It was dismaying to read in your edition of Friday, March 19, that, “it appears lawmakers approved an incorrect, outdated version of the Non-Profit Organisations Bill, 2016, during a Legislative Assembly meeting last fall.”
You also reported that Attorney General Sam Bulgin explained that, “while lawmakers had apparently voted through the correct version of the Non-Profit Organisations Bill on second reading in October, that version of the bill was inexplicably replaced by an older version of the legislation when lawmakers reviewed it during the committee stages.” (Actually there is only one committee stage.)
He is reported as also having said that, “The older version of the law was approved in a third vote of the assembly later in the meeting.”
For a start, in terms of the general procedure for the passage of bills, it is unclear how this could have happened. Once the proposed legislation is published in the Gazette in the form of a Green Bill, it is the Green Bill that is used throughout the legislative process in the LA.
The MLAs have in their hands the same bill from first reading all the way up to third reading. When changes are approved at committee stage, no new version of the bill is prepared for purposes of third reading. The suggested textual amendments (if there are any) are merely agreed and compiled by the office of the clerk of the LA..
Thereafter, the clerk sends a copy of the bill (with the amendments passed at committee stage) to the government drafters so that they can finalize the bill for signature by the speaker and clerk, and ultimately send to the governor for assent.
Barring any departure from the established procedure or further explanation, and considering that the governor is now involved, it seems that what happened is that the drafters sent an old office version. Perhaps the fact that MLA McLean stated that, “I do not know what is wrong with the bill” may be confirmation of this.
However all that may be, this is a major embarrassment for the governor, speaker, attorney general, clerk and, above all, the drafters, though it is really the drafters who have to answer for this.
But this is emblematic of a number of systemic problems with the legislative process on the executive side of government as managed by government drafters.
In this regard, one need only look at, among many published pieces of legislation, the Conditional Release of Prisoners Regulations 2016, Confidential Information Disclosure Bill 2016 and Justice of the Peace Regulations 2015. Whereas there are other laws, especially recently, that are remarkably well-drafted, the conceptual, drafting and even simple editorial problems with the named pieces of legislation makes one wonder whether the published versions were the final or correct ones.
As to how to correct the problem, only a word of caution should suffice: Government drafters have to ensure that the procedure followed can pass legal and constitutional probity. It has to be ensured that the provisions of the Constitution, the LA Standing Orders or other relevant parliamentary practices are followed. If not, there could be a challenge to the validity of the legislation, even after it has been assented to and brought into force.
What is more, problem regarding the Non-Profit Organisations Bill is emblematic of a larger problem: The legislative processes in Cayman needs to be upgraded to minimize the incidence of such problems. This is an opportune time to undertake an inquiry into the processes and make recommendations for change, before something really disastrous comes to pass.
Bilika Simamba, consultant legislative counsel and attorney at law