In all British Overseas Territories (BOTs) executive authority is vested in the monarch who exercises it through a resident representative. In the Caribbean, he generally carries the title of Governor and hails from the United Kingdom (UK). The Governor has special responsibilities for defence, external affairs, internal security, including the police, the public service (and in the case of Montserrat, international financial services), over which he exercises discretionary authority or reserved powers. The measure of authority which the local government wields varies somewhat from territory to territory. During the last 25 years none of the Caribbean BOTs has made any vigorous or sustained agitation for constitutional modernisation which, in this paper, connotes advancement in self-government. In 1992 the Lavity Stoutt government in the British Virgin Islands (BVI) did pass a resolution in the Legislative Council calling for constitutional reform but their avowed major aim was to upgrade their Executive Council to cabinet status presided over by a Premier as obtains in Bermuda which has the most advanced constitution of the BOTs in this part of the world. Their quest was for 'full internal self-government' (Fergus, 1998: 42).
The BVI action is, however significant, for it targeted the enhancement of the power of the government, and the Chief Minister (CM) in particular, at the expense of the Governor. Constitutional tension and strife almost invariably stem from turf protection issues between these two ruling entities as former Montserrat Governor, David Taylor (2000: 339) confesses: 'In my time in Montserrat, Ministerial attempts to encroach on the Governor's areas of responsibility and to challenge his powers were the normal stuff of day-to-day administration, as they are to a greater or lesser extent in all Territories'. This has not changed, for in 2000 there was open friction between the Governor and the CM over their differing views on the continuing employment of the Attorney General (AG). The CM had his say against the extension of his tenure and the Governor had his way and decreed it as the constitution empowered him to do. This still rankles with CM John Osborne, the only Montserrat Chief Minister who, in the 1980s, openly advocated independence for the island. It should not be surprising therefore if the power of the Governor came under close scrutiny in the constitutional review process.
Power is essentially about economic control, arguably, and therefore whether the Governor or an elected minister commands the international finance portfolio, for instance, becomes an important issue in the context of constitutional advancement. This is particularly so because of HMG's insistence on colonial subordination to its international obligations for combating financial fraud and money laundering (FCO, 1999). This is a sensitive issue especially in Montserrat where The Montserrat Constitution Order 1989 snatched international financial services from the CM's portfolio and assigned it to the Governor.
At the level of the citizen the issue of fundamental rights takes on some interest. Regulations always existed and do exist which bridle the public servant even on matters that are only obliquely political. Fundamental rights sections coming late to BOTs' constitutions challenge the constitutionality of such 'General Orders'; and persons have taken note of this, in societies which are catching up with a litigation conscious western world. In a recent civil suit, Lynch versus the Government, the latter settled out of court, in a matter of inhuman treatment of a prisoner relative to accommodation at a time of crisis when cramped living conditions were normal for a large section of the population. Of relevance too, the Privy Council ruled in the favour of an Antiguan civil servant in the case of de Freitas Versus Permanent Secretary, Ministry of Agriculture (1999). The latter claimed that de Freitas had acted in breach of a provision in the Civil Act forbidding civil servants expression of opinion on matters of national or international controversy. The Privy Council held in effect that provision was unconstitutional since sections of the Constitution guaranteed freedom of expression and freedom of assembly to Antiguans. A prime Caymanian concern had to do with putting a Christian 'spin' on certain rights contained in the Constitution. For instance, a powerful lobby insisted that "family" 'shall not include two persons of the same sex, who are not related by blood or by an existing or former marriage, living together as a couple, howsoever described'.1 This qualification is a reaction in part to the decriminalisaton of homosexuality imposed on the BOTs by the UK government. From differing perspectives both territories have a keen interest in individual rights.
While the citizens of these territories generally desire some devolution of the Governor's authority on to the elected government (rather moreso in Montserrat) consonant with greater democratisation, they are also conscious of the need for checks and balances on the government. It may not be an exaggeration to say that the relative disinterest in independence stems partly from lack of trust in local politicians, which can also be interpreted as a lack of self-confidence. The irony is that this attitude feeds the self-same colonialism which may have fostered the self-doubt in the first place. There is thus an ambivalence about constitutional modernisation in the BOTs in the region.
Touching on ambivalence, the signals from the UK government have not been totally clear either on how much modernisation will be allowable or even tolerable. The terms of reference are unambiguous. Governor Peter Smith of the CIs called for 'recommendations designed to modernise the Constitution and to ensure its compatibility with the present aspirations and expectations of the people of these islands'.2 This is broad and liberal. However, in detailing some aspects to be reviewed, the Governor chose not to mention the powers of the Governor and this cannot be regarded as merely fortuitous. Moreover, a review checklist supplied by the British Foreign and Commonwealth Office (FCO) cited the need for the Governor to have adequate powers to discharge HMG's obligations as one of the issues. In the end, the extent of modernisation depends on the United Kingdom Government (UKG), whose constitutional fiat still binds the 'colonies' or whatever modernised nomenclature is employed.
Actually, the UKG has merely committed itself to carefully considering the proposals for constitutional change (FCO 1999), although in the same document it speaks of giving freedom to the territories 'to run their own affairs to the greatest degree possible' (FCO 1999: 11). Thus, there is a mix of caution and liberal rhetoric. However, HMG is not expected to be so cynical as to lightly regard the popular consultative process which it has itself initiated. That is one of the problems - the initiative for constitutional modernisation originated with the British and not with the territories. This does not necessarily mean that the final outcome should be based purely on the wishes of the former.
The questions posed in this Paper then are: To what extent have Montserrat and the CI taken the British seriously?; and What circumstances in these two territories conduce or constrain reform? The use of two territories makes for useful comparison and facilitates tentative generalisations. The second section of the Paper provides relevant socio-economic background on Montserrat and the Caymans, the third critically examines the review process and in the fourth section the recommendations are analysed. In the concluding section, we endeavour to summarise those factors that influence territorial responses to constitutional reform and speculate briefly on British reaction.
