(June 9, 2009) A new constitution has been drafted for the Cayman Islands and approved by 62 percent of the electorate in a referendum held on May 20, 2009. (Carol Winkler, New Constitution Coming, CAYMAN COMPASS, May 24, 2009, available at http://www.caycompass.com/cgi-bin/CFPnews.cgi?ID=10382562.) The Cayman Islands is an Overseas Territory of the United Kingdom with a Constitution enacted in London in 1972 that has been amended by the British government on a number of occasions. (Cayman Islands (Constitution) Order 1972, S.I. 1972/1101 (U.K.); for amendments post-1987, see British and Irish Legal Information Institute website, http://www.bailii.org/cgi-bin/sino_search_1.cgi?method=all&query=cay
;mask_path=uk%2Flegis%2Fnum_reg (last visited June 3, 2009).) The Cayman Islands has an electorate of about 15,000 persons, and it is best known as a major offshore business center or “tax haven.” (WALTER & DOROTHY DIAMOND, TAX HAVENS OF THE WORLD (2009).) In recent years, the Government of the Cayman Islands has favored constitutional modernization.
Three rounds of negotiations between the two governments and other parties, which included the opposition in the Legislative Assembly, churches, the business community, and the Human Rights Committee, resulted in the drafting of the new Constitution. The British government has indicated that it will draft an appropriate statutory instrument for Royal Assent that will empower the Governor of the Cayman Islands to bring the Constitution into force in the territory. (Winkler, supra.)
The new Constitution will preserve the current arrangement that makes the United Kingdom responsible for defending the territory and conducting the Cayman Islands' foreign relations, but gives the local Legislative Assembly authority to enact domestic laws that can be disallowed by the British government. However, the power to disallow laws enacted in the Overseas Dependencies is seldom exercised by the British government. Thus, the Cayman Islands will continue to have internal self-government in most matters.
The major change that the new Constitution will make to the Cayman Islands' legal system is that it will introduce a constitutional Bill of Rights for the first time. Whether the courts should be given the role of protector of civil liberties or whether this should remain a legislative prerogative was a major issue in the debates over the new Constitution. In voting for an entrenched Bill of Rights, the voters in the Cayman Islands decided to follow the example of Canada, which obtained its Charter of Rights and Freedoms in 1982 (Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, ch. 11 (U.K.), available at http://lois.justice.gc.ca/en/charter/index.html). This document has dramatically increased the role of the judiciary in reviewing governmental actions and legislation to determine whether they are legally permissible. (PATRICK MONAHAN, CONSTITUTIONAL LAW OF CANADA 372-373 (2002).)