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LOGB Statement on Draft Constitution

LOGB, Hon Kurt Tibbetts, JP

Statement on the Outcome of Constitutional Negotiations

(Delivered by Hon. D. Kurt Tibbetts, J.P., M.L.A. at the sitting of the Legislative Assembly on Wednesday, 11 February 2009)

Madam Speaker, it is with an immense sense of pride, satisfaction and accomplishment that I rise to address this honourable house, on what is truly an historic occasion for the Cayman Islands. An occasion marked by a signal achievement this past week of which every Caymanian can be proud and which is cause for celebration by every Caymanian, regardless of political or other affiliation.

Together as a nation, we are finally near the end of a long and arduous journey. A journey we started some eight years ago at the request of the United Kingdom Government. I speak of the journey of constitutional modernization begun in 2001 under the auspices of the UK's White Paper dealing with its Overseas Territories entitled "Partnership for Progress and Prosperity". A journey which was to culminate with each territory, including the Cayman Islands, modernizing its system of governance and adopting a brand new Constitution to reflecting changing times and circumstances.

Madam Speaker, the successful conclusion of constitutional negotiations last week in London, represents a giant step towards getting us there. Following three separate rounds of negotiations, the Cayman Islands delegation reached agreement with the U.K. Government on the provisions of a modern Constitution for the Cayman Islands.

As you are aware, Madam Speaker, the composition of the Cayman delegation was broad-based to reflect major national and interests. Representatives were from Government, the Opposition, the Cayman Islands Chamber of Commerce, the Cayman Ministers Association, the Seventh Day Adventist Church, and the Human Rights Committee.

We, as the representatives of the people, have done our duty and have delivered. It is now for the people to give their stamp of approval in a referendum planned for May 20th. This broad-based agreement on a new Constitution is truly a magnificent achievement. It shows what is possible when we choose, despite our differences, to work together in a spirit of cooperation and compromise to advance the common good.

Clearly proving that where there is a will, there is always a way, the agreement is also solid testimony of our growing maturity as a people. This, indeed, is great cause for celebration. There is a significant lesson here. It is that if we as a people draw from this experience and apply the same consensus-building approach to other spheres of national endeavour, for example confronting the challenges facing our economy, the result will be a stronger and better Cayman Islands for us all in the future. Isn't this a really noble ideal worth pursuing? Something to which to commit ourselves?

As the Government, our role was to give leadership to the constitutional modernization process which we did. However, we recognized from the very outset that if constitutional modernization was to be a truly successful initiative, it had to secure the widest possible support from the population. Hence, the reason we opted for the consultative approach through which we canvassed the views and opinions of Caymanians from all walks of life, and engaged stakeholder groups in a continuous dialogue over the last year in particular.

This was Government's way of saying to Caymanians: "Come and get involved! Shape and take ownership of the process because, at the end of the day, it is really your Constitution. Not the Government's! It is all about your future. Not the Government's!" The response was enthusiastic. Going around the country, it was encouraging to see ordinary folk engaging in serious discussion of complex issues and strongly making their points which were noted by the Constitutional Modernization Secretariat and acted upon.

To ensure that the people were represented at the negotiating table by other than political voices from Government and the Opposition, we decided to include the church, private sector and the Human Rights Committee on the national negotiating team. Compared with other U.K. Overseas Territories which have also undergone constitutional modernization, the approach taken by the Cayman Islands stood out for its uniqueness. As a result, the end-product of the negotiations with the U.K. Government is a People's Constitution firmly anchored on a national consensus.

On behalf of the Government, I wish to thank the Opposition and the other stakeholder groups for their meaningful contributions to the process and for approving the final document. Further, I invite the Opposition and stakeholder groups to join me in asking their various constituencies to say a resounding "yes" to the new Constitution when they vote in the May 20th referendum.

Yes, because the proposed Constitution represents a good deal for the Cayman Islands and Caymanians. Yes, because it was achieved with broad-based support, not just from the Government and Opposition but also civil society. Yes, because this new Constitution is key to unlocking new possibilities which will support a better future for the Cayman Islands and for your future.

The new Constitution safeguards our heritage, upholds our cherished values, empowers us by allowing a greater say in the running of our country, and strengthens our constitutional ties with the United Kingdom. Yes, because the existing 1972 constitution is so outdated, it no longer meets our changing needs as a rapidly developing economy competing on the global stage. The time is right, therefore, to say away with the old Constitution and ring in the new.

