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A Speech (2002) by the Minister for Planning, Communications, Works and Information Technology

Presentation of the Honourable Linford A. Pierson, OBE, JP, Minister for Planning, Communications, Works and Information Technology on the Report of the Constitutional Modernisation Review Commissioners 2002 and Draft Constitution for the Cayman Islands

In his foreword to the White Paper entitled “Partnership for Progress and Prosperity between Britain and Her Overseas Territories” published by the Foreign Secretary, Robin Cook, in March 1999 he said that implicit in the creation of the Partnership was the acceptance of responsibilities on both sides. He stated that modernization was the key to the new partnership and that a high priority of his Government was helping the Overseas Territories to develop both economically and politically in line with Britain’s commitments under the terms of the United Nations Charter.

On the question of constitutional matters, the Overseas Territories Department of the Foreign and Commonwealth Office in its October 1999 release of its Constitution Modernisation Check-List stated that all Overseas Territories would benefit from a review of their constitutions to see if they reflect modern conditions and expectations appropriately.

Section 2.8 of the White Paper states: “The governance of the Territories must have a firm base. Democracy, human rights and the rule of law are all as relevant in the Overseas Territories as elsewhere. The principles which should underlie modern constitutions are clear. There must be a balance of obligations and expectations and both should be clearly and explicitly set out. Future action will focus on:

  • measures promoting more open, transparent and accountable government;
  • improvements to the composition of legislatures and their operation;
  • improving the effectiveness, efficiency, accountability and impartiality of the public service;
  • the role of overseas ministers and executive councils and their exercise of collective responsibility for government policy and decisions;
  • respect for the rule of law and the constitution;
  • the promotion of representative and participative government;
  • the freedom of speech and information;
  • the promotion of high standards of justice;
  • adoption of modern standards of respect for human rights.”

In the following paragraph 2.9 of the White Paper it was stated that some Territories were already actively modernizing the machinery of government and specific mention was made of the Cayman Islands for its extensive programme of public sector reform and rejuvenation.

It was against the background of the White Paper that His Excellency the Governor, Mr. Peter J. Smith, CBE commissioned the appointment of a panel of Commissioners to conduct a modernization review of the Constitution of the Cayman Islands. In May 2001 His Excellency issued a press release informing the public of the Cayman Islands of the appointment of Commissioners: Mr. Benson O. Ebanks, OBE, JP, Mr. Arthur B. Hunter, OBE and Mr. Leonard N. Ebanks, JP with the following terms of reference:-

  • To examine the present Constitution of the Cayman Islands and
  • following the widest and most comprehensive consultative process to make
  • recommendations designed to modernise the Constitution and to ensure
  • its compatibility with the present aspirations and expectations of the people
  • of these Islands.

His Excellency also stated in his letter of official confirmation of the appointment of the Commissioners dated 15 June 2001 that the Commissioners had a wide remit to recommend additions, deletions or amendments to the Constitution and that they should consult all relevant persons and organizations in the Cayman Islands at either private or public meetings, individually or as a group, as required.

Based on the terms of reference provided to them, the Commissioners’ first objective as stated by them, was to provide the public with as much information as possible about the events leading up to the constitutional modernization review process and the impetus for the same. They also provided members of the public with as much educational material as possible. To this end, they arranged to have the current constitutional documents and other relevant documentation prominently displayed in all post offices and public libraries throughout the three Islands of Grand Cayman, Cayman Brac and Little Cayman. These documents were also made available on the Commissioners’ web-site and at all district meetings and other meetings which they conducted or addressed during the review process.

