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Between Colony and Independence: Constitutional Modernization in the Cayman Islands

Livingston Smith

When a society thinks it necessary to reform or to "modernize" its constitution, each citizen should stand up, pay attention and participate. This is so as the constitution is a sacred covenant between leaders and citizens. It lays down the ground rules for living together in society and protects the possibility of community, in which individual citizens can live their full lives. It addresses the questions of who are to be included as members of the political community, the kinds of rights and liberties to which they are entitled and the concomitant responsibilities.

A constitution has the following objectives: limiting the arbitrary actions of government, guaranteeing the rights of the governed and defining the sovereign power. This binding document, both conceptually and practically, reaches into the lives of citizens, as it is both concerned with the structure of power - that is, the way government can treat its citizens - and also the ways citizens may treat each other.

The constitution is superior to all other laws. It sketches the fundamental modes of legitimate government operations, guards the fundamental rights of citizens, and is a symbol of the kind of culture, norms, and values, which a society subscribes to. The constitution embodies the normative attitudes held by people towards government, their conception of how power ought to be regulated, of what it is proper to do and not to do. Because of these reasons, the constitution matters for social and political outcomes.

McIntosh, in his recent seminal work on Caribbean constitutional reform,1 describes this process as an act of critical self-understanding, an interpretive enterprise of a country's collective identity and form of politics. It is an explicit statement of a peoples' understanding of who they really are, as a product of the historical process to date. The constitution aims to shape the lives of citizens "by designing the structure or dwelling" which they and their posterity will inhabit, and so its construction or reform is superior to all other forms of political acts.

This paper, as a prelude to an analysis of constitutional modernization in the Cayman Islands, firstly summarizes, in a general way, constitutional developments in the English speaking Caribbean and then in the British Independent Territories.

Constitutional development is the same as constitutional advancement, where constitutional instruments are changed to allow local citizens greater legal rights to run their own country. In the Jamaican context, as a colony, in its pre-1944 constitution, the Governor, along with his Principal Heads of Departments ruled the country. The powers of the Governor flowed from the political administrators of Britain, from the Prime Minister and Cabinet, as leaders of Parliament and, therefore, from the Secretary of State for the colonies, who was the politician in Britain charged with the duties of handling colonial affairs. In the final analysis, it was the Cabinet, representing the ruling political majority in the House of Commons, which was the final arbiter in domestic matters concerning the life and welfare of the people of Jamaica.

In a series of leading articles on the subject, The Daily Gleaner of July 26, 1944, described the situation as follows:

  • The Governor 'could pass' measures using his fifteen 'command votes' even if the 14 elected members together opposed such measures. The Legislature 'was' a kind of political brake which the Governor 'could' remove. It was not part of the working engine of Government; a detachable gadget at worst; a compliant accessory at best. The elected members could not propose financial matters except by permission of the Governor. They opposed, the Governor disposed, they opposed and the Governor super-imposed.

Such was the constitutional context of the other English-speaking Caribbean countries at a point in their constitutional evolution. Constitutional decolonization was an evolutionary process. The social disturbances of the 1930s led to constitutional advances, namely: Adult Suffrage; the Committee System; the Ministerial System; followed by transformation of the Executive Council into a more representative Council of Ministers to Full Internal Self-government and then to independence. This, of course, was the British way of inducting Caribbean leaders into the ethics of the Westminster system.2

Britain followed a gradualist policy of decolonization that led to the creation of new nation-states in the region:

  • Jamaica and Trinidad and Tobago - 1962
  • Barbados and Guyana - 1966
  • The Bahamas - 1973
  • Grenada - 1974
  • Dominica - 1978
  • St Lucia and St Vincent & the Grenadines - 1979
  • Antigua and Barbuda - 1981
  • St Christopher-Nevis - 1983

Since then, Trinidad and Tobago and Guyana have become Republics, casting off, forever, all linkages with the British monarchy, while Barbados 3 and Jamaica4 have signaled their intention to do so in the future.

In the British dependencies, the metropolitan power, the U.K., exercises a direct role in the daily governing process by way of the reserved powers constitutionally granted to the appointed Governor. The governor in a British Dependent Territory has reserve power in such areas as control over external affairs, internal security and the Civil Service. In the group of British Dependent territories, the Cayman Islands have the least advanced constitution.

The British Virgin Islands has a population of 19,000. Like the Cayman Islands, they did not join the 1958-1962 West Indies Federation. In 1967, a new constitution provided for a ministerial system of government headed by a chief minister. The constitution of the BVI mandates the consultation of the Chief Minister in reference to any reserved power of the Governor.

The Governor is the representative of Her Majesty the Queen and is responsible for defense and internal security, external affairs, terms and conditions of service of public officers and the administration of the courts. He possesses reserved legislative powers in these areas.

There is an Executive Council with the Governor as chairman, which includes the Attorney General (ex officio), the Chief Minister (appointed by the Governor from those elected to the Legislative Council) and three other ministers appointed by the Governor, on the advice of the Chief Minister. The Legislative Council consists of the four ministers and five other popularly elected representatives and is presided over by a speaker elected from outside the Council.

The Turks and Caicos Islands and Monserrat both have Chief Ministers and Party Systems. In the case of Bermuda, which has a population of 60,000, not only is there a party system, but it also has a Premier, who presently is the Hon. Jennifer Smith, the first Bermudan woman elected premier and a representative of the Progressive Labour Party.

