Blueprint for a New Constitution
Published 26th October 2009, 4:37pm
After extensive consultation, a revised ‘Cayman Islands Constitution Order 2009’ became reality on 10 June 2009.
November 6, referred to as the ‘Appointed Day’ will mark the commencement of the new Constitution, which outlines the formal structure of government and includes the identification of roles, responsibilities, and accountabilities.
The new Cayman Islands Constitution also addresses relationships between the government, citizens and those elected to power, and it further safeguards citizens by introducing a Bill of Rights.
His Excellency Governor Stuart Jack CVO welcomed the considerable local involvement in the development of the new Constitution. He said, “I believe that the end result is a very good Constitution that will serve the Cayman Islands well. This process rightfully involved considerable debate. I will be happy to formally enact the 2009 Constitution of the Cayman Islands on the Appointed Day.”
Under the new Constitution, the Governor’s continued primary role will entail promoting good governance. However, he will now also have responsibility for actively promoting Cayman’s interests, providing they do not conflict with those of the UK.
His responsibilities will also continue to be varied: The main areas are external affairs, defence, and internal security (including the police). He will remain accountable for the overall organisation of the public service.
The new Constitution permits the Governor—acting in consultation with the Premier—to delegate responsibility for any Legislative Assembly business to any Cabinet member. The Governor will also confer with the Premier on selection of the National Security Council, the Constitutional Commission and other constitutional bodies. In most instances the Leader of the Opposition will also be consulted.
The Governor may also delegate responsibility for European Union matters which affect Cayman. In addition, he may assign duties to elected officials concerning the conduct of external affairs relative to Portfolios or Ministries. These may include issues involving the Caribbean Community (CARICOM), the Association of Caribbean States, and the United Nations Economic Commission for Latin America and the Caribbean.
Under the new Constitution, unless instructed by the UK’s Secretary of State, the Governor cannot engage in any international agreement or treaty that will affect Cayman’s internal policy, or which will require implementation by local legislation, without first obtaining the agreement of Cabinet.
Approval is also required from the Secretary of State in order to delegate certain duties, including formal negotiations, treaties or other international agreements; political declarations which affect foreign policy; or formal invitations to a member of another government or Head of State to visit Cayman.
The Constitution further states that the Governor must keep Cabinet generally informed on significant developments in matters for which he has responsibility, namely defence, external affairs, internal security, the police and the civil service,. He must also share responsibilities or delegate these to local representatives. In turn, the Premier must also keep the Governor fully informed of any important activities.
However, the Governor is not obliged to act on the advice of any authority beside the Crown. Neither is it mandatory to consult with the Cabinet on matters governed by the Constitution. This includes areas where the Governor is empowered to use discretion, or when based on Her Majesty’s instructions. But if the Governor acts contrary to Cabinet advice on the instruction of the Secretary of State, his reasons will be recorded.
Significantly, the new Constitution allows him (with UK approval) to assign external affairs matters to the Premier, or to another Minister designated by the Premier. In turn, these elected officials must keep the Governor fully informed of any important activities on the part of the Premier or any Minister.
The Governor’s reserved powers allow him to enact legislation in exceptional circumstances. He also holds other special powers, such as permission to grant pardons or reduce sentences. However, such decisions shall involve the new Advisory Committee on the Prerogative of Mercy, which shall meet at the Governor’s discretion.
Finally, the Governor is responsible for using the official public seal of the Cayman Islands, and also is empowered to dispose of Crown property within the Cayman Islands.
In providing for the new office of Deputy Governor, the 2009 Constitution introduces another significant change. The current Chief Secretary post will evolve into that of Deputy Governor.
This post-holder must be Caymanian and must hold (or have held) and still be eligible to hold, a senior government position. Duties shall be delegated by the Governor, and shall include responsibility for the civil service.
Current Chief Secretary the Hon. Donovan Ebanks commented, “In this new role I will still serve as head of the civil service.” He noted that he will continue to act for the Governor as required, or in any other capacity that the Governor decides.
Should the Governor be absent from Cayman or unable to perform necessary functions, duties will be assumed by the Deputy Governor. If the office of Deputy Governor is vacant or if he is off-island or unable to function in the post, another person may be designated as deputy as approved by the UK.
As with most democracies, power is shared among three pillars of government: the Legislative branch (elected Members of the Legislative Assembly); the Executive (the Premier and Ministers); and the Judiciary. Each area is separate and independent, allowing them to monitor and control vested power in the interest of the people.
