More accountable constitution necessary

“Skeleton” sections of laws and constitutions require further laws to be passed by members of the Legislative Assembly to flesh out and provide for necessary provisions left out of the original law or Constitution. Legislators do not always pass these laws when such laws are to discipline or increase their own accountability.

Cayman’s 2009 Constitution hopefully is the last of the partly skeleton constitutions to be brought into force in the overseas territories. The modern and accountable 2011 Turks and Caicos Constitution is a more comprehensive and full constitution, which has imposed real accountability and sanctions on ministers and legislators and does not normally need further laws on major provisions. Hopefully this new type of constitution will be the template for new and amended U.K. overseas territories constitutions.

The failures in the old 2006 Turks and Caicos Constitution (which is very similar and word for word in parts of the Cayman 2009 Constitution) was summed up by the Turks and Caicos final report dated May 31, 2009 of the Commission of Enquiry at para 4 as follows: “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.”

Despite the serious defects in the Turks and Caicos 2006 Constitution pointed out by the commission’s Feb. 28, 2009 interim report and final report above and in letters in the press by us, the government continued supporting Cayman’s 2009 Constitution, which was passed and came into force some months later.

Much has been reported in the media on the membership of the Public Accounts Committee of the legislature. A large part of the problem lies with the skeleton section 87 of Cayman’s Constitution, which allows ministers and legislators to be members of the Public Accounts Committee, even when their own government’s accounts are being considered and to remain a member even when that member has a conflict of interest.

In contrast, Section 122 of the modern Turks and Caicos Constitution 2011 provides for the PAC to consist of “at least three members of the House appointed by the speaker from among members who are not ministers; and two persons expert in public finance who are not members of the House” [one by the speaker and one by the governor acting in her/his discretion]. The chairman must be an opposition representative. If a member becomes a minister, he loses his seat immediately in the PAC.

The modern and accountable Turks and Caicos Constitution further provides in section 122 subsection (4) that after consulting the chairman of the PAC and the speaker, the governor, acting in his discretion (i.e. her or his unfettered discretion) considers that any member of PAC has a conflict of interest, she or he may appoint another member (who need not be a legislator) to temporarily replace the member with the conflict.

This is the solution needed for Cayman’s PAC. Other skeleton sections, which are not fully operational and after four years no laws have been passed to fully implement, include legislators’ register of interests and the Commission for Standards in Public Life, among others.

Cayman’s Public Accounts Committee has further complications as there have been no government consolidated audited accounts for about nine years (some, but not all, government and statutory authorities and subsidiaries have audited accounts). Our present PAC membership will always have some members with conflicts until the Constitution is changed.

Without such published consolidated audited accounts, the people of the Cayman Islands have no full accountability for several billion dollars of government spending. Further, the watchdog, the Public Accounts Committee of the legislature, has not succeeded during the past nine years in getting such audited accounts.

To better protect the public, Cayman’s Constitution needs to be amended to add the modern and accountable sections of the Turks and Caicos 2011 Constitution.

Truman Bodden

John McLean

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