Reprinted from the Observer on Sunday
“A constitution is very important to any country because it is the basis on which all future development, prosperity, peace and harmony will rest.” — Sir Vassel Johnson, Cayman’s first knight
Monday, 2 July, is a holiday in the Cayman Islands. No, it has nothing to do with the American Fourth of July celebrations. In the Cayman Islands, the first Monday in July is a public general holiday in honour of our first written constitution, which, however coincidentally, came into effect on 4 July 1959.
Since then, that constitution has been amended, revised and replaced to reflect how these Islands have evolved politically and socially. Current events, notably the referendum set for later this month, are a reminder that the constitution is not just a piece of paper; it is the basis for the way Caymanians have chosen to be governed.
In the past 53 years, Cayman has gone from a Dependency of Jamaica, to a British Crown Colony, to an Overseas Territory of the United Kingdom. Constitution Day provides an opportunity to look at that process and better understand where we are today as a society and where we may be heading.
The late Sir Vassel Johnson, quoted at the beginning of this article, had insights based on his experiences with Cayman’s constitutions. National Hero Sybil McLaughlin, who served for years as Clerk of the Legislative Assembly, reported constitutional history. Just this year, Chief Justice Anthony Smellie addressed a conference on “the concept of judicial independence as an indispensable element of constitutional governance.” The writings of these three people, together with annual government reports (known in earlier days as Colonial Reports) are the main sources for comment on the following milestones.
1670, THE JAMAICAN CONNECTION
England and Spain were the super powers of the 17th Century. In 1670 they signed The Treaty of Madrid, by which England gained control of the West Indies, which included Jamaica and the Cayman Islands.
Prior to 1832, local public affairs were administered by Justices of the Peace, who had been appointed by the Governor of Jamaica. They selected one from among themselves and he was known as Governor. After 1832, elected representatives known as Vestrymen became part of the administrative body. The title Governor was changed to Custos.
In 1863, the British parliament provided that the Justices and Vestry should continue to have legislative powers, with the laws they made being subject to the assent of the Governor of Jamaica. In 1898, the title and job description of the Custos changed to Commissioner.
1937, FIRST DISCUSSIONS
Miss Sybil’s research indicates that, on 1 September 1937, a resolution was passed by the Assembly of Justices and Vestry to “appoint a Select Committee to consider and report on the Constitution of the Assembly”. No record was found of that committee’s recommendations, but the idea was clearly in people’s minds.
In 1957, Commissioner Alan Donald told Assembly members that the Governor of Jamaica had advised that they should submit the Constitution of the Cayman Islands to paper. He said it had been conveyed “that Her Majesty’s Government would not be satisfied with anything so vague and incomplete as the present Constitution, with its hosts of unwritten conventions and customs, in the way things are done both in the Cayman Islands and in relation to Jamaica which should be in a written Constitution.”
Commissioner Donald had appointed an Advisory Executive Council the previous year and its members undertook to work on a rough draft to form the basis of discussions.
1959, FIRST CONSTITUTION
The first written constitution in the history of the Cayman Islands was approved by London in 1958 and came into operation on 4 July 1959. Under this constitution, Cayman ceased to be a dependency of Jamaica. Sir Vassel summarised other significant features in his autobiography. The Governor of Jamaica continued as Governor of the Cayman Islands. “Any official contact the Islands wished to make with London continued constitutionally to be channelled through the Governor of Jamaica.” The local title of Commissioner became Administrator.
More dramatically, the Assembly of Justices and Vestry was done away with. Instead of the 27 Justices of the Peace and 27 Vestrymen, the new Legislative Assembly was comprised of the Administrator, 12 elected representatives, two or three official members and two or three members appointed by the Administrator. From that body, an Executive Council was formed. It was comprised of the Administrator, two official members, one appointed member and two elected members.
1962, A NEW CONSTITUTION
Cayman’s relationship with Jamaica changed again when that country achieved independence in 1962. As Sir Vassel noted, the Governor of Jamaica was still the Governor of the Cayman Islands and Jamaica provided certain essential services for Cayman such as medical and prison facilities. The question arose as to what Cayman’s constitutional position should be. After debate deserving a book of its own, it was decided to make a clean break with Jamaica and move to crown colony status directly with the UK government.
“Jamaica’s independence was celebrated on 6 August 1962. London simultaneously approved Cayman’s Crown Colony status under a new constitution also effective on 6 August 1962. With new changes, the Administrator became the Head of State in the Cayman Islands and external communications were forwarded directly to London instead of through the Governor of Jamaica as was previously the case.”
The Legislative Assembly and Executive Council remained the same.
1965, A HICCUP REMEDIED?
In her brief history, Miss Sybil reported on a situation that is best related in her exact words.