In the Bermudan context, the Premier appoints Cabinet Ministers - who are ministers because they control and administer and set the policy for them. The fifteen cabinet Ministers answer to the Premier. There is also a leader of Opposition. Members of the Judiciary, headed by the Chief Justice, are appointed by the Governor.

With all these constitutional advances, Bermuda, whose economy is grounded in tourism and offshore banking, is a British Dependent Territory, enjoying all the real and perceived privileges of this status.

The constitutions of Bermuda, Anguilla, Monserrat and the Turks and Caicos Islands, all contain a Bill of Rights. These territories also provide for citizens to enforce their fundamental rights in a court of law. The constitutions vest the power in the High/Supreme Court to have a jurisdiction over such matters and empower the court to make such orders and issue such writs and directions as are considered necessary.

There is the issue of the 'permanent pause' in the desire of the British Dependent Territories, particularly the Cayman Islands, to consider independence.

Connel 5 explains that the British colonies have evolved from traditional societies with agricultural economies to urban societies with modern economies that are fully integrated into the world capitalist economy through tourism and financial activities.

Tourism and offshore finances, for example, form the main economic base of the Caymanian economy. The integration into the world tourist and financial circuits has involved greater dependence on the external world. The combined per capita income of the independent territories of the Anglophone (English speaking) Caribbean is $2,975, while that of the British Dependent Territories is $8,656. Specifically, for the Cayman Islands, life expectancy is 75 years, on par with developed countries; Gross Domestic Product (GDP) is $582m and GDP per capita is $18,770.

In contrast to the French territories (Martinique, Guadeloupe and Guyana), the Dutch territories (Aruba, Bonaire and the rest of the Netherlands Antilles) and the two U.S. territories (Puerto Rico and the U.S. Virgin Islands), which receive significant amounts of aid from their respective metropolitan powers, British colonies are scarcely dependent on the metropolitan power. With the exception of Montserrat, which still has a dependency with England, colonies in the region receive little or no aid. The Cayman Islands, for example, receives neither budgetary aid nor development grants from the United Kingdom.

The establishment of tourism and offshore finance centres has wholly transformed the productive sectors and produced a domestic economy highly dependent on the fluctuations of the global economy. The Cayman Islands is now much more firmly integrated into the world system of investment, tourism, migration and culture, than at any time in the past

Yet, or because of this situation, none of the UK's dependent territories want to go independent. Most territories are seeking to consolidate their dependence on the colonial power, and on the global economy. It is argued that security is more likely to be guaranteed with some British presence. Of all the six dependent territories, the most opposed to any movements towards independence is the Cayman Islands. An excellent example of this view was expressed when Her Majesty Queen Elizabeth the Second and His Royal Highness Prince Phillip, Duke of Edinburgh, came to the islands on February 16, 1983. This was the first time a reigning monarch has visited these islands. Veteran Legislator, Miss Annie Hulda Bodden told the Queen: "We do not wish to have our status changed... ever, ever, ever."

Similarly, in 1993, the desire of the United Nations Special Committee on Decolonization to visit the colony provoked powerful opposition in the Cayman Islands. The then Leader of Government Business, The Honourable Thomas Jefferson, stated:

  • The UN's attitude has always been that the only means of self-determination is independence. Self-determination, as far as the Cayman Islands is concerned, is being in a position in which we can look after ourselves financially and keep the door open for the UK to represent us around the world and to be a part of the British system, judicially or otherwise. The people of the Cayman Islands do not want a mad rush forward into other forms of constitutional change. I believe they are sufficiently aware of countries, particularly in the Caribbean, who have gone independent and it would appear they are worse off. We have been able to attract substantial investment into this country. This has given us some type of confidence in our system.

The then Berna Thompson-Murphy-Cummings, another elected member of the 1993 National Team expressed this attitude even more bluntly:

  • The UN has a responsibility to investigate whether colonies would want to become independent. At one time, this was a useful exercise as there were some colonies which were opposed by the mother countries: but there are very few, if any, colonies which still fall into this category. In the case of Cayman, we are fully committed to remaining a colony... even the discussion of independence is out of the question. If the foreign press headlines says 'UN Commission return from Cayman following negotiations for Independence', you can bet we'll see investors' money leaving Cayman immediately after. We can't allow them any room to suggest that independence can even be discussed.

There is a strong view that the island's present prosperity depends on its Dependent status. The combination of 'American money and British security' is perceived to be central to the future economic and political development. Many people share the perception that formal independence as a political status is bound to provoke economic risks and deprivations. It must be noted though, that, as in the case of Bermuda, significant constitutional advances can be made to satisfy a peoples' desire for its own identity, and maximum participation, while still maintaining its dependent status with the metropole.

The rest of this paper explores briefly the history and present features of the Caymanian constitution and discusses the forces demanding constitutional change. I then summarize the proposed changes and discuss the issues involved in their implementation. The paper concludes with an analysis of the implications of these for the evolving political culture of the Cayman Islands.

A Brief Constitutional/Political History of the Cayman Islands

During the 18th and 19th centuries, administration of affairs in Cayman was carried out by the Justice of the Peace commissioned by the British appointed Governor of Jamaica. In 1831, a local representative legislative, the Assembly of Justices and Vestrymen, set the pattern of government for the islands.

The islands became a dependency of Jamaica in 1863, under the Act of the British Parliament, and that status continued until the 1950s. In 1959, the Cayman Islands, as a dependency of Jamaica, joined the short lived Federation of the West Indies. When Jamaica became independent in 1962, the Cayman Islands decided to remain as a dependent territory of the United Kingdom.

