Leader of the Opposition won’t agree yet
The Cayman Islands Constitution Commission has recommended 34 amendments to the 2009 constitution which it feels can be made by the mutual consent of the premier and the leader of the opposition – and without a public referendum.
However, Leader of the Opposition McKeeva Bush has written to attorney David Ritch, the chairman of the Constitutional Commission, and indicated he is not prepared to agree to the changes without additional information,
In a letter dated Oct. 14, 2014, Mr. Ritch wrote to Mr. Bush about the matter, copying the letter to Premier Alden McLaughlin, Governor Helen Kilpatrick and to the Foreign and Commonwealth Office. He said that the commission, which currently comprises only himself and Chamber of Commerce CEO Wil Pineau, had completed its section-by-section review of the constitution.
“During its review, the Commission identified several sections which are sufficiently important to warrant being considered for amendment,” the letter stated.
“The sections detailed on the attached table are those the Commission believes are capable of being dealt with without the need for a referendum and it wishes to make it clear that the review was carried out on a limited basis only and not for the purpose of considering any form of constitutional advancement at this time or to purpose amendments it felt could only be achieved via a referendum.”
Mr. Ritch said the impetus for the review was the ambiguity and uncertainty that arose prior to and after the last general elections over who was qualified to stand. The commission decided that before another election in which similar issues could come up, it would be useful to review the relevant sections of the constitution, and while doing that, to review the constitution generally. He said it is normal for all laws to require minor amendments after experiencing the intricacies of their effect for a few years. Mr. Ritch said the commission felt the sections identified for review were noncontroversial, but that didn’t mean they weren’t important.
“You can have [provisions in the constitution] that are important, but that are uncontroversial on a balanced view to most people, and which could be dealt [with] without a referendum.”
Holding a referendum on the proposed amendments would be problematic for several reasons, Mr. Ritch said. “How do you even phrase the question?” he asked. “And is it 34 separate questions or one question involving 34 parts?”
Cost is also a factor.
“The commission doesn’t believe the country has an appetite for having a referendum right now, and the cost of having a referendum is prohibitively expensive.”
Sections for review
In addition to recommending a review of two sections in the constitution that deal with the qualification for membership of the Legislative Assembly, the commission identified sections that involve a variety of topics, many of which are in need of clarification.
At least one of the sections highlighted, concerning the qualification of electors, could be viewed as controversial because it states, “Consideration should be given to reducing the required period of residency in the Cayman Islands prior to registration as an elector, which could increase the number of registered electors and enhance overall inclusiveness of the election process.”
Other topics for review identified by the commission include the makeup of the Public Accounts Committee, the tenures of Grand Court judges and the auditor general, the limitations of the governor’s powers and the fundamental right to a fair trial.
Mr. Ritch said the six-page document was only meant to serve as a short-form summary of the issues.
“It is not intended to be a detailed long-form analysis, which is a document that could be 50 or 60 pages.”
In his letter to Mr. Bush, Mr. Ritch said the Commission “strongly recommends” that the premier and the leader of the opposition establish a committee to consider the matter in further detail.
Mr. Ritch said that the commission’s review didn’t involve a public consultation process.
“Initially, we considered doing a full-blown public consultation, but the commission is small and launching a full-blown public consultation would have been a challenge,” he said, adding that the commission did incorporate “observations and comments” from residents and others.
The 2009 Constitution does not specifically address how changes to the document should be made.
“The bottom line is the constitution can only be changed by the U.K.,” Mr. Ritch said.
The commission believes the U.K. would agree to some amendments in accordance with the letter written in June 2009 by then-Overseas Territories Minister Chris Bryant to Mr. Bush, who was then the Leader of Government Business, in response to a proposal made by the Cayman Islands government as part of the constitutional modernization process.
That proposal suggested that after the present modernization process was completed, “further changes to the Constitution should not be made without the authorisation of a referendum, unless the change is declared by the premier and the leader of the opposition to be minor or uncontroversial, in which case a resolution of parliament would be sufficient.”
However, Mr. Bryant’s response offered no guarantees.
“In general,the United Kingdom Government approves the idea that substantial constitutional changes should be supported by the people of the Cayman Islands in a referendum,” he wrote. “Accordingly, the United Kingdom Government would normally use its best endeavors to honor this referendum requirement. However, there may be exceptional circumstances where it would not be possible or appropriate to do so, and for that reason, the United Kingdom Government must reserve its position on this matter.”
Cayman’s constitution website at constitution.gov.ky contains language which appears to assume the U.K. would agree to certain amendments without a referendum. In the FAQS section of the website, the question, “Can the Constitution be amended without the consent of the people of the Cayman Islands?” is answered: “As stated in the 2009 Constitution, any further changes to this ‘living’ document cannot be made without a referendum, unless the change, being minor or uncontroversial, is declared by the premier and leader of opposition.”
Mr. Bush’s objections
On Oct. 27, Mr. Bush responded to Mr. Ritch’s letter and said that it was his view that constitutional changes should only be made by referendum, except in exceptional circumstances, and that the commission had not identified any exceptional circumstances.
“It is my view that changes to a constitutional document should only be proposed after any problems have been clearly identified and referred to constitutional experts for their consideration and recommendations,” he said. “All amendments should be clearly enumerated by setting out the particular problem with clear reasoning as to why a change is necessary, along with a draft of the wording of the change to the particular section(s) with an explanation of how the new wording addresses the problem which has been identified.”
Mr. Bush said Cayman has a number of very important issues that need to be addressed that are more important than the constitutional changes recommended.
“It is my opinion that a divisive debate over the constitutional changes with a clear and precise document will be disruptive to the community at large,” he said.
Although efforts to contact Premier Alden McLaughlin for comment on the matter were unsuccessful prior to press time, in September he addressed the issue in the Legislative Assembly in response to
a private member’s motion by North Side MLA Ezzard Miller, who was proposing a rceferendum on constitutional change in November 2015.
At the time, Mr. McLaughlin hadn’t seen the ommission’s report, but he said the proposed changes did not appear to be “controversial or substantial” and could probably be approved by a simple majority vote by legislators.
“[The] changes can be effected quite swiftly and easily without the need for a referendum,” he said at the time. “This government will not initiate a referendum on constitutional change during this term. We know how much effort it takes.”