Constitution needs amending

“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, Cayman’s 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 (T&C) constitution, or with a view to a new constitution, reform of the franchise and removal or reduction of constitutional imbalances and weaknesses”. The new 2011 Constitution (T&C constitution) is now in operation. Set out below are some of the checks and balances that the new UK Government has put in the 2011 T&C constitution.

In T&C the deputy governor and attorney general (both civil servants) are now in Cabinet again and have full voting rights. Sadly the voting rights were taken from these official members in Caymans 2009 constitution.

“The governor shall publish a summary of the business conducted at each meeting of the Cabinet within 15 days after that meeting was held”, T&C constitution(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 and sanctions for breach. It is a joke to depend upon the politicians to legislate these standards for themselves much less to put realistic legal sanctions or punishment for their breach on themselves. No legislation exists in Cayman so the Commission cannot function as it needs to.

The T&C constitution corrects this failure and provides the Integrity Commission with the power to “formulate and publish, after public consultation.., a code of conduct for persons in public life, and amend or replace it as it considers desirable….”

A breach of the code of conduct by a T&C premier or minister or breach of the constitution or law on declaring his or her interests to the Integrity Commission in the Register of Interests on two separate occasions will cause the minister to CEASE TO BE A MINISTER (T&C Constitution s. 34).

Furthermore, the T&C constitution gives the Integrity Commission (not the legislators) power to make rules to discipline legislators acquiring unlawful interests in government contracts. A member of the Legislature (House of Assembly) in breach of these rules LOSES his or her seat in LA. These sanctions are necessary and can be enforced (T&C Const. s 49 and 102)

We will deal with other needed checks and balances provided for in the T&C 2011 constitution but not in Cayman’s and the absence of necessary laws required by the new constitution eg. people – initiated referendums, a comprehensive political parties regulation law, a statement of governance, compulsory audits and votes of no confidence in a future 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 after the substantial cost of the T&C over the last few years.

With POWER must go RESPONSIBILITY. It is naïve to believe that a politician (some of whom are power hungry and/or believe that they are above the law) is going to legislate these responsibilities on themselves, much less penalise themselves for breach of the law.

Like the old T&C 2006 Constitution, the Cayman constitution is in parts a skeleton law which “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” (T&C Commission)

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 the UK has done in T&C.

Cayman does not want to wait until we have the serious problems similar to those that T&C had. Do not believe it could not happen here! It could cost the UK public and the Cayman public dearly. We are already paying high taxes to try to correct the overspending and excessive borrowing of political party Governments.

An ounce of PREVENTION IS BETTER than a pound of CURE.

Truman Bodden

John McLean