Governor in Cabinet is ‘constitutional’

Retaining the term “Governor in Cabinet” in legislation is legal and constitutional, the Attorney General told lawmakers after Opposition member Alden McLaughlin raised concerns that use of the expression indicated that Cabinet was not availing fully of the powers granted it under the new constitution.

Attorney General Sam Bulgin said that according to advice from the UK’s Foreign and Commonwealth Office legal adviser, there is no constitutional or legal objection to the expression “Governor in Cabinet”.

However, he said the issue is one that needs to be looked at more exhaustively and “a definitive position should be articulated by the Foreign and Commonwealth Office as to what their expectation of the role of the governor should be and how that should be reflected in legislation going forward”.

Speaking during the committee stage of discussions on the Tax Concession (Amendment) Bill, Mr. Bulgin said the expression “Governor in Cabinet” does not appear in the new constitution, which came into effect in November 2009, replacing the 1972 constitution. He said the expression was defined as the governor acting in accordance with advice of the cabinet and was usually used in legislation when deemed necessary to make a distinction between the governor acting on his own discretion or on the advice of cabinet.

But Mr. McLaughlin said the Attorney General had to “do violence to the language of the current constitution” to reach his conclusion, adding that the explanation ran counter to the principle of the new provision which was “vastly different from the former one. It is obviously intended to be different.”

He said the new constitution created a “sea change” in the function of Cabinet and the Legislative Assembly, adding that he would write to the Attorney General, and the Foreign and Commonwealth Office if necessary, on the issue.

2009 constitution

Cabinet is chaired by the governor and he and the premier determine what appears on the agenda of business for Cabinet to consider. The 2009 constitution states that “Cabinet shall have responsibility for the formulation of policy”, while the 1972 Constitution stated that “the governor shall… consult with the Executive Council in the formulation of policy”.

Cabinet was called the Executive Council at the time the 1972 constitution was drawn up.

Mr. McLaughlin said the governor’s authority is determined by the constitution and other laws or by Queen Elizabeth II and that the governor has to consult with cabinet on all functions other than those which he had specific authority over, including defence, internal and external security, and Civil Service appointments. He said that under the new constitution, cabinet is responsible for formulation and implementation of policies.

“We fought to get responsibility for policy to become the discrete remit of the elected government,” Mr. McLaughlin said. “We did so because of recent and some not so recent issues where the governor or who was acting as the Her Majesty’s representative in the Cayman Islands did things or did not do things in relation to policy which were felt were not in the best interests of the Cayman Islands. We wanted to move away from the situation which existed under the 1972 Constitution whereby the governor was responsible for formulation of policy.”

He added that it is apparent that additional powers conferred on Cabinet are not being used. “What appears to me, based on anecdotes I’ve heard and what is clear through these discussion is business of cabinet has continued as ever it did, not withstanding the fact that the new constitution came into effect on November 6 last year.

It is business as usual with the governor dictating the course of events and assuming it was still within his authority to decide policy matters on behalf of the Cayman Islands when in fact it is cabinet… which actually makes those decisions.”

Mr. McLaughlin added that unless the government avails itself of the new provisions of the constitution, the efforts to draw up the new constitution would have been “for naught”.

“It would be worse than a shame, it would be a disaster for us to revert to [the 1972 constitution] after all the time, money, energy and everything else we have spent to get the constitution to this point,” he said.

The Attorney General put forward the suggestion that the legislation could be reworded to replace the words “Governor in Cabinet” with “government”, a compromise to which Mr. McLaughlin agreed. However, Premier McKeeva Bush said that since there was no legal or constitutional problem with using the wording “Governor in Cabinet”, he preferred to retain that wording.

He said the governor has veto power and that the Cayman Islands does not have the power it had been led to believe it would get under the new constitution.

Mr. Bush informed the legislature that he intended to bring the matter up with the Parliamentary Under-Secretary of State of the UK Foreign and Commonwealth Office, Henry Bellingham.

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5 COMMENTS

  1. If Alden McLaughlins purpose for negotiating and pushing through the new Constitution in the last election was to slip the Cayman Islands into independence through the back door he needs to fess up and make his position clear.

    Who does he think is stupid ?

    I, for one, am happy to see that the Foreign Commonwealth Office is now quite aware of what this coalition government of both the UDP and PPM are up to.

    Its about time the Caymanian people see it too and get in their faces.

    Who do they think they are ?

    One down and one to go.

