September 24, 2008
 

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September 24, 2008

RE: Cayman Islands’ Constitutional Modernization Effort

Dear Sir/Madam,

In relation to the ongoing effort to modernize the Cayman Islands’ Constitution, I‘d like to contribute the following for consideration BEFORE and DURING the FCO negotiations this month:

While there was a significant publicity/general awareness effort up until mid-year, the overall lack of public ‘ownership’ of this effort has been disappointing.  So too, the consultation with/involvement of the largest employer – the all Cayman Islands Civil Service members (not just CISCA) has been sorely lacking.

It is especially disconcerting that, apparently, the proposed revisions (and the rotunda of objections thereto) has been ‘claimed’ by the two main political parties; instead of it being clearly a PEOPLE-OWNED document.

I feel that this occurrence has been at the cost of true public discussion and input relating to the Cayman Islands Constitution modernization effort.

It is still obvious that, the most recent constitution issues/decisions /developments are NOT fully grasped by the public at large – including the implications and scope of the local government discussions with the FCO/UK this month.  Also, there are many issues which are obviously still unresolved amongst the two parties, whose positions COULD be translated as a lack of public consensus – but I feel it is moreso a lack of cooperation and true public consultation/involvement.

In discussing the new timetable/framework with people from all walks of life, I have found a disconcerting amount of (increasing) misunderstanding and apathy.

Although there have been a few well-intentioned instances, I feel that efforts to harness civil servants’ potential input has been very ineffective, especially with drastically-low attendance (some 25 persons) at the one CICSA meeting held for public servants’ edification.

While it may now be a moot point, I am fairly sure that the lack of civil servant attendance/input at that event can be linked to two causes:

  1. Instead of having this (single) discussion meeting directly with the LoGB and Minister McLaughlin, there should have been an earlier meeting(s) for civil servants ALONE (with Constitution Secretariat representatives present to clear up any misunderstandings and to collect info/opinions from those who would be more ‘reserved’ in front of a panel of government Officials).
  2. The other reason, I feel, is that, although official circulars were distributed periodically encouraging civil servants to attend the public presentations, active participation goes against the engrained public service culture of silence.  Instead, I feel that written reassurances that there would have been NO repercussions for civil servants attending and discussing ANY Constitution-related issue, would have alleviated many fears/concerns. I earlier wrote to the Portfolio of the Civil Service to request this reassurance, for I feel that public service ‘permission’ was not stated strongly enough, and that a similar letter from the Governor himself would have been much more effective for staff.

 I feel that the elected Backbenchers and Opposition members should have by now made time in their schedules for urgent meetings constituents to share and gather related information before the FCO meeting (NOT to simply present their views).  The lack of a partisan approach has stalled this public participation effort, although I realize that some have been encouraging such a process - with little success.

The talk shows, presentations at churches, schools and colleges could have been used to clarify the issues and keep the momentum going, for we are obviously at a key point in the modernisation of this document.

The outcomes of a lack of public discourse included: 

  • – very limited interest and attendance at public meetings;
  • – misinformed media commentators/hosts;
  • – misinformed or uninformed public;
  • – politicians with their own agendas, instead of educating the public on ALL the options of a Constitution; and (of course)  the usual calls for the process to be again delayed because of the lack of consultation time.

Even more distressing could be a 2009 public vote/referendum on our new Constitution which is based on emotive feelings on specific subjective issues, rather than on the overall spirit and intent of such a critical national document.

I ask your indulgence as I now share my brief comments on the following areas:

  1. Single Member Constituencies (SMCs):

    Although many people are strongly opinionated on this topic, I feel the majority of the public have dissimilar understandings, and that many people do not concur on this issue (especially as it was presented by the previous Constitutional Commissioners who wrote the draft some years ago).

    I was involved in both the earlier, and most recent attempts, and I attended almost every meeting, and saw the low number of people turn out, and the wide range of public opinions and (mis)understandings on this and other critical issues.

    I also feel (and the “party politics” of recent times perhaps bear out) that to sub-divide districts into smaller areas will lead to the likely breakdown and division of these small communities along party lines.

    Also, if SMCs are introduced there will be the threat of sidelining and possible neglect of those areas within a district that would be represented by a person who might win a seat, but who is NOT a part of the ruling government/party - (and even victimization of individuals who did not actively support the winning MLA in their area)… [And vice-versa, if a single SMC winner in a district happens to be the only district MLA who is a member of the ruling party – that area would probably have ‘preferred’ status.]

    I therefore feel that there is no need for single-member constituencies.

    Similarly, there is NO NEED to increase the number of seats in our Parliament.  Even now the salaries/pensions etc of the MLAs are mentioned frequently as being onerous for our national budget (and there are other reasons for this suggestion).

  2. One Person-One Vote (OPOV):

    On this issue, though many are similarly opinionated, I again feel that there are general misunderstandings and lack of consensus about this concept.  OPOV is sometimes seen as tied to the idea of single-member constituencies; but it is also seen by some people as being a national vote for a Leader of Government Business, or even of Cabinet members.

