The year 2009 began with big questions as to whether the UK and Cayman could agree on a constitution to replace the 1972 Constitution. Efforts had started some eight years previously to modernise Cayman’s constitution, which was seen as an inefficient and outdated administration document.
The plan required the Cayman Islands Government to first agree on a new constitution with the UK, and then to hold a referendum to see if the voters also agreed.
Although the People’s Progressive Movement government originally wanted to see a referendum on the constitution in 2008, it eventually settled on the idea of having it at the same time as the General Elections on 20 May 2009.
A first round of meetings between a delegation of stakeholders from Cayman and representatives of the Foreign and Commonwealth Office led by Ian Hendry was held in Grand Cayman in September, 2008 and produced a working draft constitution and hopeful results.
However, a second round of talks in January uncovered several sticking points.
The biggest problem concerned the bill of rights, which Leader of Government Business Kurt Tibbetts described as ‘the most deal-breaking issue’ of the talks.
When constitutional modernisation public meetings were held in 2008, the bill of rights issue quickly became the main arguing point. Cayman’s clergy spoke out almost unanimously against it, while others, including the Human Rights Committee, argued for it.
With time running out for an agreement if the referendum on the constitution was to be held in May, it seemed there was no compromise with which every side could live.
A major change was then made to the draft constitution during the second round of talks, affecting Section 16 of the bill of rights.
The earlier draft constitution had said the government could not discriminate against anyone at any time, a free-standing right. Cayman’s clergy, however, did not want to see homosexuals obtain rights against discrimination, and the UK would not agree to allow Section 16 exclude only homosexuals.
The Cayman government, which felt it could not reach a consensus agreement on the constitution without the agreement of the clergy, suggested removing many of the rights against discrimination that would have been afforded to everyone residing in the Cayman Islands. Homosexuals did not get rights against discrimination by the government, but neither did many other specific groups of people.
The Human Rights Committee was outraged at the compromise and made its feelings on the subject known.
Mr. Tibbetts in turn blasted the Human Rights Committee in Legislative Assembly. Conceding the bill of rights was not perfect, he pointed out that under the 1972 constitution, there is no provision for human rights at all. He argued that despite its shortcomings, the new proposed bill of rights significantly advanced human rights protection in the Cayman Islands.
Once the compromise on Section 16 was made, Cayman’s clergy gave their approval to the new constitution. Other sticking points with the FCO were also worked out.
In March, the final draft constitution was tabled in the Legislative Assembly and the Referendum (Constitutional Modernisation) Bill, 2009 was passed. The new law called for a single yes or no question asking voters if they approved of the draft constitution.
As Cayman’s first referendum approached, some voices against the constitution became louder.
One point of argument was the fact that the referendum would only require a simple majority of votes for passage, while changes to the constitution would require a majority of eligible voters regardless of how many people actually voted. Even though Mr. Tibbetts had said the constitution was a good starting point that could always be changed, some argued that the ‘super majority’ provision would make it nearly impossible to alter if passed.
The PPM government urged people to approve the constitution and Governor Stuart Jack also gave it his blessings. However, the key endorsement came in Cayman’s churches the Sunday before the election, when many members of the clergy told churchgoers they should vote yes for the constitution.
In the end, the referendum passed by a wide margin with 7,045 voting for it and 4,127 against it. It represented nearly a 63 per cent approval rate among the approximately 72 per cent of eligible voters who cast ballots.
After approval by the UK through an Order in Council in June, the FCO eventually set the day of 6 November as the commencement day for the new constitution.
On that day, Leader of Government Business McKeeva Bush was sworn is as the Cayman Islands’ first premier, one of the provisions of the new constitution.
While most of the provisions in Cayman’s new Constitution came into effect immediately, others will be phased in over time. The controversial bill of rights, for example, will not take effect until 6 November 2012 and its section that deals with the humane and legal treatment of prisoners won’t come into effect until 6 November 2013.