Final draft constitution released
The document that could decide how the Cayman Islands will be governed for the foreseeable future was made public Wednesday in the Legislative Assembly.
The final draft constitution is what Caymanian voters will get to weigh in on during a 20 May referendum, assuming lawmakers approve a Referendum Law before the legislature is dissolved in late March.
According to government ministers, citizens will be asked to decide in a straight up-or-down vote on the entire document.
If approved, the proposal would make the first wholesale change in the governing arrangement between Cayman and the United Kingdom since 1972.
Leader of Government Business Kurt Tibbetts called the proposal ‘an achievement of which every Caymanian can be proud.’
The draft document was approved by the UK negotiating team following talks last week in London. If the voters approve it in a referendum on 20 May, it would then head back to the UK’s Privy Council for formal ratification.
‘We are finally near the end of a long and arduous journey,’ Mr. Tibbetts said. ‘A journey we started some eight years ago.’
Mr. Tibbetts lauded what he called broad-based support for the plan among the country’s public and private sectors.
However, because of legislative debate rules, no opposition party members or anyone else for that matter was allowed to weigh in on the draft document. Opposition Leader McKeeva Bush was off island and was not present for the draft constitution’s release.
Mr. Bush has previously criticized the plan as ‘not the best deal for the Cayman Islands’ and has said some of its proposals would lead to more partisan politics.
The Cayman Islands Human Rights Committee has also refused to support the draft bill of rights now contained in the constitution, the first ever to be included in a Caymanian governing document.
Mr. Tibbetts said a press conference would be held Monday where all participants in the London talks could give their views.
Governor Stuart Jack also issued a written statement Wednesday supporting the draft constitution.
‘There is one key question for voters in the referendum: is the proposed new constitution better for the people of the Cayman Islands that the present constitution?’ Governor Jack wrote. ‘I believe it is.’
The bill of rights
This issue was, without doubt, the most difficult point in the constitutional debate.
The final draft constitution identifies at least 18 separate individual human rights that will be observed in Cayman. Those include the right to life, personal liberty, the right not to be tortured or enslaved, right to a fair trial, of conscience and religion, free assembly, movement, the right of men and women to marry, right to property and the right to not be discriminated against.
All rights only apply legally between the individual and the government. Civil or human rights defined in the draft constitution would not apply between a person and their employer, for instance; or between a person and their church.
Few rights are absolute. Several contain qualifications or limits, and other rights are merely ‘aspiration rights’ that have no real legal effect. The right to education is one of those.
The right to be protected from discrimination would only prevent discriminatory acts if those acts could not be justified in some way. Also, that right only protects against abuses of those human rights defined in the constitution.
For instance, the right to health care is not a human right identified by the draft constitution. So, government would be free to discriminate in the provision of health services.
The non-discrimination section of the proposal also allows government to discriminate in the levying of fees, and in the granting of employment.
The Human Rights Committee has vehemently objected to the non-discrimination section of the bill.
‘In its current form, the new section 16 (right to non-discrimination) means that the constitution does not protect anyone from discrimination by government in relation to healthcare, housing, employment, access to public spaces, the provision of social services and anything else…not listed as a specific right in the bill of rights,’ an HRC statement released this week read.
‘Do you reject the assumption that we are not ready to embrace the ideals that freed the slaves, that assured women of the right to vote, that abolished apartheid and which are the foundation of every free and successful country in the world?’
Mr. Tibbetts took exception to the committee’s comments, and said its members have simply refused to negotiate.
‘Their approach to this is doing the very cause they represent a real disservice, for they are essentially saying that if they cannot have the bill of rights they want, it is better to have none at all,’ Mr. Tibbetts said. ‘Half a loaf is better than no bread.’
The bill of rights will not take effect until three years after the new constitution becomes law.
The Cayman Islands governor will continue to be appointed by Her Majesty, the Queen of England.
