Draft constitution released

Less than two weeks before the third and final round of constitution reform talks, negotiating teams have made their latest attempt at drafting a compromise proposal.

The plan further qualifies an individual’s right to not be discriminated against and appears to weaken the right to education in the Cayman Islands.

The new draft constitution also includes some of the language Cayman’s legislators inserted that aimed to reduce or constrain the powers of the UK-appointed governor. However, in other sections that wording was taken out.

‘There were really no big surprises,’ Education Minister Alden McLaughlin said.

Negotiators from the United Kingdom have previously identified 10 areas that are yet to be resolved in the talks. Meetings with UK Foreign and Commonwealth Office Parliamentary Undersecretary of State Gillian Merron are set for the week of 2 February.

The Caymanian Compass has examined several changes made in the new draft of the constitution.

Bill of Rights

This item remains the most deal-breaking aspect of the talks, according to Leader of Government Business Kurt Tibbetts.

The proposal attempts to define what are known as vertical rights, or the protective rights the individual has against the state. Negotiators are still debating whether those rights should include the court system as part of government; the current draft does not.

The non-discrimination section in the new draft constitution attempts to qualify that right, stating ‘government shall not treat any person in a discriminatory manner’ but defines discriminatory as ‘affording different and unjustifiable treatment.’ In other words, if the discrimination can be justified, it is not a violation of someone’s civil rights.

The phrase ‘unjustifiable treatment’ was not in the previous draft of the constitution.

The section of the bill relating to the protection of children has been expanded and made much more specific. The bill sets out various rights of those under 18, protecting youngsters from exploitation, neglect, abuse, degradation and detention ‘except as a measure of last resort.’

The proposed Bill of Rights also changes the right to education from the previous draft, which included it as an absolute right to free education for children of appropriate age.

The new draft reads: ‘Government shall seek to reasonably achieve the progressive realization, within available resources, of providing every child with primary and secondary education.’

Governor’s powers

Questions about how much consultation should occur between the Cayman Islands governor and the leader of the locally elected government, called the premier, have not been resolved in the latest draft constitution.

Local government has attempted to insert language into the proposal that requires the governor to ‘act in the best interests of the Cayman Islands consistent with the interests of Her Majesty.’

UK negotiators have not agreed to that, and indeed have said it is novel in terms of British Overseas Territories’ constitutions.

The governor has retained his power to unilaterally enact laws in this draft of the constitution, but local government is urging the UK to require consultation in those instances and restrict the governor’s lawmaking power only to matters directly affecting UK interests. No agreement has been reached here either.

Plans for a National Security Council to oversee the Royal Cayman Islands Police Service are still in the constitution, but the new plan has added a second government minister to the now seven-person council. The parties are still debating whether the council should be merely advisory, or if the governor should be bound by its decisions.

Elected lawmakers

There will be 18 elected officials in the Legislative Assembly under the current draft constitution, plus the non-voting positions of speaker of the house, deputy governor, and attorney general.

Exactly how those LA members would be elected is still unclear. Government officials and UK negotiators have attempted a compromise that would give the LA the ability to determine whether single-member voting districts should be established. A section requiring the creation of those districts has been removed from the latest draft constitution.

The plan also gives the LA the ability to create local advisory groups known as district councils if it wishes.

Any expansion or retraction of elected members in the house could be done by a simple vote of the assembly under the new plan. However, opposition lawmakers are concerned such a move would unfairly benefit the ruling government.

The issue of whether civil servants who choose to run for public office will have to resign at least 12 months before the date of an election has yet to be resolved.

Also, a two-term limit for the country’s leader, the premier, has been proposed in the constitutional draft but remains a point of contention. The current proposal requires a term-limited premier to leave that post for one term after which they could seek it again.

Referendums

The draft contains new language that would allow Cayman Islands citizens to initiate petitions for a public vote, called a referendum. Under the new plan, such a vote, if it occurs would legally bind the government.

To enact a referendum, a member of the public would have to present a petition to Cabinet signed by at least 25 per cent of currently registered voters.

The Cabinet will then determine the precise wording to be placed on the ballot and determine when the vote would be held.

A section requiring a referendum in the future each time constitutional change is sought has not been agreed upon.

Public debt

The draft constitution would allow government to borrow more than current law allows, but only under special circumstances.

Under the plan, total interest payments on the debt, principal repayments and other debt service requirements could not exceed ten percent of government’s total revenues in any given year.

However, the legislature could raise that ten per cent ceiling for a limited time ‘where a matter arises of a nature or urgency which in the opinion of the Cabinet makes it necessary to do so.’

This section is a new proposal and negotiators said they haven’t had a chance to review it thoroughly.

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