Commonwealth of Dominica very many would have some understanding of the most important provisions of that document. There have been two excellent publications, both published in 1988, the year of the 10th Anniversary of Independence, which summarised in readable language key provisions of the Constitution. They are Fundamental Rights and Freedoms, Citizenship and Judicial Provisions by Brian Alleyne, S.C. now a judge of the O.E.C.S. Court and Alick Lawrence, an attorney-at-law and The Constitution of the Commonwealth of Dominica by Francis O. C. Harris, Q.C. now deceased, a distinguished barrister and former Chairman of the Law Revision Commission, Hon. Marie Davis Pierre, a former Speaker and Eric P. Munro, a former Chairman of the Public Service Commission.

With the 21st anniversary of Independence and the new millennium drawing close, we have been appointed as members of a Commission to review the Constitution of the Commonwealth. We plan to consult widely with the citizens of the Commonwealth in the performance of that vital task. We were of the view that the value of that consultation would be considerably enhanced if we made available a booklet setting out the scheme of the Constitutional arrangements, the objectives they were intended to serve and some changes which could usefully be considered.

be a sovereign democratic republic". Coming as it does near the end of the document it encapsulates the goal intended to be achieved by the preceding sections. Any amendments should be aimed at more effectively accomplishing that goal.

In a sense, Dominica moved ahead of most of its Caribbean neighbours by opting for a republican form of government on the attainment of independence. There was no transitional period during which the Queen of Great Britain was retained as Queen of Dominica. The Head of State was to be elected by the people through their representatives in the Parliament.

Most people would understand a democracy to be a system of government in which the people participate in the making of the laws by which they are governed through their representatives duly elected in free and fair elections. It also requires that these laws be executed by a government composed of individuals whom they elected to office or who are appointed by individuals whom they have elected. The third prerequisite is that disputes arising as a result of the execution of these laws should be decided by tribunals which are fair and impartial and the members of which are insulated from executive and popular pressure by having the protection of terms of employment which are not subject to arbitrary change.

Substantially, the existing Constitution seeks to meet these criteria but, not surprisingly, they can be met by a variety of different institutional mechanisms. The mechanisms with which we are most familiar are the Westminster System and what can be referred to as the American System which depends more heavily on a strict separation of the legislative, executive and judicial institutions described above and a system of checks and balances which is intended to secure the greatest freedom for the individual by ensuring that none of the institutions trespasses into areas not assigned to it.

Although Dominica has broken its link with the Queen of Great Britain the institutions of government set up by the Constitution are modelled very closely on the British system of government. Of course the British do not yet have a written constitution. Their pattern of institutions grew by practice over the years by tradition and convention with Acts of Parliament passed from time to time when that became necessary. As a colony of Great Britain, Dominica, like the other islands of the Caribbean, was quite unfamiliar with any pattern of institutions other than those of Great Britain so it was inevitable that our leaders negotiating the process of independence under British guidance should seek to put into writing the unwritten British constitution. A famous English judge, Lord Diplock, has christened the product the "Westminster model". The name has achieved general recognition.

Under that system, there is not such a strict separation of powers as there is under the American system. In the American system the Executive and the Legislature which is called The Congress are completely separated. The President is elected directly by the people, and although the President is not a member of the Congress he or she can address it from time to time. The President selects the Cabinet but not from members of Congress. Indeed if a member of Congress is chosen to be a member of the Cabinet that person must resign from Congress.

Congress in the American system manages more comprehensively the legislative process. There are powerful committees dealing with diverse areas of administration - foreign affairs, finance, national security, trade and commerce, to mention a few, which draft bills intended to be enacted into laws and control their passage through the Congress. The President is part of the legislative process in that bills passed by the Congress do not become law until the President signs them. If the President refuses to sign the bill it goes back to Congress and if each House passes it by a two-thirds majority the measure will become law in any event.

Under the American system the President may not belong to the political party which has a majority in the Houses of Congress. When this happens, as is the case at the present time, the President has a difficult time securing passage by the Congress of the legislative measures he or she thinks necessary. The President may also find himself or herself pushed into signing laws of which he or she does not fully approve because they appear to be the best available compromise. All of this is part of the system of checks and balances between centres of power which the American people consider to be the best safeguard for their individual liberties.

The separation of powers between the Legislature and the Executive is matched by a similar separation between the Judiciary and the Executive and the Legislature. Many judges are elected for fixed terms of varying lengths directly by the people. The judges of the topmost tier are usually nominated for office by the President but have to be approved by a vote in one of the Houses of Congress - the Senate. Neither the President nor the Senate controls the appointment completely.

In the Westminster system which we have adopted there is no real separation between the Executive and the Legislature. Effective executive authority is exercised by a Prime Minister who must be a member of the Legislature. The Prime Minister chooses the Cabinet from members of the Legislature. Theoretically, the Legislature is expected to oversee the administration of the Cabinet because the Cabinet is responsible to the Legislature from which it has been chosen. In practice the Cabinet can compel the Legislature to do its will. This is because of the operation of the Party System which is a prerequisite for the smooth operation of the Westminster system. The Prime Minister and members of the Cabinet all belong to the political party which controls the majority in the Legislature. This means that the Prime Minister is assured of the support of the Legislature for any measure he or she wishes to enact as law. An American President may on many occasions not be in that position. If the Legislature in the Westminster system refuses to enact a measure placed before it by the Prime Minister, the Prime Minister can request the Head of State to dissolve the House and call elections. The threat of this action is usually sufficient to induce recalcitrant members of the Legislature to reconsider their position. Such is the power of a Prime Minister whose party enjoys a safe majority in the Legislature.

In Great Britain, where the system was developed, there are societal safeguards. There are, for example, several well established groups of influential persons capable of exerting effective pressures, Chambers of Commerce and other trade organisations, trade unions and other workers" organisations, associations of scholars and other well respected universities and a well established press able to alert public opinion to possible intrusions on the rights and privileges of the people at large. In smaller societies it is usually otherwise. The pervasive influence of government is great. The benefits it can confer and the deprivations it can inflict are such that only the courageous dare speak where their interests are not directly affected.

It may be that the system we have adopted may not work as well here as it does in the society in which it was developed. That may also be the case with any other system we may attempt to adopt. The issue, however, needs to be raised because we are for the first time discussing the question of constitutional arrangements on our own, free from the immediate presence of the powerful and experienced former colonial master.

The model of the American system is also not as remote as it once used to be when we were effectively isolated by cultural traditions from our geographical neighbours. In the Organisation of American States and the Association of Caribbean States to which we now belong, the American model with its stricter separation of powers is the pattern among the majority of members.

While it may be predictable that in the first attempt at an overview of our Constitution we may be more concerned with correcting what may appear not to have worked as well as it should, there is no reason for not giving thought to the fundamental question as to whether the choice made in the first place was the most appropriate.

