Constitution should protect local rights

Local lawmakers should seize the initiative to develop a new constitution, carefully enshrining civil rights unique to Cayman.

Saying the time was right to consider a new constitutional structure, visiting QC, scholar, Dean of London’s University College and lecturer in constitutional law Jeffery Jowell warned Cayman that the document would be difficult to write.

‘Here in Cayman, economic dynamism is not matched by constitutional change. (Cayman) is still rooted in the colonial era. The constitution is still governed by the Queen’s representative, the governor, and not by its people.’

Careful to avoid prescribing the direction of local reform, and suggesting that constitutional change in Cayman was not a priority for the UK, Professor Jowell said the islands would have to struggle to achieve change.

Independence, free association and some form of integration were the chief constitutional alternatives, he said, observing that Bermuda was gradually moving toward a relationship with the UK that was short of independence.

‘The UK is bound to encourage greater self-government, not necessarily independence,’ Professor Jowell said.

‘It supports devolution, which is best done locally in a responsible way … and the UK knows that there should be representation in parliament. Laws should not be imposed if people have not approved them.’

Cayman had to create a ‘coherent (constitutional) package that hangs together, including local governance, human rights, efficiency and delivery of governmental services,’ he said.

Citing his own experience helping draft a series of constitutions, most recently in South Africa, and aiding political development in the Channel Island of Jersey, Professor Jowell said certain features in any constitution were indispensable.

‘Laws on taxation, the economy, the environment, business, shipping, aviation, tourism and fiscal and monetary policy are crucial questions of local policy. The UK should not have a veto.’

Governor’s role

The governor’s role should be limited to an advisory capacity.

‘His role in the cabinet, in a modern democracy, should be non-voting; he should be unable to override democratically elected members, and he should not be able to refuse questions from the cabinet.’

Other overseas territories, he said, had demanded a greater role in foreign affairs.

‘There ought to be greater consultation with the overseas territories … and local government should be allowed to be directly represented in international discussions, gaining some degree of international personality and inspiring confidence in the territory from overseas.’

Finally, he said, certain rights should be built into any constitution, along with some locally developed rights unique to the territory.

‘Some rights are non-negotiable, some fundamental civil and political rights, without which you cannot be called a democracy,’ Professor Jowell said.

‘There is great merit in introducing a court of human rights; there are property rights you need as a financial centre; administration and delivery of services should be fair, accountable, above reproach, and decision-makers must act reasonably and lawfully.’

Unique rights

He suggested Cayman might create its own unique rights, rooted in local circumstances and enabling it to ‘endorse and continue its remarkable development.

‘European conventions are concerned largely with political rights and human decency. South Africa has administration of justice, delivery and fairness.

‘Environmental rights might indicate the environment is worthy of protection. You might want to look at socio-economic rights, protecting free enterprise, labour and the right to strike.

‘It depends on the country. There might be rights to health care, clean water and a roof over your head, all within available resources.

‘My advice,’ Professor Jowell said, ‘is to choose your own, maybe one or two that have not before seen the light of day.’

Cayman was likely to gain the best response in regard to constitutional development by presenting the UK with a cogent, clearly defined package of democratic principles. All successful constitutions, he said, combined the ability to achieve stability and a capacity for change.

‘If it includes modern values, it will be difficult for anyone to disagree, but the initiative must be taken by this country.’

‘Certain rights should be built into any constitution, along with some locally developed rights unique to the territory.’

– Professor Jeffery Jowell