Both territories have completely contrasting socio-economic profiles. Montserrat in the north-eastern Caribbean is a mountainous country with favourable agricultural potential. Of all the BOTs in the Caribbean, Montserrat came closest to the classical model of a plantation society based on sugar and slaves. In 1830, it had a slave population of 7,500 and a total white population of only 315, two years before. The CI on the other hand, had only 1500 slaves in 1830 and 350 whites in 1928 (Higman 1995). With ratios like these, Montserrat was the typical colony while the CI were merely a 'marginal' colony as Higman (1995: 452) describes it. Indeed, such slaves as inhabited the CI were not in the main plantation workers but seafarers including turtle fishers, boatmen and assistant pirates. Ethnically, the Caymanian mixed ancestry of European and African is readily apparent while Montserratians are predominantly black. Their contrasting historical experiences have impacted significantly on their political development.
An essentially three-island territory in the north-western Caribbean, the CI is mostly flat and rock-strewn and has never been a garden of agriculture. Where Montserrat pursued an economy of sugar, and then cotton under an oppressive landlordism after emancipation, the CI continued its seafaring ways up to the modern era until the 1960s when tourism and international offshore financial services took over. With a per capita income of US$30,120 in 1998, with the possible exception of Bermuda, the CI has the highest standard of living in the British Caribbean, let alone in the BOTs. Visitors numbered over 12 million in 1998, most of them from the US, and at the end of that year there were 585 banks and trust companies, 475 insurance companies and 41,173 registered companies (FCO 1999). Like other offshore centres in the region there have been recent pressures from the OECD and the US but this impressive financial edifice is still strong and the CI require no budgetary aid from the UK government.
The CI may be an economic colony of the US, but compared to Montserrat it is a developed state. The economy of the latter is theoretically based on subsistence farming, tourism and building construction. Promising efforts at offshore banking in the 1980s languished through abuse and regulatory indiscipline which led the British government to step in in 1989 and snatch the international financial sector from the CM's portfolio through a drastic constitutional change. Nevertheless, inspite of temporary reverses induced by a massive hurricane in 1989, the economy was buoyant until the unforgiving and unrelenting Soufriere Hills volcano erupted in 1995. The tiny 39.5 square mile island has been functionally reduced to about a third and the economy has collapsed leaving the island hopelessly dependent on UK budgetary aid. The British has earmarked £72 million in aid for the period 2001 to 2006, but the GOM regards this amount as grossly inadequate for its 'reasonable needs' the term which the British use to define their financial obligation to their territories. The two words that best describe the economic state of Montserrat and the CI are poverty and prosperity respectively. Montserratian poverty is not, however, considered chronic.
Constitutionally, the history of the two territories has been as dissimilar as their economies. Both has had long association with other colonies but where Montserrat was a near equal partner as a member of a federation, the CI were a dependency of a dependency. Between 1871 and 1956 Montserrat was a presidency of the Leeward Islands colony sharing a Governor and federal legislature with Antigua, St. Kitts-Nevis-Anguilla and the British Virgin Islands. It however had its own legislative body and its own British administrative officer variously styled president, commissioner or administrator. Besides, it experienced representative government since the seventeenth century albeit in a limited form since the franchise and the right to rule were controlled by wealth and whiteness. The important consideration is that there was a tradition of representative democracy even if it was one of sorts.
This experience was absolutely lacking in the Cayman Islands. From its cession by Spain to Britain in 1670, the CI were constitutionally linked to Jamaica in a unique arrangement. From 1832, that is, before their formal attachment to Jamaica in 1863, the CI were administered by a Commissioner with the assistance of justices and vestrymen elected by male universal suffrage (Williams 1970) but the laws had to be approved by the Governor of Jamaica. Even after independence from Jamaica in 1959, the CI continued to submit to the sway of the Jamaican Governor. Its nineteenth century constitution persisted way into the twentieth.
Compared to Montserrat the socio-political milieu of the CI did not promote political advancement or spawn democratic institutions. By 1936, Montserrat enjoyed a large measure of representative democracy even though the dominant merchant-planter class and British officials dominated the citadel of power. And when by 1951 the British granted universal adult suffrage to Montserrat and adjacent colonies, the CI were still a dependency of Jamaica. The emergence of party politics in the 1950s under labour leaders of the ilk of Vere Bird of Antigua, Bradshaw of St. Kitts-Nevis-Anguilla and Griffith and Bramble of Montserrat and even of Jamaica's Bustamante before that, was totally absent in the Cayman Islands. They demonstrated no particular antipathy to Jamaican rule, had no anti-imperial agenda and no post-emancipation oppressive landlordism to revolt against. Their intense loyalty to England runs long and deep, to some extent, blood-deep.
The injustices of the merchant-planter class who were the direct heirs of the planter-lords of plantation political economy led to the emergence of the Montserrat Trades and Labour Union in 1946. The union rapidly took root among agricultural workers especially in the depressed east of the island where labourers depended on estates for their entire livelihood including their provision ground of slavery provenance. Their very hovels were sited on estate land and tenancy eviction was not only a threat of blackmail value but a reality. For the first time in their history the black labouring class found a voice in a democratic institution. The union led-strikes of 1950 and 1951 were radical action emanating from this sleepy, submissive colony (Fergus 1994).
The seeds of unionism did not grow in the Caymanian milieu where self-employment and a disciplined individualism were the hallmark of workers; and anti-imperialist sentiments would have been foreign to that anglophile colony. Writing in 1970, historian Neville Williams provides this telling assessment: 'The character of the people and their attitude to life have remained like their manner of speech, little affected by the welter of modernisation. Loyalty to the Crown burns brightly still' (1970: 92). I question the relevance of the allusion to the Caymanian's manner of speech, but the loyalty to the crown and perhaps an uncritical loyalty at that, remains an impediment to radical constitutional change. Like other territories in the region, the CI registered a Trade Union Act, just about the same time as Montserrat in 1942, but no trade union emerged apart from a local branch of the International Global Seamen's Union (Williams 1970) which did not appear to have achieved much by way of participatory democracy.