They conducted a series of district public meetings in all of the electoral districts. Notice of all such meetings were given in the local press as well as on Radio Cayman and the local commercial television station. In addition to the district public meetings, they addressed Cayman Islands Chamber of Commerce, the Civil Service Association and the local Lions and Leo Clubs. The Chamber of Commerce which represents more than 700 corporate and associate members, employing nearly 15,000 persons, many of whom are Caymanians, also undertook an awareness initiative within its membership and employees and conducted a survey of its own on the major issues discussed at the public meetings. The Civil Service Association also made a written submission to the Commissioners. This body is representative of a fairly large percentage of the 1437 civil servants who are currently registered voters. The Commissioners met with representatives from the Caymanian Bar Association, also a group of individuals who call themselves “The Concerned Citizens” and many other interested groups. In addition, meetings were held with the Chief Justice and other judges of the Grand Court in relation to the judiciary and with the Supervisor of Elections and his deputy, and a member of the Lands and Survey Department on the matter of the boundaries of electoral constituencies and the number of electors in each. In addition to the foregoing, they prepared a questionnaire listing the main issues that were discussed at the various district public meetings. This questionnaire was distributed as a “flyer” in the Caymanian Compass newspaper of which a number were completed and returned to the Commissioners by local registered electors.

I have taken some time to emphasise the review process, which is contained in Chapter 2 of the Report, so as to place beyond any doubt that every attempt was made to fully inform the entire population of the Constitutional Modernisation Review Process and that our people were given every opportunity to express their views on all issues discussed. Though the Commissioners expressed their disappointment with the relatively small numbers of approximately 660 individuals who attended public meetings, submitted answers to their questionnaire and had private interviews with them, they nonetheless stated in their Report that the general considerations and specific recommendations set forth in Chapter 3 of their Report reflect the views of a majority of the registered electors of the Cayman Islands. I think it is reasonable to assume that the 660 individuals who participated constitute a representative sample of registered voters.

I wish to point out that, with the exception of a few issues which I will highlight in my presentation, I generally agree with the recommended changes submitted by the Commissioners. I also wish to congratulate them for a very thorough job done in the Constitutional Modernisation Review Process, and their efforts to reach as many members of the public as possible in the approximately 9 months period of the review process from June 2001 to March 2002.

Let me therefore state very clearly up front that it is doubtful that a referendum or any other similar polling would provide a more representative position than has been obtained by the Commissioners.

The Current Constitution

The current Constitution of the Cayman Islands which came into operation on 22 August 1972 is almost 30 years old. There have been 4 subsequent Orders made by Her Majesty the Queen in Council amending the 1972 Constitution in 1984, 1987, 1992 and 1993. The current Constitution is therefore comprised of 5 Orders in Council. Though the Constitution has served us well, it is not surprising that some amount of modernization is now required.

Proposed Changes

The main changes which have been recommended by the Constitutional Modernisation Review Commissioners are as follows:

  1. Inclusion of Fundamental Rights and Freedoms of the Individual (Bill of Rights). (page 10 – sections 1 – 2)

    I support this recommendation. On the question of human rights, the White Paper stated: “The record of many Overseas Territories is positive but further work would be needed to ensure compatibility with the commitments which Britain has made on their behalf.” In my opinion the most important recommended change to the Constitution is the inclusion of the Bill of Rights. Every person in the Islands should have his fundamental rights and freedoms protected and it is most fitting that these fundamental rights and freedoms of the individual are enshrined in our Constitution. These fundamental rights and freedoms are:

    • Protection of Right to Life
    • Protection from Inhuman Treatment
    • Protection from Slavery and Forced Labour
    • Protection of Right to Personal Liberty
    • Provisions to secure Protection of Law
    • Protection of Right of Prisoners to Humane Treatment
    • Protection for Private and Family Life and the Privacy of Home and Other Property
    • Protection of the right to marry, etc.
    • Protection of Freedom of Conscience
    • Protection of Freedom of Expression
    • Protection of Freedom of Assembly and Association
    • Protection of Freedom of Movement
    • Protection from Discrimination on Grounds of Race, etc.
    • Protection from Deprivation of Property.

