The Montserrat Constitution Order 1989

• (4) No person shall be compelled to take any oath which is contrary to his religion or belief or to take any oath in a manner which is contrary to his religion or belief.

• (5) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision which is reasonably required—

• (a) in the interests of defence, public safety, public order, public morality or public health; or

• (b) for the purpose of protecting the rights and freedoms of other persons, including the right to observe and practise any religion or belief without the unsolicited interference of persons professing any other religion or belief,

except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.

Protection of freedom of expression.

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• (1) Except with his consent, no person shall be hindered in the enjoyment of his freedom of expression, and for the purposes of this section the said freedom includes freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his correspondence.

• (2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision—

• (a) that is reasonably required—

• (i) in the interests of defence, public safety, public order, public morality or public health; or

• (ii) for the purpose of protecting the rights, reputations and freedoms of other persons or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts, regulating telephone, telegraphy, posts, wireless broadcasting, television or other means of communication or regulating public exhibitions or public entertainments; or

• (b) that imposes restrictions upon public officers or teachers, except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.

• (3) For the purposes of subsection (2)(b) of this section in so far as it relates to public officers, “law” in subsection (2) includes directions in writing regarding the conduct of public officers generally or any class of public officer issued by the Government.

Protection of freedom of assembly and associations.

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• (1) Except with his consent, no person shall be hindered in the enjoyment of his freedom of peaceful peaceful assembly and association, that is to say, of his right to assemble freely and associate with other persons and in particular to form or belong to political parties or to form or belong to trade unions or other associations for the protection of his interests.

• (2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision—

• (a) that is reasonably required—

• (i) in the interests of defence, public safety, public order, public morality or public health;

• (ii) for the purpose of protecting the rights and freedoms of other persons; or

• (b) that imposes restrictions upon public officers, except so far as that provisions or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.

• (3) For the purposes of subsection (2)(b) of this section, “law” in subsection (2) includes directions in writing regarding the conduct of public officers generally or any class of public officer issued by the Government.

Protection of freedom of movement.

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• (1) Except with his consent, no person shall be hindered in the enjoyment of his freedom of movement, that is to say, the right to move freely throughout Montserrat, the right to reside in any part thereof the right to enter Montserrat and immunity from expulsion therefrom.

• (2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision—

• (a) for the imposition of restrictions on the movement or residence within Montserrat or on the right to leave Montserrat of persons generally or any class of persons that are reasonably required—

• (i) in the interests of defence, public safety, public order, public morality or public health, or

• (ii) for the purpose of protecting the rights and freedoms of other persons,

except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society;

• (b) for the removal of a person from Montserrat to be tried or punished in some other country for a criminal offence under the law of that country or to undergo imprisonment in some other country in execution of the sentence of a court in respect of a criminal offence under the law of Montserrat of which he has been convicted;

• (c) for the imposition of restrictions on the movement or residence within Montserrat or the right to leave Montserrat of public officers that are reasonably required for the purpose of ensuring the proper performance of their functions;

• (d) for the imposition of restrictions on the movement or residence within Montserrat of any person who does not belong to Montserrat or the exclusion or expulsion therefrom of any such person;

• (e) for the imposition of restrictions on the acquisition or use by any person of land or other property in Montserrat;

• (f) for the imposition of restrictions, by order of a court, on the movement or residence within Montserrat of any person or on any person’s right to leave Montserrat either in consequence of his having been found guilty of a criminal offence under the law of Montserrat or for the purpose of ensuring a fair trial or that he appears before a court at a later date for trial of such a criminal offence or for proceedings preliminary to trial or for proceedings relating to his extradition or lawful removal from Montserrat; or

• (g) for the imposition of restrictions on the right of any person to leave Montserrat that are reasonably required in order to secure the fulfilment of any obligation imposed by law, except so far as the provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.

• (3) For the purposes of subsection (2)(c) of this section, “law” in subsection (2) includes directions in writing regarding the conduct of public officers generally or any class of public officer issued by the Government.

• (4) Any restriction on a person’s freedom of movement which is involved in his lawful detention shall not be held to be inconsistent with or in contravention of this section.