Madam Speaker, it is unfortunate that the Leader of the Opposition could not be here today as he has had to be off island. However, to provide an opportunity for everyone who was at the negotiating table to share their experiences with the general public, next Monday Government is proposing to hold a joint press conference involving representatives from all teams who made up the Cayman Islands delegation to London. Meanwhile, I am pleased to inform this honourable house that we have received the final official draft of the new Constitution from London. In keeping with previous practice, I will this morning lay it on the table of this honourable House and it will be widely circulated for public consideration and comment ahead of the May 20th referendum.

Before highlighting some major features of the new Constitution, I also wish to place on record Government's thanks and appreciation to the staff of the Constitutional Modernization Secretariat for their sterling work in the managing the process. The Secretariat, falling under the aegis of the Cabinet Office headed by Cabinet Secretary Mr. Orrett Connor, was ably managed by Director Mrs. Suzanne Bothwell and her deputy Christin Suckoo, with the enthusiastic support of a small staff. The Secretariat went out regularly into the field and interacted with the people. It ensured there was a high level of public awareness and understanding of the issues, and provided invaluable technical support to the negotiating team. Thanks also to Professor Jeffrey Jowell, QC, Constitutional Expert, for his insightful advice and guidance. And to the media for ensuring Constitutional Modernization issues enjoyed high visibility.

Madam Speaker I will start by reading the letter received from Mr. Ian Hendry last night enclosing the draft constitution.

"10 February 2009

Overseas Territories Directorate

King Charles Street

London

SW1A 2AH

Tel: 020 7008 2742

Fax: 020 7008 2108

Hon D Kurt Tibbetts, JP, MLA

Leader of Government Business

Grand Cayman

Cayman Islands

Dear Kurt

CONSTITUTIONAL MODERNISATION

I have pleasure in enclosing a draft new Constitution of the Cayman Islands, together with accompanying draft letters from the responsible Foreign and Commonwealth Office Minister to yourself. These documents represent the political agreement reached at the constitutional modernisation talks held at Lancaster House, London, from 3 to 5 February 2009, chaired by the Minister for the Overseas Territories, Gillian Merron MP.

As agreed at the talks, the enclosed documents may be published in the Cayman Islands in such manner as you see fit, to form a basis for public consultation prior to the referendum planned for 20 May 2009. The draft new Constitution will not be submitted to Her Majesty in the Privy Council to be formally enacted until it has been approved by the people of the Cayman Islands in the referendum. If the draft Constitution is duly enacted, the accompanying letters would be sent at the same time.

If so approved and enacted, the draft new Constitution will represent a modern and more democratic constitutional settlement between the Cayman Islands and the United Kingdom, reflecting our relationship of partnership in the 21st century, and in terms that are acceptable to both the Cayman Islands and the United Kingdom. The continuation of that relationship is a matter of mutual consent, and I believe the draft new Constitution will form a sound and modern basis for our mutual cooperation, in which there is a fair balance between greater local autonomy and the powers necessary to enable the United Kingdom to meet its responsibilities. I therefore hope that it will prove acceptable to the people of the Cayman Islands.

Yours ever,

Ian

Ian Hendry

Leader, United Kingdom Constitutional Review Team"

Madam Speaker, we agree entirely with Mr. Hendry's sentiments that the draft constitution will represent a modern and more democratic constitutional settlement between the Cayman Islands and the United Kingdom, reflecting our relationship of partnership in the 21st century.

  • First, it is not an 'off-the-peg' constitution but goes out of its way to reflect the traditions and culture of Caymanians.
  • Secondly, it goes further than any other British Overseas Territories Constitution in providing new ways to achieve accountable and honest government at the local level, while building on existing institutions.
  • Thirdly, while not seeking independence of the Cayman Islands from the UK, it goes further than any other British Overseas Territories constitution in placing policy-making in the hands of those who are elected by the people; holding the Governor to higher standards of legal and political accountability and transparent and open governance, and reducing the power of the Governor to make laws for the Cayman Islands to which the people have not assented.