The Election Of The President

Having opted for the "Westminster model" and for breaking the link with the British Monarchy a head of state had to be created who, like the Monarch, played no active role in the exercise of executive powers of government. This is the position occupied by the President who like the Monarch whom he or she replaces, is to be the obvious neutral, symbolically representing a unifying focus in the State, above the cut and thrust of party politics. In law, however, the executive authority of Dominica is vested in the President.1

The method of election of the President confirms the intention that the President should be an agreed neutral. When the office is vacant the Prime Minister should consult with the Leader of the Opposition to secure the joint nomination of a candidate for election to the office.2 If they agree and submit a joint nomination and that candidate consents in writing to be nominated, the Speaker merely informs the House of the nomination and declares the candidate elected without there being a vote.3 If the Prime Minister and the Leader of the Opposition cannot agree, then each can nominate a candidate and so can any three members of the House. An election will then be held and the Speaker shall declare the candidate duly elected who has received the votes of the majority of all the members of the House.4 If, of course, there is only one candidate duly nominated, the Speaker declares that candidate duly elected without putting the question to the vote. The election of the President by the House is by secret ballot.

A person to be nominated as President must be a citizen aged 40 years or over, a resident of Dominica for the five years preceding his or her nomination and qualified to be elected as a member of the House of Representatives or nominated as a Senator. A person who has already held the office for two terms is not qualified for nomination. If the validity of a nomination is challenged the Court of Appeal is vested with the jurisdiction to decide the dispute.5

The President holds office for a term of five (5) years from the date on which he or she was declared to have been duly elected. The President can be removed if he or she wilfully violates any provision of the Constitution or behaves in such a way as to bring the office into hatred, ridicule or contempt or to endanger the security of Dominica. Removal can take place if the President by reason of physical or mental incapacity is unable to perform the functions of the office or because of circumstances ceases to be qualified for election as a member of the House of Representatives or nomination as a senator or accepts any office of emolument for reward.6

The procedure for removal is initiated by a motion signed by at least one-third of all the Members of the House which specifies the grounds of complaint with full particulars. If that motion is passed by a two-thirds majority, a tribunal composed of the Chief Justice and two senior judges nominated by the Chief Justice will then investigate the complaint and make a report to the House. The House will then consider the report. If the House, by a resolution supported by at least two-thirds of all its members, declares that the President be removed he or she will then cease to hold office. The President is given complete immunity from criminal proceedings against him or her from anything done or omitted to be done by him or her either in respect of official or private acts. The likelihood is that any act done by a President which could result in criminal proceedings would justify the initiation of proceedings for removal.

A President is protected from civil suits during his or her tenure as President but such actions could be filed on his or her demitting office.

Arrangements have been made for the selection of a person to act as President in circumstances in which the President is unable to perform his or her duties. There is, however, no provision for the election of a Vice President. This is a matter which can be considered.

We shall discuss later the powers of the President and consider whether his or her prestige as an acknowledged neutral has been put to adequate use.

The Parliament of Dominica consists of the President and the House of Assembly.7 Though stated in this positive way, the President does not normally sit in the House of Assembly (the House). He or she addresses it on set occasions and his or her signature is a prerequisite to enacting into law bills passed by the House.

The House consists of 21 elected Representatives, one for each of the constituencies into which Dominica is divided. Constituency boundaries are determined by an Order of the President made in

accordance with a draft Order approved by a resolution of the House. This draft Order itself is made after a debate in the House on a report submitted to it by the Constituency Boundaries Commission established under section 56. Apart from the 21 elected Representatives there are 9 Senators in the House, nominated by the President, 5 on the advice of the Prime Minister and 4 on the advice of the Leader of the Opposition.

The House is presided over by a Speaker who is elected on the first sitting of a new elected House. The Speaker may or may not be a member of the House, but in any event the person elected must be qualified for election to the House. The House at the same time elects a Deputy Speaker who must be a member of the House but not a member of Cabinet. He or she presides in the absence of the Speaker.

If the Attorney-General is a public officer he or she would by virtue of holding the office be a member of the House.

A person is qualified to be elected to the House if such a person is a citizen of Dominica aged 21 or upwards who has resided in Dominica for a period of 12 months immediately before the date of his or her nomination for election or is domiciled and resident in Dominica at that time. The person must be able to read and speak English.

There are the usual disqualifications - insanity, undischarged bankruptcy, being under sentence of death or serving a sentence of imprisonment exceeding 12 months, being a minister of religion and being by virtue of his or her own act under an acknowledgment of allegiance to a foreign power or State. Subject to certain conditions a person may also be disqualified from being elected if that person has an interest in a government contract which that person has failed to disclose in the manner prescribed.

Parliament is also empowered to prescribe disqualifications relating to persons reported guilty of election offences or persons who are members of the army or the police or hold other prescribed offices.

The High Court has jurisdiction to determine all disputes relating to the validity of elections to the House or appointment as a Senator. It also determines disputes as to whether an event has occurred which has resulted in a member of the House vacating his or her seat.

Although the Constitution contains no detailed provisions for the system of voting such provisions as there are indicate that it is first past the post. In that system the country is divided into single member constituencies. Candidates are nominated for each constituency and the candidate who secures the highest number of votes is declared the winning representative for that constituency. That was the system in operation prior to independence. It was copied directly from Great Britain where it is still in place, though there have recently been some reports of a re-examination.

The great virtue of this system is its simplicity. Also in its favour is the greater likelihood where there are three or more parties that it will result in a clear majority for one of the parties so that no problems will arise as to which leader is eligible to be called upon to be Prime Minister and asked to form the government.

There is a reasonable likelihood in the short term future that Dominica will continue to be a State with three (3) political parties each capable of winning at least two seats in the House.

In such a situation a party which has won no more that 40% of the votes cast may well secure a clear majority of 13 of the 21 seats contested. Some may argue that this is not acceptable since the composition of the House should reasonably reflect the percentage strengths of the parties in the electorate.

A number of mechanisms have been devised to deal with this difficulty. In France, for example, if any candidate in a constituency fails to get an absolute majority of the votes cast there is a second voting a week later in which the two candidates winning the highest number of votes contest a run off. Voters who voted for the candidates winning fewest votes have an opportunity to choose between those two. There are clearly cost implications in this system.

Another method is to treat the whole country as one constituency with parties nominating as many candidates as there are seats in the House. In effect the electorate would be voting for a party rather than a candidate. When the results are in, the seats in the House will be allocated in proportion to the proportion of votes secured by each party. When this system is used a minimum percentage is usually fixed, say 5% to 71/2% to discourage very small interest groups from entering the fray.

An advantage of this system is that there is no need to have the country divided into constituencies, an exercise which almost always leaves one side or the other discontented with the result. On the other hand representation may be considered more effective where the contending candidates concentrate their efforts on one particular constituency and acquire a deeper understanding of their attitudes and their needs.

