standard of governance in this respect than Bermuda or Britain itself; and
            (g) The FCO proposes through this draft Constitution to retain draconian and unrestrained powers to legislate for Montserrat over the heads of the Legislative Council.  The new Constitution will preserve (i) the power to enact laws through the UK Parliament; (ii) the use of the Order in Council without prior consultation; (iii) the section 73 power of the Governor to refuse his assent to a Bill that has passed through the Legislative Council without any limitation; and (iv) the section 75 power of disallowance, though this section does require the Secretary of State to refer the offending law back to the Legislature.
[50]      These provisions do not increase democracy in Montserrat.  They reduce what little amounts of justice and democracy Montserratians presently enjoy under threat of renewed volcanic activity.  As such, they amount to a step backwards in constitutional advance, and are a shame on the constitutional advisers who dreamed them up.
[51]      There are some other obvious gaps and deficiencies in the new draft Constitution proposed for Montserrat.  It is to be regretted that no thought has been given in this draft Constitution to providing for a Freedom of Information Act. Without such a law, no one in Montserrat would have the right to obtain information that should be available to the public.  Secret government, which is an enabler of corruption and bad government, is in this way encouraged.
[52]      It is to be regretted that an opportunity was not taken to entrench the Tenders Board in the Constitution.  The greater part of the budget is spent on developing infrastructure, repairs and maintenance. Procurement of goods and services offers attractive opportunities for those who would corrupt the process and illegally enrich themselves.  The Tenders Board ought to have the independence and security of tenure of its members protected by the Constitution and by appropriate laws and regulations, backed up by appropriate training for members of the Board.
[53]      Amendment of the Constitution.  Section 114 of the draft provides that only the Premier, in very limited circumstances, may request an amendment of the Constitution.  The FCO reserves unlimited right itself to amend the Constitution without any reference to the people or government of Montserrat.  This is clearly highly undesirable.  The Cayman Islands recently completed their constitutional negotiations and accepted a new Constitution.  In the case of the Cayman Islands, the FCO accepted that it would never again amend their Constitution without first putting it to a referendum of the people.  No person can suggest that there is a good reason why some lower standard of democracy should be enjoyed by Montserratians.
[54]      A Constitution is the supreme law of any people, subject, in the case of a British Overseas Territory, to the Parliament of the United Kingdom.  A Constitution that is imposed on a people by a foreign power lacks validity and respect. 
[55]      In my view, it is the duty of every patriotic Montserratian to insist in the strongest possible terms for a right to comment on and criticise any terms in this draft Constitution that appear unacceptable to them. 
[56]      Montserratians have a right to demand that the draft Constitution be put to them for their approval either by a referendum or by some other mechanism calculated to demonstrate their real approval and acceptance of the new Constitution.  Only after this has been done would it be proper for the Governor to pass the draft to the Privy Council for enactment by an Order in Council. 
[57]      The British Government has frequently promised that it expects no less than evidence that the people of an Overseas Territory have expressed their support for any amendment to a Constitution. 
[58]      Having read the draft new Constitution, I have come to the conclusion that it does not advance good government in Montserrat.  Rather, it sets Montserratians back decades, particularly in the area of human rights.  I cannot see any reason why Montserratians should accept a second-class Constitution.
Dated 24 August 2010