“The 1962 and 1965 Constitution. The 1962 Constitution (Order-in-Council) of the Cayman islands was made on 30 July 1962 and came into operation on 6 August 1962. However, through some inadvertence this Order-in-Council was not laid before Parliament and when it was discovered another Order-in-Council was made on 29 October 1965, laid before Parliament on 4 November 1965 and came into operation on 5 November 1965.”
By 1969, finance and tourism were becoming important ingredients in Cayman’s economic and societal development. Members of the Legislative Assembly voted unanimously for a select committee to deal with constitutional advancement and the result was a request to the UK Secretary of State for a constitutional expert to visit Cayman. Sir Alec Douglas-Home was appointed and did recommend advancement. The 1965 constitution was amended to provide for the November 1972 General Elections.
On 27 October 1971, an Order in Council changed the title of Administrator to that of Governor. Athelstan Charles Ethelwulf (ACE) Long thus became Cayman’s last Administrator and first Governor of the modern era.
1972, A CONSTITUTION FOR 37 YEARS
The constitution that came into effect on 22 August 1972 had a profound impact. The Government Report for that year described it as “a significant advance towards internal self government” because for the first time elected Members of Executive Council were given portfolio responsibility for running the affairs of the country.
Appointed members of the Assembly and Council were done away with. The Financial Secretary was added as one of the official members. The voting age was reduced from 21 to 18.
1972 also witnessed a marked shift in administrative responsibility from the Governor to senior civil servants.
In 1992, the constitution was amended to provide for 15 elected representatives instead of 12 and, a year later, members of Executive Council became known as ministers, with ExCo itself being renamed Cabinet in 2003.
1993, THE JUDICIARY. As Chief Justice Anthony Smellie pointed out recently, there are three branches of government — legislative, executive and judicial. “Each of the three branches is limited in its authority and its powers. None of them is omnipotent.” They are of equal status, he emphasised, “and have no authority beyond that granted them in and by the constitution whose power stems, in turn, from the people.”
The 1959 Constitution detailed the roles and requirements for the Administrator, Executive Council and Legislative Assembly. But the only mention of the Judiciary was in the provision for the Supreme Court of Jamaica to have jurisdiction to hear appeals from Cayman’s Grand Court. This arrangement continued until 1984, when the constitution was amended to replace the Jamaican court with a Cayman Islands Court of Appeal. It was not until 1993 that the constitution was amended to provide for “The Grand Court and Subordinate Courts”, and address the issue of judges’ tenure of office.
2009, A REFERENDUM AND NEW CONSTITUTION
Wednesday, 20 May 2009, was a day for the history books. Not only did Caymanians go to the polls for a General Election, they also voted in Cayman’s first referendum. A 1993 amendment provided for a referendum to be held on a matter of national importance. The 2005 elected Government considered a new constitution to be such a matter and the Legislative Assembly passed a Referendum (Constitutional Modernisation) Law that asked voters if they approved of the draft constitution that had been agreed on by a Cayman delegation and the UK Government.
The question needed more than 50 per cent of the persons voting in the referendum to vote in favour. Of 11,244 voters, 62.66 per cent said yes.
The new constitution took effect in November 2009, with one of the most immediate changes being the installation of Cayman’s first Premier. Other new entities were a National Security Council, Judicial and Legal Services Commission and Advisory District Councils.
2012, BILL OF RIGHTS
Of all the changes, however, none caught attention like the inclusion of a Bill of Rights. After a public meeting attracted some 500 people a Caymanian Compass editorial stated, “Just as the debate between the government and the Human Rights Committee on the bill of rights has been spirited, so is the debate on the bill of rights among the public.”
The full title of Part I of the Constitution is worth noting: Bill of Rights, Freedoms and Responsibilities”. The order establishing the constitution brings Part I into effect three years after the rest of it — in other words, November 2012. Two sections dealing with treatment of prisoners do not come into effect until November 2013.
At the opening of Grand Court this year, Attorney General Samuel Bulgin predicted: “The advent of the Bill of Rights will inevitably bring into sharper focus the relationship between the three branches of government on the issue of the Rule of Law, including Human Rights and good Governance….”
How this will happen remains to be seen. The Chief Justice pointed to one indicator in his address to the judicial conference.
“There is now a significant body of legal and political research and studies done by international organisations and human rights activists who have all identified the important role that an independent judiciary must play in securing the fundamental human rights that are promised by modern constitutions. Indeed, many assert that it is THE indispensable link in the machinery for securing individual protection against human rights abuses by the instrumentalities of the State.”
Another indicator could be the degree to which all people of the Cayman Islands commit themselves to the preamble of the new constitution by affirming their intention to be: “A country in which religion finds its expression in moral living and social justice. A caring community based on mutual respect for all individuals and their basic human rights….A community that practises honest and open dialogue to ensure mutual understanding and social harmony” along with 18 other stated aspirations.
Constitution Day provides an annual opportunity to measure how much progress has been made.