There is always the argument that what a small developing country should require of its system of elections is not that it be fair in the sense of producing a result which accurately reflects the diverse opinions in the country. Rather it should be a system capable of being transparently and effectively administered and geared to producing a clear result making the formation of a strong government simple. Coalition governments, it is said, are in the nature of things indecisive. Small developing countries need strong government to achieve progress.

Parliament is given full legislative powers - to make laws for the peace, order and good government of Dominica.

Questions arising for decision in the House are determined by a majority of the members of the House present and voting save in 5 situations -

(i) where there is an election for President the successful candidate must secure a majority of all the members of the House;

(ii) where it is proposed to declare a period of public emergency on the basis of a resolution declaring that the democratic institutions of Dominica are threatened by subversion, that resolution must be supported by a two-thirds vote of all the members of the House;

(iii) where there is a resolution for the extension of such a declaration;

(iv) where there is a resolution proposing the removal of the President from office on the basis of complaints set out therein or a resolution declaring after consideration of the report on these complaints by the tribunal set up to consider them that the President be removed from office;

(v) where it is proposed to amend certain sections of the Constitution itself.

In exercising its powers to make laws Parliament must pass bills. A bill, when passed, must be presented to the President for the signification of his or her assent. When he or she has so signified, the bill becomes law but the coming into operation of the law may be postponed. In any event a law does not become operative until it is published in the Official Gazette.

The powers of Parliament to amend certain sections of the Constitution are significantly restricted. These sections are usually referred to as the "entrenched clauses". They are set out in Schedule 1 to the Constitution. The procedure to be followed for such amendment is set out in section 42 of the Constitution.

A section may be either "deeply entrenched" or merely entrenched. The deeply entrenched sections are the following:

(i) section 42 itself which sets out the procedure for amending entrenched clauses;

(ii) Schedule 1 of the Constitution;

(iii) Chapter 1 of the Constitution which deals with The Protection of Fundamental Rights and Freedoms;

(iv) section 18 which establishes the office of President;

(v) section 28 which provides for the appointment or election of an Acting President;

(vi) section 58 which vests the executive authority of Dominica in the President;

(vii) section 29 which establishes the Parliament made up of the President and the House of Assembly;

(viii) section 30 which provides for the membership of the House;

(ix) section 33 which provides for the election of a single representative for each constituency established in accordance with the Constitution;

(x) section 38 which vests the responsibility for the registration of voters for the purpose of electing members of the House in the Electoral Commission;

(xi) section 40 which vests in the High Court the jurisdiction for hearing and determining disputes as to the validity of the election of a member or the appointment of a senator with an appeal to the Court of Appeal. The High Court is also vested with the jurisdiction to determine disputes relating to the validity of the election of the Speaker or whether events have occurred which have resulted in a member seat being vacated;

(xii) section 41 which confers legislative power on Parliament;

(xiii) section 49 which prescribes the procedure for passing bills and having them enacted into law;

(xiv) section 52 which empowers the House to regulate its own procedure;

(xv) section 53 which deals with the summoning, prorogation and dissolution of Parliament;

(xvi) section 54 which fixes the maximum term of Parliament and sets out circumstances in which some extensions may be valid;

(xvii) section 55 which prescribes the maximum interval which may elapse between the dissolution of the House and the holding of elections. It also prescribes for by-elections where there are vacancies and the period within which they must be held;

(xviii) section 56 which establishes the Constituency Boundaries Commission and the Electoral Commission, prescribes their membership, qualifications for membership and provisions for their removal;

(xix) section 57 which provides for review of constituency boundaries;

(xx) the whole of Chapter 5 which deals with payments of revenue into the Consolidated Fund and withdrawals from that Fund. It also provides for the presentation of the annual budget with estimates for expenditure and revenue and if the need arises for supplementary estimates. It sets up the office of the Director of Audit;

(xxi) section 72 which establishes the office of Director of Public Prosecutions and enumerates the powers of the holder of that office;

(xxii) sections 84 to 92. These sections establish the Public Service Commission and the Police Service Commission and provide for the method of appointment of members, their qualifications and the procedures for removal from office. It vests in each of the Commissions the powers to appoint, promote and discipline holders of offices prescribed. The sections deal with conditions relating to specific offices, particularly offices requiring some security of tenure, such as the Chief Elections Officer, the Director of Public Prosecutions and the Director of Audit;

(xxiii) sections 95 and 96 which deal with the protection of pensions;

(xxiv) the whole of Chapter 8 which deals with the original jurisdiction of the High Court in constitutional questions, appeals from that Court to the Court of Appeal and finally to the Judicial Committee of the Privy Council;

(xxv) the whole of Chapter 9 which deals with the Parliamentary Commissioner;

(xxvi) such parts of section 121 which set out the interpretations of words which appear in any of the entrenched provisions enumerated in the schedule; and

(xxvii) sections 4, 5, 6, 8, 11, 18 and 19 of the Supreme Court Order which establish the procedures for the appointment of Judges of the O.E.C.S. Supreme Court, protect their security of tenure and prescribe the mechanisms for disciplining.

It can be readily conceded that amending a constitution should not be made too easy. The very fact that amendment is made difficult will dissuade attempts to amend which may be promoted by transient considerations which do not take into account fundamental national interests. The Constitutions of Trinidad and Tobago and Barbados can be amended without the holding of a referendum. This review affords the opportunity for a close study of the mechanism for amendment.

Although as has been mentioned the executive authority of Dominica is vested in the President it is in reality exercised by the President acting on the advice of the Prime Minister. The Prime Minister is appointed by the President. The President appoints an elected member who appears likely to command the support of the majority of the elected members of the House.

This is usually not a difficult decision. The need to appoint a Prime Minister usually arises after there has been a general election. Elections are fought by political parties with clearly identifiable leaders. The President merely has to name as Prime Minister the leader of the party which has won the majority of seats. If there are more than 2 political parties and none has a majority, discussions have to take place among leaders to determine whether any two parties can collaborate to form a coalition which will command a majority with a leader who can present himself or herself to the President for appointment as Prime Minister.

The Prime Minister carries on the function of the Government with the assistance of a Cabinet of Ministers appointed by him or her. A law may mandate that there should be a Minister with responsibility for a particular area of government or may set a limit on the number of Ministers but generally the Prime Minister decides on the number of Ministers and their areas of responsibility. The President, on the advice of the Prime Minister, appoints the Ministers. A Minister also ceases to hold office if by reason of a ground enumerated in the Constitution he or she ceases to be a member of the House, for example, the absence from sittings of the House for such period and in such circumstances as may be prescribed by the rules of the House or loss of Dominica citizenship (in the case of an elected member) or commonwealth citizenship (in the case of a Senator).