The following is a summary of the main innovations in the new Constitution:

Preamble

While a preamble is not directly enforceable, it sets the tone of the purpose of the new constitution, guides the way it is interpreted, and resolves any ambiguities of language. The Preamble makes it clear that this new constitution is based on our abiding traditions and values. It reads as follows:

"The people of the Cayman Islands, recalling the events that have shaped their history and made them what they are, and acknowledging their distinct history, culture and Christian heritage and its enduring influence and contribution in shaping the spiritual, moral and social values that have guided their development and brought peace, prosperity and stability to those islands, through the vision, forbearance, and leadership of their people, who are loyal to Her Majesty the Queen;

Affirm their intention to be -

  • A God-fearing country based on traditional Christian values, tolerant of other religions and beliefs.
  • A country with open, responsible and accountable government, that includes a working partnership with the private sector and continuing beneficial ties with the United Kingdom.
  • A country in which religion finds its expression in moral living and social justice.
  • A caring community based on mutual respect for all individuals and their basic human rights.
  • A country committed to the democratic values of human dignity, equality and freedom.
  • A community that practises honest and open dialogue to ensure mutual understanding and social harmony.
  • A safe, secure and law-abiding community.
  • A country that is free from crime and drug abuse.
  • A country with an educational system that identifies and develops on a continuing basis the abilities of each person, allowing them to reach their full potential and productivity.
  • A community that encourages and prepares young people to assume leadership roles.
  • A country that provides a comprehensive healthcare system.
  • A community protective of traditional Caymanian heritage and the family unit.
  • A country that honours the sacrifice of its seafaring men whose left the shores of the Islands to enhance the quality of life of their people, and in doing so established themselves amongst the finest within the global maritime community of that time and through their remittances, endeavours and experiences built the foundations of the Cayman Islands' modern economy.
  • A country that honours and acknowledges the important contribution of Caymanian women who during the absence of the seafaring men of the Islands managed the affairs of their homes, businesses and communities and passed on the values and traditions of the Islands' people.
  • A country with a vibrant diversified economy, which provides full employment.
  • A country that makes optimal use of modern technology.
  • A country that manages growth and maintains prosperity, while protecting its social and natural environment.
  • A country that respects, protects and defends its environment and natural resources as the basis of its existence.
  • A country that fosters the highest standards of integrity in the dealings of the private and public sectors.
  • A country with an immigration system that protects Caymanians, gives security to long-term residents and welcomes legitimate visitors and workers.
  • A country that plays its full part in the region and in the international community.

Bill of Rights, Freedoms and Responsibilities

This section of the Constitution will be introduced over a period of three years, so as to permit time for adjustment, training and education. It has the following features, some of which are unique:

  • It enshrines the fact that a true democracy requires all governments, even those with overwhelming popular support, to respect the rule of law and certain fundamental rights and freedoms which belong to us all.
  • It makes clear that this part of the Constitution does not apply to relations between private individuals and institutions, such as churches or schools. In other words, it has 'vertical' and not 'horizontal' application.
  • It includes the fundamental 'civil and political rights' (such as to life, expression, fair trial, property, to be treated equally in respect of all rights, etc.), but also includes new rights that suit the Cayman Islands' traditions and aspirations (such as the right to have our environment protected and children's rights).
  • While some of the rights and duties are absolute (such as to life, and to a fair trial) others may be limited where necessary to protect the rights of others or the public interest. Thus freedom of speech may be curtailed to prevent pornography or defamatory statements.
  • It makes clear that the right to marriage refers to a union between persons of the opposite sex and preserves the rights of churches and schools to further their particular ethos and traditions.
  • While the courts are given the power to strike down any decision of a public official or authority that infringes the Bill of Rights, in respect of Laws passed by the Legislative Assembly, courts may only declare the offending Law to be incompatible with the Bill of Rights. While such a declaration will have significant moral force, it will still be open to the LA to decide whether or not to remove or amend the offending Law so as to make it compatible with the Bill of Rights.

Madam Speaker, I must pause my explanation of the key provisions of the draft constitution to comment on the Bill of Rights and in particular the approach taken to this agreed draft by the Human Rights Committee.

The most controversial aspect of this entire constitutional modernization exercise has been the content of the Bill of Rights. The UK has mandated that a Bill of Rights must form part of any new constitution for its Overseas Territories. The struggle has always been to draft a Bill of Rights which would satisfy the UK that it met all its international obligations under the various conventions and treaties to which it is a signatory, while at the same time respecting Caymanian sensitivities, moral standards and values. It has taken eight years, but we have done so. We have a draft bill of rights which has been approved by the UK as well as all the stakeholders in this process among them, notably, representatives from virtually all churches in the Cayman Islands. That has been no mean feat. It has taken tremendous perseverance, forbearance, creativity, intellect and a willingness to compromise on the part of all concerned.

It is therefore with the greatest disappointment and regret that I acknowledge this morning that despite the involvement of the Human Rights Committee in every step of the process, including their attendance and contribution at all three rounds of the Constitutional Talks with the United Kingdom, they are determined to campaign against the draft Bill of Rights on the basis that it does not go far enough.

