Timothy C. Hubbell, JP

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Timothy C. Hubbell, JP

February 20 2008

Constitutional Review Secretariat Cayman Islands Government

RE: Feedback on Constitutional Summary of Proposals

I support changes that provide empowerment to the people of these Islands, the advancement of Caymanians, strengthens the checks and balances of power, uphold God given values, and allow us to continue to enjoy a relatively stable, prosperous and harmonious existence.

Our long affiliation with the United Kingdom has served us well and much of the world is seeking to form global and regional alliances. We should however seek to institutionalize as much of the decision-making locally as possible and whatever authority is transferred from the UK, ensure that suitable corresponding additional mechanisms are put in place here in Cayman to rebalance and improve the checks in the system.

We will continue to face increased challenges and as such, proposals that ensure a more sustainable level of growth, protect our environment and improve the social condition of our people are always welcome.

Let us continue to collectively consider various questions including -

Will the proposals mean:-

  • Significant departure from the present situation under which we have benefited?
  • Erosion to the checks and balances of power and authority which are essential for stability?
  • Increased politicization of the civil service?
  • Replacement of preventative checks and balances with after-the-fact ones, and what are the associated contingent dangers and costs?

How will the proposals:-

  • Directly benefit the people?
  • Assist with better executive decision making?
  • Help minimize institutionalized victimization and corruption?
  • Provide greater accountability to the people?
  • Minimize the chance for abuse of power?
  • Improve our quality of life?

What will the proposals:-

  • Do to our international standing, both in terms of investor confidence, to our relationship with the United Kingdom and other nations with an interest in the Cayman Islands?
  • Give the government the opportunity to do that they are prevented or curtailed from easily doing now?