New constitutions granted in 1959 and 1962 provided for the appointment of an Administrator; responsible to Her Majesty for the governing of the islands, assisted by an Executive Council and a Legislative Assembly. In 1971, the title of Administrator was changed to Governor. The present constitution came into effect on August 22, 1972. This constitution replaces the former Executive Council of three official members and three nominated members with an Executive Council of three official members and four members elected from the Legislative Assembly. The three official members, appointed by the Governor are Chief Secretary, the Attorney General and the Financial Secretary.

Each member of the Executive Council is allocated a portfolio of responsibilities by the Governor. The Governor presides over the meetings of the Executive Council, whose advice he must normally take except in matters of defense, external affairs, internal security, the police and the Civil Service. The Governor is not required to consult with the Executive Council on matters too unimportant to necessitate it, or in matters of urgency, or if it would be prejudicial to the national interest, although he must subsequently report such actions to the Executive Council.

The 1972 Constitution was reviewed in 1990, after a motion was passed by the Legislative Assembly requesting a review. The Report of the Commissioners was considered by a Select Committee of the Legislative Assembly, which presented its report at a special meeting of the House on October 28, 1991. In July 1992, the Secretary of State submitted to the Governor a draft of a proposed new constitution for the island and requested that it be circulated to the public prior to the General Election to be held in November 1992.

In 1993, the government, elected on a platform of no major constitutional change, shelved the draft constitution and proposed instead certain amendments to the 1972 constitution. These amendments included adoption of a ministerial system and a fifth elected member of Executive Council but excluded appointment of a Chief Minister. The amendments came into effect February 1, 1994. The fifth ministerial seat was filled in March of that year. The Ministers are elected from and by the elected members of the Legislative Assembly and have responsibility for ministries, with permanent secretaries implementing policy and overseeing administration of the departments within the ministries. The elected members of the Legislative Assembly represent the six districts of the Islands, four each from George Town and West Bay, three from Bodden Town, two from Cayman Brac and Little Cayman and one each from North Side and East End.

Factors Driving Demands for Constitutional Changes in the Cayman Islands

Constitutional reform is usually driven by the desire to strengthen the political values to which a society has committed itself. It may be to adjust basic constitutional values to changing political and social circumstances, or to incorporate into the constitution a broader and more inclusive understanding of the values the political community deems crucial. There may be a need to remove weaknesses which have been noticed. In the case of the Cayman Islands, it is a convergence of political, economic, psychological and socio-cultural forces which is at play.

The Cayman Islands have reached a difficult, yet interesting stage in its political development. It may be referred to as 'The Caymanian Dilemma'. There are problems inherent in colonialism that development and high standard of living have not effaced. Domination of the colonial kind is historically associated with ethnic, linguistic, racial and cultural antagonisms that have considerable weight in the political terrain. In this context, questions of citizenship, self-governance, culture and the impact of the new economic arrangements, have come to the fore. Political life is thus determined by a deep-seated tension between seemingly contradictory inclinations: the preservation of social and economic gains and ,at the same time, the need to have a sense of identity - a cultural community.

The success of economic growth has resulted in considerable immigration and rapid population growth from fewer than 10,000 in the 1960s. Immigration has substantially affected the islands' demographic composition leading to a higher proportion of people born abroad. This poses problems for definition and distinctiveness. There is a growing fear that Caymanians are being marginalized, alongside the need to feel a sense of belonging and intellectual emancipation.

The New Caymanian in its 1992 publication states precisely this idea. 'In the past two decades, the Cayman Islands have opted for economic over cultural growth. The result has been an ongoing struggle to create a national identity'.

The problem with colonialism is that it reduces local decision-making in a number of areas and this poses questions as to the meaning of national identity. Psychological liberation is inherent in being in charge as much as possible of one's own situation.

It may be that the constitution has not kept pace with change in the Caymanian psyche and growth in sophistication of the society. The crucial question is: 'To what extent can constitutional modernization be used as an instrument to develop the Caymanian sense of identity?' The fact is that a constitution must be relevant to the historical, politico-economic and socio-cultural milieu of the particular society. The process of constitutional engineering/advancement/modernization must be sensitive to the peculiarities of that society. Changes made must be seen as capable of fitting into the context of the society and capable, too, of being instruments of transformation.

A Summary of the Proposed Constitutional Changes

The six new provisions in the proposed constitution are potentially far-reaching.

A Bill of Rights is included in Part One of the proposed constitution. The listed fundamental rights and freedoms of the individual are: protection of the right to life; protection from inhumane treatment; from slavery and forced labour; protection of the right to personal liberty; protection of the right of prisoners to humane treatment; protection for private and family life and the privacy of home and other property; the right to marry; freedom of conscience, of repression, assembly and association, movement, from discrimination on any grounds and from deprivation of property.

The proposed constitution provides for the office of a Deputy Governor who must be a Caymanian and whose assignments are those given to him by the Governor, acting in his discretion. The Deputy Governor, under the authority of the Governor, is the head of the Civil Service.

An Advisory Committee on the Prerogative of Mercy is suggested in the proposed constitution. The two members are chosen by the Governor, the Chief Minister chooses one and the Leader of the Opposition chooses one member. The Attorney General and the Chief Medical Officer complete the membership. The Governor consults this committee in the exercise of his Powers of Pardon.