    While it is appreciated that these fundamental rights and freedoms of the individual will bring the Cayman Islands in line with the international obligations of the United Kingdom, we would nonetheless wish to see a provision inserted in the “Bill of Rights” which would draw attention to the unique social and cultural identity of the Cayman Islands and to ensure that this identity is not ignored when the Constitution is being interpreted by the courts. With the suggested change, section 1 of Part I of the Constitution would begin: “Whereas the Cayman Islands is a Caribbean country with its own distinct history, culture, Christian values and socio-economic framework, every person in the Islands is entitled to the fundamental rights…”etc. In addition, it is suggested that the definition of “the Islands” in section 107 be amended to read, ‘ “the Islands” means the Cayman Islands as described in section 1’. Finally, it is suggested that wherever the phrase, “reasonably justifiable in a democratic society” is used, that the phrase be amended to read, “reasonably justifiable in the democratic society of the Islands”. It is suggested that these changes, taken together, would oblige the courts to give due attention to the social, cultural and economic, as well as the legal and judicial, context of the Cayman Islands.

    If the “Bill of Rights” is adopted without such changes, it could eventually conflict with Vision 2008 and the National Strategic Plan. These documents stress the importance of “basic human rights” but place them within a Caymanian context. They speak, for example, of Cayman as a “God-fearing country based on traditional Christian values”, as “a community protective of traditional Caymanian heritage and the family unit”, which seeks to “manage growth to prevent the degradation of our Caymanian culture, environment and socio-economic framework”. They describe Cayman “as a country with an immigration system which protects Caymanians and gives security to long term residents”, which seeks to develop an “awareness of our Caymanian culture which is based on traditional Christian values and a strong family unit”. These aspirations and values are not protected by Part I of the draft Constitution, and they could be progressively undermined by its interpretation by non-Caymanian courts.

    In conclusion, it is acknowledged that the remaining parts of the Constitution generally represent political advances that (subject to further changes), I feel will generally be welcomed by most people and political groupings in the Cayman Islands. They will move the Cayman Islands further along the road of political responsibility and give Caymanians a greater measure of autonomy and control over their own affairs. Part I, however, if left unchanged, could nullify this process of political advance. It will give to the European Court of Human Rights the power to strike down any local law which contravenes the “Bill of Rights”. Non-Caymanian judges will be able to override the wishes of Caymanians as expressed through their elected representatives. The political gains represented by Parts II to VIII of the new Constitution could be reversed by the judicial force of Part I. It is therefore incumbent on Caymanians to make every attempt to ensure that the “Bill of Rights” and its interpretation reflects and respects the history, culture and values of these Islands.

  2. That a Public Service Commission be established in the Constitution.

    I support this recommendation. (page 66 – section 87 - )

  3. The posts of Acting Governor and Deputy Governor be held by a Caymanian. (page 27 – section 20 -)

    I support this recommendation, though not within the narrow definition of “Caymanian” proposed by the Commissioners, on which I will expand later on in my presentation.

  4. Establishment of an independent Advisory Committee in relation to the Governor’s power to pardon. (page 30 – section 26)

    I support this recommendation.

  5. The retention of the Westminster form of Government with increased local autonomy but falling short of full internal self government. (page 6 para 2.)

    I support this recommendation and wish to make it abundantly clear that I oppose independence for the Cayman Islands.

  6. A full ministerial style Government with a Chief Minister and Leader of Opposition. (page 32 – Part III)

    The Commissioners recommend a full ministerial style government with a Chief Minister appointed by the Governor on the recommendation of the majority of the elected members of the Legislative Assembly, and six Ministers appointed by the Governor, acting in accordance with the advice of the Chief Minister, from among the elected members of the Legislative Assembly. I support this recommendation.

    In addition, I am of the view that in order for the full ministerial style government to work smoothly, that provision should also be made for a Deputy Chief Minister and Deputy Leader of Opposition.

  7. A no confidence motion should be in respect of a lack of confidence in the Government as a whole, and not to remove individual ministers. (page 33 – section 32)

    I support this recommendation.