Other Feedback

  1. Agree to continue as an Overseas Territory of the UK.
  2. The UK has 2 Houses; Bermuda has a senate and other British Overseas Territories have provision for a limited number of parliamentarians to be nominated by both Chief Minister and Opposition. If costs can be minimized a senate may be a good idea to improve inclusion and provide useful oversight especially on complex matters. Consider perhaps having two nominated members.
  3. Nominated members or senators should be qualified in the same way as anyone seeking to be elected as a member of the legislature. They should perhaps not be eligible for ministerial positions or receive the same salary of the elected MLA's.
  4. Preamble – good idea. Refer to our traditions, values, the need for sustainable development and environmental impact assessments.
  5. Provide for an independent body whose purpose would be to evaluate complaints from civil servants (Complaints Commissioner investigates complaints from the public). If this oversight body feels the application warrants further investigation or enquiry – government should accept responsibility for funding reasonable independent legal costs. This would further demonstrate willingness and commitment to be accountable and transparent and put justice within reach.
  6. The Bill of Rights should offer protection to citizens from abuse of any kind.
  7. The proposals suggest that civil servants (Official Members) have no place in Cabinet or the LA. This may well be an understandable feeling for the elected fraternity to have. However the question is – does it serve any meaningful purpose in our system of checks and balances? Currently they can bring matters to Cabinet but are in the minority so they cannot control Cabinet and are bound by collective responsibility. The public have a right to fully understand the implications of removing the Official Members. The rationale, justification, pros and cons have not been fully presented.
  8. These official positions should provide continuity and ensure that qualified individuals serve in these positions. If they are removed, then the Cabinet (as a whole) will not necessarily benefit from their advice, rather only what a particular Minister might decide to selectively choose to bring forward. Is there a danger in this? This system has served us well.
  9. A strong independent civil service is one of the keys to our success and its independence should be fortified not eroded. Mistakes are costly – we want to avoid making them, not just to hold people accountable after the fact.
  10. Appointment of senior civil servants on the advice of premier may also mean even greater political impact on the other civil servant posts under their responsibility. How many senior civil servant posts will be appointed by the political directorate? The individuals may in future be subject to removal/transfer at any time, destabilizing the service, and there is the increasing likelihood that the posts will be filled from outside the civil service.
  11. Consider reestablishing an independent Public Service Commission which is included in other OT's with recent "modernized" Constitutions.
  12. A Civil Service Union may now become necessary.
  13. In every jurisdiction the checks and balances on power are crucial -human nature being what it is. The removal of official members and the introduction of a premier may go a long way to consolidating power without adequate checks and balances. We cannot assume that a premier will always be a genuine and selfless individual.
  14. The title premier sounds foreign, even in language.
  15. Use the term Chief Minister as opposed to Leader of Government Business and Parliament instead of Legislative Assembly if it is so important to avoid creating confusion in the minds of regional contemporaries.
  16. The present system of election and removal of Ministers provides an important check and ensures a majority vote of the elected representatives of the people.
  17. The Chief Minister should be voted in by the majority of the Elected Members of the Legislature. Removal should be by a significant 2/3rds majority vote of the Legislature, providing a measure of stability. Under the party system – voters understand who the party leaders are when they go to the polls. However in a coalition situation, an independent candidate might end up with the most support for the leadership position, especially if the party leaders have not been successful at the polls, the probability of which may increase if we move to single member constituencies.
  18. The proposal that the Chief Minister should determine the Cabinet Ministers and their removal likewise, rather than the current situation which requires the majority vote of elected representatives, should provide an additional measure of authority to the leader or Chief Minister, however that also brings with it additional power to subdue the opinions and principles of the other Ministers.
  19. Members of the legislature should publicly declare whether they are Members of the Government or otherwise. The Leader of the Opposition should be voted in by the majority of members of the Legislature who are not members of the Government.
  20. In other jurisdictions the premier can be changed by registered party officials through internal party elections. This system puts even less empowerment in the hands of the people and their elected representatives.
  21. Other OT's with recent modernized constitutions keep the Governor as president of Cabinet. If the Governor is to be removed from Cabinet as president – the UK will likely insist that we move towards independence.
  22. The Governor approves the Cabinet agenda; however Papers are brought by Ministers and Members so he does not "set" the agenda. Establish a formal mechanism that prevents the Governor refusing any matter, properly submitted by a voting member of Cabinet. Alternatively, consider a small committee of the HE, Chief Minister & Cabinet Secretary to approve the agenda.
  23. Support the need for a national security committee where elected officials are regularly briefed by the police.
  24. Under the current Constitution, only some of the Governors actions are protected from legal challenge. Actions of the Governor and Orders in Council from the UK should not be against the interests of the Cayman Islands. Institute a resolution mechanism where there may be a conflict of interest. This way we will be able to determine if reserved powers are being abused.
  25. Laws passed in the UK parliament still require formal Royal Assent by HM the Queen before they become law. In the Cayman Islands the same principle applies where the Governor assents on behalf of the monarch.  As long as we have an association with the UK this will be a requirement.
  26. Agree that the Speaker should not be a Member of the Legislature; however there is an absence of information on the appointment process to ensure impartiality.
  27. Enshrine provisions for pensions, register of Interests, sensible borrowing and spending limits and a contingency fund.
  28. Provide for referendum and recall.
  29. Agree that ministers and civil servant officials should exercise their power in the interests of the country and not in their personal interest or benefit.
  30. The proposed checks and balances in executive power do not go far enough and many are already legislated and will have no additional impact - i.e. Auditor General and Complaints Commissioner.
  31. There is no explanation as to what the deputy governor will do and the Constitution already provides for an acting governor and governors deputy. Prefer to maintain the chief secretary as opposed to deputy governor. The former has established authority - the latter sounds like a puppet. This proposal will only diminish the role of the most senior civil servant.
  32. The removal of Official Members of Cabinet means that these positions will have less responsibility requiring re-evaluation and regrading accordingly. This will have a ripple down effect as other roles will also consequentially have less responsibility.
  33. The Judicial Services Commission appears to be a good idea. Need to ensure objective competent and independent appointments. The courts should not be above the law.
  34. The existing constitution categorically states that the Attorney General (AG) is not under the control of any person or authority (including the Governor). The AG's advice should always be in the Cayman Islands national interest. Bearing in mind the Eurobank situation, strongly recommend that the Attorney General be a Caymanian as with all Official Members.
  35. If the AG is no longer responsible for public prosecutions – it is not clear who the Director of Public Prosecutions would report to. Who would be responsible for this appointment?
  36. Currently the legal department falls under the AG, but not under the proposals, and this begs the question as to who will support the AG in role as legal advisor. Significant additional costs are therefore likely.
  37. The proposals call for the AG to be appointed by the premier, meaning the possible erosion of independent, politically neutral advice. How will the AG's performance be measured or ensure accountability? The advice of the AG is not subject to disclosure even under FOI legislation. The AG's role would be advisory only and therefore with reduced breadth of responsibilities.
  38. Under the proposed scenario - who will provide regular legal advice to the many agencies of Government? Much of this advice is sought on a daily basis by civil servants in the course of their duties. Who will the Portfolio of the Civil Service or the Head of the Civil Service look to for legal advice on personnel matters? Unlikely that it could be the Director of Prosecutions or a politically appointed Attorney General?
  39. Support campaign finance reform. Political parties and independent candidates should be required to publicly disclose financial contributors and corresponding amounts.
  40. Significant changes to the Elections Law should not be made solely by any one individual - i.e. even the supervisor of elections as proposed.
  41. Support the principle of one man one vote. In such a small community it may however divide us up into even smaller groups and perhaps further emphasize differences on racial, ethnic and social lines.
  42. If Constituencies are introduced it should be on a formula based system -one candidate for every so many registered voters. This way there is a clear and equitable way of determining where additional seats (if any) should go.
  43. Consider introducing 2 positions elected on a national basis. Candidates would decide whether they wanted to run on a national platform for one of two seats or whether they ran on a constituency basis. This would mean that every voter would cast a vote for their constituency and a vote for a national candidate. Other Overseas Territories have this provision. One man – two votes! This would not necessarily translate into the elected national candidates having to be the Chief Minister or Leader of the Opposition, but you might expect persons seeking the leadership of their party to run on the national platform.
  44. "Caymanian" needs to be properly defined. It traditionally means someone with significant roots to these islands. Being born here does not necessarily mean you are a Caymanian and similarly not being born here does not mean you are not Caymanian. Suggest that Caymanian should mean you can trace a portion of your heritage here back 2 generations or more and that you have spent a significant period of residence in the Cayman Islands. Meaning that someone with no connections immigrating here and receiving Cayman status would be considered first generation "belonger". Entitled to vote but not entitled to hold elected office.
  45. Only Caymanians should be eligible to stand for elections. The proposed changes to ease the restriction for eligibility to stand for elected office should be abandoned.
  46. Better to be safe than sorry. It may sound cynical but our constitution should be framed bearing in mind the potential for disingenuous individuals to hold both elected and appointed government positions. If people always acted reasonably there would be no need for any laws to begin with. There is a saying that suggests "the best way to understand something is to try and change it" and I suspect we will all be more enlightened as a result.

Thank you for the opportunity to comment.