In the proposed constitution, a Cabinet replaces the Executive Council. The Cabinet consists of the Governor, Chief Minister, six Ministers appointed by the Governor, following the advice of the Chief Minister, and the Deputy Governor and the Attorney General as ex officio members.

Explicit Provisions for political parties are also an important new provision in the proposed constitution. In this Ministerial System of Government, there is an important role for the Chief Minister, who is the Leader of the party that wins a majority in the Legislative Assembly. The Governor also appoints a Leader of the Opposition, who is the leader of the numerically strongest opposition party, or one acceptable as Leader of the Opposition to a majority of the Assembly in opposition to the Government.

There is an interesting innovation in this Parliamentary Cabinet System. A person who has held the Office of the Chief Minister during two parliamentary terms cannot be so appointed, unless at least one parliamentary term has expired since he last held that office.

In addition, the appointment of the Chief Minister can be revoked by the Governor if a motion of lack of confidence in the Government receives the affirmative vote of no less than eleven of the elected members.

In the Proposed Constitution, a Minister of Finance replaces the Financial Secretary. There is also provision for the public office of a Secretary to the Cabinet, appointed by the Governor after consultation with the Chief Minister. Significantly, the Secretary of the Cabinet and the Cabinet Office, 'shall also have general responsibility under the authority of the Governor and the Chief Minister for the development and co-ordination of Government policy'.

The Proposed new Constitution also allows holding a referendum on matters of national importance. Additionally, the island is divided into seventeen electoral constituencies and an Electoral Boundaries Commission is established. This Commission reviews the boundaries of the electoral constituencies and reports to the Legislative Assembly if they feel the boundaries should remain or need to be changed. These changes allow for a one-man-one-vote system of electoral democracy.

In choosing the Speaker and Deputy Speaker in the proposed new Constitution, the elected members of the Assembly, by majority vote, elect a Speaker from among the non-elected members of the Assembly, but who are qualified to be elected, and Deputy Speaker from the elected members of the Assembly other than Ministers.

As it now stands, both the Speaker and Deputy Speaker must be chosen from the Elected Members of the Assembly (other than the Executive Council Members, in the case of the Speaker and other than Ministers, in the case of the Deputy Speaker of the House).

The Draft Constitution also proposes the appointment of a Public Service Commission.

A Discussion of the Proposed Changes

The inclusion of a Bill of Rights in the proposed constitution is of major significance. It asserts the concept of human dignity, affirming that on the basis of the dignity and worth of the human person, and for no other reason, each person is entitled to certain minimum rights and standards of living conditions essential for the maintenance of self-respect. These rights and standards are to apply regardless of intelligence, skill, wealth, background, race, religion, sex, creed and political opinion.

The Bill of Rights of constitutional democracies such as the United States, Canada, Trinidad and Tobago, South Africa and others enumerate fundamental liberties. These fundamental rights are considered morally acceptable limits on majority rule, as under the institution of majority rule, majorities can coalesce to endorse policies that infringe on the rights of minorities.

Foundationalists,6 a modern school of Constitutional thought, argue a place for democratic principles, but their enthusiasm is constrained by deeper commitments to fundamental rights. For them, a just Constitution is concerned, first and foremost, with the protection of rights.

Every detail of a just Constitution must flow from a theory of human dignity, which explains the dignity of the individual as of ultimate importance. A Bill of Rights is of great significance, as its inclusion defines that Constitution as one of principle, that lays down general, comprehensive and moral standards of justice, liberty and political decency regarding the ways in which the Government may or may not treat citizens. These fundamental rights give expression to our best conception of the human person. The institution of a just Constitution protects individual rights and human dignity. The fundamental rights provision unequivocally defines the Constitution as a "Constitution of Principle". 7

Rawls believes that religious liberty, freedom of speech and universal franchise are three of the most important individual rights. He articulates a conception of personhood that is predicated upon certain basic rights and liberties, among which freedom of thought and conscience take prominence.8 To an extent, the other rights and liberties which the citizen enjoys under a Constitutional regime are the further elaboration of this fundamental background right to conscience.

The just Constitution tolerates, in the full sense, protection of conscience: a toleration of thought, speech and action. In his quest towards a critical theory to underline the protection of freedom of speech, McIntosh notes that the value of free speech encompasses such notions as the pursuit of truth, democratic self-government, individual self-realization and the pursuit of the good. The electorate, the ultimate sovereign, needs information to engage intelligent deliberation. There is plurality of conflicting religious, philosophical and moral doctrines in a modern democratic society. A political conception of justice must give prominence to such fundamental values as freedom of speech and religion, if it is to have the allegiance of a substantial majority of the populace.9

The principle of free speech allows for the cultivation of a self-reflective, self-critical political culture. Social practices and regulative institutions must be subjected to widespread and conscientious criticism. Free speech is consistent with the liberal notion of the individual as the moral centre of society and emphasizes human dignity, autonomy, self-respect, equality and independence of personality. The citizens, as human persons, have collective right to have suitable access to social, political, aesthetic, moral and other ideas and experiences.10

The right to free speech does not include the right to libel or slander. Thus, fundamental rights are not absolute, but where they can be reasonably restricted, it must be within such limits as "can be demonstrably justified in a free and democratic society". 11 Furthermore, Bicknel's 12 insight, that a democratic polity can pursue principles effectively only if it pursues them prudently, is important. There is need to avoid extremes as with respect to personal, civic and collective responsibilities, as there is a social dimension of personhood. Equality of the vote is the hallmark of democracy. It symbolizes the equality of respect to which each individual is entitled and is arguably the most important single protection which the individual citizen of a democracy possesses.

