Debate for the Legislative Assembly on Autonomy of the

Legislative Assembly

By Premier Hon. Alden McLaughlin, MBE, JP, MLA

21 October, 2015

Madam Speaker,

Today I move a motion concerning the Administrative Autonomy of the Legislative Assembly.

This motion, once approved, will place the responsibility of the Legislative Assembly where it should be, with the Honourable Speaker and the Clerk.

At present the administration of the Legislative Assembly is vested with the Deputy Governor. Prior to that, it was under the Chief Secretary. The result of this arrangement is that direct administrative responsibility for this House is in the hands of a non-elected senior civil servant and, by extension, ultimately in the hands of the Governor who has responsibility for the civil service.

Until 1989 this House did not have a Speaker. Instead, the Governor sat as the presiding officer of the House. But we have matured and have progressed past that time, vastly improving our democracy. This motion will help to enhance it further.

Madam Speaker, we are very fortunate to have someone of high calibre serving as Deputy Governor. I have every confidence in him and in his abilities. But we know that the current Deputy Governor will not hold that post forever. We also know very well that we in this House do not get to choose who will follow him.

So Madam Speaker, this motion in no way should be seen to reflect in any way on the confidence and respect that those of us in this legislature have for the Honourable Deputy Governor. Indeed the Deputy Governor agrees with the objective of this motion – we have discussed it several times and he has told me so.

The Deputy Governor understands well from whence we came. And he also knows the system well enough to appreciate what we need to aspire to.

It is accepted that there should be a clear separation between the executive or administrative branch of government and the legislative and the judicial branches. The executive branch is created and empowered to administer the day-to-day functions of government. The legislative creates policies and makes laws while the judicial branch ensures that laws are duly followed and that the rights of individuals are protected. These three branches of government are equally important and have separate responsibilities. It is because of this that there is a need to ensure a clearer delineation of those responsibilities.

Leaving the judiciary to one side, as this separation has already been addressed in the Cayman Islands; today we seek to complete the exercise of separating the legislative and the executive branches by making the business of this honourable House entirely autonomous.

I would like to quickly run through some of the history that has gotten this Legislative Assembly to where it is today.

Before 1832 local public affairs were administered by Justices of the Peace, which were appointed by the Governor of Jamaica. From their group they appointed what was known as a Governor for the Cayman Islands. With this we had the administering power create persons
who had responsibility for administration of government and the creation of laws but who also sat as judges.

Our first true representative form of government was born on 5

December, 1831, when residents met at the Pedro St. James great house and decided that representatives for the five different districts of Grand Cayman should be appointed to form local laws for better government. Elections were held on 10 December and then on 31
December the first Legislative Assembly met in George Town. After

1832, elected representatives known as Vestrymen became part of the administrative body and the title of Governor was changed to Custos. The system then changed to one of an elected body also performing an administrative role and with the Custos serving as the head of both elected and administrative functions.

The Act for the Cayman Islands Government was enacted on 22

June, 1863. It allowed for all British Acts or laws, which were valid in Jamaica to be applied to the Cayman Islands. The Act also allowed the Governor of Jamaica to exercise authority over the Cayman Islands as if it were a part of Jamaica and vested the Supreme Court of Jamaica with the jurisdiction to hear any legal action that could not be tried in the islands.

For Cayman, a significant milestone was that the Act also caused the full recognition of the local legislature and gave it greater internal
independence to handle the islands’ domestic affairs, including control over the collection, custody and expenditure of the legislative revenue, the establishment, maintenance, discipline and powers of the Police, the management, occupation, removal of public or common land, the abatement of nuisances and the construction of works and public utility, to name a few.

In 1898 the title and job description of the Custos was changed to

Commissioner.

On 1 September, 1937, a resolution was passed by the Assembly of Justices and Vestry to “appoint a Select Committee to consider and report on the Constitution of the Assembly”. While no record was found of that committee’s recommendations, the idea was clearly put in people’s minds.