Madam Speaker, successful negotiations are characterized by spirit of compromise. That has been especially true of these recently concluded constitutional talks. All parties made concessions in order to reach agreement on a document that everyone could support. The Government has not achieved everything it pushed for, neither has the Opposition, the Chamber of Commerce, the Cayman Ministers Association, the Conference of Seventh day Adventists or, indeed, the Human Rights Committee. I believe it is fair to say that in some instances even the UK gave more than it would have preferred. But that is the way negotiations work.

Having been involved in the process, having sat at the table and negotiated the inclusion of significant provisions in the draft bill of rights, it is wrong for the HRC to now attempt to derail the final approval of the new constitution because they have not succeeded in obtaining all they pushed for. Their approach to this is doing the very cause they represent a real disservice, for they are essentially saying that if they cannot have the Bill of Rights they want, it is better to have none at all.

Cayman presently has no constitutional provision for human rights. Whatever its perceived shortcomings by the HRC, the present draft bill significantly advances human rights protection in this jurisdiction and, importantly, it has the support of both the Cayman delegation and the United Kingdom Government.

I say to the HRC, half a loaf is better than no bread at all. Let's hasten slowly. Do not attempt to destroy the national consensus which has taken 8 years and millions of the country's money to achieve.

The Governor and the Cabinet

While under the present Constitution the Governor is relatively unconstrained in his powers, the new Constitution is novel in the following respects:

  • The Governor is under a duty to exercise his powers in the best interest of the Cayman Islands, consistent with those of the UK.
  • The Cabinet will consist of seven ministers, including the Premier, the Attorney General and the Deputy Governor. The Governor will chair Cabinet and in his absence it will be chaired by the Premier.
  • Executive power is exercised on behalf of Her Majesty not, as at present, by the Governor alone, but is split between the Governor and the Cabinet. The Cabinet has primary responsibility for making and implementing policy, and the Governor has primary responsibility for defence, external affairs, and appointments and conditions of employment in the public service. While national security is still a special responsibility of the Governor, he must now act in accordance with the advice of a new National Security Council unless he or she considers that giving effect to the advice would adversely affect Her Majesty's interest (whether in respect of the United Kingdom or the Cayman Islands).
  • However, the Governor is duty-bound to keep the Cabinet informed of all matters for which he or she is primarily responsible, and must consult the Cabinet on all other matters.
  • Where the Governor does not follow the Cabinet's advice, he or she must provide reasons for not doing so.
  • The Cabinet agenda is no longer in the hands of the Governor alone, but is set by the Governor together with the Premier (as the Leader of Government Business will in future be called).
  • Even the very broad overriding powers of the United Kingdom to intervene in order to preserve 'peace, order and good governance', is subject to a duty on the Governor to consult in advance of such intervention.
  • In one of the Governor's areas of special responsibility, external affairs, unless instructed to the contrary by the UK, the Governor may no longer enter, agree or give final approval to any international agreement that would affect internal policy, or require implementation by a Law of the Cayman Islands, without first obtaining the agreement of Cabinet.
  • And even in the area of the Governor's special responsibility for external affairs, he or she is under a duty to delegate or assign to a Minister responsibility for a large range of issues, such as matters having to do with the Caribbean region, tourism, taxation, finance and the regulation of financial services, and European Union matters directly affecting the Cayman Islands.
  • The Governor's existing powers to disallow laws or force a law through the Legislative Assembly is significantly reduced.

Premier

The Premier will replace the present office of Leader of Government Business and he or she will be the individual who commands the support of the majority of persons elected to the Legislative Assembly. He or she will advise the Governor on the appointment of the other ministers.

Attorney General, Deputy Governor and Director of Public Prosecutions

In keeping with the notion that those who are elected by the people are in the best position to translate their needs into policies, the new constitution provides that although the Attorney General and the Deputy Governor shall sit in the LA and Cabinet and continue to offer guidance and advice to these two bodies, neither of them will have a vote.

Deputy Governor

The office of Deputy Governor is a new one and will replace the current office of Chief Secretary. The holder must be a Caymanian who holds or has held senior position in the public service and is still eligible to hold public office.

Attorney General and Director of Public Prosecutions

The Attorney General will be the principal legal advisor to Government and the Legislative Assembly and will no longer have responsibility for criminal prosecutions. This responsibility will be conferred upon a new Director of Public Prosecutions (DPP). The appointments of both the Attorney General and the Director of Public Prosecutions are no longer the responsibility of the Governor alone. In making appointments to these offices the Governor must act in accordance with the advice of a newly created Judicial and Legal Services Commission unless he or she determines that compliance with that advice would prejudice Her Majesty's service.