Caymanians have consistently expressed strong support for the inclusion of a Bill of Rights in its Constitution. Sixty eight percent of those surveyed in 2001 favoured its incorporation. 13 The 1975 Legislative Assembly Select Constitutional Committee made recommendations for including fundamental rights in the island's constitution. In addition, the Constitutional Commission of 1991 also came out in favour of this. They noted in their report that:

  • There was almost a unanimous request for the fundamental rights and freedoms, i.e. a Bill of Rights to be included in the constitution. With this request there can be no disagreement and since these fundamental rights and freedoms are to be found in the constitutions of nearly every other dependent territory, we recommend that they be enshrined in an amended constitution for these islands.

However, even many of those who favour the inclusion of a Bill of Rights, are vociferous in their demand that the Bill should not include a provision permitting consenting homosexuals to engage in intercourse in private. This issue becomes even more problematic given Britain's threat that should this legislation not be in line with the UK's Sexual Offences Act 1967, which legalizes homosexual acts between consenting adults in private, then this 'could be mandated by an order in council.'14 In time, Britain actually followed through with this.

The Cayman Ministers' Association,15 through their spokesperson, Pastor Al Ebanks, has expressed three reservations/concerns about the implications of including a Bill of Rights in the proposed new Constitution. The first, the possibility that whereas within the local courts, judges will interpret the Bill of Rights within the socio-cultural and economic context of the Cayman Islands, the same may not apply when cases are brought to the Privy Council or the European Court. This Association fears the possibility of an increasing dominance of the use of "European" case law with, for example, it becoming unlawful to restrict posts for teachers of the Christian faith only in the case of church schools.

Secondly, they fear the probable adoption of a broad definition of family to embrace also homosexual couples. A third concern is the possible effects of making unlawful the existing immigration policy. It would then become illegal, the CMA argues, to restrict the right of an immigrant worker to bring his or her spouse to the Cayman Islands or to limit the number of dependent children.

To prevent these possibilities, the CMA proposed that a clause be inserted in the first section of the Bill of Rights in order "to draw attention to and safeguard the unique social and cultural identity of the Cayman Islands". The clause would read, "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...."

It is suggested that these changes would oblige the courts to give due attention to the social, cultural, economic, as well as, legal and judicial context of the Cayman Islands.

The fundamental rights enumerated in a constitution can potentially alter the culture of the Civil Service. According to Fergus,16 in Monserrat, the inclusion of the Bill of Rights in the Constitution has emboldened some civil servants to question general orders.

  • the rights are justiciable and if general orders infringe on fundamental rights, then general orders will have to go because judges are not looking favourably on rules like general orders,when they infringe on the fundamental rights of people. In fact, in Antigua, there was a case where civil servants engaged in 'political activity' wherever in writing or in speech, and were disciplined and took the matter to court and lost in the local courts but on appeal to Her Majesty's Privy Council, the verdict was struck done.

Even more significantly, a Bill of Rights in the Cayman Islands' Constitution further secures the fundamental freedoms of individuals. Otherwise, any interpretation of fundamental rights is usually left to the mercy of the common law, which may be undermined by the Legislature. These fundamental rights provide a means of redress, whereby an individual is permitted to enforce his fundamental freedoms in a court of law. The Constitution vests the power in the High/Supreme Court to have jurisdiction over such matters and empower the court to make such orders, and issue such writs and directions as are considered necessary.17

The proposed Constitution makes provision for the Office of a Caymanian Deputy Governor whose assignments are those given him by the Governor, acting in his discretion. The Deputy Governor, working under the authority of the Governor, heads the Civil Service. This is undoubtedly a progressive provision in line with the need to foster a deepening of Caymanian administrative and other talents. This also confirms Randal's 18 observation is that the proposed Constitution draws heavily upon the layout, wording and content of the 1992 version but goes much further towards full internal self-government. Even though Cayman would like to remain a colony for a long time to come, there is still need to look forward to this development, even if incrementally.

The replacement of the Executive Committee with a Cabinet and especially the appointment of a Chief Minister, are two of the most far reaching changes proposed in the new Constitution. The Draft Constitution for the Cayman Islands for 1992 had suggested the substitution of Leader of Government Business with Chief Minister. The then Government rejected the recommendation of the Constitutional commissioners who commented that:

  • We find it difficult to believe that the Caymans would wish to settle for Constitutional arrangements that are less advanced - and, we believe, less effective than those enjoyed by other Caribbean dependent territories for the last 20 to 30 years. We also find it difficult to believe that Caymanians, with seafaring in their blood, would be prepared to put to sea on a ship with four first mates but without the Captain. 19

The appointment of a Chief Minister will, hopefully, bring a greater sense of cohesiveness and discipline to the functioning of government. In this appointment, it is also inevitable that some of the Governor's power be reduced - thus, to some extent, removing the Governor, like the Queen, from the political arena.

Clearly, a Chief Minister system of government is one of the clearest steps in modernizing and advancing the democratic process in the Cayman Islands. It promotes more accountable government since, ultimately, the Chief Minister has to answer to the people. Minister David Thompson, the Leader of the Opposition in Barbados, has cautioned that the Chief Minister be required to undertake wide consultation before making decisions and that this should be enshrined in the Constitution. 20 Significantly, there was some public interest in the idea of term limits of Chief Ministers. This position is not supported by Britain.

