“Lack of effective constitutional checks and balances in the system of governance to protect the public purse, the inefficient from scrutiny, the dishonest from discovery and the vulnerable from abuse….” Summary of the Turks and Caicos final report of the Commission of Enquiry dated May 2009 (para.4) on the T&C 2006 constitution.
Sadly , Caymans new constitution is mostly word for word the T&C 2006 constitution!
The new Cayman Islands Constitution does not have the necessary checks and balances to preserve good governance when a minister abuses his or her powers.
The T&C Commission recommended “amendment of the 2006 constitution, or with a view to a new constitution, reform of the franchise and removal or reduction of constitutional imbalances and weaknesses”. That 2011 draft constitution has now been published for public comments. Set out below are some of the checks and balances, which the new UK Government has put in the draft T&C constitution.
In T&C the deputy governor and attorney general (both civil servants) are now in Cabinet and have full voting rights. The voting rights were taken from these official members in Cayman Cabinet.
“The Governor shall publish a summary of the business conducted at each meeting of the Cabinet within 15 days after that meeting was held”, Draft T&C (s.39(5)). Not in Cayman’s constitution – Cabinet business is still largely secret.
The Cayman Constitution’s Commission for Standards in Public Life can only recommend legislation for standards of integrity and competence. The Legislature must pass the law.
It is a joke to depend upon the politicians to legislate these standards for themselves. No legislation exists in Cayman so the Commission cannot function as it needs to.
The T&C draft constitution corrects this failure and gives the Integrity Commission the power to “formulate and publish, after public consultation.., a code of conduct for persons in public life, and amend or replace it…” No legislation will be needed.
A breach of the code of conduct by a T&C minister or a breach of the constitution or law on declaring his interests to the Commission in the Register of Interests on two separate occasions will cause the minister to cease to be a minister.
Further more, the T&C draft gives the Integrity Commission (not the legislators) power to make rules for legislators acquiring unlawful interests in government contracts and a Member of the Legislature (House of Assembly) in breach of these rules LOSES his or her seat in LA. These sanctions will discipline politicians!
A UK Secretary of State (FCO) can issue a statement of governance after four weeks consultation with government and opposition and LA debate in T&C. No such provision exists in Cayman’s constitution but it is needed here also.
A vote of no confidence to remove the premier and ministers is a simple majority in T&C (nine out of 10 backbenchers) and most other Commonwealth countries on the Westminster system. After an increase of ministers to six (and the premier) in Cayman Cabinet, it will take two thirds (ie. 12 ) MLA’s votes to remove a government but there are only 11 backbenchers. Therefore a Minister must vote no confidence in himself to pass a no confidence vote. In practice a Cayman Government cannot be removed. So much for democracy!
We will deal with other needed checks and balances in the T&C draft constitution and the absence of necessary laws required by the new constitution eg. a people-initiated referendum, in another letter.
Caymans new constitution must be amended to provide for these necessary checks and balances. The new UK coalition government has now finally awoken to the probability of contingent liability for its overseas territories. With power must go responsibility. It is naïve to believe that a politician is going to legislate these responsibilities on themselves.
Like the T&C 2006 Constitution, the Cayman constitution “lacks effective checks and balances in the system of governance to protect the public purse, the inefficient from scrutiny, the dishonest from discovery and the vulnerable from abuse”.
The UK Government, having given these near absolute powers to the premier and ministers in some circumstances, has a duty to the Cayman public to “remove or reduce these constitutional imbalances and weaknesses” as it is doing in T&C. Cayman does not want to wait until we have the serious problems that T&C had. It could cost the UK public and the Cayman public dearly.
An ounce of prevention is better than a pound of cure.