The absence of trade unions in the CI had a corollary in the failure of party politics to emerge. In Montserrat as in most Commonwealth Caribbean territories, political parties were an outcrop of trade union movements and popular discontent. If the CI had that quality of discontent, they sublimated it. Montserrat's first political party inevitably named the Montserrat Labour Party was launched in 1951; and by 1960 a ministerial system was instituted, eight years after its prototype, a committee system had emerged. In 1960 the CI could be regarded as constitutionally backward compared to Montserrat, clinging as they were doing to a nineteenth century constitution. Even up to the present time, the ministerial system was regarded in many quarters as a step down the slippery slope to social and economic decadence. In discussing the results of a questionnaire issued by the Cayman Islands Chamber of Commerce on proposed amendments to the constitution in 1993, the issue of introducing the position of Chief Minister was described as a 'controversial'. Actually, a very strong majority voted 'no' to having a CM seeing this as a surreptitious move, a step closer to the dreaded independence (CI Chamber of Commerce 2002). This corroborated with the view of W.W. Conolly a founding member of the Chamber, in an address to his colleagues on 'Constitutional Development in the Cayman Islands' in 2000. He found it necessary to refute the 'commonly voiced concern that creating the post of a Chief Minister within our constitution would mean the Cayman Islands would become Independent' (Conolly in CI Chamber of Commerce 2002: 12). He exposed a monumental misconception of Caymanians by alluding to the situation in the other dependent territories in the region with Chief Ministers. What was commonplace in Montserrat for 40 years was still regarded as a radical untouchable in the CI in 2002.
There was some effort at party formation in the CI but the climate was not conducive. Two parties, the National Democratic and Christian Democratic Parties sprang up in the early 1960s (Williams 1970), but they had no ideological base, there was little difference between them and they soon withered. However a group, an embryonic party called the National Team, won 12 of the 15 seats in 1992. Incidentally, this winning faction was opposed to constitutional change including the introduction of the post of Chief Minister (Connell in Ramos & Rivera 2001).
The Caymanians will not allow a relatively unimportant matter like constitutional modernisation to derail their economic train which, as we have observed, is driven by tourism and international business companies. Rejecting the intrusion of the UN Decolonisation Special Committee in 1993, Jefferson, the Leader of Government Businesses, cited the substantial investment which they had attracted. 'This', he said, 'had to give some type of confidence in our system' (quoted by Connell in Ramos & Rivera 2001: 121). He was supported by another colleague who regarded the very issue of independence as out of the question. The irony is that they were afraid of the flight of investors' money from countries which are the supposedly bastions and international policing agents of democracy.
It needs to be emphasised that the CI constitutional status was their choice based to some extent on their perception of the nexus between constitution and economy. That same perception is an aspect of what drives constitutional advancement or retardation today. On the other hand, it should not be imagined that Montserrat was flooded with liberal thought. It certainly saw its dependency status as a guarantee of political stability, national security and economic hope in the 1960s. Its ministerial status did not emanate from local agitation but from imperial concession, contrary to what some would have us believe without the buttress of historical evidence. The government may have had good reasons for so doing, but it rejected statehood in association with the UK while other Leeward and Windward Islands accepted this in 1967; and the decision was made without any popular consultation. The then Chief Minister Austin Bramble rationalised it in these off-quoted lines (1971: 5).
Government does not consider Associated Statehood either suitable, necessary or desirable for Montserrat. It seems to me that from what we in Montserrat have got, Associated Statehood would be a retrograde step. In a tiny territory like Montserrat, an independent Government could very easily abuse its powers and disrespect the rights of its people and militant minorities could, for selfish interests bring about disruption and turmoil. Tiny independent Governments may make unreasonable laws and decisions and impose unreasonable burdens.Bramble's surprising rationale given his outstanding capability, parallels Caymanian thinking, although the latter came nearly 30 years later, and his views do illustrate an abiding conservatism in Montserratian society, inspite of some changes. He was voicing the sentiment of many Montserratians. Bramble's obvious distrust of local leaders while he himself was in power imparts some veracity to Professor Gordon Lewis's perception of a corroding self-doubt in Montserratians (Lewis 1968). And yet, compared to the Caymanians then and now, Montserratians could be regarded as constitutionally progressive.
From the foregoing analysis it is still evident that Montserrat and the CI came to the twenty-first century constitutional bargaining table with contrasting experiences and from different vantage points. The latter's unquestioned loyalty to Britain, their ultra-conservatism reinforced by the absence of democratic institutions and their history of dependence to the second degree, produced a different mindset from the Montserratians. For all its wealth, the CI is a Governor's paradise while in Montserrat he requires considerable diplomatic skills for a successful tenure. We shall now examine the constitutional review process to see how it was informed by the social and political underpinning which has been just considered.
The review processes in both Montserrat and the CI were rooted in a highly consultative strategy and included information dissemination. The latter took account of the fact that the citizens were generally unfamiliar with constitutional language and content. In the Cayman Island this was demonstrated by the questions persons asked which 'highlighted an overall lack of knowledge of the terms of our current Constitution and how the present system operates'(Ebanks et al. 2002: 4). The extent of the educational aspect may have varied in both jurisdictions but in both, use was made of the media, face to face meetings with social organisations and oral or written submissions. Montserrat's coverage of social organisations was wider than the CI's but the latter had the advantage of a survey executed by the powerful Cayman Chamber of Commerce (CCC) which represents over 700 corporate and associate members.