Importantly under the new Constitution, the Premier will be the highest elected office in local government and he will be able to speak with more authority in local and international arenas.
The Premier will be appointed by the Governor as the elected member of the Legislative Assembly (LA) who leads the ruling political party.
Referring to the honour of this anticipated appointment, current leader of Government Business/Premier Designate the Hon. McKeeva Bush, MBE, said, “It is with due humility that I will take on this position in the service of the people of the Cayman Islands. While this is an historic development in terms of the constitutional advancement of these Islands, it will be a challenging reminder that we will have more influence over our welfare and future.”
Under the Constitution, if there are instances where there is no ruling political party, or if no recommendation for Premier is made by the ruling party, the Speaker can call a vote of LA Members to determine who has majority support. The Governor will appoint that person as Premier.
In the absence of the Governor, the Premier can now chair Cabinet in the absence of the Governor. He will advise the Governor regarding the appointment of other Ministers and the Governor will report all such appointments to the UK. In addition, the Premier will consult with or advise the Governor when making appointments to constitutional bodies.
The Premier will be a member of the new National Security Council, and can request meetings of this group. He shall also receive regular briefings from the Commissioner of Police on security. Commenting on this new responsibility, Mr. Bush said, “This will mean more transparent and accountable government, for the Governor and I will consult closely on policies that impact public affairs in the Cayman Islands.”
Significantly, after holding this office for two consecutive parliamentary terms, the Premier becomes ineligible to again hold this post until there has been a break of at least one term. He may, however, continue as an MLA or Minister.
The Governor may also revoke the appointment of the Premier if at least two-thirds of MLAs pass a motion of no-confidence. In such case, when the appointment is revoked, all Cabinet Ministers must also vacate their offices. Alternatively, in the case of a no-confidence vote, the Governor may consult the Premier and thereafter dissolve the Legislative Assembly. A general election would follow.
The Premier may also be required to vacate his office if he has been absent from three consecutive meetings of Cabinet, unless the Governor received prior notice.
If due to illness or absence from the Cayman Islands, the Premier is unable to fulfil the functions of that office, the Governor shall authorise the Deputy Premier to perform those functions. In such absences, the Governor shall authorise another Minister in accordance with the advice of the Premier. The Governor may also choose to make this appointment alone, but after consulting Cabinet.
Cabinet is the executive branch responsible for making key government decisions and there are several developments relative to this body. Although five elected Cabinet members remain, but there is now a provision for it to be increased by two additional members, a change which can only be effected following the next general election.
Significantly, the three current official members – the Chief Secretary, Attorney-General and Financial Secretary – will be reduced to two, as the Financial Secretary will instead become the new Finance Minister’s chief financial advisor.
The unelected Attorney General and the Deputy Governor (presently the Chief Secretary) will remain as official members of Cabinet. However, they will no longer have the right to vote.
The Attorney General’s position will also change. For instance, prosecutions will become the remit of the new Director of Public Prosecutions. This move will enhance the principle of separation of powers, and in turn, fewer conflicts of interest.
The Cabinet Secretary will also become a constitutional post with specific responsibilities. These will continue to include the provision of neutral advice on policy issues to the Governor, the Cabinet and the Premier. The post-holder will also provide administrative support, while coordinating the implementation of government policies.
These new building blocks of democracy include 125 diverse areas. However, the shape, scope and contents of the system of governance in the Islands are largely to be determined and will depend on the application and interpretation of the Constitution by the Crown, elected officials, and the people of the Cayman Islands.
A Tradition of Governance Continues
The United Kingdom has overseen these Islands and all overseas territories, for many years. From 1750 Cayman was managed on behalf of England by in the Governor of Jamaica. Over the years, representatives were known by a range of titles, beginning with Chief Magistrate or Custos, then Commissioner, before progressing to Administrator and finally, Governor.
In 1959 the first Cayman Islands Constitution was introduced, but Cayman chose to remain under England when Jamaica became independent in 1962.
In 1968 Mr. Athelstan C. E. Long, CMG, CBE, was appointed the final Administrator, and oversaw the transition of Cayman into the modern era of Governors. In 1971 he became the first local Governor.
Mr. Duncan Taylor, CBE, has been named as the next Cayman Islands Governor. He is expected to take up his position next January.