The usual course for a Prime Minister ceasing to hold office would be the defeat of his or her party in a general election. If the party which the Prime Minister leads does not have the majority of seats in the newly elected Parliament, then the President will call on the leader of the majority party who appears to command the support of the majority of the elected members of the House to become the Prime Minister.

It can, of course, happen that in the course of the life of a Parliament a Prime Minister may lose the support of some members who originally gave support. If in such a situation a resolution of no confidence is passed by the House and the Prime Minister does not within three (3) days either resign from the office or advise the President to dissolve Parliament then the President must remove the Prime Minister from office.

It has been argued that the President should not be compelled to act on the advice of the Prime Minister and dissolve Parliament if at that stage the President, in his or her deliberate judgment, can clearly identify an elected member of the House who does command a majority of elected members of the House and thus can qualify for appointment as Prime Minister. The argument has merit. On the other hand, it can be argued that the electorate did in the first place return to Parliament the members of the majority from which the Prime Minister was chosen. If in time that majority withdrew its support, the Prime Minister should be afforded the opportunity to appeal to the electorate with a fresh team for a verdict as to whether he or she does not still command their support.

Against the background of the Westminster system with a royal sovereign as Head of State it is easy to understand why it should be thought that power to make an obviously political decision should not be vested in a President who has merely replaced the Sovereign. But it must be borne in mind that the Sovereign occupies the position by right of inheritance. This is not the case with the President. He or she is elected to the office either by political consensus or by securing a majority of the votes in the House. The President's right thus rests on his political acceptance as an experienced and balanced individual capable of making decisions in the interests of the country uninfluenced by the inevitable clash of party political considerations. On that basis consideration can be given to vesting in the President the right to act in his or her own deliberate judgment in a situation in which the issue of dissolution of the House on a vote of no confidence arises.

In much the same way the President is now required to act on the advice of the Prime Minister tendered after consultation with the Leader of the Opposition in the appointment of persons to offices requiring political neutrality such as the Chairmanship and Deputy Chairmanship of the Public Service Commission, and the Parliamentary Commissioner.

The position could be changed. The power of appointment could be given to the President acting in his or her own deliberate judgment after consultation with the Prime Minister and the Leader of the Opposition and such other persons as he or she thought desirable. On its change over to the Republican System, Trinidad and Tobago adopted that arrangement.

The operation of the Westminster system appears to require the appointment of a Leader of the Opposition. The President appoints to that office the person who in his or her view commands the support of a majority of the members of the House who do not support the Government. If there is no such person then the President appoints the elected member of the House who appears to him or her to command the support of the largest single group of members of the House who do not support the Government. The appointment can cause embarrassment. There may be six members of the House who do not belong to the Government Party, three of who belong to one party and the other three to another party. The two parties may not agree as to who should be appointed Leader of the Opposition.

Quite apart from the conventions of the Westminster system the Constitution itself places important functions in the hands of the Leader of the Opposition. He or she advises the President on the appointment of four (4) senators. He or she also advises the President on the appointment of two members of the Constituency Boundaries Commission and two members of the Electoral Commission.

The Prime Minister is required to consult the Leader of the Opposition before tendering advice to the President as to the appointment of five (5) members of the Public Service Commission and the Police Service Commission. On each of these Commissions two of the members must be selected from amongst persons selected by the appropriate representative body.

The Constitution recognises that difficulties may arise and provides that where there is a vacancy in the office of Leader of the Opposition because there is no one qualified for appointment to it, the President may act without that advice and in his or her own deliberate judgment in the exercise of any power in respect of which it is provided that the President shall act on the advice of or after consultation with the Leader of the Opposition.

One may consider whether this provision is in all the circumstances the most satisfactory.

One of the important powers which a Prime Minister can wield is that of determining the date on which a general election may be held so long, of course, as this date does not fall beyond the normal life of Parliament. The Constitution prescribes that Parliament shall continue for five (5) years from the date of the first sitting of the House after any dissolution. Thereafter it stands dissolved unless its life is extended for a period of no more than one year because Dominica is at war. Such extensions may not exceed five (5) years. The likelihood that Dominica may be at war seems so remote that the question may well be asked whether provision should be made for that eventuality.

It should be noted that elections are held in the United States of America even in war time.

Consideration may be given to the question whether the Prime Minister should be given the power to have an earlier dissolution proclaimed. Elections could then be held on a fixed date. It should however, be borne in mind that this may have to be made subject to an earlier dissolution should the House pass a resolution of no confidence in the Government as a consequence of which the Prime Minister has advised the President to dissolve the House. Unlike the American system the Westminster system cannot operate if the head of the government does not control a majority in the Legislature. In reality successful votes of no confidence are uncommon in the Caribbean area. If there was one and an earlier dissolution took place the predictable election date would change but thereafter it would follow the periodic pattern depending on the term decided on as appropriate for the life of the House.

These follow immediately after the preamble which among other values affirm that the Commonwealth of Dominica is founded upon principles that acknowledge the supremacy of God, faith in fundamental rights and freedoms, the position of the family in a society of free men and free institutions, the dignity of the human person and the equal and inalienable rights with which all members of the human family are endowed by their Creator.

Broadly speaking the fundamental rights and freedoms are the rights to life, liberty, security of the person and the protection of the law; freedom of conscience, of expression and of assembly and association and protection for the privacy of his or her home and other property and from deprivation of property without compensation. It is made clear that the rights set out in broad terms in the opening section are subject to the limitations which follow the broad statement, limitations which are designed to ensure that the enjoyment of these rights and freedoms does not prejudice the rights and freedoms of others and the public interest. It could be said that all the limitations set out were limitations which at the date of independence could already be found in the common law and the statute law of Dominica.

In today's world one often hears the complaints that it is only law breakers who appear to benefit from diligent enforcement of the provisions enshrining fundamental rights and freedoms. This is because the occasions on which they are invoked are very frequently in the course of enforcement of the criminal law. Further consideration will indicate that the protection of the rights of free expression and of association are basic to the practice and preservation of the democratic way of life without which we may well find life itself quite unbearable.

Even the provisions which are invoked to ensure that those accused of law breaking themselves receive due protection of law are vital to the maintenance of a society established on the rule of law. Persons who have in fact not committed an offence may become entangled in the web of law enforcement. Safeguards must then work effectively.

The actual language of the provisions of Chapter 1 is very important. Because of this we enclose with this booklet a copy of these provisions and confine ourselves to the following comments.8

The only rights which are stated in absolute terms are the prohibitions against slavery in section 4 and the prohibition against being subjected to torture or to inhuman or degrading punishment or other treatment in section 5.

Once a state of emergency has been duly proclaimed laws can be passed which derogate from the protection to the right to personal liberty set out in section 3. Laws can also be passed which derogate from section 13 which provides for protection from discrimination on the grounds of sex, race, place of origin, political opinions, colour or creed.