While the consultative work was confined to the efforts of six commissioners in Montserrat, the CCC out of a sense of civic responsibility undertook, as it were, a parallel consultation. It both educated and consulted. Montserrat had no parallel to this activity, which doubtlessly added depth and quality to the review process. The only private educative effort undertaken in Montserrat was that of commissioner,3 back-bencher, pan-Africanist, and political activist Chedmond Browne. He held weekly meetings in which he explained the Constitution and propagated his views on constitutional reform. Although his was a solo effort, Browne may have done as much for constitutional advancement in Montserrat as the CCC did in the Caymans. He certainly took modernisation more seriously than did the Caymanian. Doubtlessly, the Montserratian commission will, like the Caymanian has done, claim that its recommendations reflect the broad views of the people.
In its quest for the Caymanian version of constitutional 'modernisation', the CCC found an ally in the Caymanian Ministerial Association (CMA) which brought together Anglicans and Evangelicals. This organisation was hardly expected to be more liberal and radical than the CCC. The duo's most revolutionary demand outside the FCO checklist was for a provision in the Constitution for a referendum to be initiated by registered voters on matters of public importance.
In the view of these two organisations, the new constitution should itself have been tested for national approval through the referendum route. To the extent that a referendum is a medium of popular participation in governance, to that extent the CCC and the CMA and their adherents attempted to advance democracy in the CI. Something of a breeze of change appeared to be blowing, but just a breeze. To emphasise their seriousness, the referendum lobby secured 6,500 signatures on a petition for a referendum on constitutional change. These were dramatically carried in wheelbarrows and baskets for presentation to McKeeva Bush, Leader of Government Business, in a lunchtime march euphemistically styled a 'parade' by the organisers, the People for the Referendum Group (Caymanian Compass 19 June 2002). The Caymanians had exceeded themselves, inspite of their cautiousness in describing their civil action as a 'parade' rather than a demonstration. The nuance was important to them.
This was a valuable precedent and Caymanian interest in the referendum as a tool of popular democracy anteceded the 2002 constitutional review exercise. The print media was able to establish by research that the current governing group who resisted a referendum on the constitution was at one time ardent advocates of such an instrument using persuasive argument. The Caymanian Net News (CNN) of 14 June 2002 quoted a speech of McKeeva Bush from the Hansard of the Legislative Assembly of September 10 to October 24, 1999 which revealed the not uncommon irony of opposition politics in the region:
The people of this country today are more outspoken than at any other time in the history of the Cayman Islands. We hear more from people these days than I have ever heard in my 15 or 16 years in this LA on matters that affect them, on matters affecting the future of the country. They want to be able to say yes or no on certain issues and we want to give them that authority through a referendum (p. 10).This is an important speech for it at once underscores the basic political conservatism of Caymanians as well as their willingness to make their voice heard within the parameters of the given constitution. Bush was supported by others of the then 'outs' like Roy Bodden and O'Connor-Conolly who employed politically correct language like the need for 'transparency and accountability' and the importance of 'citizens participation' respectively (CNN: 10-11).
The referendum issue is therefore not an aberration; it certainly reveals that there is some potential for agitation and democratic advancement in the Caymanian population. For the present though, all that one can claim is that the CI may be willing to move from precedent to precedent rather than to leapfrog constitutionally. For the moment, the power of the Governor vis-à-vis elected members still seems sacrosanct unlike Montserrat where nearly 30 years ago academic and later, trade unionist Dr. James Irish inveighed against the Governor's holding of significant portfolios such as labour, police personnel and immigration. For him, this was an archaic colonial arrangement set up to suit the interests of the Home Government (Irish 1971). This may not have been a popular statement but a significant one. A constitution is about the disposition and apportioning of power inter alia, so it is hardly possible to debate constitutional modernisation without discussing the power of the Governor.
In Montserrat unlike in the CI, since 1950 there has been at least one anti-imperialist voice, albeit an intermittent one. In this season of reform it is the voice of Chedmond Browne. His The Pan-Afrikan Liberator claims that 'constitutionally, all authority to govern lies in the hands of the governor', a tenet which he has propagated at many a review gathering. It does not matter whether or not the statement is grossly exaggerated, what is important is that it influences opinion and galvanises support for reducing the power of the Governor. When some constitutional interviewees opt for the status, Free Association, that request resonates Browne and his pan-African organisation. These currents of thought and left-of-centre organisations are foreign to the CI. Against a background of dissimilarities in economy and political culture, it is instructive to discover what recommendations for constitutional modernisation are produced by a similar review process in both territories. The next section addresses this matter.
To usefully analyse the contrasting recommendations emanating from these two territories we selected what appeared to us to be some key areas of reform. These are: the powers of the Governor vis-a-vis the elected government, the executive council, the legislature, the public service, fundamental rights and miscellaneous matters. (The first four correspond with sectional headings in the CI constitutional review report).
The Caymanian commissioners clearly state that except in his relationship with the public service, 'there has been no claim for, nor have we made any recommendations to change the Governor's reserved powers' (Ebanks et al. 2002: 7). The situation is totally different in Montserrat where no sacrosanctity hedges the Governor especially in his role as a super Minister dealing with subjects like justice, law and order, international financial services, the public service and emergencies. In the 11 October 2002 edition of the weekly Montserrat Reporter (the island's only newspaper), J. Donald Brandt, an expatriate resident in defamatory fashion dubbed the Governor 'duplicitous' (Brandt 2002: 7). The criticism has not been always as scathing but Longrigg's predecessors of recent years have come under strident attacks in the local newspaper and on government radio.
In the submissions made to the Montserratian commissioners there is a general consensus that the power of the Governor should be reduced and that correspondingly, the power of the elected government be enhanced, although there are reservations. The call comes from persons of all political colouring including the Montserrat Allied Workers Union which has always been committed to greater self-government and democracy. Terms such as 'repugnant', 'sole authority in one man', 'representative power negated', were used with respect to the Governor's reserved powers. Persons making this representation chafed particularly at the recurrence of the phrase: 'shall not be inquired into in any court of law' a phrase that appears to place the Governor above the law. One says appears, because the judicial review is one mechanism which imposes some check on the Governor's power.