The explicit provision for political parties in the proposed Constitution, not only encourages their formation, but also discourages the "team" approach with which the Cayman Islands have been accustomed. The Governor appoints as Chief Minister, the Leader of the party that wins the majority in the Legislative Assembly, and as Leader of the Opposition, the person acceptable as such by the Opposition party. This is clearly in line with main tenets of the Westminster system.

A party system allows for a better structuring of opposing views and clear identification of a leadership cadre. The publication and discussion of manifestos enable constituents to compare ideas and to make intelligent choices. Certainly, they are also better able to question or confirm the stated objectives of the party in power. It better facilitates the competitive struggle for the people's votes.

Notwithstanding these and other known benefits of a party system, there are those who fear the possible evolution of an adversarial style of politics. The island of Jamaica is usually readily cited as an example. Clearly though, there are scores of other democracies, within the Anglophone Caribbean and, certainly, those of Europe and North America, where political rivalry is kept within the bounds of accepted democratic practice and where there is not even a hint of violence in their political culture.

It is not out of a sense of being na‹ve that I propose that a violence-prone, adversarial form of political engagement is unlikely to develop in the Cayman Islands. The islands do not have a history of this and the leaders, careful as they must be, to maintain the viability of the economy which is anchored in tourism and banking, are constrained by this fact and, hopefully, are unlikely to jeopardize the future of the islands for political gain.

A party system is usually accompanied by a one-man-one-vote electoral arrangement. Currently, the Cayman Islands, the British Virgin Islands 21 and Bermuda are the only remaining British Overseas Territories, functioning under a multi-member system of voting. The Turks and Caicos Islands and Anguilla both operate under a system of single-seat constituency.

The proposed Constitution makes provision for people-initiated referendum. There is a provision in the current Constitution for referenda to be held on questions of national importance.

The referendum issue has been one of the most contentious in the Constitution deliberations. A survey carried out by the Chamber of Commerce found that eighty seven percent of those surveyed agreed that the Constitution should provide an initiative for referendum and that the results of any referendum should be binding on the Legislative Assembly. 22 The opposition party, the Peoples Progressive Movement, has also argued in support of referendum. It says the major proposals for constitutional changes should be brought before the populace in a referendum prior to the acceptance and implementation. Similarly, request and support for referendum has also come from the Caymanian Bar Association and the Cayman Ministers' Association.

In addition, a "People for Referendum Group" emerged to further highlight and reinforce public sentiments on the matter. According to this group, a Petition for Referendum was signed by "thousands of Caymanians and residents", in opposition to the commencement of debate on the Constitution, prior to a referendum. This "Petition for Referendum" was delivered to the Leader of Government Business, the Honourable McKeeva Bush, at 12:15 p.m. on Tuesday June 18, 2002. This group also organized a "People for Referendum Petition Parade" on the same day they handed in this petition.

The Peoples Progressive Movement wanted a postponement of debate on the constitutional report until the referendum was held. In pursuit of this objective, on Tuesday, May 25, 2002, two Opposition members filed a Private Member's Motion in the Legislative Assembly, seeking Government to bring a Bill for Referendum on six issues arising from the Constitutional Commission Report and Draft Constitution. They also held a press conference to announce their filing of the Private Member's motion.

According to the Government, the Opposition party did not comply with Parliamentary Procedures that they first obtain the Speaker's permission before making the motion public. Further, the Government accused the Opposition of using constitutional review as a method of dividing the population, "to inflame emotions of the people on matters as sacrosanct and important as constitutional review". 23

The Speaker considered the Motion and announced on Wednesday, June 5, 2002 24, that she found the Motion to be defective and required that it be amended and be resubmitted or seek the Governor's consent to place a charge on the revenue of the country. This was refused. Further, accusatory statements by Opposition members against the Speaker were made on public radio. Asked in a subsequent sitting of the L.A. to retract their statements, the Opposition members refused, and the Speaker suspended the proceedings. According to the government, supporters of the Opposition who were observing proceedings in the L.A. began to behave 'threateningly' and additional security was brought to the House.

The Speaker, using the Parliamentary term "strangers", asked members of the public to leave the gallery. Statements were allegedly made against the Speaker and the Parliament by supporters of the Opposition both inside and outside the Legislative Assembly.

In the proposed Constitution, the Speaker is elected by the majority vote of the elected members from among the non-elected members of the Assembly and the Deputy Speaker from the elected members of the Assembly other than Ministers. Interestingly, the U.K. favours the appointment of the position of speaker from outside or inside the House.

Fergus, 25 commenting on the principle of the Speaker chosen from inside or outside, argues that there is nothing fundamental or absolute with having a Speaker appointed from among the elected members of the House, nor is it a disadvantage to have the Speaker coming from outside the L.A. I agree with this conclusion, that what is important is that the Speaker who is elected acts with integrity. Furthermore, it is crucial that there be general agreement between the Opposition and Government on the Speaker, whether the Speaker comes from inside or outside. This is so as the position of speaker is a substantial one.