  8. The Financial Secretary and Chief Secretary positions be replaced with elected ministers, so that elected members of Executive Council will be 7, including the Chief Minister. (page 32 – section 31)

    I support this recommendation.

  9. The Attorney-General may be either an elected or an ex-officio member (page 69 – section 92)

    I strongly feel that since the Report and draft Constitution envisage a move to a full ministerial system that the Attorney-General should also cease to be an ex-officio member of the Legislative Assembly and Executive Council. The suggestion that the position of Attorney-General may remain an ex-officio member of Executive Council and the Legislative Assembly runs contrary to the principle of a full ministerial system. This is inappropriate. Rather, as with the proposed roles of Financial Secretary and Minister of Finance, there should be an elected Minister responsible for legal affairs, and a senior civil service post of Attorney-General or similar position which, where possible, should be filled by a Caymanian.

  10. The introduction of single-member constituencies. (page 52 – section 67)

    Whilst I support the concept of modernising this area of the electoral system, I believe that the full introduction of single-member constituencies and the “one man one vote” which proposes to divide the Cayman Islands into 17 constituencies is, at this point in our development, premature. I believe that a better system would be to gradually phase in this concept. For example, rather than have six single-member constituencies in George Town, we could perhaps start with 2 or 3 constituencies until the voting population become more acquainted with the system, and then we could move to single-member constituencies with the principle of “one man one vote”.

  11. The introduction of an Electoral Boundary Commission to draw the electoral boundaries. (page 52 – section 68)

    I think it is most important that a Boundary Commission is established as early as possible. This would be particularly necessary if there were a gradual phasing in of the single-member constituencies.

  12. The Speaker and Deputy Speaker be chosen from outside the membership of the Legislative Assembly. (page 42 – section 46)

    I do not support this recommendation and would suggest that we retain the provisions of the current Constitution which state that the elected members of the Assembly should elect

    • a Speaker from among the elected members of the Assembly, or persons qualified to be elected members of the Assembly, other than members of Executive Council;
    • a Deputy Speaker from among the elected members of the Assembly other than members of Executive Council.
  13. The inclusion of a Judicial Service Commission to advise on the appointment of judges of the Grand Court as well as magistrates, registrars and other officers of the Court. (page 65 – section 85)

    I support this recommendation.

  14. Expansion of the Oath of Due Execution of Office to include the people of the Cayman Islands as well as to Her Majesty the queen, Her Heirs and Successors. (page 83 – First Schedule)

    I support this recommendation.

  15. The Commissioners have given a narrow definition to “Caymanian” in the Constitution which is separate and apart from “Caymanian Status”. (page 79 – section 107)

    They have defined “Caymanian” in Section 107 of the proposed Constitution to mean:-

    A person who possesses British Overseas Territories Citizenship by virtue of a connection with the Islands and who:

    • was born in or outside of the Islands and at the date of his birth had at least one of his parents who was Caymanian as herein defined and who was domiciled in the Islands at the date of such birth, and
    • possesses no other citizenship and is pursuing no claim to any other citizenship for which he may be eligible.

    There are 4 places in the proposed Constitution where it is necessary to be “Caymanian” under the above narrow definition, namely:

    • to act as Governor
    • to be Deputy Governor
    • to be an elector, and
    • to be a member of the Legislative Assembly.

    This definition excludes anyone holding dual citizenship. This, in my view, is an unreasonable departure from the provisions of the current Constitution which allows for dual nationality by virtue of birth outside the Islands.

    The Commissioners have distinguished in their definitions between persons who are “Caymanian” and persons with “Cayman Status”, effectively relegating Status holders to the position of second-class citizens. This backward step certainly cannot be the intention of the Commissioners, when in fact they were commissioned to modernise our Constitution in keeping with the U.K. White Paper. There is no necessity to introduce this definition or references to the term.