Some of the sections provide for a derogation from the rights defined therein by a law duly enacted to the extent that the law in question makes provision which is "reasonably required" in the interests of defence, public safety, public order, public morality or public health or for the purpose of protecting the rights and freedoms of others, and except in so far as the provision or action taken under the authority thereof is shown not to be reasonably justifiable in a democratic society.

That formula in effect places on the courts the duty of defining the permissible limits of contravention. This of itself is not remarkable since the task of interpreting the Constitution can only rest with the Courts. The difficulty is created by the vagueness of the criterion set - not to be reasonably justifiable in a democratic society. Not surprisingly the phrase is not defined in the Constitution though it is mentioned in the preamble in which it is stated that the People of Dominica -

"have asserted their belief in a democratic society in which all persons may, to the extent of their capacity, play some part in the institutions of the national life and thus develop and maintain due respect for lawfully-constituted authority.".

The question may well arise whether maintaining due respect for lawfully constituted authority requires more than compliance with applicable laws.

Since the proclamation of a state of emergency permits contravention of the rights of personal liberty and freedom of association careful attention should be directed to section 17 in which the term period of public emergency is defined.

Careful attention should also be given to section 15 which provides safeguards for persons detained under emergency laws.

Section 16 empowers any person who alleges that any of the provisions of sections 2 - 15 of the Constitution has been contravened or is likely to be contravened in relation to him (or if that person is being detained some other person alleging the contravention in relation to the detainee) to apply to the High Court for redress. The High Court has jurisdiction to hear and determine any such application. It also has jurisdiction to make such declarations, issue such writs and give such directions as it may consider appropriate for the purpose of securing enforcement of these provisions. But the Court could decline to exercise its powers if it was satisfied that adequate means of redress for the alleged contravention were available under any other law.

As has been mentioned, the composition, method of appointment and provisions for security of tenure of members of the O.E.C.S. Court are set out in the Supreme Court Order. In the Constitution itself the High Court is vested with jurisdiction to hear the application of any person who has a relevant interest who alleges that any provision of the Constitution other than a provision of Chapter 1 has been contravened. The Court is empowered to make any declaration on the hearing of the application and grant such remedy as it considers appropriate.

Constitutional issues arising in proceedings other than proceedings in the High Court, the Court of Appeal or a Court Martial must be referred to the High Court. Appeals from final decision of the High Court in constitutional matters and matters alleging contravention of the provisions of Chapter 1 lie as of right to the Court of Appeal. An appeal from the judgment of the Court of Appeal to the Judicial Committee of the Privy Council will lie as of right from final decisions in any civil or criminal proceedings which involve a question of the interpretation of the Constitution. The Judicial Committee of the Privy Council can itself grant leave to appeal from a decision of the Court of Appeal in any civil or criminal matter.

A 'model' is an abstraction from reality and while it over-simplifies, its objective is to draw our observation to the real (empirical) world. In a sense it distorts reality in order to understand it. Without models (or theoretical perspectives) human beings could not survive either as individuals or as aggregates (groups). Fundamental to the group (which is our institutional concern Ð the Public Service Commission Ð hereinafter referred to as "PSC"), is what is referred to as organisational roles and functions. To understand the above will facilitate the thinking which follows.

"Organisational roles" needs therefore to be defined in an operationally meaningful way. The "role", the basic unit of any social, and by definition political structure9, is a pattern of behaviour that is defined formally or informally (constitutionally or by political culture) as the expectations a society has of an individual who occupies a certain position. Stated generally, it means that the Dominica Public Service bureaucracy, and the sub-agencies and units (Ministries/Divisions) within, perform a set of interrelated roles. This of course assumes the notion of co-operation (that is, consensus driven). The way public servants behave in those public roles is what normatively is desirable and appropriate in sustaining positive/imaginative growth of the public service.

In the case of the Public Service Commission its formal role and expectations are made explicit in the Constitution and other legislation. Thus a Commissioner, a member of the Public Service Commission, must behave and direct all activities therein towards job description requirements given positional mandate and not according to personal preference or predisposition. When a Constitution such as ours defines roles, as in the case of the Public Service Commission, it leaves little room for political (party) preference of the incumbents. The Public Service Commission is the institutional structure within the administrative arm of the Executive charged with the responsibility of staffing the wider bureaucracy on the basis of applicants competence. 10

Conflict in our society occurs over competing demands by individuals on our limited resources, primarily in their cultural and physical environment. The conflict situation is magnified given individual expectations and status needs. Organisations represent the other side of the conflict coin: they represent co-operation, cohesion, consensus of the aggregate of individuals which comprise them. Organisations are therefore systems of co-operation in which appropriate and defined roles are played on or based on merit, expertise and behavioural expectations of combined efforts. While the political regime of a society sees as its primary goal the resolution of conflicts, the administrative arm of Parliamentary Governments, the bureaucracy, seeks to optimize co-operation of its human and technological expertise to fulfill policies and goal attainment.

The bureaucracy and all its sub-agencies/units (Departments/Ministries) is goal-directed and persons who occupy any role in its agencies, including the Public Service Commission must be induced to engage in activity to that end. Without doubt appropriate staffing and recruitment methodologies are among the first priorities of any organisation especially that of the State organisation: the Bureaucracy.

Given as such that the primary function of Government is to reduce or attenuate (resolve) conflict, which arises over who gets what resources, it follows that all societies no matter how primitive possess some form of Government. Government's functions are necessary to human survival in almost the same way as our physical environment is. It is neither negative nor positive; its simply social reality. Its major activity politics, is the "process" by which Governments resolve conflict. In democracies such as ours, bureaucracies are the administrative arm by which Government policy is implemented and routine conflict resolved. Thus this "arm" and all its agencies in a parliamentary democracy are the co-operative structural conduit by which the Prime Minister and Cabinet, policy setters, get their goals attained. No modern bureaucracy in a parliamentary democracy can derive any constitutional authority to frustrate, hinder or become confrontational with a duly constituted executive authority: Prime Minister and Cabinet. It is against this background that a functional Public Service Commission is given some thought.

In Chapter VI of the Dominica Constitution the Public Service Commission is enshrined. Its jurisdictional authority is derived from its formal relationship to the Prime Minister. The Commission membership is legally established and the "legal-structural" roles in appointing officers to various positions in bureaucratic line agencies (Ministries) are established as well. Furthermore, its activities are guarded by a number of regulative outputs as found in legislation. These regulatory outputs outline the methodologies of appropriate Commission behavior and conduct.

With the above having been said, a little more detail will be given as regards the legal and administrative framework of the Public Service Commission, as well as its role and functions in a democracy such as ours.