Change was demanded in a range of areas including international financial services, regional affairs and emergency powers. International financial affairs was a particularly sensitive issue since this was deliberately taken from the CM's portfolio in 1989. Losing authority is never pleasant and especially in this case, where the Minister of Finance loses power over a critical aspect of finance and is required to share the finance portfolio with the Governor. In practice, the CM handles regional affairs but he does so of grace and not of right. It makes eminent sense for the local government to deal with regional affairs, thereby allowing the CM or his nominee to relate to his Caribbean colleagues on Caribbean issue. It would be somewhat odd in the twenty-first century to have the Governor or his nominee sitting in regional fora to debate freedom of movement, for instance, its foreign policy implications not with standing. The volcanic crisis has brought the Governor's emergency powers under the constitution into sharp focus as evacuations are enforced and managed from time to time. He does discuss his decisions with the CM but is under no constitutional obligation to do so. The general view is that this is too important a national matter from which to exclude the elected head. The call is for the constitution to make de jure what is already partly de facto as in regional affairs.
It is a similar thinking that led several Montserratians to recommend that the CM be allowed to participate in the appointment of the Governor. This may just be a symbol but it is an important symbol of local involvement in an important process of governance, and it reflects partnership instead of imposition. This desire is not totally absent in the CI but it was certainly not vociferous enough to persuade the commissioners to recommend it. Both territories seem closer on the exercise of the Governor's power of pardon, but there is a significant difference. Where the Caymanian Commission recommended an independent advisory committee, Montserratians appear to prefer a Mercy Committee whose decisions are expected to be ratified by the Governor. In fact, the Caymanians emphasised that the Governor's power of pardon has not been interfered with. Montserratians, on the other hand, expressed the view that no one person, a new arrivant from another environment in some cases, should be vested with the power to set aside the outcome of due judicial process. This is a strong and reasonable statement.
Judged by their attitude to gubernatorial authority àvis-à-vis the elected government - a critical issue in democratic advancement - the CI have not aspired to very much. They have left the powers of the Governor virtually intact. Montserratians generally respect the UKG's wishes to retain certain powers consonant with its international responsibilities and obligations as an administering power, but beyond that they favour the devolution of a significant measure of authority onto the local government. We employed the word 'significant' rather than maximum, for Montserratians are not prepared to give the CM or any other Minister responsibility for the public service, to name an example, for reasons which we explain later.
The Caymanians have sought to make the greatest strides in their Executive Council, and in so doing they will merely attain positions which Montserrat has enjoyed for over 40 years and which are commonplace in the other BOTs. They are finally ready for the full ministerial system. Sections of the society perceived great merit in the direct election by the entire electorate of the CM on a separate ballot, a matter which the commissioners described as 'perhaps the most controversial issue we have encountered' (p. 7). They are apparently influenced here by their US neighbours on whom their economy is heavily dependent, but it goes further one suspects. In this and their agitation for a people-initiated referendum the CI appear to be in search of greater popular control of and check on their local executive. In the pursuit of more 'direct democracy' they are more preoccupied with constraining the power of the local executive than with the power of the Governor. It must be admitted though that checks and balances on the power of the executive are critical in the context of constitutional modernisation. Modernisation goes further than devolution of the powers of the Governor on to the local government. Direct election of the CM in a two-tiered election was also raised in Montserrat, but with less support. This method of electing the head of government has democratic merit but it would require other radical changes in the constitution to ensure that the CM has stable 'cabinet' support for his programme. If this is not secured, the implications for deadlock, gridlock and confidence motions leading to political instability are obvious.
The office of Attorney General (AG) received serious consideration in both territories for reasons which were not totally dissimilar. Some Caymanians reasoned that the quality of power which he wields, should have the endorsement of the people, through the electoral process. In the end, the commissioners clung to the status quo but urged that if he ever became an elected politician, certain of his powers should fall to the Solicitor General. The AG is not just the legal adviser to the government but also serves as the Director of Public Prosecution (DPP). Montserratians raised fundamental issues about the AG's ex officio position and his role as DPP. After abolishing nominated membership of the Legislative Council in 1999, they questioned the desirability of having two powerful ex officio members in the AG and the Financial Secretary (FS) enjoying an equal vote with elected members. There were however opposing voices who contended that in the absence of 'independent' voices through a senate or nominated membership, it was necessary for Council to have the benefit of the presence of these two officers. If the majority view prevails, both are likely to retain membership as advisers but without a vote either in the executive or legislative councils. Councils with non-voting officials would have, one suggests, a more democratic countenance.
Much value is attached to the doctrine of the separation of powers although it hardly operates in a pure form either in these British outposts or in the UK itself where the Lord Chancellor is both a cabinet member and head of the judiciary. This is precisely what obtains in Montserrat which, unlike the CI has no solicitor general or DPP. Several Montserratians have questioned the potential conflict and have alluded to instances where the elected members have allegedly exerted pressure on the AG to act in a compromising manner. This particular matter is ripe for change. A similar viewpoint obviously prevails in the CI which have made provision to ensure that an elected AG will be relieved of the judicial function.
A major forward thrust in the CI recommendations is the appointment of a Chief Minister and a Leader of the Opposition. This overdue development will merely bring them in line with other Caribbean BOTs. A timid step towards this had been taken by a constitutional amendment in 1993 which conferred the title of Minister on the elected members of the Executive Council. This quasi-ministerial system had given them Indians but no Chief.
