Historic Day

Cayman’s first new Constitution in 37 years

History will be made in the Cayman Islands today.

Most of the changes contained in Cayman’s first completely revamped governing arrangement with the United Kingdom since 1972 will come into effect.

A piece of History

This copy of the The Order of the Constitution of 2009, one of only three made and signed by Governor Stuart Jack, Premier McKeeva Bush and Leader of the Opposition Kurt Tibbetts, will be among the items for bid at the Annual Cayman Islands Little League Auction on Saturday night. Photo: Alan Markoff

Also, three prominent Caymanians will ascend to positions that had not previously existed in the Islands; those of the premier, deputy premier, and deputy governor.

Formal proceedings to swear in the three new office-holders will begin at 10.30am in front of the Legislative Assembly building. All are welcomed to attend, but organisers ask that those attending take their seats 10 to 15 minutes prior to the start time.

Festivities will include performances from the Cayman National Choir, the Harmony Singers, Rudi Myles and Miss Teen Cayman Jamesette Anglin. Also participating are the Royal Cayman Islands Police Service Band, and the George Hicks Campus Band. Members of the police, fire, and prison service will be in attendance, along with the Cayman Islands Cadet Corps, the Girls Brigade, the Scouts and the Gideon Pathfinders.

Other events for the day, including a luncheon and a black-tie dinner hosted by the United Democratic Party are invitation only events.

The day has been declared a one-time only national holiday. The swearing in ceremony will be aired live on Radio Cayman (89.9FM – Grand Cayman, 93.9 FM – Cayman Brac and Little Cayman). Cayman 27 television will also be airing live coverage of the ceremony.

What’s in the Constitution?

The Cayman Islands Constitution Order, 2009, retains Cayman’s status as a British Overseas Territory with a governor appointed by Her Majesty, the Queen of England.

However, a number of changes have been made in the delegation of the governor’s current authority, essentially shifting more power to the elected government.

Under the agreement, the governor will retain ultimate responsibility for police, customs and external security matters. The governor’s office reserves its current ability to enact emergency legislation, force through funding for emergency expenses and lead meetings of the Cabinet.

However, unlike the current Constitution, this agreement allows the Premier (formerly the Leader of Government Business) to place items before Cabinet for consideration. The governor may also continue to bring items before Cabinet.

Another major change is that the United Kingdom will have to consult with Cayman’s elected lawmakers before international treaties that affect the Islands are finalised. A similar rule was put in place for orders-in-council issued by the UK.

A number of appointed councils, most visibly the National Security Council and the Judicial and Legal Services Commission will serve to dilute some of the governor’s power with regard to choosing judges and making strategic decisions for the police service.

The National Security Council will consist of the governor, the premier, two other elected ministers appointed by the governor in consultation with the premier, the leader of the opposition or their designee, and two other members of civil society appointed by the governor after consultation with the premier. The deputy governor, police commissioner and the attorney general are on the body as non-voting members.

The Judicial and Legal Services Commission will consist of a chairperson, the President of the Court of Appeal (non-voting), a Cayman Islands judge or former judge, two people who hold or have held high judicial office in the Commonwealth or Ireland, and two attorneys qualified to practice in the Cayman Islands – one from the public sector and one from the private sector. All appointments are made by the Governor. The commission chairperson will be selected in consultation with the premier and opposition leader.

Other new appointed bodies created under the Constitution include: the Human Rights Commission – which monitors and safeguards human rights, the Commission for Standards in Public Life – which is aimed at policing and preventing public corruption and the Constitutional Commission – which monitors legal and policy issues in Cayman’s governing document.

Under the new Constitution, the governor is generally obliged to follow the advice given by Cabinet unless he or she believes doing so would threaten the UK’s interests.

There will also be significant changes to the makeup of the Legislative Assembly.

The financial secretary will be removed from the people’s house, and the chief secretary’s position will be subsumed by the deputy governor – who must be a Caymanian. The attorney general will continue to attend LA and Cabinet meetings, but only as a legal advisor and not as a voting member. The attorney general will also no longer be in charge of criminal prosecutions; those duties now fall to a director or public prosecutions.

