Monday’s Legislative Assembly session started with a simple request to clarify a legal definition and ended with lawmakers questioning who has fundamental control of Cayman Islands government policy under the new Constitution.
Attorney General Sam Bulgin said he intended to have a clarification on the point Thursday when the assembly meeting resumes.
Independent MLA Ezzard Miller began the debate by asking a question about the use of the word ‘governor’ in the tax concessions bill. Mr. Miller said the definition in the bill referred to ‘governor in council’; the council referring to the Executive Council – a forerunner to the Cabinet. The Executive Council no longer exists.
Mr. Miller said he was concerned that, under the country’s 2009 Constitution, ‘governor’ might be construed to mean the UK-appointed governor acting in his sole discretion.
“The original legislation for this tax concession certainly envisages Cabinet…giving [the concession] and not the governor in his reserved powers,” Mr. Miller said.
Premier McKeeva Bush said it was his understanding that council and Cabinet were interchangeable under the law, and that he was happy to switch the word in the bill.
That’s where it got complicated.
“This is not just a matter of semantics,” opposition MLA Alden McLaughlin said. “This issue, it is a fundamental issue…and one with which we did much battle with the United Kingdom because it required a ceding of authority from the governor to the elected government.”
“To continue with the colonial vestige of governor-in-Cabinet is to move the country back to where we were before.”
Mr. McLaughlin said the previous 1972 Constitution gave the Cayman Islands Governor the sole discretion to make policy and essentially treated elected Cabinet members as advisors. Currently there are five elected members in Cabinet, but the new constitution envisages seven members when new electoral districts are added.
Section 44 (3) of the new constitution states: “Cabinet shall have responsibility for the formulation of policy”.
“The concept of governor-in-Cabinet or governor-in-council no longer exists in our constitutional law,” Mr. McLaughlin said. “We need to ensure the necessary changes are made.”
Mr. Bulgin did not agree with the opposition member’s take on what the 2009 Constitution requires.
“What was probably intended or hoped is not what is reflected in the constitution itself,” Mr. Bulgin said. “The Cabinet itself cannot formulate policy unless the governor approves it.” The attorney general said whether the phrase governor-in-council or governor-in-Cabinet is used doesn’t make much difference from a legal standpoint, but said he would research the point further.
From practical experience, Premier Bush said what occurs now is that the governor chairs Cabinet and when he is not there the deputy governor sits in the chairman’s position.
Mr. McLaughlin said that was not correct under the 2009 Constitution. “The governor cannot delegate responsibility of chairmanship to the deputy governor,” he said. “It is the premier, in the absence of the governor who chairs Cabinet.”
Mr. Bush said he rather liked the opposition member’s interpretation of the constitution.
“A lot of things would have been moving ahead much faster if I never had to do all of this,” the premier said.
The debate held up passage of the Tax Concessions (Amendment) Bill, 2010. The house is expected to complete passage of the measure Thursday in any case.