Apart from the introduction of single-member constituencies with one person one vote and a consequential increase in Legislative Assembly membership from 15 to 18, the only other real revolutionary recommendation for the Caymanian legislature is the restriction of the franchise to born Caymanians or Caymanians with birth connections. The Caymans have a relatively large immigrant population including economic refugees and are understandably anxious to ensure that supposed foreigners do not unduly influence their political system. They have therefore placed a premium on exclusiveness. They have accordingly defined a Caymanian in the constitution, and have moved further to try and exclude persons without any Caymanian status from the entire electoral process. There is to be a distinction. Apart from the social and cultural argument, this discriminatory action which would be unprecedented in the Commonwealth is entirely consonant with Caymanian conservatism; and it should not perhaps be surprising that in their drive to expand fundamental rights neither the CCC nor the CMA has commented on this measure. It may be revolutionary without being necessarily progressive. To be fair to the Caymanians, their attitude to non-Caymanians as far as political participation is concerned, is influenced not just by conservatism but by their particular demographic pattern which is dominated by a large 'alien' work-force. And this is not peculiar to the CI, for the British Virgin Islands also have some restrictive nationalisation policies which impact on political participation (Wallace, Fergus & Penn, 1994). The CI have however, taken exclusion to a new level. Montserratians have expressed some unease at the fact that persons of non-Montserrat birth can contest elections, but have not sought to deprive them of the right to vote.
The Caymanian commissioners were correctly concerned about not creating what nineteenth century England termed 'rotten pocket boroughs' and of ensuring, as far as possible, an equitable distribution of voters among the various constituencies. (The number of voters in these electoral boroughs were so small that a wealthy person could virtually purchase a seat). Caymanians therefore envisaged work for a Boundaries Commission. Similarly, Montserrat is not likely to alter its 'voting at large' and multiple vote system partly also because of the risk of creating exceptionally small constituents from its small voting population of about 3000.4
Two other important matters featured in the Montserratian consultation. One was the Governor's role in legislation and the other was the frequency of parliamentary sittings. Standing Order 59 of the Legislative Council Rules allows the Governor to submit amendments to a bill that has already been through two readings in the Council. This is an impediment to increased local autonomy. It is even worse as happened in the Legislative Council recently, reportedly with the concurrence of the AG, when the amendment is adopted without debate. This is tantamount to a usurpation of the legislative functions of the Council and will accordingly come under questioning, whether or not the procedures of the Legislative Council are enshrined in the Constitution. Although the Legislative Council aims to meet at least six times annually, the rules require only three meetings. This is unsatisfactory, for parliamentary meeting provide parliament with valuable opportunities for calling the executive to account. Infrequent sittings, which the 1990-92 Independent West Indian Commission found to be a major evil of many regional parliaments, deprive parliament of adequate space for this vital function. A change is being sought by some concerned Montserratian citizens.
It is a redeeming factor that both Montserrat and the CI did not settle for untrammeled gubernatorial control of the public service. Both territories are demanding that the Governor not only consult the Public Service Commission (PSC), but that he acts in accordance with its advice. Montserrat is more explicit and categorical in its desire for an executive rather than an advisory body, although the Caymanians have broken new ground in their desire to make the PSC 'a strong and independent' body. More anglophile than Montserrat, the CI are content to have the Governor merely consult the PSC or the CM in respect of certain senior positions such as the AG, the Auditor General, Commissioner of Police, Permanent Secretaries and heads of departments. Montserrat would brook such exemption only in the case of the judiciary. All this is totally consistent with the desire for the CM to collaborate on the appointment of the Governor himself. In any case, Montserratians maintain that (since) the AG and the Permanent secretaries must advise, work with and are paid by the local government, it is therefore unreasonable to bestow on the Governor the power to impose such officers on ministers.
Caymanians are generally happy to acquiesce with a draft model Bill of Rights supplied by the British government. Such concerns as they expressed do not reflect any great sense of liberalism or any deepening of democracy. On the contrary, the vociferous wish by many to limit the right of freedom of conscience and religion to Christian adherents is not merely exclusionary but undemocratic. It may also be in conflict with Britain's international obligations to certain conventions such as the European Convention on Human Rights and the UN International Covenant on Civil and Political Rights. One can be sympathetic with the puristic Caymanian Christian community who wish to have the constitution enshrine their Christian values and culture, but if it is at the expense of inclusiveness, tolerance and respect for minorities which inhere in the democratic ideal, a line may have to be drawn. The commissioners thankfully did that.
Only a minority of Montserratians demonstrated any interest in fundamental rights but it was an impassioned and articulate minority. In addition, the commissioners canvassed expert opinion on some matters, with the result that while the proposed changes may be few they are fundamental and liberal in contrast to the Caymanians who endeavoured to be restrictive. The Montserratian emphasis was on inclusion, explicitness and consistency. The outlawing of discrimination on grounds of sex and religion and birth out of wedlock is to be given sharper focus. For instance, there are laws in the island which discriminate against persons born out of wedlock (the obsolete word 'bastard' is still very much on the law books) especially with regards to the inheritance of property. It is possible for a distant relative to inherit someone's possessions while a so-called illegitimate child is deprived thereof. The constitution appears to sanction this. Montserratians are now apparently fully ready to terminate this form of discrimination. Even more fundamentally it was drawn to the attention of the commissioners that section 57 (2)a of the Montserrat Constitution Order 1989 which provides for the right to presumption of innocence was in apparent conflict with section 57 (11) (2)a of the same Constitution which reads:
Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of subsection (2)a of this section to the extent that the law in question imposes upon any person charged with a criminal offence the burden of proving particular facts'.This clumsily worded proviso almost allows for legislation to nullify the substantive right of presumption of innocence. An amendment is being sought to empower the court to make the decision rather than authorising legislation which can cause a violation of an individual's right. Such an amendment would allow the court to ensure that any impairment of a person's right is minimal and proportionate to what is necessary to securing the fundamental rights of members of the society as a whole.