• (5) For the purpose of this section, a person shall be deemed to belong to Montserrat if he has, under the law in force in Montserrat regulating immigration, the status of “Belonger”.

Protection from discrimination on grounds of race, etc.

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• (1) Subject to subsection (4), (5) and (8) of this section, no law shall make any provision which is discriminatory either of itself or in its effect.

• (2) Subject to subsections (6), (8) and (9) of this section, no person shall be treated in a discriminatory manner by any person acting by virtue of any law or in the performance of the functions of any public office or any public authority.

• (3) In this section, “discriminatory” means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, place of origin, political opinions, colour or creed whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.

• (4) Subsection (1) of this section shall not apply to any law so far as that law makes provision—

• (a) for the appropriation of revenues or other funds of Montserrat or for the imposition of taxation (including the levying of fees for the grant of licences);

• (b) with respect to the entry into or exclusion from, or the employment, engaging in any business or profession, movement or residence within Montserrat of persons who do not belong to Montserrat for the purposes of section 62 of this Constitution;

• (c) for the application, in the case of persons of any such description as is mentioned in subsection (3) of this section (or of persons connected with such persons) of the law withrespect to adoption, marriage, divorce, burial, devolution of property on death or other like matters that is the personal law applicable to persons of that description; or

• (d) whereby persons of any such description as is mentioned in subsection (3) of this section may be subjected to any disability or restriction or may be accorded any privilege or advantage which, having regard to its nature and to special circumstances pertaining to those persons or to persons of any other such description, is reasonably justifiable in a democratic society.

• (5) Nothing contained in any law shall be held to be inconsistent with or in contravention of subsection (1) of this section to the extent that it requires a person to belong to Montserrat for the purposes of section 62 of this Constitution or to possess any other qualification (not being a qualification specifically relating to race, place of origin, political opinions, colour or creed) in order to be eligible for appointment to any office in the public service or in a disciplined force or any office in the service of a local government authority or of a body corporate established directly by any law for public purposes.

• (6) Subsection (2) of this section shall not apply to anything which is expressly or by necessary implication authorised to be done by any such provision of law as is referred to in subsection

• (4) or (5) of this section.

• (7) Subject to subsection (8) of this section, no person shall be treated in a discriminatory manner in respect of access to any of the following places to which the general public have access, namely, shops, hotels, restaurants, eating-houses, licensed premises, places of entertainment or places of resort.

• (8) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision whereby persons of any such description as is mentioned in subsection (3) of this section may be subjected to any restriction on the rights and freedoms guaranteed by sections 58, 59, 60, 61 and 62 of this Constitution, being such a restriction as is authorised by section 58(2)(a), 59(5), 60(2), 61(2) or 62(2)(a) as the case may be.

• (9) Nothing in subsection (2) of this section shall affect any discretion relating to the institution, conduct or discontinuance of civil or criminal proceedings in any court that is vested in any person by or under this Constitution or any other law.

Protection from deprivation of property.

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• (1) No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, except where the following conditions are satisfied, that is to say—

• (a) the taking of possession or acquisition is necessary or expedient in the interests of defence, public safety, public order, public morality, public health, town and country planning or the development or utilisation of any property in such manner as to promote the public benefit or the economic well-being of the community; and

• (b) there is reasonable justification for the causing of any hardship that may result to any person having an interest in or right over the property; and

• (c) provision is made by a law applicable to that taking of possession or acquisition—

• (i) for the prompt payment of adequate compensation; and

• (ii) securing to any person having an interest in or right over the property a right of access to the High Court, whether direct or on appeal from any other authority, for the determination of his interest or right, the legality of the taking of possession or acquisition of the property, interest or right, and the amount of any compensation to which he is entitled, and for the purpose of obtaining prompt payment of that compensation; and

• (iii) giving to any party to proceedings in the High Court relating to such a claim the same rights of appeal as are accorded generally to parties to civil proceedings in that Court sitting as a court of original jurisdiction.

