Frequently Asked Questions
The following are questions that are frequently asked about the Complaints Commission.
- Does this Act apply to everyone?
- No, this Act does not apply to:
- Judges, magistrates or the functionaries of any court;
- Deliberations and proceedings of the Cabinet, Legislative Assembly or any of its committees;
- The Attorney General in the exercise of any power conferred upon him by the Constitution;
- The Director of Public Prosecutions in the exercise of any power conferred upon him by the Constitution; or
- The Auditor-General in the exercise of any power conferred upon him by the Constitution.
- Is the Commission subject to control?
The Commission is not subject to the direction or control of any other person or authority in the exercise of its functions. Should the need arise though, the Governor may, in writing, direct the Complaints Commission to inquire into, and report to him or her in relation to, a matter that can be complained about. - What is a Human Rights Complaint?
A human rights complaint refers to a complaint made by someone who believes that there has been a breach or infringement of a right or freedom. These fundamental rights and freedoms are described in part 1 of the Montserrat Constitution Order 2010. Three examples of human rights, as stated in the Constitution are;- The right to privacy
- The right to be protected from discrimination
- The right to freedom of expression
- What is a Maladministration Complaint?
Maladministration, according to the Complaints Commission Act, is defined as ineffective, bad, or improper administration. This includes:
- Unreasonable conduct, including delay, discourtesy, and lack of consideration for a person affected by any action.
- Abuse of any power, including any discretionary power, or authority including any action which –
- Unreasonable, unjust, oppressive or improperly discriminatory procedures;
“Maladministration complaint” means a complaint of maladministration in the Government of Montserrat’s public service.
- When can the Complaints Commission investigate?
The Commission can investigate:
a) Once a complaint is made, in writing, to the Comission by a person alleging that he or she has sustained an injustice as a result of a breach or infringement of a human right, or of maladministration;
b) In any other circumstance in which the Commission considers that it ought to investigate the matter on the ground, that a person or body of persons has or may have sustained an injustice as a result of a breach or infringement of a human right, or of maladministration; or
c) as prescribed by any other law. - Are there restrictions on matters for investigation?
Yes, there are restrictions on matters for investigation in relation to:
a) Any matter leading to, resulting from or connected with a decision of a Minister. In this case, the Commission shall not inquire into or question the policy of the Minister in accordance with which the decision was made.
b) The case where it becomes evident that there has been any corrupt act by any individual. In this case the matter should be reported to the Governor with recommendations as to any further investigation it may consider appropriate.
c) Any matter that the complainant has or had-
i) a remedy by way of proceedings in a court, other than by way of judicial reviews; or
ii) a right of appreal. objection, reference or review to or before any person, tribunal, board or other authority appointed or constituted by or under an enactment.
d) Despite subsection (3), the Commission may investigate a matter even if the complainant has or had a remedy by way of proceedings in a court, if the Commission is satisfied that in the particular circumstances it is not reasonable to expect the complainant to take or to have taken such proceedings.
e) The Commission will not investigate any action taken by a person acting as legal adviser or as counsel.The Commission will not look into matters relating to the following:
a) Any action taken under any law relating to extradition or fugitive offenders.
b) Any action taken for the purpose of investigating crime or of protecting the security of Montserrat.
c) The commencement or conduct of civil or criminal proceedings before any court or before any international court or tribunal.
d) Action taken in terms of appointments or removals, pay, discipline, pension or other personnel matters in relation to service in any office in the public service or a public authority.
e) Any request for an appeal outside of the prescribed period under any enactment. - How does the Commission determine whether to investigate?
The Commission may make preliminary inquiries to determine whether to formally investigate a complaint. Once an investigation is initiated, the Commission can decide whether to continue or discontinue the investigation.
The Commission may decide not to investigate if:
a) The Complainant knew of the action more than one year before making the complaint
b) The complaint is made anonymously or the complainant cannot be identified or traced;
c) The complaint isn not made by (i) the individual aggrieved himself or herself; or (ii) his or her personal representative or by a member of his or her family or other individual suitable to represent him or her, where the individual by whom the complaint might have been made has died or is for any reason unable to act for himself;
d) Where the complaint is made on behalf of a body corporate, the body corporate has not authorised the making of the complaint;
e) The complainant does not have a sufficient interest in the subject matter of the complaint;
f) The subject matter of the complaint is trivial, frivolous or vexatious or is not made in good faith;
g) The complaint, or a complaint of a substantially similar nature, has previously been the subject of an investigation as a result of which the Commission was of the opinion that there had been no breach or infringement of a human right, or no maladministration - Does the Commission have any power to obtain evidence?
Yes, the Commission has the powers of the High Court to summon witnesses to appear before it. It can also compel witnesses to give evidence on oath and to produce documents relevant to the proceedings before it. The Commission has power to enter and inspect the premises of any Department of Government or public authority. It can ask for, examine, make copies of and, where necessary, retain copies of any document kept on those premises. It can in fact undertake any investigation, on the premises, necessary to accomplish its functions. - Are there restrictions on the power to obtain evidence?
Yes, there are restrictions because the Commission does not have the power to summon the Governor or a Minister to appear before it or compel the Governor or a Minister to answer any questions relating to any matter under investigation by the Commission. Consultations may take place with either the Governor or the Minister, though. - Who can get a copy of the report on an investigation?
The relevant Department of Government or public authority is provided with a report, which contains the findings of fact, the Commissions’ opinion and the reasons for its opinion. The Governor and each member of Cabinet also get a copy of the report. - Can the Commission make recommendations?
The Commission can make recommendations when it is of the opinion that someone has sustained an injustice because of, a breach or infringement of a human right, or of maladministration. It can also request that the Department of Government or public authority notify it, within a specified time, of the steps, if any, that it proposes to take to give effect to its recommendations.
The Commission may also in its report, or at any later stage if it thinks fit, specify the time within which an injustice should be remedied.