    Even if adopted on a ‘district’ SMC basis, OPOV does not necessarily mean that the person with the most votes in his/her respective district will necessarily win a seat on Cabinet - or even be a member of the ruling party.

    My strong leaning is to see the district elections held as usual, and either concurrently, or immediately following, have a separate national vote for the Cabinet and/or Leader of Government Business.

    The call for a national vote (especially for Cabinet/LoGB) has been increasingly popular in public media comments – especially in recent times!

  3. Referendum:

    Contrary to what some may say, our Islands’ small size is not a hindrance to the possibility of regular referendum, but just the opposite.

    We could hold referenda every quarter of the year if we wanted, to decide on key issues of national significance, or to decide on spending on major projects (as many other countries do).

    I suggest holding one or two referenda annually, with perhaps two or three issues in each. Our advanced electoral register and system should make this easy to accomplish.

  4. Term Limits:

    I will simply ask the following:

    • - Should there be provision for earlier recall elections?
    • - Should there also be restrictions or term limits for Official members?
    • - Should members be limited to a two-term service, OR should this restriction apply only to the position of LoGB)?

    I’d suggest that there be no term limits for MLAs, but a two-term limit for the LoGB position; with a one-term break in between before being eligible again.

  5. Elected OR Appointed ‘Official Members:

    Should the three Official members of government be elected or appointed?  There is a strong leaning to instead have some, or all, of these people elected as Members.

    My own leaning is that they should all remain appointed to avoid temptations or perceptions of bias and prejudice (and to maintain neutrality/balance). I have also found this sentiment expressed throughout the civil service.

    However, perhaps the Official Members’ selection and appointment to, their respective seats could be handled with more ‘local’ input (MLAs and public) than is sometimes the case.

  6. Collective Responsibility: :

    This issue always comes to my mind when I hear the LA ‘Debates’ on the radio.  I am not sure if this term “Collective Responsibility”, as used as a reason to vote “in block” to support whichever side of the House an MLA belongs, is actually enshrined in our current Constitution, or if it has been adopted over the years as a “term of convenience” in the LA.

    Either way, I feel this should not be used as a convenient ‘cop-out’ by MLAs in either party (including the Official Members) to support/reject every government proposal and submission, irrespective of the individual representative’s personal feelings and persuasions.

    I feel that the most outstanding example of this working correctly, and the MLA voting his/her individual conscience, was the style of the late Sister Islands MLA/Speaker of the House - the late Hon. Capt Mabry Kirkconnell.

    Furthermore, are they really ‘debates’ or is it a futile waste of time for MLAs to take informed positions and make impassioned speeches for hours on various issues - if there is no chance of actually swaying the opinions and votes of the others in the House, due to “collective responsibility”?

  7. Law-Making:

    Of course this is the most important aspect of an MLA’s responsibility.  However, too often there are public complaints of laws which are flawed in execution/implementation after they are written and passed, even if the original intent was noble.

    For this reason, it is imperative that the MLAs engage in more active and extensive ‘grass-roots’ public consultation and communications - for both the initial draft ideas, as well as the draft laws before they are finally executed.  MLAs should especially understand the draft laws, and explain the implications to all, at every stage of the law’s development.

    I feel this process must be clearly documented in our Constitution.

    The LA’s Order Papers should also be publicized in the media as early in advance of the Meetings and Sittings (perhaps posted on the LA’s website), in order to allow citizens’ early input to their respective MLAs on the various topics.

    I also advocate for the creation of an “Official Register of Issues” to track emerging issues and their progress (or lack of) through the various democratic phases. I say this for there are countless bills which have been passed, and issues debated, which have come to nought over the years.

    Further, I feel the Constitution should contain a mechanism which would allow for citizen-driven legislative proposals/bills. Yes, I know that we can influence our legislators to present our positions and concerns, but often that is not reality.

    Having said this, I do NOT agree that the courts alone should have jurisdiction in translating the Constitution (especially the controversial aspects). Two examples are the past cases of the local “Rastafarian” child’s hair/education; and Rev. Dee Dee Myers.

    There should instead be Constitutional input from a committee including Native Caymanian representatives – eg the local law association, JPs and the clergy – in these constitutional translations/applications.  This would help guide the judges’ translations and intent with the norms and expectations of locals (especially as the Judges are of non-Caymanian heritage).

  8. ‘Caymanian’:

    ‘Caymanian’ is a word that is used widely, but, as I understand it, there is NO such official classification or designation.

    While not wanting to change the understanding of that word, I instead encourage that the term ‘Native Caymanian’ be formally enshrined in our Constitution. If nothing more, this would serve as a term of reference for those natives who care deeply about such things.

    Yes, I and many others (native and immigrant Caymanians) use the common word ‘Caymanian’ proudly and with reverence, but there are others (especially some with this designation simply as a status grant) who use it only as a term of convenience.

    Also, it is stated sometimes that there is little/no Caymanian culture, and no indigenous Caymanians. But there are, and the once-strong indigenous culture and people are in real danger of now being outnumbered by other (“more politically active”) nationalities, especially as represented by their front-line activists.