• (2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of subsection (1) of this section—

• (a) to the extent that the law in question makes provision for the taking of possession or acquisition of any property, interest or right—

• (i) in satisfaction of any tax, rate or due;

• (ii) by way of penalty for breach of any law or forfeiture in consequence of a breach of any law;

• (iii) as an incident of a lease, tenancy, mortgage, charge, bill of sale, pledge or contract;

• (iv) by way of the taking of a sample for the purposes of any law;

• (v) where the property consists of an animal upon its being found trespassing or straying;

• (vi) in the execution of judgements or orders of a court;

• (vii) by reason of its being in a dilapidated or dangerous state or injurious to the health of human beings, animals or plants;

• (viii) in consequence of any law with respect to prescription or the limitation of actions; or

• (ix) for so long only as may be necessary for the purposes of any examination, investigation, trial or inquiry, or, in the case of land, for the purposes of carrying out thereon work of reclamation, drainage, soil conservation or the conservation of other natural resources or work relating to agricultural development or improvement (being work relating to such development or improvement that the owner or occupier of the land has been required, and has, without reasonable and lawful excuse, refused or failed, to carry out), except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society; or

• (b) to the extent that the law in question makes provision for the taking possession or acquisition of any of the following property (including an interest in or right over property), that is to say—

• (i) enemy property;

• (ii) property of a deceased person, a person of unsound mind or a person who has not attained the age of twenty-one years, for the purpose of its administration for the benefit of the persons entitled to the beneficial interest therein;

• (iii) property of a person adjudged bankrupt or a body corporate in liquidation, for the purpose of its administration for the benefit of the creditors of the bankrupt or body corporate and, subject thereto, for the benefit of other persons entitled to the beneficial interest in the property; or

• (iv) property subject to a trust, for the purpose of vesting the property in persons appointed as trustees under the instrument creating the trust or by a court or, by order of a court, for the purpose of giving effect to the trust.

• (3) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of subsection (1) of this section to the extent that the law in question makes provision for the compulsory taking of possession in the public interest of any property, or the compulsory acquisition in the public interest of any interest in or right by law for public purposes in which no moneys have been invested other than moneys provided from public funds.

Provisions for periods of public emergency.

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• (1) Nothing contained in or done under the authority of any regulation made under the Emergency Powers Orders in Council 1939 to 1973[^f00005] or under the Leeward Islands (Emergency Powers) Order in Council, 1959[^f00006] shall be held to be inconsistent with or in contravention of section 57, section 58 other than subsections (4) and (6) thereof or any provision of sections 59-64 (inclusive) of this Constitution to the extent that the regulation in question makes in relation to any period of public emergency provision, or authorises the doing during any such period of anything, that is reasonably justifiable in the circumstances of any situation arising or existing during that period for the purpose of dealing with that situation.

• (2) Where any person who is lawfully detained in pursuance of such a regulation as is referred to in subsection (1) of this section so requests at any time during the period of that detention (but if he has already made such a request during that period not earlier than six months after he last made such a request during that period), his case shall within one month of making the request be reviewed by an independent and impartial tribunal established by law and presided over by a person appointed by the Chief Justice.

• (3) On any review by a tribunal in pursuance of this section of the case of a detained person, the tribunal may make recommendations concerning the necessity or expediency of continuing his detention to the authority by which it was ordered but, unless it is otherwise prescribed, that authority shall not be obliged to act in accordance with any such recommendations.

Enforcement of fundamental rights.

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• (1) If any person alleges that any of the foregoing provisions of this Part has been, is being or is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for redress.

• (2) The High Court shall have original jurisdiction—

• (a) to hear and determine any application made by any person in pursuance of subsection (1) of this section; and

• (b) to determine any question arising in the case of any person which is referred to it in pursuance of subsection (3) of this section,

and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the foregoing provisions of this Part to the protection of which the person concerned is entitled:

Provided that the High Court shall not exercise its powers under this subsection if it is satisfied that adequate means of redress are or have been available to the person concerned under any other law.

• (3) If in any proceedings in any court established in Montserrat other than the High Court or the Court of Appeal, any question arises as to the contravention of any of the foregoing provisions of this Part, the court in which the question has arisen shall refer the question to the High Court, unless, in its opinion, the raising of the question is merely frivolous or vexatious.

• (4) An appeal shall lie as of right to the Court of Appeal from any final determination of any application or question by the High Court under this section, and an appeal shall lie as of right to Her Majesty in Council from the final determination by the Court of Appeal of the appeal in any such case; Provided that no appeal shall lie from a determination by the High Court under this section dismissing an application on the ground that it is frivolous or vexatious.