Cabinet Secretary

The draft constitution gives constitutional recognition to the office of the Cabinet Secretary. The Cabinet Secretary must be a Caymanian and will be appointed by the Governor acting after consultation with the Premier.

Financial Secretary

While the Cabinet and Legislative responsibility for finance will be transferred to a minister with responsibility for finance, the office of the Financial Secretary is retained as a constitutionally recognized office. The Financial Secretary will be the principal advisor to the minister with responsibility for finance and will head up this office.

Judicial and Legal Services Commission

Whereas now the appointments of judges, magistrates and the Attorney General are made by the Governor in his discretion, the new Constitution provides that the Governor will in future be advised on such appointments by a new Judicial and Legal Services Commission which shall also have responsibility for judicial discipline. The purpose is to strengthen the independence of the judiciary and to provide more expertise about the qualities of new appointees.

Such a Commission will be independent of the Governor and consist of four senior judges; two legal practitioners (one from government legal service and one from private practice), and two lay people (one of whom will chair the Commission).

National Security Council

The draft constitution provides for the establishment of a National Security Council to advise the Governor on matters relating to internal security with the exception of operational and staffing matters. The Governor will be obliged to act in accordance with the advice of the Council unless he or she considers that giving effect to the advice would adversely affect Her Majesty's interest (whether in respect of the United Kingdom of the Cayman Islands).

The Council is made up of the Governor, who will be Chairman, the Premier, two other ministers, the Leader of the Opposition or his or her designate, two persons representing civil society, the Deputy Governor, the Attorney General and the Commissioner of Police.

The Legislature and Electoral Arrangements

The elected members of the Legislative Assembly will be increased to 18 to facilitate the proposed increase of ministers to 7. In addition, the membership of the House will include the Speaker and the Deputy Governor and Attorney General, ex officio. Further changes to the number of elected members will not require constitutional change but may be done by ordinary legislation. Any increase in the number of ministers in Cabinet must be balanced by corresponding increases in the membership of the House to ensure that the number of ministers does not exceed two fifths of the membership of the House.

The present electoral districts will be retained with the proposed increases in membership of the House being allocated by an Electoral Commission. Special provision is made to ensure that Cayman Brac and Little Cayman will be required to return at least two members to the Legislative Assembly, regardless of the number of voters in that district.

It will be possible in the future to convert the electoral system to single member constituencies without the need for further constitutional change by passing the necessary local legislation.

Institutions Supporting Democracy

A number of bodies will be introduced so as to set standards which support and strengthen our democracy. These include:

  • A Human Rights Commission (which will promote the understanding and observance of human rights in the Cayman Islands)
  • A Commission for Standards in Public Life (which will set the highest standards to ensure the integrity and competence of those in public life, prevent corruption and maintain a Register of Interests).
  • Advisory District Councils which will provide guidance and advice to MLAs.
  • A Complaints Commissioner (who will consider and report on complaints about maladministration), and
  • Constitutional recognition of the Freedom of Information Law.

People-initiated referendums

Provision is made for people initiated referendums which will require a referendum to be held in respect of any issue when Cabinet is presented with a petition signed by at least 25% of the electorate. Where the referendum is assented to by more than 50% of the electorate, it is binding on the Cabinet and the Legislature.

Public Debt

Provision is made for limits to be placed on public debt by ordinary legislation.

More Participative Government

The draft constitution promotes far greater participation by the Opposition and civil society in the affairs of government. From the inclusion of the Leader of the Opposition or his designate on the National Security Council to a non lawyer, private sector Chairman of the Judicial and Legal Services Commission, great effort has been made to create a more inclusive, bipartisan environment for the administration of the affairs of government. Other examples include involvement of the Leader of the Opposition in appointments to key committees and councils, the ability of elected members whose districts are not represented in Cabinet to attend Cabinet and make representations to Cabinet on matters affecting their districts as well as provision for People Initiated Referendum.

Conclusion

Madam Speaker, these provisions underscore vast improvements to our system of governance under the new Constitution. They will surely contribute to making life better in the Cayman Islands. Therefore, I highly commend this new Constitution to Caymanians. It is the key to unlocking a better future. Voting yes in the May 20th referendum means seizing the wonderful opportunities being offered by the new Constitution for the further development of our country.

Give the future a chance! A future of confidence and filled with great possibilities. It is within our reach to have and hold. Endorse the new Constitution and it is all yours! May God continue to bless and guide the Cayman Islands! May the Cayman Islands grow from strength to strength under our new Constitution! Thank you, Madam Speaker!