As previously indicated, the Public Service Commission is enshrined in the Constitution of the Commonwealth of Dominica. Therefore its lawful authority is derived from the Constitution. It is an important institution in the governance of the Public Service. It is designed to function as an impartial body insulating the Public Service from political interference. This view is supported by Harris, Davis Pierre and Munro in their booklet - The Constitution of the Commonwealth of Dominica - when they state that the Public Service Commission is "to protect the careers of public servants from arbitrary interference of politicians".11

Section 84 of the Constitution establishes the Public Service Commission consisting of a Chairman and a Deputy Chairman and five other members. The Chairman and Deputy Chairman are appointed by the President on the advice of the Prime Minister. In the case of the other five members, the Prime Minister must consult with the Leader of the Opposition before advising the President. Two of these members must be selected from a list prepared by the appropriate representative body (i.e. the Civil Service Association).

A person who has been a member of the House in the previous five years and a person who has been a Judge or public officer within the previous year shall not be qualified to be appointed as a member of the Public Service Commission. A person who has served on the Commission will not be eligible for appointment to any public office within a period of three years commencing with the day he or she last held or acted as a member of the Commission.

Section 84(4) of the Constitution provides that the office of a Commissioner shall become vacant:

(a) at the expiration of three years from the date of his appointment;

(b) if circumstances arise that would disqualify him from appointment if he was not already a member.

A member can only be removed from office on two specific grounds. One is the inability to perform due to infirmity of mind or body, the other is misbehaviour.

The Constitution provides detailed instructions which govern the removal of a member of the Commission from office. Section 84(6), (7) and (8) prescribe the process. The prescribed processes of appointment and removal of members of the Public Service Commission are designed presumably to protect the Commission from political pressure. This view is supported by section 84 (12) of the Constitution which states:

"the Commission shall in the exercise of its functions under the Constitution, not be subject to the discretion or control of any other person or authority".

Harris, Davis Pierre and Munro also support this view when they state "the Public Service Commission is not subject to the directions or control of any person or authority".12

However, although the Public Service Commission is autonomous, it is not entirely independent, hence constant communication, dialogue and a certain sensitivity to the interest of the Executive's policy on public administration are very necessary and pivotal to the organisation for effective performance of its role.

The Public Service Commission exercises its functions and has the power to appoint, discipline, transfer and remove public officers by dint of section 85 (1).

The Public Service Commission can also govern its own procedure:

(i) by regulation or otherwise;13

(ii) by delegation.14

However, the Constitution prescribes an element of symbiosis with the Executive in that the consent of the Prime Minister is required if the Commission wishes to govern its own procedure by regulation or by delegation.

Sections 86, 88, 89 and 90 of the Constitution prescribe the process for appointments, discipline, etc. of particular offices such as Secretary to the Cabinet, Permanent Secretary, Heads and Deputy Heads of a department of Government, Clerk of the House of Assembly, any chief professional adviser to a Government department, the holder of any office who is required to live outside Dominica for the discharge of his or her duties, and the holders of offices in Dominica whose functions relate to external affairs. In all these cases, the Public Service Commission must consult with the Prime Minister before advising the President accordingly. If the Prime Minister signifies his or her objection to the appointment of any person to these particular offices, the Commission shall not advise the President to appoint that person. However the power to hold or act as permanent secretary from a position carrying the same salary rests with the President acting in accordance with the advice of the Prime Minister.

Instructive as the legal framework of conduct established by the Dominica Constitution in delineating a Commission's role, the foregoing and the article referred to, raise the fundamental problem facing the Public Service Commission, i.e. its relevance to a modern bureaucratic structure. The article states inter alia that the Public Service Commission was created, "in order to protect the careers of public servants from arbitrary interference of politicians and to preserve the security of public employment". This 'negative core' at the supposed heart of the Public Service Commission's present malady is the basis of its alleged dysfunctional behavioural pattern which has raised the concern we are presently addressing.

We accept as axiomatic that the Public Service Commission concept, as enshrined in the Constitution of the English speaking Caribbean, persists, because such is acceptable to its political culture, Dominica's own is no exception. The question is not whether Dominica needs a Public Service Commission but rather how can the existing one be improved.

All democratic Constitutions, as a body of law, serve in the broadest sense to regulate both individual and aggregate (group) behaviour. The bureaucracy falls under this behavioral rubric. However, to effectively provide guidelines for human behaviour the laws must be "knowable". Without such we cannot in any capacity comply with the standards of behaviour regulated in the Constitution. Especially when a bureaucratic unit such as the Public Service Commission is enshrined in a constitution it is imperative that the incumbent Commissioners know the appropriate behaviour assigned to their role by the Constitution. Performance in the modern world is an integration of constitution assigned behaviour and organisational role expectations.

It is generally accepted in Public Administration and policy professional circles that there are at least four (4) basic functions routinely associated with management in a modern bureaucracy: planning, organising, staffing (including recruitment/training) and controlling. The Public Service Commission in Dominica is charged with the staffing function for the bureaucracy. In this capacity the Public Service Commission can define its role as that unit which co-ordinates individual expertise in the Public Service aggregate to attain both administrative and executive goals and policy objectives.

A Public Service Commission comes into being when a need arises in a political system in its evolution away from patronage appointment to appointment based on the merit principle. Stated somewhat differently when a transitional State such as Dominica embarks on becoming a modern State it develops a "professional expert-core institution" necessary to carry the goals and objectives of development forward. The organisation, the modern bureaucracy then structures itself around expertise that is scientific, technological and in tune with the relevant information: revolutionising the "global village" and with internationally significant data. Such a 'mature' organisation is no longer driven by patronage or 'cronyism'. At this point in its historical advancement, Dominica's political culture is sufficiently sophisticated that it recognises and finds acceptable the need for a bureaucracy driven by merit: thus the modern reliance on the qualifications of the applicant and the requirements of the job are part of our present political culture.

The Public Service Commission in Dominica is established to meet this requirement of our present political system. How such is done is dependent on the acceptance of the role of the Commission as established first and foremost by the Constitution and relevant laws. Expertise and not patronage must be the basis of appointment to the Public Service Commission if it is going to function appropriately. Recruitment and training of the Commissioners as to their organisational and constitutional roles must be based and appointed on the merit principle. This then helps establish the premise from which the Public Service Commission can meet the "merit" needs of the wider bureaucracy.

No modern bureaucracy driven by scientific, technological and information expertise can be adequately served by a single unit, no matter how well intended or enshrined in a Constitution, in the real (empirical) world. This is precisely a problem confronting the role of the Public Service Commission in Dominica concerning its staffing bureaucratic needs.

When a bureaucratic unit functions in an 'independent' way as it were in the organisation without appropriate socialisation as to its role and function, it develops sooner or later an agenda often in conflict with its very reason for its existence. It may become confrontational subverting the very need achievement for which it was mandated. Staffing requirements and initiatives of executive senior line ministries are frustrated. Bureaucratic goal attainment becomes retarded; inertia and apathy set in and soon 'cause and effect' feed ravenously on each other resulting in the dysfunctional capacity of the bureaucracy. Cabinet policy decision making and implementation capacity is 'paralysed', respect for executive positional authority becomes eroded and our nation state development suffers.

