Leonard A. Dilbert, J.P.

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Leonard A. Dilbert, J.P.

Thursday, October 2, 2008

Mrs Suzanne Bothwell
Constitutional Modernisation Secretariat

Open letter re certain constitutional reform proposals

In view of the late date, as we host the UK for bi-lateral talks, I beg the indulgence of all concerned. I am prompted to write because, while I hope the matters raised have been properly disposed of, conversation with persons who have been closely involved with the process, plus my own observations, suggest otherwise.

My principal concern at this time relates to the proposal to replace the Hon Chief Secretary and the Hon Financial Secretary with elected Ministers.* That this has not generated broader ripples I believe is at least in part because, despite the best efforts, the public has not come forward to participate in the depth and breadth hoped for. It may not be an exaggeration to say that the ‘average person’ either doesn’t understand the proposals, hasn’t heard enough to understand, or are left confused by the gaps between what they do understand and don’t.

A constitution should be an organic growth out of a people’s political culture, and take a form that assures good governance of and for that people. The current process comes out of an entirely different context, with all the limitations and challenges that implies.

The specific proposal referred to above is in my view fatally flawed, and a clear case of trying to fix what’s not broken. The general argument seems to be that the scope for elected representatives to act effectively on behalf of the people is seriously hampered by our current constitutional arrangement, which gives both the Governor and (non-elected) civil servants too much power.

This position is grossly over-stated, and just plain wrong.

No objective observer could agree with this assessment, which is at best based on selective presentation of the facts. The two most powerful relevant facts are not properly acknowledged – and they effectively negate the argument for this proposal.

The real position is that the present structure has not only served well as a means of connecting the executive and legislative branches, it has done so while allowing elected representatives as Ministers to be de facto decision-makers in the critical areas of financial policy and budgeting; as well as immigration and other areas of internal policy.

We cannot erase, and we disregard to our peril, the fact that our legislative heritage, our system of governance, is of British origin. By its very nature in this system, over time, practices adopted by those charged with governing, are enshrined as convention. For example, it has become firmly established as a matter of convention that HE the Governor will consult with, and often defer to, elected representatives in a variety of contexts. The very basis of the convention is that he ought to because they are elected, and it is accepted that the UK’s involvement will be limited to ‘disallowance’ of laws. The parameters of disallowance are determined by the dynamics of a residual responsibility for ‘peace, order, and good government’ of Cayman. To say that this is not enough, because the Governor ‘might choose to do otherwise’, is to say that our unique home-grown blend of powers and responsibilities – which is and has been its core strength – is actually worthless and of no effect.

Our experience has been quite to the contrary. Let us not devalue the difference it has made, that these posts are held by Official Members. For example in the financial services industry, the fact that the Financial Secretary’s post is a civil service appointment has created confidence that it is insulated from the portfolio shuffling that is associated with elections. The same applies to the post of Chief Secretary, and the level of comfort which exists with regard to the high levels of probity and stability within the civil service.

By contrast, there are acute dangers in making such posts subject to control by elected members. I will merely say that it is notoriously difficult to maintain legitimacy in these areas, when subject to the pressures of partisan politics. Because our conventions have evolved so differently, we have no customary practice to provide a platform upon which to erect proper guidance and control machinery over such a structural change. Neither do we have the machinery in statutory and institutional accountabilities, to ensure that the necessary checks and balances are maintained. It should be added that statutory protections in themselves are only as effective as will be allowed, or enforced, by the capacities of those who implement them.

There is in the proposal a very real prospect for the line between the legislative and executive branches to be erased, and with it the objectivity and professionally based ethos of the civil service; and several hard-won benefits associated therewith.

It has been said that we are seeking a constitutional arrangement that is both forward-looking and in keeping with our heritage. It shows shocking disregard for our heritage to not give pride of place to, and to fail to be guided by, the very evolution that has defined our system of governance, and imbued it with its dynamic potential for organic growth.

Minister of Home Affairs and Minister of Finance?

A bad, bad idea. An understanding of its implications ought to strike fear in our hearts. It does mine.

There is another proposal I’d like to comment on briefly. In my view it is also a bad idea to have district councils appointed by legislators. Why can’t districts select their own councils? Why would they necessarily even be district-based?

If that is the preferred base, there could be a number of selection processes. For example, persons could be chosen to represent neighbourhoods, which could lead up to the formation of district councils.

Equally, the ‘grass roots’ inputs that might be gained from district councils, might instead be better accessed on a subject-based approach. There could be bodies accountable to their citizen members, whose focus would be, say, education, or health; tourism, or financial services – and serve both to represent people’s interests, and inform public policy, in those subject areas.

We are just now learning the implications of too much political control over Government-appointed Boards and Committees/Companies. Why would we want to start that all over again, as if we didn’t know all we have now learned?

Madam Secretary, I understand the need for leadership, even ‘vanguardism’, if you will; I am aware that in our public policy generally there is too little imaginative application of our knowledge and experience. That these proposals should not stand, is due to their inability to measure up on any of these scales.

This is submitted as an Open Letter, for the consideration of all - as a constitution is for all; and submitted also without the least shred of interest in taking sides with either political party, whether they agree or disagree with these views.


Leonard A. Dilbert, J.P.