Montserratians have also requested a significant amendment on the matter of freedom of expression. An overwhelming majority rejected section 60 (2) of the Constitution which severely limits this right in respect of public officers and teachers. There is no reason why their objection should not be upheld for in the Antigua case of De Freitas versus the Permanent Secretary Agriculture, cited above, the Privy Council ruled in the officer's favour. He was disciplined on the grounds that he made public political expressions contrary to the terms of his employment. This is not an isolated case, for final courts of appeal in Commonwealth countries like Australia and Canada have ruled similarly. There is a good reason then to remove this effectively toothless discriminatory provision. If this occurs the corresponding changes should be made in the General Orders which govern the conditions of service of civil servants. In fundamental rights, as in other areas, Montserratian are seeking to push the frontiers in the direction of more democracy.
On a number of matters germane to effective democratic governance, the CI were ahead of Montserrat. Statutory provision already existed for an Ombudsman or Complaints Commissioner and for a Register of Interests of Assembly members in the CI. All that was necessary, was their enshrinement in the Constitution, and the recommendation has been made. Judged from their submissions, Montserratians are now ready to adopt these measures. They do not affect the power relationship between the UKG and the local governments but are critical for extending civic rights and as checks on the power of the elected government - a matter of concern in both territories, and an important element in constitutional modernisation.
Both territories were on common ground in their desire to stamp some kind of local image on the Constitution. This is why both peoples were critical of the Oath for due execution of office required of members of parliament. They contended that the oaths should include obligations to the people of the country and not just to the sovereign, if to her at all. This seems a welcome surprise coming from conservative Caymanians. In the case of Montserrat, it is the same thinking that inspired the call for a preamble to the Constitution as way rooting it in the local culture and environment. It is necessary to point out, though, that an oath of allegiance is normally made to a head of state so it would be interesting to see whether the proposal to at least include the people in the oath will receive the approval of Her majesty's Government. After all the elected government has an unwritten contract with the electors.
This conclusion aspires to two objectives. One is to summarise the forces which facilitate and inform efforts at constitutional advancement in these 'eternal colonies' (Connell 2001: 1); and the second is to reflect on the likely nature of British response to the outcome of its own invitation to its territories to take the first step towards the modernisation of their constitutions. Inherent in the latter is the question of how seriously the CI and Montserrat have by their recommendations taken the seeming liberal intent of the British. The major factors that impact the review process towards constitutional modernisation appear to be: the economy, democratic institutions, political activism, attitudes to independence, and even demographic pattern, allowing for some overlap among some of these.
There is no simple one-dimensional correlation between the economy and attitudes to constitutional reform. If there were, Bermuda and the Cayman Islands would have likely been independent states. The nature of the Caymanian economy is such that the island thinks that it needs the stability and reputation which near classic colonialism guarantees to sustain that economy. Submissive constitutional attachment to the UK is an impressive attraction of Americans who are key players at one level or another in the economy. In the 1960s when Montserrat was wooing Americans to its economy which was largely based on residential tourism, business people found prudent to tout the island's 300 year old colonial experience (Fergus 1978). Any anti-colonialist voice of that era would have been isolated. On the other hand, interest in and intimations of independence have surfaced during buoyant economic periods. They did so most emphatically during the John Osborne's regime (1978-1991) when his government's slogan was: 'Let the good times roll'; and they did so again, during the post-Hugo (hurricane) economic recovery under the Reuben Meade regime.
Trade unions with their focus on the rights of the working-class and the need for worker participation in economic enterprises are democratic instruments with a progressive outlook. There was a hiatus of about 15 years in Montserrat's trade union history partly because the trades and labour union evolved into the Labour Party which itself became a rallying point for the oppressed, having spawned populist and messianic leaders in the process. The CI lack the fertile climate for activism and constitutional change, which unionism and working class labour party politics, which were so common in the Eastern Caribbean, engendered.
Political activism in the region is closely associated with trade unionism and left-of-centre politics. And it is hardly a coincidence that almost all of Montserrat's leading trade unionists have engaged in political agitation and ultimately entered active politics. This is true of R. W. Griffith, W. H. Bramble, Dr. J. A. Irish, Vereen Thomas, Chedmond Browne and Hylroy Bramble who have all made rallying calls against the strong arm of colonialism - especially the younger cohort. The CI has no parallel history. In his A History of the Cayman Islands, it is British Commissioners whom Williams (1970) highlights as the key players in the island's development. Thirty-two years on, loyalty to the crown may not now be unquestioned, but the Caymanian mindset is still very different from the Montserratian's. The Caymanian response to constitutional reform is more apologetic and more anglophile. Montserratians are responding out of a history of struggle, albeit one that has been neither persistent nor consistently vigorous. This sense of struggle with the British is totally absent from the Caymanian psyche.
The contrasting political milieus can be illustrated with respect to attitudes towards independence. The Caymanians only mention political independence to abhor it. While independence has not been a major issue in Montserratian politics, at least one CM is on record as openly advocating it for Montserrat (Hintjens 1995). And influential trade unionist-politicians such as Irish and Browne have at some time or other projected self-determination and independence as the island's natural destiny. The present writer has himself written of constitutional independence, as 'a continuation of the journey from slavery to independence' although he recognised the need for conscious preparation for it (Fergus 1994: 217). CM Reuben (1991-1996) did place independence on his long-term agenda as hinted above, and selected a national song as part of his readying process for that status. A territory that has given some positive thought to independence is more likely to seek constitutional advancement than one who sees it as anathema and harmful to the national interest.
There is no need to elaborate here on demographic pattern which as we have made clear is a crucial factor in the Caymanian attitude to the franchise. It is of some concern in relation to universal human rights, however justifiable it may be in the CI context. With its increasing immigrant population, Montserrat may be inching towards a similar demographic profile, but that is very far in the future.