Conclusion

It is important that the constitutional reform process be used as an instrument to deepen Caymanian administrative input, under gird the growing interest in human rights issues and strengthen the Caymanian quest for identity. The proposed changes are enough, for the moment, to remove the Cayman Islands from the bottom of the constitutional table. However, even as key elements, such as one man one vote, and the Bill of Rights, are still being debated, elements of civil society, are viewing the constitution as inadequate as a modern document for the Cayman Islands.26

Notes

1 See McIntosh's, Caribbean Constitutional Reform, Rethinking the West Indian Policy 2002.

2 Professor McIntosh explains that the post-colonial constitutions of the Anglophone Caribbean countries, were drafted 'as part of an oligarchic, elitist exercise'. The colonial experience in shaping the model of these constitutions still casts a strong shadow over them. Because the 'collective self' was not the author of the political community, these constitutions continue to be perceived as received instruments from former colonial masters, 'fundamentally illegitimate, of subjection to imposition from without.' McIntosh asserts:

  • The independence constitutions are Orders-in-Council of the British Imperial Parliament - amended versions of the colonial constitution, with Bills of Rights engrafted onto them allowed for easy transition from colony to independent state. This continuity implied no important changes between the colonial and independent constitution. The parliamentary system remained virtually the same, and the constitutions, for the most part, are said to have remained monarchical.

He pleas for 'patriation' of these constitutions to ensure that they derive their validity and authority form local events, than from an act of the British Imperial Parliament. He sees the movement towards a republican constitution as an essential part of finalizing the process of West Indian decolonization.

Obviously, this view has little immediate relevance to the process of constitutional reform in the Cayman Islands, except the caution to make the event as inclusive as possible.

3 In the Barbadian context, Mr David Thompson, MP, Leader of the Opposition in Barbados, explained in a speech delivered at the Mary Miller Hall, Red Bay Primary School, on the invitation of the united Democratic Party (PPM), that the current Barbados government was elected on the basis of constitutional reform leading to the new republic of Barbados. According to Mr Thompson, the new term began in 1999 in a flurry of activity. Since then, the process has ground to a cowardly halt, even though the public debate was quite decisive.

See for further details, speech delivered by Mr David Thompson, MP Leader of Opposition in Barbados, on the invitation of the PPM.

4 In the Jamaican context, within the political directorate, there is virtually unanimity on the need for a Head of State that symbolizes the identity of that nation. Michael Manley, a former Prime Minister of the country, argued in his final speech to Parliament, March 26, 1992, that repatriation of national symbols can be a way of breaking the colonial/psychological matrix, when it is known that the real power to solve problems is a responsibility of the people and their leadership collectively. He contended that the taking of oaths to the Jamaican national flag and other symbols can possibly, in a symbolic way, facilitate an understanding of the people's responsibility for their own destiny and nation.

The desire to achieve Republican status for Jamaica has also recently been restated by the current Prime Minister, P.J. Patterson, while speaking at a political party conference, September 2003.

However, even with the agreement on Republican status as part of the reforms to the Constitution, a referendum will be needed, as this agreement has never been tested for broad political support. See for further elaboration: Edward Seaga, "Presentation on the Debate of the Report of the Committee of the Houses of Parliament on Constitutional and Electoral Reform," Nov. 22, 1995 (Kingston: Gordon House Parliamentary Library).

5 See John Connel's 'Eternal Empire: British Caribbean Colonies in the Global Arena' in Islands at the Crossroads, Politics in the Non-Independent Caribbean, Aaron Gemaliel, Angel Israel Rivera (eds.) pp. 115-135.

6 Robert Nozick and Ronald Dworkin take the rights of individuals to be so strong and far-reaching as to put the state permanently on the defensive as to what it may do. Political theory for Nozick is a question of the room left to individuals by society. Dworkin describes individual rights as 'political trumps' held by individuals to be used against the imposition of collective goals and he suggests that the highest among these trumps is the right to equal concern and respect. For the development of these views see: R.J. Vincent, Human Rights and International Relations. (London: Cambridge University Press, 1986) pp. 7-37.

7 See Ronald Dworkin, Life's Dominion (New York: Oxford University Press, 1993) p. 15.

8 John Rowls, A Theory of Justice (Cambridge: Harvard University Press, 1971) pp. 1-8.

9 With regard to freedom of expression, Rickey Singh explains that various statutory provisions control the importation of news print and printing equipment. These provisions include requirements for prior lodging of substantial bonds, interpretation of colonially-inherited laws of deformation, and the Official Secrets Act. He says that the Commonwealth Caribbean needs to examine the extent to which colonially-inherited laws and practices are today being used to control freedom of expression. See Rickey Singh's 'Freedom of Expression in the Caribbean', in International Human Rights Laws in the Commonwealth Caribbean, ed. Beverly Byfield and Anyelle D. Byre (Boston: Dordrecht, 1991) pp. 55-60.

10 Jeffrey Abramson, Elizabeth Brusscare's 'Free Speech and Free Press: A Communicative Perspective', in New Communicative Thinking: Persons, Virtues, Instructions and Committees (Baltimore: John Hopkins University Press, 1990) p. 12.

11 Canadian Charter of Rights and Freedom p. 12.

12 Alexander M. Bickel, The Least Dangerous Branch (London: University of London Press, 1992).

13 Caymanian Compass, Thursday, 27th September 2001. See also Cayman Island Chamber of Commerce Constitutional Report 2001/2002. Surveys commissioned by the chamber of Commerce reveal 94% of the population favour constitutional reform.

14 See Caymanian Compass, Friday, 21st September 2001. Note, also, that according to the Hon. Gilbert McLean, Cayman did not adopt a Bill of Rights because Exco failed to grant freedom of conscience in 1992. (Address to public, October 10th 2001.)

