CurrentCommentary

The ConstitutionalModernization Process

By Mike Hydes

Please permit me to offer through your mediummy perspective on the constitution and the current constitutionalmodernisation process.
Firstly I'd like to voice my disappointment with how the peoplewere led to believe that their options were limited to the traditionalAnglo-colonial constitutional models that most of the former Britishcolonies operated under. I'm equally dissatisfied with the insinuationthat "HMG would not allow anything else". The implicationbeing that all-British governments were the same.

This is completely outrageous. I think itis important that the people of the Cayman Islands be cognisantof the fact that the current government of the UK ­ namelythat of 'New Labour' ­ is a far cry from the 'Conservative(Tories) Party' which governed the British Empire for the betterparts of the 19th & 20th Centuries.

Ideologically 'New Labour' is on the leftof the political spectrum. It is a progressive party and wantsthe British people to have a system of government that works forthem not one that is tied down by history and tradition. In fact,during 'New Labour's' first term many significant changes andreforms were in the way the UK government works. Among them 'devolution'­ the process whereby the nations of Scotland & Waleswere given 'full internal self government' with regards to mattersinternal to their regions and citizens i.e. health services, welfare,education, police services, finances and to a lesser extent taxation.

Both nations now have a Parliament and anAssembly respectively with the Executive function carried outby an 'Executive' in the Scottish government and a 'Cabinet Office'in the Welsh government. The Chief Executive or Head of Governmentis still 'Her Majesty' but the 'First Minister' actually runsthe show.

What does the term 'First Minister' mean?Well it's a more politically correct term for 'Chief Minister'or 'Premier'. Basically, he is first among equals in the executive;he may have certain powers that the other ministers don't havebut he also has responsibilities that the other ministers don'thave. The Scottish 'First Minister' presides at meetings of theexecutive or cabinet like a 'Premier' but her majesty can sackhim, or appoint someone else in his/her place at her discretionmuch like a 'Chief Minister'.

Another 'New Labour' reform was in the Houseof Lords. The British Parliament's Upper Chamber where a numberof hereditary peers were abolished much to the chagrin of theTory party. In fact both of Britain's two leading parties ­'New Labour' and the 'Liberal Democrats' who are rapidly replacingthe Tories as the 'effective opposition' party in Britain dueto the Tory isolation of its moderates by its hard turn to theright ­ are in favour of "Bringing Britain's governmentout of the 19th and into the 21st Century".

The Lib-Dems are a bit more radical thanLabour on this issue. Their stances include: the establishmentof a UK-written constitution; Britain in a federal Europe; anend to the monarchy; and reform if not total abolishment of theHouse of Lords. I do not believe for one minute that the Labourgovernment would impress upon any of the overseas territoriesany form of government which they themselves find to be inefficient,ineffective and unsatisfactory. I believe New Labour has donea good job so far in the modernisation of the UK's government.There is still much more to be done and I believe that they areup to the challenge.

It is on this premise that I will base mysubmission for consideration by the constitutional commissionersand the people of the Cayman Islands:

Introduction
My proposal for a new Constitution of the Cayman Islands is basedon the principle of 'cooperation' and 'partnership', and providesall parties with a vested interest the ability to protect theirinterest. I believe, like many other Caymanians, that the powersand functions of government ought and should be exercised separatelyand distinctly from each other. I believe this system best promotesopen, transparent and accountable government and also contributesto the fair and equitable exercise of power and delivery of publicservice. The following is an outline of my proposals:

1. Legislature
(a) Establish a set duration of legislature i.e. 4 or 5 yearsto begin 30 or 60 days after date of general election not to bedissolved or prorogued by the governor.
(b) Reform legislature and move away from 19th Century Westminstersystem and ex-officio members.
(c) Set constituency size limits tied to the census count to providefor one representative for every 1 to 10,000 constituents or alternativelyone representative per district.
(d) Have responsibility for setting of policy and passing of lawsrest with legislature alone, either as a whole body or throughthe committee system.
(e) The Governor to have power to veto bills and resolutions passedby legislature; 2/3 majority to override; UK to retain order incouncil power.
(f) Representatives to have first duty to constituency not toparty; prevent implementation of full whip system (this systemis not needed in small legislatures); legislature should be proportionalin size to population (many reps in LA does not necessarily meanmore or better representation for the people but it does meanmore expenditure and big salary opportunities for politicians);outlaw three line whip; legislature to conduct and govern itselflike the House of Lords or the US Senate.
(g) The presiding officer to be elected from the '7th constituency'a territory-wide constituency and to have the title of 'President'as opposed to Speaker.
(h) If a population at large elects the presiding officer I believehe should have the same rights to speak as other members. Thinkabout it. It has been suggested before that the speaker be independent,come from outside the Legislative Assembly and be elected by theentire electorate. I do not have a problem with most of this onlywith the concept that the only individual with a 'universal' mandatewould not be able to make any form of representation, vote orotherwise express that mandate. I do not think that would be right.Besides on what criteria would the electorate choose the speaker?His stance on issues?