• (5) A law made under section 45 of this Constitution may confer upon the High Court such powers in addition to those conferred by this section as may appear to be necessary or desirable for the purpose of enabling the Court more effectively to exercise the jurisdiction conferred upon it by this section.

• (6) Any such law may make, or provide for the making of provisions with respect to the practice and procedure—

• (a) of the High Court in relation to the jurisdiction and powers conferred upon it by or under this section;

• (b) of the High Court or the Court of Appeal in relation to appeals under this section from determinations of the High Court or the Court of Appeal; and

• (c) of other courts in relation to references to the High Court under subsection (3) of this section;

including provision with respect to the time within which any application, reference or appeal shall or may be made or brought.

Interpretation of Part IV.

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• (1) In this Part, unless it is otherwise expressly provided or required by the context—

• “contravention” in relation to any requirement includes a failure to comply with that requirement, and cognate expressions shall be construed accordingly;

• “court” means any court of law having jurisdiction in Montserrat, including Her Majesty in Council, but excepting, save in sections 53 and 55 of this Constitution, a court constituted by or under disciplinary law;

• “disciplinary law” means a law regulating the discipline of any disciplined force;

• “disciplined force” means— a naval, military or air force any police force or prison service of Montserrat;

• “member” in relation to a disciplined force includes any person who, under the law regulating the discipline of that force, is subject to that discipline;

• “period of public emergency” means any period during which— Her Majesty is at war; or there is in force in Montserrat a proclamation of emergency under the Emergency Powers Orders in Council 1939 to 1973[^f00007] or under the Leeward Islands (Emergency Powers) Order in Council, 1959[^f00008].

• (2) In relation to any person who is a member of a disciplined force raised under the law of Montserrat, nothing contained in or done under the authority of the disciplinary law of that force shall be held to be inconsistent with or in contravention of the provisions of this Part other than sections 54, 55 and 56.

• (3) In relation to any person who is a member of a disciplined force raised otherwise than as aforesaid and lawfully present in Montserrat, nothing contained in or done under the authority of the disciplinary law of that force shall be held to be inconsistent with or in contravention of any provisions of this Part.

PART V — INTERPRETATION

Interprettation.

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• (1) In this Constitution, unless the context otherwise requires—

• “Chief Justice” means the Chief Justice referred to in the Supreme Court Order;

• “Chief Minister” means the person appointed as such under section 11(1) of this Constitution;

• “Court of Appeal” means the Court of Appeal established by the Supreme Court Order;

• “Deputy Speaker” means the member of the Legislative Council elected by the Council in accordance with section 36(3) of this Constitution;

• “functions” includes powers and duties;

• “Gazette” means the official Gazette of Montserrat;

• “High Court” means the High Court established by the Supreme Court Order;

• “judiciary” means any Court having jurisdiction in Montserrat and includes any member or officer thereof;

• “law” includes any subsidiary instrument;

• “meeting” means any sitting or sittings of the Legislative Council commencing when the Council first meets after being summoned at any time and terminating when the Council is adjourned sine die or at the conclusion of a session;

• “Minister” means a person appointed as Chief Minister or other Minister under section 11 of this Constitution;

• “minister of religion” means any person in holy orders and any other person the functions of whose principal occupation include teaching or preaching in any congregation for religious worship;

• “public office” means, subject to subsection (2) of this section, an office of emolument in the public service;

• “public officer” means the holder of any public office and includes any person appointed to act in any such office;

• “public service” means the service of the Crown in a civil capacity in respect of the government of Montserrat, but does not include service as a Judge of the Supreme Court;

• “session” means the meetings of the Legislative Council commencing when the Council first meets after its prorogation or dissolution at any time, and terminating when the Council is next prorogued or is dissolved without having been prorogued;

• “sitting” means a period during which the Legislative Council is sitting continuously without adjournment, and includes any period during which the Council is in Committee;

• “Speaker” means the person elected as Speaker by the Legislative Council in accordance with section 36(1) and (2) of this Constitution;

• “Standing Orders” means the Standing Orders of the Legislative Council made under section 46 of this Constitution;

• “subsidiary instrument” means any proclamation, regulation, order, rule or other like instrument having the force of law;

• “Supreme Court Order” means the West Indies Associated States Supreme Court Order 1967[^f00009].

