Parties face off on constitution

(CNS): Differences between the opposition and the government regarding the proposed constitution were narrowed down yesterday when all parties involved in the discussions faced off in public. And while their disagreements were reduced to a few fundamental points, those areas were still significant and the Minister for Education, Alden McLaughlin, said they “were going nowhere fast.”

Members of the government, Chamber of Commerce, the Cayman Ministers’ Association, the Seventh-Day Adventists, the Human Rights Committee and the opposition came together for the first time in a public forum to hammer out their areas of difference, with the aim of seeking common ground to present to the delegation from the Foreign and Commonwealth Office in the first round of formal constitutional talks scheduled for Monday 29 September.

Of the government’s 25 proposals, there was broad agreement between the politicians and community groups on some 15 points, but as the day-long talks got underway it was apparent that on the major areas of fundamental difference it would be hard to find agreement.

The issue of the Bill of Rights being enshrined in the constitution versus the possibility of its being passed in domestic legislation dominated the entire morning session, and in the afternoon the differences over the balance of power between the governor and the Cayman Islands elected government, the role of the attorney general and other elected officials, increasing the powers of elected officials and subjecting the governor to judicial review all became serious sticking points.

During discussions over the Bill of Rights, McLaughlin persisted with his argument that it would not have the power to protect the citizen from the excesses of government if it was not enshrined and that the rights apply only horizontally, not vertically.

When the group stopped for lunch after long discussions over the Bill of Rights, Pastor Al Ebanks, Chair of the CMA, told CNS that he still had very serious concerns about the implications of an enshrined Bill of Rights and would only agree to that if there could be some guarantee that the courts would not be able to strike down domestic legislation.

“An enshrined Bill of Rights would be superior to local law and we are concerned about the implications,” said Pastor Al. “It’s not just the moral issues, as important as they are, there are many laws which could be subject to discriminatory claims, such as our Immigration Law. I am not sure that that this implication has really been considered and unless we can see a guarantee that the Bill of Rights will not undermine our own legislation I can’t take any comfort from the arguments made.”

The representatives from the Mission of Seventh-Day Adventists were also concerned that the actual Bill of Rights had not been seen and the arguments were academic until they had. Pastor Shian O’Connor said the mission was not prepared to commit to anything until they saw the actual content. The Leader of Government Business, Kurt Tibbetts, who was facilitating the proceedings said it would be based on the draft written in 2003 but he noted there would be differences.

Melanie McLaughlin from the Human Rights Committee argued for enshrinement, and the Chamber delegation led by Wil Pineau also said its members favoured enshrinement. The opposition, however, remained unconvinced, and in accordance with the CMA made the case that unless some protections could be offered for domestic legislation they did not believe the people of Cayman would accept a Bill of Rights enshrined in the constitution.

Leader of the Opposition McKeeva Bush also condemned the government for writing to the UK Overseas Territories Minister, Megg Munn, and undermining the powers of negotiation before talks had started. “If we see the original check list from the FCO regarding the constitutional outline, it says there should be a machinery for enforcement ofhuman rights consistent with international conventions. It doesn’t  say it has to be in the constitution,” said Bush. “By writing to Munn the way the government did, she was bound to say it had to be.”

Bush and the other opposition MLAs all said that during the negotiations they need to establish if the bill could be an act instead, and if not they needed some form of protection to prevent it from undermining local legislation. Clyne Glidden was also worried about the power of the courts.

“Judges will have the power to strike down legislation enacted by the parliament,” Glidden said. “The public would like to see parliamentary sovereignty remain with the elected officials having control, not judges, and if the people want a separate piece of legislation that’s what should happen.”

McLaughlin argued that in the crafting of the constitutional document they could introduce controls on the organs of government, including the courts, and would be able to restrict the actions of judges.

Glidden asked whether the UK was coming to negotiate or mandate. He wanted to know, if the UK refused to allow the limitation of courts’ powers or the bill as a separate act, what would happen, and the LoGB agreed that the talks would stop. Tibbetts asked if all parties could agree to enshrine the bill if a guarantee could be solicited from the UK that the constitution could limit the powers of the courts to strike down local law.

In the afternoon the wrangling over the fundamental issues of political power began in earnest. Bush told CNS that such things as the role of the attorney general were critically important, not least because if relegated to outside the parliament, the legislator would be deprived of crucial legal advice.

While the other representatives faded from the discussion once the human rights issue was put aside, government and opposition remained philosophically opposed over the changes in the balance of power and the modernisation of the various roles. Bush said there was an irony in the government’s accusing him of scaremongering over independence when the government was using their current differences with the governor to scare the people about his role, and that the opposition had no support for these changes.

“You can’t use your quarrel with the current governor as a reason for the proposals,” said Bush to McLaughlin. “You can’t do what people don’t want you to do and we will not agree to this. We believe too much is hidden about what is intended.”

McLaughlin used the Eurobank incident as an example of why he could not understand the opposition leader’s reluctance in wanting to secure more power for the elected officials versus those appointed by the UK government.

Throughout the day, the number of areas where the parties agreed seemed to increase. However, it was the major points of change which the government is driving forward where little compromise was reached. Bush confirmed to CNS that presenting a united front was still far less important than putting forward the wishes of the people.

Expressing no regrets about how the education campaign had been conducted this year, McLaughlin, who led the government’s position throughout the talks, said that he did not believe having a roundtable discussion before the UDP had offered their position in writing would necessarily have improved matters.