Constitutional Review: The Whys and Wherefores

His Excellency the Governor has recently announced a review of the Cayman Islands Constitution. This decision is timely and important and should be welcomed by all Caymanians in light of the many significant social and political changes since the last constitutional review. The size as well as the composition of our population in terms of national origins have changed dramatically. The British Government has pressed for its Overseas Territories to recognize human rights in the areas of homosexual acts, capital punishment and judicial corporal punishment. There is also an emerging awareness within the community of civil and human rights, such as, for example, the legal action brought to assert the right of a Rastafarian child to attend school wearing 'dreadlocks'. Britain has sought to redefine its relationship with the Overseas Territories in the White Paper and has offered British Citizenship to all British Dependent Territories Citizens. Finally, there is an evolving national consciousness among Caymanians.

But what has all this got to do with our Constitution? How does a constitution affect our daily lives? At its simplest level, a constitution sets out the relationship between individuals and the Government. It defines the powers of the state and its agencies. It determines who can do what and where the limits of power are. More particularly, it provides for: representation of the people in Government and the accountability of Government to the people; division of power within Government i.e. the executive, legislative and judicial branches of Government each have a separate function and serve as a check on the exercise of power by the others; the rule of law i.e. a Government which is guided by a set of laws rather than the dictates of an individual or group; and the protection of rights and freedoms of citizens against encroachment by the Government.

However, not all elements of a constitution are necessarily contained in a written document. In some countries, such as the United Kingdom, it is a collection of documents, statutes, and traditional practices that are generally accepted as governing political matters. States that have a written constitution may also have a body of traditional or customary practices that may or may not be considered to be of constitutional standing.

Most of us are more familiar with the features of the U.S. constitution than we are of our own. This is because much of American jurisprudence and politics involves a discussion about what is or is not constitutional, or ought to be or ought not to be constitutional and U.S. media (to which we are greatly exposed) avidly reports these discussions. Hence, most of us are aware that 'taking the Fifth' is a reference to the Fifth Amendment to the U.S. constitution which provides (amongst other things) a privilege against self-incrimination.

However, aside from the fact that the British constitution is largely unwritten, there is a fundamental difference between the U.S. constitution as a document and so-called Westminster model constitutions derived from Britain. In the U.S., the constitution as interpreted by the Supreme Court is sovereign while in Westminster model constitutions Parliament is supreme so that whatever one Parliament has passed another can repeal. The U.S. constitution, on the other hand, is entrenched so that Congress would require special majorities to be able to amend the U.S. constitution. The effect of this is that the U.S. Supreme Court can declare an Act of Congress or of the legislatures of individual states unconstitutional and therefore void. The British courts and the Cayman Islands courts do not have a similar power. Instead, the role of our courts in this respect is to interpret statutes to be consistent, so far as possible, with the Constitution and, in the extreme case, for example, to set aside an administrative action or procedure as being unconstitutional, but not to declare void the statute or subsidiary legislation on which the action or procedure is based. The presence of a constitutional document, however, has made American politics more consciously "constitutionalist", at least in the sense that politicians in the United States take more frequent recourse than their British counterparts to constitutional legal argument and to litigation.

But what about our present Constitution? How did come into being?

In 1863, the Cayman Islands formally became a dependency of Jamaica, whose legislature had the final authority over locally passed laws in the Islands. In 1959, the Islands ceased to be a dependency of Jamaica and became a unit territory within the Federation of the West Indies. In the same year, a new constitution provided for an elected majority in a Legislative Assembly. At the dissolution of the Federation in 1962, the Islands chose to remain under the British Crown and received a revised constitution which, in 1972, was modified to allow for a Government directly responsible to the Crown. The Constitution was reviewed in 1991 but the new draft was later shelved. The 1972 version was instead amended to provide for (amongst other things) ministerial government and an increase in the number of elected representatives in the Legislative Assembly from 12 to 15.

This reveals one principal truth: our Constitution is not and never has been 'set in stone' but is instead intended to evolve to meet our changing needs and expectations within and without our Islands. The constitution that governed the Cayman Islands in 1959 was inappropriate for the Islands after the dissolution of the West Indies Federation, and the 12 elected members that were sufficient to govern the country's affairs in 1972 were no longer sufficient by 1991.

Modernizing our Constitution is an imperative. Advancing our Constitution, which is a slightly different issue, is a matter that demands our serious consideration. To what extent does our Constitution fulfil all the functions of a constitution as described above? How will a Bill of Rights in our Constitution alter the norms in our society, and are the likely changes acceptable to us? These are the primary questions to which we must address our minds and on which we should provide input to the Constitutional Commission during the Constitutional review. In my next article I will address these questions in some detail.

Olivaire Watler 22nd February, 2001