In the Westminster model the speaker issupposed to be impartial and his stance on the issues is not relevantanyway as the speaker cannot vote in most instances. I think thelegislature should function similarly to that of any fortune 500'Board of Directors' with the presiding officer acting in a dualrole as both director and chairperson. The presiding scenariois played out almost daily around the world with no problems.It's worthy to note that this is also how most municipal governmentsfunction from New York to London. The 'Mayor' or 'Chairperson'is a full member of the legislative body usually called a 'council'or 'commission'; he/she can vote and debate and chairs the meetingsof the council or commission.

They would have a tie-breaking vote in casesof a tie, which is normally not necessary as these commissionsare usually set-up with an odd number of members. Other than thoseaforementioned, they usually don't have any more say than anyother member on the council as the chairperson; they also functionas the ceremonial Head of the Municipal Government.

2. Executive
(a) Executive authority to be vested in the 'Cabinet' or in 'theGovernor and the Cabinet'.
(b) The Governor to be 'Chief Executive Officer' of the territory.
(c) Secretary General of Chief Secretary to be #2 and be 'ChiefOperating Officer' of the territory.
(d) Attorney general #3 and Chief Legal Officer of the territory.
(e) Financial secretary to be Chief Financial Officer.
(f) There to be other secretaries with other responsibilitiesin cabinet.
(g) All members of cabinet to be civil servants.
Why? I can hear some out there arguing that old argument "theyare not accountable to the people". Well, in our presentas well as the UK's system the

Executive is not accountable to the peopleeither in theory or in practice. You see, in theory the 'PrimeMinister' and the rest of the Cabinet are subordinates of theSovereign who is the Chief Executive and therefore their boss.In practice the Prime Minister and Cabinet referred to as 'theGovernment' is accountable to 'Parliament', which is where theyall came from in the first place.

In times when a 'Government' holds a large'Parliamentary' majority they make decisions asking themselves"what will the people think" but in times of a thinor tight majority they ask themselves "what will Parliamentthink". In the former their concern is for the faith of theparty's majority in Parliament which no doubt would be in jeopardyat the next election if the party by the 'government's' actionswere to lose the support of the electorate (the people); and inthe latter their concern is more for the security of their legislationor their government. So Parliament is the only body that is directlyaccountable to the people in the Westminster system.

Secondly it is my opinion and that of anumber of political scientists around the world that the bestexecutive is 'neutral' ­ one that has no particular politicalbiases but simply a professional commitment to accomplish whatevertask is assigned to it. That's how an effective executive shouldfunction.

Professionals not politicians best managethe executive functions of government. The 'politicians' shouldformulate policy collectively in the legislature and the 'professionals'in the civil service should 'execute' the laws and implement thepolicies and resolutions adopted by the legislature.

h) At the very least all cabinet level appointmentsshould be scrutinized and approved by the legislature before theycan take up positions. This would be one way that the Caymanianlegislature could assure that qualified Caymanians were nominated.If a contracted officer was nominated when an equally qualifiedCaymanian was available within the civil service the legislaturecould not confirm the nomination.

An exception might be demanded by the UKin the case of the Attorney General but I think that would beunderstandable. Perhaps I may be naive but until I hear otherwisefrom a UK Government Official, I believe that HMG will considerany proposal that guarantees an ability to: one, control contingentliabilities; and two, promote and maintain the prudent fiscalmanagement of public finance so that the UK is not put in a positionwhere it has to use its taxpayer money to subsidize Cayman's governmentwhen it could be using it to improve UK schools and hospitals.