During the 1940s and 1950s, the gap between Jamaica and Caymanian political systems became apparent. In theory, the Jamaican legislature could pass laws applying to the Cayman Islands without consulting Caymanians. The Jamaican cabinet of ministers also had the right to government of these Islands without consulting us. Only the Governor of Jamaica had the right to intercede on Cayman’s behalf.

Legislators in Cayman gradually became aware of the implications of these changes and the need to adjust to them. The first Jamaica general election in December 1944 resulted in a smashing victory for the Jamaican Labour Party under populist leader Alexander Bustamante. At that point, with the formation of the People’s National Party, Jamaica was the most important member in the British West Indies Federation, the mechanism Britain favoured for her Caribbean colonies to gain independence.

From Cayman, Mr. Ernest Panton and Mr. Willie Farrington attended the first meeting in Jamaica as observers to discuss the proposed West Indies Federation, but made it clear that the Cayman Assembly would agree to join only if the Cayman Islands had direct representation in the Federation legislature; a position that was soundly rejected by the Standing Closer Association Committee, which in 1949 recommended that the Cayman Islands should continue as a dependency under the administration of the Governor- General of the Federation.

This solution was seen, for Cayman, as impractical and unacceptable in two further organisational meetings.

The Federation was formally launched on 3 January, 1958 with

Cayman’s position was still undecided.

But in the lead-up to the formation of the Federation, back home it was becoming clear that the balance of power of the government was, well, unbalanced.

One could say the conflict between the legislative and executive functions was officially recognised for the first time in 1954 in a famous tussle between Commissioner Andrew Gerrard and Mr. Ormond Panton. The first incident occurred when Commissioner Gerrard, who was the presiding officer of the Assembly, moved a motion involving his salary or pension and offered to vacate the chair of the Assembly while it was debated. He proposed the Assistant Commissioner Desmond Watler sit in his stead. Assemblyman Panton objected on the basis that just as the Commissioner had a conflict of interest, so too would Mr. Watler. The Standing Orders at the time said the Assembly could appoint a chairman from among themselves and he was proposing Warren Connolly. Neither man backed down. The Commissioner stormed out of the Town Hall, jumped into his car and drove off in a rage.

There were more encounters involving Mr. Panton that would lead to an eventual separation of powers.

Mr. Panton and his father operated a shop and had a truck used for deliveries. Back then you could license a truck quarterly, half-year or yearly. Mr. Panton had licensed his for half a year and had forgotten to get it renewed. In all 14 people had failed to renew their licenses, including the Clerk of the Courts. The Commissioner ordered the clerk to write to the 14 offenders about the licenses issue. Mr. Panton recalled in his biography, A Special Son, that his letter said that he should go to the Commissioner’s office and explain why he had wilfully failed to pay this tax. He refused and it escalated when Mr. Panton learned that the Commissioner – who was also head of customs and resident magistrate – was going to try Mr. Panton himself after Mr. Panton had elected to be tried by two Caymanian JPs.

On the day of the trial Mr. Panton made objections to the Commissioner trying the case since in his capacity as Collector General, he was the same person who instituted the proceedings. Mr. Panton, found guilty and ordered to pay 8 pounds, immediately announced his plans to appeal.

A Jamaican judge came to Cayman, heard the appeal and reduced the fine to 4 pounds, which Mr. Panton still refused to pay, saying “I can’t be 50 per cent wrong and 50 per cent right. If I accept this, I am accepting some wrong and I am not wrong. First of all he had no business writing me that I had wilfully neglected to pay my taxes and secondly it was wrong for him to sit on the bench and try me when he had introduced the proceedings”.

He tried to appeal to the Appeal Court in Jamaica, but Government told him that cases tried in Petty Court in the Cayman Islands could be appealed only to the Grand Court and no further; the conviction would have to stand. To make a long story short, Mr. Panton wrote to
the Lord Chief Justice in England. A law backing up Mr. Panton’s right to appeal to the Jamaica court had been found in the British Museum. He won the appeal and his conviction was quashed.