The appointed governor will retain ultimate responsibility for the police service and external security matters.
Several efforts are made in the proposal to dilute the governor’s powers, although that office will reserve its ability to enact emergency legislation, force through funding for emergency expenses, and lead meetings of government’s chief advisors, called Cabinet.
However, the government’s elected leader; called the Premier under this plan, will be allowed to place items on the Cabinet’s meeting agenda. That is not allowed under Cayman’s current governing arrangement.
A number of appointed councils, most visibly the National Security Council and the Judicial and Legal Services Commission, will give elected government members at least some say in the administration of police and the judiciary.
In the case of the National Security Council, the governor would be obliged to follow the body’s advice unless he or she feels it would threaten the UK’s interests.
In most cases the governor is allowed to act apart from the wishes of Cabinet if he or she believes following those requests would harm UK interests.
Another major change is that the UK will have to consult with Cayman’s elected lawmakers before any international treaties that affect the islands are finalised. A similar rule was put in place for orders-in-council issued by the UK.
Although changes won’t take effect immediately, if a draft constitution is passed there will eventually be 18 elected members of the Cayman Islands Legislative Assembly. Seven will be chosen as government ministers.
The speaker of the house, attorney general, and deputy governor will also attend LA meetings but will not get to vote on items that come before the body.
The deputy governor is a new position, formed in the draft constitution to replace the civil service director known as the chief secretary. The deputy governor would have to be a Caymanian.
Two new Cabinet ministers would be assigned the roles of finance and home affairs. Exactly how those roles would be divided up is left to the ruling government.
An electoral boundaries commission will be appointed to decide where the three new MLAs will be elected. Proposals for single-member voting districts were taken out of the constitution, but could be enacted by the government of the day in local legislation.
All voting changes will not take effect until the next general election after this year’s.
The civil service
The governor maintains ultimate responsibility and control of the civil service in the draft constitution, but direct oversight is delegated to the deputy governor.
Senior civil servants will not be prevented by the constitution from seeking elected office at any time. However, it is possible such a provision could be enacted in local legislation.
Despite the wishes of Cayman’s current ruling government, the UK did not agree to require that a public vote must occur each time a constitutional change is made. UK officials said they would use their ‘best endeavours’ to make sure this happens, but there’s nothing forcing them to do so.
People-initiated referendums will be allowed under the proposed constitution and they will be binding on government if they receive approval by more than 50 per cent of the eligible voters. However, petitioners must collect valid signatures from at least 25 per cent of eligible voters in the islands before the government must hold a referendum.
Under the draft constitution, the supreme law of the land will be the Legislative Assembly. Courts are not allowed to simply strike down laws judges believe are unconstitutional.
If a situation arises where a law made by the LA is declared incompatible with the constitution, the local courts would basically inform lawmakers and leave it up to them to make changes.
Judicial appointments still fall under the control of the governor, but he or she does not make the decision alone anymore. The Judicial and Legal Services Commission would vet candidates and make recommendations. The majority of commission members are gubernatorial appointees under the draft constitution.
The attorney general’s role under the new draft constitution has been reduced largely to one of legal advisor.
The position will no longer have a vote in Cabinet or in the Legislative Assembly. Also, the AG no longer directs public prosecutions under the draft constitution.
A new position, called the director of public prosecutions, would act as the Crown’s chief prosecutor.
Several new appointed commissions are formed by the new draft constitution. They include:
The Human Rights Commission – this is an advisory board that serves as a legal resource for human rights issues. It will replace the Human Rights Committee.
The Commission for Standards in Public Life – this is a monitoring body that seeks to ensure the ethical conduct of public officials.
The Constitutional Commission – this is an advisory group that keeps tabs on constitutional issues within the Cayman Islands.
District Councils – these are neighbourhood groups formed as ad hoc advisory bodies for elected officials in various districts. The constitution does not actually create these groups, but leaves it for local lawmakers to determine their make-up and number.