And as the risk of contingent liabilityis highest in the executive branch of governments I think havingthe Governor as 'CEO' accomplishes that. Now it should be bornein mind in this system the Executive is sort of the 'errand boy'for the legislature so for those worried that we'll have an "Englishmanrunning our things" rest at ease because in fact the 'they'will only be "running our things for us". Well actuallythat is not accurate because in most companies with CEO and COOpositions the CEO is responsible for the day to day executionof the companies policy and has all of that authority but actuallyspends most of his time on the golf course while the COO is theyou who actually does the 7-12, makes most of the tough decisionsand manages the day to day operations of the company.

So actually "we would be running ourown things" with the UK having the assurance that the necessarychecks are there. In other words it would be a partnership.

3.Judiciary
I will not attempt to address the Judicial System in this shortwriting because I am convinced that that issue needs an entirepiece dedicated solely to it and I hope to be able to producejust that in the near future.

Closing
In closing, I would urge the Caymanian electorate to lobby theLegislature to put any potential new constitution or any proposedchanges to the present one to a binding public referendum andalso have this right enshrined in the Constitution. Or to letthe constitution be one of the issues in the next election wherethe public can choose constitutions proposed by different candidatesor parties. You know, there would be a UDP constitution and anXYZ one and the public votes for the party whose constitutionit supports the most. Another consideration is in addition tothe right of referenda the people should also consider enshriningas a right the power of 'initiative' so if the people do not likeany of the constitutions proposed by the parties, groups of themcould get together and propose their own and get it put on theelection day ballot.

Initiative petitions usually must containthe full text of the proposed measure, and should be signed byat least five percent of the qualified electors in each of atleast one-third of the legislative representative districts andthe total number of signatories must be at least five percentof the total qualified electors. The organisers of the infamous'election petition' might be interested in this info.

One last point for those glued to this 19thCentury colonial form of government ­ take a look at the presentand most recent situations in Trinidad and Guyana. Just imagineif a similar scenario were to happen here. One of the more popularproposals was that the Chef Minister should be elected by a popularvote. Well, consider this scenario: Party 'X' employs a strategyof 'working' the smaller districts harder because of their smallpopulation. Some marl and washing machines are deployed and onElection Day all four minor district seats are secured along withfour in West Bay and possibly one more in Bodden Town for a totalof nine. No seats were won in George Town the largest constituency.

Instead, Party 'Y' won all four seats inGeorge Town along with two in Bodden Town. Party 'Y' is a minorityparty in the Legislative Assembly by a 9:6 ratio but because Party'Y' is a party based in George Town and has support in the highlypopulated areas of Savannah/Newlands as well, they get 90% ofthe vote in George Town, which in itself accounts for 50% of thetotal electorate, 60% of Bodden Town and 10% in all the otherdistricts on the chief ministerial vote.

Their leader is elected Chief Minister,who then has to appoint his ministers form his members of theLegislature. This leaves only one party member on the backbench.The government does not last long. The Chief Minister is forcedto either share power or call a next election. Another electionis called, seats are again distributed in a similar fashion withParty 'X' losing the last BT seat, Party Y with its entrenchmentin the electoral powerhouse of GT again dominates the chief ministerialrace.

Now the ratio is 8:7 in favour of Party'X' who with one less than the 9 needed for a 'no confidence'motion has to cede government to a minority party. But becausethey hold the majority, assuming there are no ex-officio members,they block almost every piece of legislation the government bringsto parliament.

Ask yourself what would this do to publicand investor confidence? What effect would it have on deliveryof public services if the government could not pass legislation?And how much does a general election cost these days?

Now let us look at the UK and the recentevents at Westminster. Some labour MPs decided to criticise thePrime Minister and his government over Britain's involvement inthe war on Afghanistan. The MP had support in the parliamentaryparty but a lot of the younger MPs would not join in the dissentbecause they were afraid of perhaps loosing out on a possibleministerial career. The same situation is possible with a chiefministerial system as well and do not believe that with the introductionof a Chief Minister that 'horse trading' will become a thing ofthe past. Even with a party structure "the thoroughbredswill still demand and fetch the highest price". I do notthink the colonial Westminster system of government is the 'modern'Chevy that the UK government was talking about. I know some laudit as being the answer to all our problems but take a closer lookat it. Examine the fine details. It may bring more problems thansolutions.

Lastly, for those who may say that my proposalsounds too American ­ well, there is nothing more Americanthan the 'US Dollar' and 2 of the UK's 5 Caribbean OT's officialcurrency is also the official currency of a foreign state andif my information is correct these territories elected to adoptthe US dollar as such and Britain had no qualms.

There is a lot more I could elaborate onbut unfortunately time and space does not allow it.

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