For the time being, Premier McKeeva Bush will take over the duties of finance minister, in addition to his responsibilities for the tourism, planning and financial services sectors. Financial Secretary Ken Jefferson will take up an as yet undefined post in government.

The chief secretary’s position will basically become the deputy governor, with long-time civil servant Donovan Ebanks retaining the job. Eventually, the chief secretary’s position will be replaced in the Legislative Assembly by an elected minister, possibly to be called the minister of home affairs.

The Constitution requires three additional elected members to be added to the house, changing the full complement from 15 to 18. However, those three new positions cannot be added until an Electoral Boundary Commission decides what voting district they should come from.

Proposals to change Cayman’s current voting districts to single-member constituencies were taken out of the Constitution, but the document does leave the option open for the government of the day to make changes to the current voting scheme if they wish.

The Legislative Assembly will be the supreme law of the land under the new Constitution. The courts are not allowed to strike down laws if a judge rules a particular government action to be unconstitutional.

If a situation arises where a law made by the LA is declared incompatible with the Constitution, the local courts are to inform lawmakers and leave it to them to make changes.

For the first time, people-initiated referendums are allowed under the Constitution. The laws governing such votes will make public petitions difficult to achieve, but they will be binding on the government if they are passed.

The civil service also remains under the purview of the governor, with direct oversight delegated to the deputy governor. Senior civil servants are not prevented by the Constitution from seeking elected office at any time, and are instead guided in that regard by local legislation.

A Bill of Rights

The first Bill of Rights in Cayman’s history was, without doubt, the most contentious issue in the constitutional debate; the most recent iteration of which started in early 2007 with the formation of the Constitutional Review Secretariat.

The Constitution identifies 19 separate individual human rights that will be observed in Cayman. These include the right to life, personal liberty, the right not to be tortured or enslaved, the right to a fair trial, of conscience and religion, free assembly, movement, the right of men and woman to marry, the right to property and the right not to be discriminated against.

All rights only apply legally between the individual and government. Civil or human rights defined in the 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 human rights that are defined in the Constitution.

The right to health care, for example, is not a human right identified by the 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 Bill of Rights will not take effect until 6 November, 2012. The section of the bill that deals with the humane and legal treatment of prisoners won’t come into effect until 6 November, 2013.

Premier William McKeeva Bush

The longest-serving current member of the Cayman Islands Legislative Assembly – often called the “Father of the House” – will be sworn in this morning as Cayman’s first Premier.

“Yes, (today) is an important day for the country,” Mr. Bush, 57, said. “We have a new Constitution; not all that we want but it is better than what we had before.”

It’s a far cry from where Mr. Bush was on 6 November, 2008, as he lay in hospital recovering from gastric bypass surgery which doctors said was necessary to save his life.

“Just think, just nearly a year ago I was 340 pounds,” he said. “Look how good I look, and how good I feel. God has been good to me.”

As far as the job of the Premier itself, Mr. Bush said this week that there were some public misconceptions about the post.

“People think that you are the Premier and now you’ve got all this power,” he said. “It does give you some authority in that you can recommend to the governor to change your Cabinet; you’ll have to be on some important committees. But you don’t have all this awesome power that people think.”

“There is responsibility. I will be the head person…first among equals. It’s a tremendous responsibility. I think it was one prime minister who said you’re out front to be shot first.”

Considering from whence he came, Mr. Bush said he felt fortunate and thankful.

“I didn’t get electricity until 1971,” he said. “I didn’t get to be a lawyer because the apparatus-machine of the day and the pharaohs of the day didn’t allow that. I couldn’t get a scholarship.”

“I feel good that I’ve come this far by Faith – my mother’s name is Faith.”

Mr. Bush has been coy thus far about stating whether he will seek re-election the next time around. But he said his goals during this four-year term are simple.

“To do all in my power, so when I leave this post the Cayman Islands is in a better position. That’s going to take some doing.”

Becoming the first Deputy Premier of the Cayman Islands today is Cayman Brac and Little Cayman representative and Works Minister Juliana O’Connor-Connolly. It will be her responsibility to act as Premier when Mr. Bush is out of the country or if he becomes incapacitated.

In a previous interview, Mr. Bush said he was honoured to have Mrs. O’Connor-Connolly as his second-in-command on the legislative side.