The Public Service Commission must have its primary activities in a modern bureaucracy coordinated "with employer departments" such as Treasury, and Finance by extension. The primary activity of the Public Service Commission - staffing - must be scrutinised in order to comply with the expertise requirements of line ministries in light of fiscal and economic realities as established by these "employers". In this situation the needs of senior management regarding expertise in light of policy executive outputs are met. The Public Service Commission therefore constantly interfaces with these "other agencies" in advancing the cause of a modern and efficient bureaucracy.

Organisational psychology asserts that employees, who in light of goal attainment are socialised thoroughly, will function more enthusiastically and even more efficiently than a person who looks upon his or her occupation as just making a living. This necessitates that training and staff development be an on-going process - both in the Public Service Commission's own composition and its staffing output; this must be reflected positively in the bureaucratic structure and sub-units. For in molding by training, etc., of bureaucratic attitudes a modern Public Service Commission must be cognizant that its outputs (public servants) will at least indirectly affect the decision making process. Thus having the right person for the right position based on the merit principle is a constitutional obligation of the Public Service Commission. For formal training of staff can only be effectively pursued if the talent selected by the merit system is the best available at the time.

Given the major responsibility and enormity of such a staffing task integrative relevant units (comprising Treasury Board/Finance/Senior Managers) are crucial to the staffing requirements of a progressive modern bureaucracy. No abnormal behaviour pattern in a bureaucratic organisation or any of its units for that matter can be solved by constitutional amendment or refinement. Rather, such behaviour is dictated by the method of appointment and those selected by it. The Constitution provides the legal institutionalised guidelines in which appropriate behaviour defined by a role can emerge positively. The empirical output of the Public Service Commission for better or worse is dependent on the human resources within it in their public role as defined in a parliamentary (Cabinet driven) democracy.

Finally, all public servants by virtue of their incumbency in this peculiar organisation - the bureaucracy - share a proximity to politics that is inevitable. It is a fact of life. Thus given the very nature of information handled in the process of policy formulation, a Public Service can potentially do a great deal of damage to a present regime or Government. It is clear that the 'unique' relation to Dominica's State Executive means that the first allegiance of the Public Service is not to the public but to the Government. In our democracy it is not the bureaucracy that is accountable to the public but the elected Government. All units of the administrative arm of Cabinet, and that includes the Public Service Commission, cannot by definition of the role be confrontational to Government (executive authority).

It is hoped that this "model" will allow further discussion on the future of the Public Service Commission in Dominica.

Under the present Constitution of the Commonwealth of Dominica the position of Parliamentary Commissioner is dealt with in Chapter IX, more specifically, sections 108 to 115. However before delving into the substance of the provisions or into the fact that a Parliamentary Commissioner has never been appointed in Dominica, a short insight into the reason why the position of Parliamentary Commissioner or Ombudsman has become fairly popular in many countries of the world may be useful.

One of the features of modern government, especially one based on the "Westminster model", is the extended role of the Executive. With this extended role of the Executive, which includes not only ensuring internal stability and defence, but stimulating the economy and creating employment, comes increased responsibilities and power.

As our communities become more complex and informed our expectations increase, hence, we make greater demands for improved, relevant education and social welfare programmes. Obviously as the role of the Executive has grown to deal with the needs of more complex communities so too has legislation. Today there are not only laws that deal with birth and death, marriage and divorce, but there are laws dealing with the welfare of women and children, with compulsory deductions for national insurance or social security, as well as a variety of laws relating to trade, such as for the importation and exportation of goods; there are also laws relating to land acquisition, land use and development, laws relating to price control, the sale of agricultural produce, pesticides control, plant protection and quarantine, banana protection and quality control and a host of other laws that have been enacted to implement the policies of Government reflected in those laws.

Of necessity, as these laws multiply so too does the need for more and more public officials to implement the controls reflected in those laws be it via a system of licensing or whatever. This means an ever expanding Public Service or Bureaucracy that is called upon on a daily basis to make administrative decisions that seriously affect people's lives. The non-issuance of a licence under a law may seem like a minor matter to a public official making the decision, but may be a very serious matter to the person affected, especially if it affects the person's livelihood.

Traditionally and to this day, the Judges and by extension the courts are not only seen as the guardians of the Constitution, but the protectors of the citizen, that is, when the extended arm of the Executive, the Bureaucracy, unlawfully interferes with the citizen's rights. However, today as society, not only in Dominica, but all over the world, becomes more complex, legislation extends governmental control into new areas; and as a natural adjunct of this, more discretionary power has had to be granted to senior public officials so that certain pieces of legislation can effectively be implemented at a practical level. Provisions in legislation that grant discretionary power to senior public officials, in specified circumstances, are absolutely necessary as it is impracticable to make rules to cover every circumstance or permutation of a theme. Although provisions granting discretionary power may be said to be absolutely necessary for the effective translation of legislation into a "living", implemented law, it must be noted that no discretion is absolute; hence discretion must be exercised within certain parameters prescribed by law.

Despite the increased need for legislation to deal with certain new subject areas, and in some instances, to grant administrators discretionary power, the Courts have been reluctant to inquire whether administrative decisions are wrong or right on the merits. This it is argued may reflect the judiciary's respect for the separation of powers principle, hence its reluctance to intrude into the domain of the administration of the Executive. To add to this reluctance, the Court process is known to be slow and tedious, especially to the person who has been denied, for example, a licence upon which his or her livelihood depends; hence, as some would say, justice delayed, ad infinitum, is justice denied.

In light of the above, many common law countries have created the position of Parliamentary Commissioner or Ombudsman, as it is called in some countries. It is noteworthy that some other common law countries have tried Administrative Courts, which in some instances have been said to suffer from the same malaise as other courts, that is, undue delays even where the court process has admittedly been improved. There is also a noted increase in the use of provisions in legislation that allow appeals from administrative decisions by aggrieved parties to a review tribunal, which is usually established under some other provisions of the legislation.

In Dominica, as indicated from the outset, we have enshrined the position of Parliamentary Commissioner in our supreme law, that is, the Constitution. Section 108(1) reads: "There shall be a Parliamentary Commissioner for Dominica who shall be an officer of Parliament and who shall not hold any other office of emolument whether in the Public Service or otherwise nor engage in any other occupation for reward." These words seem to be fairly unambiguous, however to date we have not been blessed with a Parliamentary Commissioner although the same obligatory words: "There shall be" are used as regards the office of Director of Public Prosecutions, 15 Attorney General,16 Leader of the Opposition,17 and Prime Minister and Ministers of Government.18 These words are also used as regards the Public Service Commission, the Public Service Board of Appeal, the Police Service Commission and many other important offices and institutions under the Constitution. The Constitution also provides that the Parliamentary Commissioner, who is to take and subscribe an oath of office before the Speaker, is to be appointed by the President after consultation with the Prime Minister and the Leader of the Opposition, for a term not exceeding five years. There are other provisions relating to the security of tenure of the Parliamentary Commissioner including the procedure as regards the removal of the Commissioner.19 Provision is also made for the appointment of a Deputy Parliamentary Commissioner.20

The Parliamentary Commissioner's functions are reflected in section 110 of the Constitution. Subject to certain restrictions on matters that may be investigated and certain discretionary powers granted the Commissioner in determining whether to initiate, continue or discontinue an investigation, the principal function of the Commissioner is to investigate any decision or recommendation made (including any advice given or recommendation made to a Minister), or any act done or omitted by any department of government or any other authority specified in section 110 (4) or prescribed by Parliament,21 or by officers or members of such department or authority, being action taken in exercise of the administrative functions of that department or authority.

