The Constitution: Building Blocks and Safety Nets
Published 28th October 2009, 4:35pm
‘Representative governance’ is one way to define democracy. And this definition embraces the concept of primary ownership being vested in the people who will direct those elected – or selected – to apply principles outlined in the constitutional document.
The new Cayman Islands Constitution allows for more hands-on involvement by the people, and includes stipulations such as term limits and other checks and balances. The document’s preamble outlines 21 items of primary concern, ranging from Christian values to educational, healthcare, crime and drug abuse issues, as well as culture and employment.
Public accountability from the country’s leadership is a major constitutional revision milestone. Conditions include oversight of the top ranks of the public service as well as opportunities for citizen participation in policy-making.
In addition, there are term limits for the Premier, allowing for the periodic rotation of the seat of power, while stimulating new ideas. A Premier cannot serve more than two successive four-year terms (eight years), after which he / she may continue to run for office and serve as a Cabinet minister or member of the Legislative Assembly. Following at least a one-term break a former Premier may again be selected for this position.
While having greater authority in the shaping of government, the Premier will correspondingly fall under even greater public scrutiny. The appointee is obliged to carry out specific responsibilities in accordance with the Constitution and in the interest of the Cayman Islands.
There are also new internal controls: The Premier is answerable to, and dependant on, the support of an MLA majority. A no-confidence vote of at least two-thirds of the elected members can unseat the Premier (which would dissolve the entire Cabinet).
Other forms of oversight include the requirement stipulating that legislators make open declarations of assets in the Register of Interests. There is also protection of freedom of information; protection of the Constitution itself, and inclusion of the public.
A range of other official bodies called ‘Institutions Supporting Democracy’ are also enshrined in the Constitution. These bodies serve to enhance the principles of democracy and transparency. They include the Commission for Standards in Public Life; the Human Rights Commission; the Constitutional Commission, and Advisory District Councils.
In most cases, the Governor will appoint members of these new commissions in consultation with the Premier and Leader of the Opposition.
One such body, the Commission for Standards in Public Life (CSPL) will have broad remit over the public sector which includes making recommendations to bolster transparency, fairness, honesty and the overall conduct of all public officials, whether elected, appointed, or civil servant.
They will investigate breaches of established standards, review and establish procedures for awarding public contracts and review and establish procedures for appointing members to public authorities. The commission will also manage the Register of Interests, thereby promoting transparency.
The CSPL is expected to work closely with the new anti-corruption commission which will be formed in January 2010. Other checks and balances include limits on public debt and requirements for financial reporting.
The new Constitution also encompasses the debt limitations already established in the Public Management and Finance Law. Of equal importance, the public debt formula is established constitutionally, with borrowing being defined as loans to government or to any statutory body.
In any financial year borrowing shall not exceed total interest payments, plus other debt-servicing expenses, plus the principal or debt repayments. However, in exceptional cases as determined by Cabinet, a law may be enacted to provide for increased limited-time borrowing.
Then, on the broader issue of revenue and expenditure, while the Legislature governs government’s financial processes, adequate public reporting is required, thereby enhancing transparency. Further, at least one report must be made in the LA annually, outlining government’s financial position.
Constitutional protection of access to information has also been achieved. The FOI Law came into effect on 1 January this year, and outlines the right to access public information as well as any restrictions to that right. The only exceptions relate to security, upholding public safety and individual rights.
Likewise, the Complaints Commissioner’s Office is already provided for. Under the new Constitution the Premier and Leader of Opposition will consult with the Governor, prior to his appointment of the post-holder, who must not have held any political office for the preceding three years. :
The Constitution also calls for a new Human Rights Commission (HRC) to replace the existing Human Rights Committee. The focus is to protect citizens from governmental injustice.
One of the few permanent commissions, the HRC will promote the Bill of Rights which becomes effective in 2012, and will also act as a public watchdog. Individuals and groups may petition the HRC but no outside persons may direct or control this body.
HRC powers include being able to investigate infringements of any rights or freedoms as contained in the Bill of Rights or as provided in relevant international treaties. Independent investigations may also be launched. Responsibilities will include providing advice to victims, attempting to resolve complaints through mediation and educating the public on human rights.
Also facilitating the constitutional progress will be the non-partisan Constitutional Commission (CC) which will be formally and permanently established following the Appointed Day.
As another independent body, the CC will provide oversight and public education and awareness. General functions will include advising government on questions of constitutional development, and publishing reports and discussion papers.
The CC shall also promote understanding and awareness of the Constitution’s value, while overseeing its implementation, continued development and evolution.
Once the LA has enacted a law to permit their formation, the provision of Advisory District Councils will significantly expand the role of the general public. These non-elected council members will advise parliament on issues and concerns affecting their geographical areas.
Next, an independent, efficient judiciary is one of the three critical pillars of any constitutional democracy. Cayman’s revised Constitution continues to establish the courts, namely, the Court of Appeal, Grand Court and subordinate courts.
For the first time also, it expressly states that the constitutional responsibilities of the Chief Justice which include as head of the judiciary, as well as the administration of the offices and courts, and the management of all matters relating to the judicature. The LA and the Cabinet are bound to uphold the rule of law and judicial independence.
Appointments of the judiciary will continue to be vested with the Governor. However, the new Constitution requires him to seek the advice of an independent body called the Judicial and Legal Services Commission (JLSC) prior to making such appointments.
The JLSC will advise the Governor, who has power to appoint, discipline or remove officials. Members will include a non-lawyer chairman. Other members will come from the local public and private bar.
In short, the JLSC will have a fundamental impact on the judiciary and other public offices that undertake legal work.
The AG remains government’s principal legal advisor, but his role as is relates to prosecutions will now rest with a new public office called the Director of Public Prosecutions.
Public accountability is also evidenced by the formation of the National Security Council (NSC), which allows elected representatives and lay persons to now contribute to policy issues concerning national security. This was previously an exclusive function of the Governor and while the Police Commissioner will still report to him, he will update both the NSC and the Premier on internal security matters and criminal activity periodically.
The NSC will comprise the Governor as chair, the Premier, two more Cabinet ministers, the Leader of Opposition, the Deputy Governor, the Attorney General, the Police Commissioner and two members of the public. The Cabinet Secretary will serve as Secretary to the NSC.
Council members will advise the Governor on matters relating to internal security, with the exception of police operations and staffing which remain the Governor’s remit. His actions must accord with advice received, unless he believes it would adversely affect Her Majesty’s interests; in such cases, the Governor shall report his action to the NSC.
Moving on, a dramatic change in the electoral process is marked by the increase in the legislature from 15 elected members to 18 elected members. Soon after the Appointed Day, the Constitution requires that an Electoral Boundary Commission (EBC) be appointed to review the electoral district boundaries and submit a report to the Governor and the LA containing its recommendations for changes in the boundaries of the electoral districts with a view to adding these additional members.
The increase in the legislative assembly will not happen immediately as it can only take place after the legislative assembly is dissolved and new election takes place and new members are returned to the LA.
With all these facets in mind, it is evident that whether it is the possibility of being called to sit on temporary or permanent commissions and councils, or the ability to independently lobby as unelected district representatives, our new Constitution involves members of the public in the governance of these Islands and embraces real change by improving transparency. After the Appointed Day, the structure of the Cayman Islands Constitution will indeed permit a hands-on and much-needed fully-inclusive approach to local governance as we see these new measures implemented.