The CI has proposed more than cosmetic changes to their constitution. They have at last entered the second half of the twentieth century by asking for a full ministerial system and a Leader of the Opposition. There is something laudable in the effort of some of its citizens to give the Constitution a preamble in an effort to stamp on it a Caymanian cultural image, even though this did not figure in the recommendations. The attempt to have the people initiate referenda on matters of national importance would have been a major innovation in the cause of participatory democracy, but it did not get the blessings of the commissioners. Beyond these, Caymanian demands can only be described as reserved. If they took the British seriously, their own aspirations and expectations were not high in normative terms, but that is what they seem comfortable with. And what they are comfortable with is compatible with their culture and political economy.
Judging from the consultation data, Montserratians took the invitation much more seriously than the CI, considering Montserrat's present state of economic dependence on HMG. The greatest challenge for constitutional modernisation lies inevitably in the disposition of power between the Governor and the elected government; and the Governor's reserved powers are the crux of this matter. By targeting his authority over the public service, an aspect of foreign affairs and international finances, Montserratians wish to do more than tinker with the present Constitution. Even where the elected government does not directly benefit from power devolution, the involvement of civil society could also denote democratic advancement. A Mercy Committee and more importantly an executive PSC are examples of such potential gains. There is a number of instances where citizens are demanding that the Governor go beyond mere consultation of the CM and involve him more directly as a partner in governance. This would be an increment in greater local autonomy.
One needs to emphasise that constitutional modernisation goes beyond a reduction of the authority of the Governor. It also is about the promulgation of fundamental rights and popular participation in governance. (It is even about the freedom of the press even though this did not surface in the consultations). The Rastafarian and Pan Afrikan communities as well as trade unionists are particularly vociferous on the issue of rights. Therefore the inclusion of and emphasis on a number of rights such as the rights of public servant to free expression and the right to enforceable compensation for unlawful arrest as part of the package, signal the possibility of a new dispensation. The involvement of civil society in aspects of governance, especially if it is non-politically partisan, is also a progressive move. And while independence is not on the cards, there is a strong call for an interim status such as Free Association which would presumably have the endorsement of the UN. It is also an aspect of the clamour for the recognition of self-determination as a right.
The Montserratian shopping list surpasses the CI's quantitatively and qualitatively. However, Montserratians appear to accept, that while the colonial condition remains, HMG would retain a certain amount of power consonant with its international obligations - the mantra voiced by many a Secretary of State and FCO official. Within the context of this restriction and the Montserratian's own residue of conservatism, it took the British invitation rather seriously. The key to this attitude compared to the CI lies in Montserratian history and culture of plantations, democratic institutions, populist figures with a liberal agenda and a couple of left-of-centre intellectuals. The devastated economy has not proved to be a limiting factor. Given the scope of Montserratian demands, the question is not so much whether Montserratians took the British seriously but will the British take their own initiative seriously? Having promised bread in so many words, it would be dangerous for them to give a stone. (The father imagery in this formulation is perhaps unfortunate, but is not totally irrelevant in the present constitutional context.) Finally, with the differing responses to and interpretations of constitutional modernisation among the BOTs in the region, it is hoped that the British do not settle for the lowest common denominator. They would not want to be charged with employing the hopefully defunct strategy of 'divide and rule'.
Endnotes
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5
Browne, C. (2002) 'Post-Mortem of the 2002 Elections' The Pan-Afrikan Liberator Vol.5 No.1 May 2002.
Cayman Islands Chamber of Commerce (2002) Constitution Report 2001/2002 Cayman Islands.
Caymanian Compass Wednesday 19th June 2002.
Connell, J. (2001) 'Eternal Empire: Britain's Caribbean Colonies' in A. G. Ramos & A. J. Rivera, eds. Islands at the Crossroads: Politics in the Non-Independent Caribbean. Jamaica, Ian Randle Publisher & London, Lynne Rienner Publishers.
Conolly, W. W. (2000) 'Constitutional Development in the Cayman Islands' in (Chamber of Commerce, Constitution, Cayman Islands, 2002.
Ebanks, B. O. Ebanks, L. N. & Hunter, A. B. (2002) Report of the Constitutional Modernisation Review Commissioners 2002, The Cayman Islands.
FCO (1999) Partnership for Progress and Prosperity: Britain and the Overseas Territories, London, Her Majesty's Stationery Office (HMSO).
Fergus, H. (1978) Montserrat the Last English Colony?: Prospects for Independence, Montserrat, UWI Department of Extra-Mural Studies, Montserrat.
Fergus, H. (1994) Montserrat: History of a Caribbean Colony, London & Oxford, Macmillan.
Fergus, H. (1998) 'A Vote for Voting "At Large" in the British Virgin Islands: Constitutional Reform in a British Territory' Journal of Eastern Caribbean Studies 23(4): 40-55.
Higman, B. (1995) Slave Populations of the British Caribbean, Barbados, Jamaica, Trinidad and Tobago The Press, UWI.
Hintjens, H.M. (1995) Alternatives to Independence: Explorations in Post-Colonial Relations, Aldershot (UK) & Vermont (USA) Dartmouth Publishing Company.
Lewis, G. K. (1968) The Growth of the Modern West Indies, London, MacGibbon & Kee.
Peter Smith's Appointment Letter to the Constitutional Commissioners 15 June 2001 p. 1.
Sykes, N. J. G. (1996) A Study of Church and State in the Cayman Islands: The Dependency Question, Cayman Islands, The Ecclesiastical Corporation.
Taylor, D. (2000) 'British Colonial Policy in the Caribbean, The Indissoluble Dilemma - The Case of Montserrat' Round Table, Issue 355 July: 337-345.
Wallace, W. Fergus, H & Penn, A. (1994) The British Virgin Islands: Report of the Constitutional Commissioners 1993 London: HMSO.
Williams, N. (1997) A History of the Cayman Islands, Grand Cayman, Government of the Cayman Islands.
© Howard Fergus, 2003.
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