    Editor’s note: This comment had to be edited for legal reasons.

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  2. This statement is very revealing.

    He said the governor has veto power and that the Cayman Islands does not have the power it had been led to believe it would get under the new constitution.

    Its also obvious that Caymans voters were tricked into voting for this Constitution if they were not made aware that they were voting for an independence Constitution.

    Now the people of the Cayman Islands need to really pay attention to every word spoken and action taken by this conspiracy of politicians who are in power, at least for the time being.

    They need to make sure that any decision for or against independence is one made by the people through the avenue that the Constitution calls for.

    Editor’s note: This comment had to be edited for legal reasons.

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  3. Fiery,

    You have missed one most important point.

    It is a fact that the 2009 constitution did reduce the powers of the governor and increased the powers of the premier or cabinet. This the AG does not want you to know.It is also a fact that the Attorney General is playing games with the people and also the members including Mr. McLaughlin in regards to the powers of the governor. The UK is also in on the game. Why dont you think the governor does not say much. He is waiting untill the AG has finished eroding or as Mr. Alden McLaughlin would rightly put it DO VIOLENCE TO THE LANGUAGE IN THE CURRENT CONSTITUTION. Mr. Alden is right, we may not like him too much but he is right on. Listen to him.
    Firey if you think you can rely on this Attorney General looking out for the people of the Cayman Islands or even the cabinet you better think again!
    History has proven that anything he says should also always be researched and properly vetted to see if the people will suffer or benefit from as a result of his decision making.

    Our constitution is not moving towards independence but it is almost like Bermudas and a very good one at that. Bermuda is Not Independent.
    The drafters used the Bermuda model to draft this constitution. The Bermuda government is advanced very far but NOT INDEPENDENT. The UK in all its envy losing some control over them did swear there would never be another Bermuda amongst her territories again. So I think this is what the games are all about. The UK, the AG and the Governor are all playing games with the constitution. There is a lot of power and rights granted to the cabinet and to the people that these three entities DO NOT WANT YOU TO KNOW, and the UK is relying on the AG to violate the language or lets say chip away the rights therein that grants protection for the people from the government. IT IS A GOOD CONSTITUTION, its just so happen the people that are overseeing it are not so good. There are games being played where they keep removing this and that without the peoples approval and this SUCKS. If we get a bill of rights to really protect the people I will be shocked. My question is what gives the Attorney general the right to change our constitution after the people have voted on it in a referendum, had wide consultation throughout the entire island and in each and every district.They decided what they wanted, yes there was some NGOs but it is the peoples constitution. While the UN pushes colonialists like the UK to decolonize and release her territories, when it comes to releasing them, advancement or even Independence for those who want it, the UK does not take this laying down and does not want to let go! They always put up a fight. This is what is happening. No Alden, did not ask for Independence do not smear him with that its not fair to him. But we did get a well advanced constitution that granted a lot of power to the Premier and reduced the powers of the governor. Now, Im not going to mess with your head but it may be that the UK is hearing the cries and woes of the people regarding the dictatorship attitude of this UDP premier and cabinet, and the governor has silently hear their cries and has consulted the UK privately to reduce the power of the premier, I mean reverse his powers some, because the people are really fed up with them. This could be happening.
    Firey, this is the first governor we ever had that does not have a tongue!

    Remember, during this last new governors inauguration the premier greeted the new governor using words like this :-

    YOURE ON MY TERRITORY NOW!

    Firey,
    just think of the affect this could have on the powers of a Premier saluting the British new governor being installed in the Cayman Islands, a UK Territory. Yes, the Queens representative. He really dont have to take that kind of cheek from an Islander Premier! just think about that. Maybe he did not take it either!

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  4. Dubai

    Thank you for your knowledgeable insight.

    Youve covered many truths here, both for and against this entire situation.

    You have to admit, as you have done, that even if the intention of the original group that drew up this new Constitution was honourable and in good faith, having the wrong people in power to apply it now changes things, and in a very fundamental way…

    Youve named those very important points yourself.

    It is still the responsibility of the UK to protect the rights of the Caymanian people from the undemocratic use of any power that this Constitution
    grants to the politicians that make up any local Caymanian government…

    And you cannot honestly say that there are not major concerns now; the major issues discussed on this forum is living proof of that.

    But, you know what, I believe that the discussions held here have been a major influence in keeping the true purpose of the Constitution alive.

    If we keep true to right and justice and remain patient…

    Well all get there in the end.

    Thanks again for your response.

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