The Parliamentary Commissioner, who, according to the Constitution, is to be provided with staff adequate for the efficient discharge of his or her functions, may also investigate any matter in any of the following circumstances:

(a) where a complaint is duly made to the Commissioner by any person alleging that the complainant has sustained an injustice as a result of a fault in administration;

(b) where a member of the House requests the Commissioner to investigate the matter on the ground that a person or body of persons specified in the request has or may have sustained such injustice; and

(c) in any other circumstances in which the Commissioner considers that he or she ought to investigate the matter on the ground that some person or body of persons has or may have sustained such injustice.

Obviously there are certain restrictions as to the investigations that may be carried out by the Commissioner and those are set out in section 111 of the Constitution. For example, the Commissioner is not empowered, in investigating a matter leading to, or resulting from or connected with the decision of a Minister, to inquire into or question the policy of the Minister in accordance with which the decision was made.22 Likewise the Commissioner is not empowered to investigate -

(a) any action in respect of which the complainant has or had :

(i) a remedy by way of proceedings in a court of law; or

(ii) a right of appeal, reference or review to or before an independent and impartial tribunal other than a court of law; or

(b) any such action, or action taken with respect to any matter, as is described in Schedule 3 to the Constitution.23

By dint of section 113 of the Constitution, where a complaint or request for an investigation is made and the Commissioner decides not to investigate the matter or decides to discontinue an investigation, he or she is obliged to inform the person who made the request or complaint of the reasons for his or her decision.24 In cases where an investigation is in fact completed by the Commissioner and he or she is of the opinion that an injustice has occurred in consequence of a fault in administration, he or she shall inform the department of government or authority of the reasons for his or her opinion and make appropriate recommendations. The Commissioner can stipulate a time-frame within which the injustice should be remedied.25

There is also an attempt in section 113(5) to ensure that the recommendations of the Commissioner are not merely shelved and ignored. Hence, where the matter is in the Commissioner's opinion of sufficient public importance or where the Commissioner has made a recommendation and insufficient action or no action has been taken within the time specified to remedy the injustice, then he or she is obliged to make a special report to the House on the matter. There is also an onus on the Commissioner to make annual reports to the House on the performance of his or her functions.26 These provisions relating to special and annual reports are important in that they allow the representatives of the people in the House to discuss the reports in question as well as to make the Commissioner's findings and recommendations public knowledge. This in turn would influence public opinion in a manner that would assert pressure on the relevant authorities to take the appropriate action to rectify the situation.

In order to function efficiently the Commissioner is empowered to summon witnesses and obtain evidence like a judge of the High Court.27 Parliament is also empowered to make provision inter alia for regulating the procedure for the making of complaints and requests to the Parliamentary Commissioner and for the exercise of his or her functions. Incidentally, the Commissioner is not empowered to summon or compel a Minister or Parliamentary Secretary to answer any question relating to any matter under investigation and the Commissioner cannot summon any witness to produce any Cabinet paper or to give any confidential income tax information.28

Some of us who tend to have a natural tendency to distrust Ministerial power may consider the limitations on the Commissioner's power of investigation as regards a Minister as unacceptable; whereas others who are aware of the principle of Ministerial responsibility would be satisfied with the present provisions in that they allow thorough investigations into administrative matters, yet this important principle in our Constitutional culture, that is Ministerial responsibility, is preserved.

With the foregoing in mind it is clear that a great deal of thought went into the provisions relating to the office of Parliamentary Commissioner and that the framers of the Constitution thought that it deserved to be placed in a chapter in our supreme law, which is heavily entrenched. On the other hand the reality is we have not been graced with a Parliamentary Commissioner and our Democratic Republic has functioned nonetheless. Some may therefore posit that in light of this, consideration should be given to certain questions before we make an informed decision as regards the future of the position of Parliamentary Commissioner in Dominica. For example -

(a) should the Chapter relating to the Parliamentary Commissioner be retained or should its provisions be placed in a separate Act thereby preserving the Constitution for provisions regarded as requiring resolute implementation?

(b) despite the fact that the Parliamentary Commissioner is to be appointed by the President after consultation with the Prime Minister and Opposition Leader, whether there should be some qualification requirements for the office, for example, should he or she be a person who at least :

(i) has a sufficient knowledge of the law ?

(ii) is publicly regarded as a person who would be objective and could therefore make impartial judgments and recommendations ? and

(iii) has sufficient knowledge of the workings of Government?

(c) should there merely be one Parliamentary Commissioner or a Parliamentary Commission of more than one member?

(d) should wider powers of investigation be given to the Parliamentary Commissioner?

(e) if the powers of investigation are increased, should this include investigations in respect of complaints relating to the police? or would this undermine discipline ?

(f) should more power be given to the Parliamentary Commissioner if corrective action is not taken by the relevant officer, Department or authority after the Commissioner's recommendations have been submitted?

(g) should the elected members of the House of Assembly, as representatives of the people, be required to extend their functions to include investigating unfair administrative practices that may be brought to their attention by persons from their constituency?.

This brief overview of the Constitution will no doubt establish that it is a complex document. It is made up of 121 sections and covers nearly 100 pages of Volume 1 of the Revised Laws of the Commonwealth of Dominica. The Constitution of the United States of America is a very much shorter document and the United Kingdom of Great Britain and Northern Ireland do not have a written constitution at all. In their case practices have developed which are not written but are nonetheless faithfully followed.

In effect our Sovereign Constitution is a contract into which the people of the country have entered setting up institutions of government and outlining the rules within which these institutions should operate. The creation of these institutions of itself necessarily restricts the freedom of each individual to act independently but it is obvious that progress would not be possible without each of us placing in agreed institutions the power to take action for the general good. The rules reflected in the Constitution ensure that the citizens, sometimes referred to as the political sovereigns, can still supervise, in some measure, the actions of office holders and exercise the ultimate power of removing them from office should they appear not properly to have carried out the public trust.

With the above in mind, we would recommend not only a reading of this booklet in conjunction with the Constitution, but an active participation by all citizens, the political sovereigns, in the review process.

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