Rights issue may be ‘deal-breaker’
An often heated but seemingly productive three and a half days of talks on Cayman’s revised constitution ended in a pledge to finish those negotiations in early February following a third and final meeting in London.
Representatives from the United Kingdom’s negotiating team, who have now met twice with local government officials and private sector agencies in closed-door talks, identified a general list of ten items that still require final agreement.
Among the sticking points were the islands’ first proposed Bill of Rights, appointment and powers of the Cayman Islands governor, the powers of a proposed National Security Council, term limits for the office of a locally elected government leader called a premier, proposed limits on government borrowing, and how voter-initiated referendums would be handled.
UK delegation chief Ian Hendry said he was confident a compromise could be worked out in ‘one or two days’ during meetings that have been scheduled the week of 2 February.
‘We have discussed and agreed to a large number of changes to the draft that was circulated in October,’ Mr. Hendry said, adding his belief that the amendments were ‘a great improvement over the constitution of 1972’…the ruling document that Cayman operates under.
‘I am now confident that a modern constitution is in sight,’ Leader of Government Business Kurt Tibbetts said.
Opposition Leader McKeeva Bush called last week’s talks ‘tedious’ and identified several government positions his party would not support. He also noted that Cayman Islands voters would have the final say on any constitutional reform proposal during a referendum scheduled for 20 May.
The most contentious issue being debated last week remained the Bill of Rights, specifically a section that deals with discrimination against individuals.
The non-discrimination section in the bill previously contained language which church groups and conservatives worried would lead to recognising the rights of same sex couples to enter into unions similar to marriage.
Human rights groups believe the proposed wording of the non-discrimination section won’t be an effective legal protection if someone is discriminated against.
Government leaders said Friday that a compromise was possible, but public statements indicated neither side of the issue seemed willing to budge.
‘We stand by our position that on matters that will compromise our personal…and spiritual values, we will not negotiate,’ said Pastor Eric Clarke of the Cayman Islands Mission of Seventh-day Adventists.
‘None of the grounds of non-discrimination, apart form sexual orientation – generated any controversy or public debate,’ the Human Rights Committee’s Melanie McLaughlin said Friday afternoon. ‘However, in an effort to remove any protection for one group – namely homosexuals and transsexuals – it is now proposed to limit the right of non-discrimination for all these other persons as well. This is a retrograde and appalling move.’
On Saturday afternoon, the Human Rights Committee sent out a ‘revised’ statement to the press that changed a few words in the above quote, but that statement was not what was said at the talks on Friday.
In any case, the HRC’s general position on the non-discrimination section of the Bill of Rights had not changed in the later statement.
Mr. Tibbetts acknowledged that the Bill of Rights issue was ‘the most deal-breaking aspect’ of the on-going negotiations.
Although a formal revised draft of the constitution wasn’t expected to be released until later this week, ruling government members seemed confident that UK representatives had agreed to a number of key changes aimed at curbing the UK-appointed governor’s powers.
Under the current proposal, the governor will continue to chair Cabinet meetings in Cayman, but both the governor and the premier will have to agree on what will go into meeting agendas.
The governor’s reserve powers to enact legislation will be maintained to a certain extent to protect the UK’s interests, and actions taken at the behest of those interests will not be subject to judicial review as the elected government had earlier proposed.
Mr. Hendry said these issues were still partly unresolved.
‘We need to consider precisely in what circumstances the governor might exercise that (reserve) power,’ he said.
The elected government said the new draft constitution planned for release later this week would contain additional stipulations that would make Cabinet the driver when it comes to local government policy.
‘Cabinet, not the governor alone, will have responsibility for formulation of policy,’ Education Minister Alden McLaughlin said Friday. ‘We’re really reining him (referring to the governor) in, in a big way.’
The ruling government also seeks to constitutionally obligate the governor to follow the direction of a National Security Council in matters related to policing and internal security. That council, if created, would be a six-person oversight committee made up of gubernatorial and elected ministers’ appointees.
UK negotiators left the matter open to question Friday stating that obligating the governor to following council advice was a ‘political decision’ that would have to be made by Foreign and Commonwealth Office Parliamentary Undersecretary of State Gillian Merron at next month’s talks.
Also, an appointed Judicial Services Commission would be made responsible, under the latest constitution plan, for the appointment of judges, the attorney general, and a newly created office of the director of public prosecutions.
‘All of these things constrain the governor’s ability to act alone,’ Mr. McLaughlin said.
UK negotiators said they were still mulling over a few proposals from Cayman that were considered ‘novel’ in terms of British Overseas Territories’ constitutions.
One of those was language in the constitution that expressly stated the governor is required to act in the best interests of the Cayman Islands.
‘This is not to say an overseas territory governor does not act in the interest of any territory,’ Mr. Hendry said.
The Cayman Islands government also requested that consultation with local officials be made mandatory if an Order-in-Council was to be issued by Her Majesty, the Queen of England.
‘The language proposed on that is novel,’ Mr. Hendry said.
A few other matters remain largely unresolved but negotiators said last week that they believed these to be technical problems, rather than political.
A proposal setting limits on the amount of public debt the Cayman Islands government could incur was only readied Friday morning in the final hours of the talks. Mr. Hendry said further discussions would be needed.
The Cayman Islands’ desire to submit future constitutional changes to a referendum before they are enacted would also require more review, Mr. Hendry said.
Other thorny issues remained, such as proposals for a hiatus between the time a senior civil servant resigns his or her post and the time they choose to run for public office. No consensus on what that hiatus period should be has emerged.
Mr. Hendry said proposals to create a term limit for the office of premier have not been entirely resolved. The ruling government seeks to limit any premier to two, four-year terms in office. Following a one-term absence from that post the individual would be free to seek it again.