‘A party is about consensus, and I accept their recommendation (of his United Democratic Party),’ Mr. Bush said. ‘I’m privileged to have Julie chosen by the party. Julie is very educated; being a lawyer and a teacher both…next to me she’s the second longest-serving member of our party (in the Legislative Assembly).”

‘Julie is a woman and she is from the Sister Islands, so I think the party is well balanced,’ Mr. Bush added.

Craddock’s son

Another first for the Cayman Islands today will be the swearing in of the deputy governor, 57-year-old Donovan Ebanks.

Mr. Ebanks, whose father Craddock, served as a politician for more than 30 years, has never pursued elected office and said he’s not likely to. Instead, the low-key lifelong civil servant takes a more pragmatic approach to his new position.

“Well, I guess if you stick around long enough, all sorts of things happen,” Mr. Ebanks said in an interview Wednesday. “It’s the next calling and you step up the best you can.”

Mr. Ebanks said he doesn’t anticipate any need for him to serve beyond the usual retirement age of 60 in the civil service. In effect, he believes part of his job over the next two years will be as a sort of caretaker.

“I’ve always subscribed to the notion that one of my responsibilities is to try to ensure that there’s someone behind me who is ready to not only do my job, but who also could do it better than I could do it,” he said. “And I’m pleased with (Deputy Chief Secretary) Franz (Manderson’s) development in that regard. Obviously, it isn’t for me to say he’ll be the next deputy governor…but he obviously heads up the field of candidates.”

Mr. Ebanks said he has two major goals as deputy governor. First, he wants to ensure the proper staffing and administration for the new commissions and authorities established under the Constitution.

“There are half a dozen of those that have to be…brought into operation for us to see the full benefits of the Constitution,” he said. “They obviously require some nurturing and support in their establishment.”

Second, Mr. Ebanks said the deputy governor’s office should assist in preparing – in the long term – to gradually ease certain responsibilities away from the UK-appointed governor’s position.

“I don’t expect to see major changes in that for the remainder of my career. But certainly I have responsibility to conduct myself in such a way that I set the groundwork to those changes being seen as positive ones that should be made. At some point, we would expect there’s no longer going to be a governor. But there’s going to be what maybe in other jurisdictions is called a governor-general.”

“What you have to establish, I believe, is the confidence in the community that we can referee our own league.”

Bittersweet moment

For the previous People’s Progressive Movement government today might be described as something of a triumph out of tragedy.

It was the PPM that embarked upon and pushed through the latest constitutional modernisation effort, although Mr. Bush’s previous government came very close to constitutional change in 2003 prior to a proposal before Legislative Assembly being withdrawn.

On 20 May, 2009, the PPM was voted out of power in the general elections. A day later, they learned the new Constitution had passed by a huge margin in the country’s first-ever referendum.

Opposition Leader Kurt Tibbetts described the situation during a Monday political meeting: “We built him (referring to Mr. Bush) a new administration building, we gave him a new Constitution, and now we’re going to make him premier.”

George Town MLA Alden McLaughlin confirmed that PPM party members would be attending today’s festivities. But he admitted it would be a bittersweet moment.

“I know many…are disappointed that having fought the fight over the course of eight years, since 2001…that the PPM is not at the helm at the time (the Constitution) comes into effect,” Mr. McLaughlin said. “But despite all of that…what we have achieved…is very, very important to the continued welfare of this country.”

For instance, Mr. McLaughlin pointed out that changes to the Constitution require the governor to at least consult with the premier on law enforcement matters. He said the PPM didn’t get everything it wanted on that subject, but that progress had been made.

“If…we continue to have governors in a position where they can, quite frankly, undermine the integrity and the image of these Islands, I shudder to think what the consequences would be,” he said.

The Constitution increases the involvement of elected members in day-to-day decision making, Mr. McLaughlin said. He implied that it might be easier for elected lawmakers to affect budget cuts in the civil service under the new governing document, for instance.

“It actually increases democracy, and the involvement of the general public in key decision-making within government.”

Mr. Bush

Mrs. O’Connor-Connolly

Mr. Ebanks

“There is responsibility. I will be the head person…first among equals. It’s a tremendous responsibility. I think it was one prime minister who said you’re out front to be shot first.”