15 The Cayman Ministers Association has taken special interest in the constitutional reform deliberations. It convened three public meetings to discuss the constitutions. Its first was held March 30th 2002. Its second public meeting, held June 12th 2003, attracted over 200 persons. It called for more time to 'allow for the opportunity to think, talk and translate our own valuable contributions to the process of constitutional reform'. It also expressed support for a Referendum on the proposed changes to the constitution. An indication of the considerable divisive nature of the constitutional reform process is the fact that elements of the public accused the CMA of taking sides, and that its Chairman was setting himself up for a political career. At this meeting, the Chairman, Pastor M. Ebanks, sought to rebuff this view:

  • I am proud to be a pastor, Almighty God alone has called me to this noble office and he alone has the power to change this position he chooses, not public or political sentiment and persuasion.

At its third public meeting held June 18th 2003, Sir Howard Fergus, Chairman of the Monseratt Constitutional Review Commission, was invited 'to speak to the Cayman public on the underpinning rationale of constitutional reform'.

The CMA also made written submissions to the Governor, addressed also to government ministers and other members of the L.A. Letters for publication and radio broadcast were also sent out to newspaper editors (The Caymanian Compass and Cayman Net News), Radio Cayman, Heaven 97, Rooster 101.9 and CITN.

The CMA proposed a preamble and vision statement to the constitution, extracted from the National Strategic Plan 1999-2008. It called for public education and training especially for police, prison, immigration, social services, court personnel and judiciary and that the new constitution have effect at the next general elections in 2004.

Significantly, its Chairman was a member of the Caymanian delegation, which went to London to meet with representatives of the Foreign and Commonwealth Office to discuss the proposed constitution. These meetings occurred between December 9-11th 2002.

16 Presentation (speech) of Professor Howard A. Fergus ICBE, PhD, at a public meeting sponsored by the Cayman Ministers Association, Tuesday, 18th June 2002 - entitled: 'The nature and scope of constitutional modernization in British Overseas Territories'.

17 This is the provision in the constitutions of Bermuda, Anguila, Montserrat, and the Turks and Caicos Island which all contain a Bill of Rights. The British Virgin Islands constitution does not have a Bill of Rights in its constitution.

18 See Chris Randall 'Draft Constitution' article published in Caymanian Compass, Thursday June 13th 2003.

19 See Constitutional Commission's Report (1991) p. 24.

20 See for further details, speech delivered by Mr David Thompson, M.P., Leader of Opposition in Barbados, on the invitation on the PPM.

21 In the case of the British Virgin Islands, in addition to the nine district representatives voted in by single votes, there are four other members in the Legislative Council, who are voted in by the entire electorate. This is referred to by Sir Howard Fergus as 'voting at large'. See for details, 'The nature and scope of constitutional modernization in the BOT', a presentation by Professor Howard A. Fergus, at CMA public meeting on Tuesday, June 18th 2002.

22 See Caymanian Compass, Thursday 27th September 2001.

23 Public Address by the Hon. Linford Pierson - Deputy Leader of Government Business, on Wednesday, 29th May 2003.

24 According to the speaker, the motion was defective, in that it contravened the Cayman Islands' Constitution Order 1992 and the Legislative Assembly Standing Orders 1997 (Revision). The speaker ruled that Clause 7 of the motions was contrary to Standing Order 24 (4) and that the Resolve Clause 2, was contrary to Sections 37(2) of the constitution and Standing Order (24).

25 See speech by Fergus 'The nature and scope of the constitutional modernization in British Overseas Territories' June 2002.

26 In a interview with Pastor Al Ebanks, Chairman of the Cayman Ministers Association, it was pointed out that even now, NGO's, including the Chamber of Commerce, in association with the appropriate officials of the United Nations, are making presentation to government, insisting on the inadequacy of the constitution in even meeting the stipulations of the Checklist given as a guideline to the Constitutional Commissioners. This interview was carried out on February 19th, 2004.

Select Bibliography

Fergus, Howard A. 2002. The Nature and Scope of Constitutional Modernization in British Overseas Territories (Presentation made at CM public meeting).

McIntosh, Simeon C.R. 2002. Caribbean Constitutional Reform, Rethinking the West Indian Polity.

McIntosh, Simeon C.R. 1993. 'West Indian Constitutional Discourse: A Poetics of Reconstruction,' in The Caribbean Law Review, vol. 3, no. 1.

Munroe, Trevor. 1983. The Politics of Constitutional Decolonization in Jamaica, 1944-1962. Kingston: Social and Economic Studies, UWI.

Ramos, Aaron and Angel Rivera. 2001. Islands at the Crossroads, Politics in the Non-Independent Caribbean. Kingston; Ian Randle Publishers.

Rawls, John. 1971. A Theory of Justice. Cambridge: Harvard University Press.

Singh, Rickey. 1991. 'Freedom of Expression in the Caribbean', in International Human Rights Laws in the Commonwealth Caribbean (ed. Byfield, Byre) Boston: Dordrecht.

Smith, Livingston. 2002. 'A comparison Between the Constitutional Reform Process of the 1940's and 1990's in Jamaica'. PhD thesis, Mona, UWI.

Other Sources

Report of the Constitutional Commissioners, Cayman Islands, HMSO, London

The New Caymanian, 23 April 1993

The New Caymanian, 30 April 2993

Cayman Islands, 1999, Annual Report And Official Handbook.

The Cayman Islands (Constitution) Order 1972.

The White Paper 'Partnership for Progress and Prosperity: Britain and Overseas Territories'.

© Livingston Smith, 2004.