• (2) For the purposes of this Constitution, a person shall not be considered as holding or acting in a public office by reason only that he—

• (a) is in receipt of any remuneration or allowance as a Minister or member of the Executive Council or as a member of the Legislative Council or the Public Service Commission;

• (b) is in receipt of a pension or other like allowance in respect of service under the Crown; or

• (c) is on leave of absence pending relinquishment of a public office;

and if it is provided by any law in force in Montserrat that an office (not being an office constituted by this Constitution or the office of member of the Judicial and Legal Service Commission) shall not be a public office for the purposes of this Constitution, this Constitution shall have effect accordingly as if that provision of that law were enacted herein.

• (3) Any person who has vacated his seat in the Legislative Council or has vacated any office constituted by or under this Constitution may, if qualified, again be appointed or elected as a member of that body or to that office, as the case may be, from time to time.

• (4) Except where the context otherwise requires, a reference in this Constitution to the holder of an office by the term designating his office shall be construed as a reference to any person for the time being lawfully performing the functions of that office.

• (5) Where the holder of any office constituted by or under this Constitution is on leave of absence pending the relinquishment of that office, the person or authority having power to make appointments to that office may appoint another person thereto; and where two or more persons concurrently hold the same office by virtue of an appointment made in pursuance of this subsection, the person last appointed shall, in respect of any function conferred on the holder of that office, be deemed to be the sole holder thereof.

• (6) Where by this Constitution any person is directed, or power is conferred on any person or authority to appoint a person, to act in an office if the holder thereof is unable to perform the functions of that office, the validity of any performance of those functions by the person so directed or of any appointment made in exercise of that power shall not be called in question in any court on the ground that the holder of the office is not unable to perform the functions of the office.

• (7) In this Constitution, unless it is otherwise provided or the context otherwise requires—

• (a) any reference to power to make appointments to any public office shall be construed as including a reference to power to make appointments on promotion and transfer, appointments on contract and appointments to act in an office during any period when it is vacant or the holder thereof is absent from Montserrat or is for any other reason unable to perform the functions thereof;

• (b) any reference to power to remove a public officer from office shall be construed as including a reference to any power conferred by any law to require or permit that officer to retire from the public service and to any power or right to terminate a contract on which a person is employed as a public officer and to determine whether any such contract shall or shall not be renewed.

• (8) For the purposes of this Constitution, the resignation of the holder of any office that is required to be addressed to any person shall have effect from the time that it is received by that person.

• (9) Where any power is conferred by this Constitution to make any subsidiary instrument or to give any directions or instructions or make any designation, the power shall be construed as including a power exercisable in like manner to amend or revoke any such instrument, directions, instructions or designation.

Signed

G. I. de Deney — Clerk of the Privy Council

Explanatory note

(This note is not part of the Order)

This Order confers a new Constitution on Montserrat. In particular it provides for a Governor appointed by Her Majesty, an Executive Council and a Legislative Council. Provision is also made regarding the fundamental rights and freedoms of the individual.

Footnotes

[^f00001]: 1962 c. 19.

[^f00002]: 1959 II, p. 3386, amended by S.I. 1971/873 and 1971/1740.

[^f00003]: Laws of Montserrat Cap. 153, amended by Ordinances No. 15 of 1970, No. 14 of 1975, No. 11 of 1980, No. 24 of 1982.

[^f00004]: 1978 c. 30.

[^f00005]: See S.I. 1952/2031 (1952 I, p. 620). The relevant amending instruments are S.I. 1956/731, 1963/88, 1633, 1964/267, 1199, 1965/131, 1968/724, 1973/759.

[^f00006]: S.I. 1959/2206 (1959 I, p. 561).

[^f00007]: See S.I. 1952/2031 (1952 I, p. 620). The relevant amending instruments are S.I. 1956/731, 1963/88, 1633, 1964/267, 1199, 1965/131, 1968/724, 1973/759.

[^f00008]: S.I. 1959/2206 (1959 I, p. 561).

[^f00009]: S.I. 1967/223, amended by S.I. 1983/1108.