    So, I feel that modern times necessitate the formal acknowledgement of the difference between a Native Caymanian and the ‘other’ Caymanians – simply from a point of history and pride.

    As far as defining a Native is concerned, I feel that having at least two generations of Caymanian parentage on at least one side (maternal or fraternal) would qualify a person as being a ‘Native Caymanian’. (ie. At least one grand-parent who is a born Caymanian as of 2008).

    Of course, as a reminder, this is perhaps the last chance for us ‘natives’ to write our own Constitution which dictate these issues, while outline the framework for our children’s futures, and for those who become members of our extended family of citizens.

    Also, as is required for children of non-married Caymanian fathers, all dependants (children and other family) of the new ‘Caymanian’ status holders should similarly be DNA tested to ensure they are in fact who they claim to be.

  9. Church and State:

    It is sometimes argued up north that this as is perhaps the most misinterpreted and controversial aspect of the United States’ Constitution, but, instead, the writers of that document actually did their best to enshrine religious rights and freedoms in their guiding document.

    In our own island society – with a church on almost every corner – a similar consideration must be weighed carefully and the relationships formally determined in our Constitution.

    Even the issue of what is a ‘religion’ or a ‘cult’ etc. is oft times unclear locally – and can impact on other areas of society – eg. the education system.  Also, in this ‘global village’ in which we live, ‘freedom to worship’ (or even pray in public) can carry many different connotations & responses.

  10. Bill of Rights:

    Should this be part & parcel of our Constitution?

    My only opinion is that it must be – otherwise individual rights would be up to the prevailing opinions/attitudes of the ruling party (and the often-emotive current events) to decide.

    Some of the many complicated rights-related issues which would not have been considered in the past version of the Constitution include:  Restorative justice; abortion issues; stem-cells; AIDS victims’ rights; stalking; and what is a legal ‘couple’?  these MUST be defined in the Constitution, or they will be left to the (mis)interpretation of all and sundry.

    Also, we should perhaps enshrine some guidelines relating to some issues (eg. aid to seagoing Cuban refugees) to reflect our national spirit/policy direction in this area.

  11. Civil Service:

    How should this, the country’s largest single organization, be structured under the Constitution?

    How can the public interest and service best be enhanced and preserved?

    How can they NOT be represented at the upcoming talks with the UK officials, and other NGOs are??

    Should the government employees be subject to the same laws (eg. Immigration/labour) as the rest of the country?

    The civil service has a vast and experienced foundation, and I would like to see freedom of expression (especially relating to the Constitution) actively encouraged and formally supported by government.

    Of course, the impact of the impending FOI legislation on the service remains to be seen.

    There are several other key issues here, such as the (slow) pace of civil service “Caymanization”, and the issue of appointments of political supporters to government administrative positions.

  12. Our National Status:

    Where do we want to be as a small “Island-country” in 25 years’ time? Whose smiling face do we want to see on our dollar bills?

    Some words to be considered in this area include “Dependency, independence, commonwealth, statehood, and republic.”

    There are many examples of countries which should be studied carefully before we decide which path to take (eg Puerto Rico, Bermuda, Jamaica, Canada, New Zealand, Australia.)

    My personal opinion is that Cayman should not stray too far from the familiar path we know, but that road could now use more two-way lanes with the mother country, a few clear signs to guide our Constitutional development.

    I also feel the few remaining Overseas Territories must collaborate and make relevant representations to the UK which could help preserve, but enhance, our unique position in the world.

OTHER:

The following are NOT ‘just’ sideline points, but are important, and  I feel that we the people can and should also decide these issues, and even more, in our Constitution!

  1. Is it right for MLAs to use their elected positions to speak with impunity and slander each other, and even those outside the walls of the LA?  Such misinformed and biased words can have negative impacts on the lives of people in such a small community.
  2. Will we continue to play ‘ostrich’ to the common gambling issue, or take a constitutional stance?
  3. Should MLAs all (as is now) be entitled to lifetime pensions after serving only two terms as an MLA?  And should they be able to vote themselves salary and pension increases - as they wish?
  4. Regarding land use (especially Crown Land) I feel this issue is serious enough to be enshrined in the Constitution. Especially, government should NOT be selling Public Open Space/Crown Land. Instead, a Land Preservation Initiative should be introduced to allow: for example, the lease of land vs. the outright sale, in the interest of future generations.
  5. The Vision 2008 document should be revisited – Yes, we are now there! However, this invaluable document, resulting from immense public participation and consensus, and should not be allowed to languish further, when so many answers and solutions are contained therein.

Indeed, the prologue to the V2008 document would be a great reference for the Constitution Modernisation.

Finally, for our Constitutional advancement to be discussed and resolved, it must be approached and executed in an official spirit of bipartisanship; allow a broad scope of objective expressions (palatable or not); and always maintain awareness of the special inclinations and wishes of all – from youth and elderly, to civil servants and residents of Cayman Brac and Little Cayman.

I appreciate your considering these personal points, and I stand to be corrected where I have not properly understood the issues and implications.

Respectfully

Last Updated: 2008-12-01