    The qualifications for elected membership to the Legislative ssembly as set forth in the 1987 Constitutional Amendments have been unreasonably narrowed. Many able Caymanians will be precluded from running for office. This will be to the detriment of the Cayman Islands. The 1987 qualifications provided a reasonable balance where someone may stand for election if he (i) has Cayman Status and is 21 years or over, (ii) is domiciled and resident in Cayman, (iii) has British Overseas Territories Citizenship due to a connection with the Islands, (iv) has no other citizenship (except by reason of birth provided he has a Cayman born and Status holding parent or grandparent) and (v) meets the required residency period.

    An area of the present Constitution which requires further specific attention and amendment is the question of citizenship in light of the conferral of British Citizenship on British Overseas Territories Citizens under the new British Overseas Territories Act. Caymanian BOTCs are now entitled to full British Citizenship and passports with the right to live and work in the UK and European Community. The question is, is it appropriate that someone who takes advantage of the new British Citizenship should be precluded from running for elected office? Certainly, this is an area that requires much more thought, as it cannot be the intention of the Commissioners to disenfranchise those Caymanians who now qualify for elected membership of the Legislative Assembly and to be electors.

    As in the case of the qualification for elected membership to the Legislative Assembly, the narrow definition for a “Caymanian” will also negatively affect electors. This will unnecessarily exacerbate the non-inclusive nature of the electoral system in the Cayman Islands and lead to an even smaller percentage of the long-term resident population of the Islands participating in the electoral process. This certainly cannot be desirable.

  16. Inclusion of constitutional control on public debt. (page 76 – section 103)

    Under Section 103 (3) of the draft Constitution the Constitutional Commissioners have recommended that:
    “The Islands shall not (at any time after the appointed day) borrow money to a total amount larger than that which can be repaid as to both principal and interest (calculated from the date of draw down on the loan, whether or not a moratorium on repayment is given) by not more than ten percent of the Islands annual recurrent revenue (excluding money actually received from loans) for the financial year.” This provision is already contained in the Public Management and Finance Law and a similar repetition in the Constitution is inappropriate and unnecessary. For this reason I do not support this recommendation.

  17. Provision for Referenda. (page 45 – section 50 (2) )

    On the question of Referenda, provision to enable a referendum law to be enacted now exists under the current Constitution, but no such law has to date been enacted. The Constitutional Commissioners have also included this provision under the proposed new Constitution, but have added a proviso that the question of whether the Islands should seek an amendment to the Constitution that may result in the independence of the Islands shall be a matter of national importance. I support this recommendation.

It was interesting to note in an article carried by the news media that 3 former Ministers of Executive Council seem to have very conveniently left out an important part of Section 50 of the draft Constitution when they quoted the Section as stating “that there must be a referendum to make major changes to the new Constitution”. Section 50 does not say there must be a referendum to make major changes to the proposed new Constitution. What it says is:-

“…a law may make provision to enable the holding of a referendum amongst persons qualified as electors in elections to the Assembly on a question declared by resolution adopted by a majority of the elected members of the Assembly to be a matter of national importance provided that the question of whether the Islands should seek any amendment to this Constitution that may result in their independence shall be deemed to be a matter of national importance.”

This is just another classic example of mis-representation of the facts.

There have also been suggestions from certain quarters that the consultation process is being rushed. However, when one considers the detailed process of the Constitutional review, public meetings and information given to the public over the nine months of the review process, it cannot reasonably be said that the public did not have adequate time to have made their views known to the Commissioners. However, as stated earlier, the United Democratic Party has listened and complied with the wishes of the people for an extension of time for an additional 9 ½ weeks which covers the period to 19th June, 2002.

In closing, I wish to once again congratulate His Excellency the Governor for being the moving force behind the Constitutional Modernisation Review, thus complying with the principles of the White Paper, and also to thank him for agreeing to extend the time for the consultation process. Also, to once again commend the Constitutional Review Commissioners for a job well done, and with the exception of those issues raised by me as needing further consideration, I have no hesitation in giving the Report together with the draft Constitution my support.

Thank you.