The Montserrat Constitution Order 1989

• (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.