VOLUME 8
6.4
6.5
RESTRICTED
CHANGING A CONSTITUTION AT INDEPENDENCE
See Chapter 7.
6.4
6.6
RESPONSIBILITY OF THE DT GEOGRAPHICAL DEPARTMENT
Before the question arises of amending a constitution (or any other instruments), there must be agreement in substance on the nature of the new (or amended) constitution, and on the differences between the new (or amended) constitution and the existing one. This involves a process of detailed discussion between the FCO, the OAG, his advisers and, usually, politicians of the DT. It is usual to confine the discussion to those politicians who are members of the Legislative Council but not necessarily of the Executive Council; but sometimes it may be prudent to include political leaders who do not hold seats in the legislature. The relevant geographical Department organises the discussion, (consideration must be given to the desirability of appointing a Constitutional Assembly to gauge all shades of opinion within the DT). An alternative is for a Constitutional Commissioner to be appointed by the Secretary of State with a brief to visit the DT to carry out consultations within a specified term of reference and write a report (to be published as a White Paper) on proposals for constitutional advance. Departmental Legal Advisers should be fully and continuously associated with all such discussions and, whilst they do not devise constitutions (although their advice may be sought), they advise and assist in the preparation and drafting of the necessary instruments once a substantial measure of agreement about the nature and features of the constitution has been reached by all concerned. Sometimes uncontroversial amendments of the constitution are required for technical reasons. In such cases it is generally sufficient for the amendment to have the approval of the Executive Council.
6.6
PREPARATION AND DRAFTING OF CONSTITUTIONAL INSTRUMENTS
In principle, it is the responsibility of the Law Officers of the DT concerned to prepare the first drafts of constitutional instruments. With small DTs, however, it is common practice to ask the Departmental Legal Advisers to undertake this task, even at initial stages. The practice will vary from Territory to Territory but it is frequently convenient to ask a Departmental Legal Adviser to visit a DT to undertake the preparation and drafting of instruments with the Attorney-General or other Legal Officers of that Territory. In any event, the procedures described in paragraph 6.5 above must have been substantially completed before any such arrangements are made.
October 1978
38
RESTRICTED
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