The ink has barely dried on the three, leather-bound, signed copies of Cayman’s new Constitution which came into effect on 6 November. The copy presented to the Legislative Assembly is not yet on public display.
But already, it appears the winds of change are blowing.
Director for the Overseas Territories Colin Roberts intimated recently during a press roundtable that the UK and its remaining overseas territories would at least discuss their current constitutional relationships at the annual territories conference in London this month.
The last UK constitutional reform initiative was began in 1999 and led to the near decade-long process that ended last month in the implementation of the Cayman Islands Constitution Order, 2009.
Roberts was recently questioned about the new governing document at a press roundtable here in Cayman.
“I certainly believe it will serve the Cayman Islands well,” he said. “For how long? It’s difficult to say.”
“One of the modern realities is that the external world is changing very rapidly. If you looked back in the past, maybe, constitutions had a life expectancy of about a generation – 20 to 25 years. Maybe in the future, that will be a little shorter.”
Local politicians from both sides of the aisle readily admit that one day the Cayman Islands will – indeed must – become an independent country.
New Premier McKeeva Bush maintained, even on the first day that the governing document came into effect that it would need to be constantly examined.
“We must not take this Constitution to be perfect, it is not,” Bush said during his first address to the country as Premier on 6 November. “Some of its shortcomings have already been noted and we should commit to taking action early to make the necessary improvements.”
“This is the 10th anniversary of what’s called the ‘white paper’ (UK foreign office document that led to constitutional reform in most of the territories),” Roberts said. “We need to start answering the question of how we can do things better in the future. How can we set the course for the next ten years?”
But UK Constitutional Silk Jeffrey Jowell isn’t sure all this talk of potential reform necessarily equates to independence.
Professor Jowell was the previous government’s key advisor and advocate to the UK during constitutional negotiations over the past two years. He said the document that took effect on 6 November is not what he would call a “pre-independence Constitution”.
“I believe Cayman’s is the most progressive of all the new (Overseas Territories’) Constitutions,” Jowell said. “I think the Cayman Islands get the most autonomy than any other of them from the British government – without being independent from the UK government.”
Jowell said Cayman should make sure it’s on sound footing with the current governing document before pressing ahead.
“The next step is making sure this Constitution is properly embedded and to work with it for a number of years,” he said. “Let it bed itself in, try itself out, and work as an existing Constitution – the foreseeable future would be a good phrase.”
One of the new offices created by the Constitution is that of Deputy Governor.
The post has been given to long-time civil servant Donovan Ebanks who views the post as a transitional position with regard to governance.
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. At some point, we would expect there’s no longer going to be a governor. But there’s going to be a, 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.”
The longest-serving member of the Cayman Islands Legislative Assembly – often called the “Father of the House” – has now taken the reins as the country’s first premier.
“Yes, (6 November) is an important day for the country,” Bush, 57, said during a recent televised press briefing. “We have a new Constitution; not all that we want but it is better than what we had before.”
As far as the job of the premier itself, 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.”
Opposition party member Alden McLaughlin said the Constitution will usher in a new era for Cayman.
“What we have achieved…is very, very important to the continued welfare of this country,” McLaughlin said.
For instance, 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, 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.”
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 designate, 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 the 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 make up 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 tourism, planning and financial services sector. 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.
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.
The Legislative Assembly will be the supreme law of the land under the new Constitution.
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 any changes.
For the first time, people-initiated referendums are allowed under the Constitution.
The civil service also remains under the purview of the governor, with direct oversight delegated to the deputy governor.
A Bill of Rights
The Bill of Rights issue was, without doubt, the most contentious issue in the constitutional debate. 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.
The Legislative Assembly held its first meeting under the auspices of the country’s new Constitution on 18 November, 2009.
The meeting came not quite 178 years after the famous gathering at Pedro St. James involving the Cayman Islands magistrates and principal inhabitants where it was decided to introduce representative government
Five days later, the country’s first formal government was created by elections held on 10 December, 1831; with the magistrates making up the upper house of the legislature and the elected members comprising the lower house.
The elected government evolved in the ensuing 128 years into one body that became known as the Legislative Assembly of Vestry and Justices – presided over by the Queen’s representative.
Cayman’s first written Constitution was received on 4 July, 1959. That document introduced the Legislative Assembly, and created the forerunner of today’s Cabinet – then called an Advisory Council.
In 1972, Cayman adopted its third written Constitution which established the Executive Council and lowered the eligible voting age to 18.
That document remained in effect until 6 November, 2009, when the latest constitutional changes took effect.
In the 18 November sitting of the Legislative Assembly, Speaker of the House Mary Lawrence recalled the following words of then-Cayman Islands Governor Roy Crook from 1973: “This is a year in which much will be expected of you. Many people will be watching, some potential investors, others potential tourists. They will be watching to see whether the government of the Cayman Islands can do three things at once: make a start on the process of transferring effective power to elected representatives, promote the development which Caymanian people rightly expect, and preserve the peace and stability on which the future of the Islands depends.”