In another instance, Mr. Panton spoke out against a decision made by Judge E.M. Robinson who was president of the Cayman Sports Club to suspend from the club three young men who had been charged with the theft of liquor.

“I went to him and told him I didn’t think that was the right thing to do because he was prejudging the case and that he should withdraw the letter. He told me he would think of it, but he did nothing,” Mr. Panton is quoted as saying.

A few days later, after Mr. Panton had closed his shop for the day, he wrote out three copies of the following message: “I Ormond Lauder Panton, like to think of Mr. Robinson in terms of the old proverb I once read: When monkeys are prone to their antic passes, the higher they climb the more they
expose their asses.” He went out into the night and put one copy on Judge Robinson’s door, the other on the notice board in front of the court house and the third on his shop window. About 1 o’clock the next day two armed police officers went to his Cardinal Avenue store to arrest him. Judge Robinson vowed to try him on the spot on the
three charges he faced: The uttering of words to a police officer which tended to deter him from his duty; the unlawful publication of words which tended to a breach of peace and for the publication of words which tended to scandalise the Government by abusing the magistrate.

Mr. Panton protested Judge Robinsons’ judging a case with which the judge was involved, to which Judge Robinson yelled “Shut up”. Mr. Panton requested a two-week postponement, but received only one week. Eventually Judge Robinson’s temper subsided; another magistrate heard the case and the charges dismissed.

“With that, I filed against Robinson on the grounds that he was out of order to try me and that the charges were made without reasonable cause,” Mr. Panton would later recall.

I go into that bit of detail to describe the untenable situation of having a Commissioner act as collector, judge and jury; in other words to point out the necessary separation of powers in Government, an
issue previous successive governments have attempted to address.

On the slow march to democracy the Cayman Islands received its first written constitution by a royal order-in-council on 4 July, 1959; the first step in political advancement. Under it we were specifically exempted from the control of the Jamaican legislature and placed directly under the authority of the Governor of Jamaica. The Commissioner was retitled Administrator but retained almost all the executive, legislative, and judicial powers held by the Commissioner. The Administrator was to be guided by the Governor of Jamaica and to keep him informed, corresponding directly with the Colonial Office only with the Governor’s authorisation.

The changes to the Legislature in the 1959 constitution were much more radical. After 129 years, the unique body of Vestrymen and Justices was replaced by the Legislative Assembly and membership was reduced from 35 to 18; 12 elected, three nominated and three official. The Administrator functioned as both chairman and speaker and presided over an executive council consisting of two official, one nominated and two elected members. Note the balance of power remained firmly in the hands of the official members. The most significant change was probably that all adult Caymanians were given the rights to vote and stand for election, including women.

In 1961 voters in a referendum in Jamaica narrowly voted to withdraw from the Federation and that country became independent in 1962. The Federation’s collapse and Jamaican independence left our proposed self-governing country an orphan. And it’s when political activity in the Cayman Islands heated up.

Mr. Ormond Panton, Mr. Warren Connolly and the National Democratic Party wanted internal self-government under the umbrella of Jamaica. The Christian Democratic Party also wanted self- government, but under Britain. In 1962 after a heated Assembly meeting, the following resolution was passed: To continue Cayman’s association with Her Majesty’s Government in the United Kingdom
and to negotiate with Her Majesty’s Government in the United Kingdom for internal self-government, taking into account the wishes of the people of the Cayman Islands as to timing.

One significant change was the adoption of the so-called membership system. It wasn’t yet ministerial government, but it was one step closer.

The principle of the separation of powers – legislative, judicial and executive – was the centre of an important appeal case in Jamaica in 1967 in regards the Cayman Islands Public Service Co. Ltd. The Stipendiary Magistrate, acting as judge of the Grand Court, had made a judgement in favour of the government, which was held to be a conflict of interest because the magistrate was also the only member of the Executive Council with legal responsibilities. The outcome of that case resulted in the creation of the Office of the Attorney General in these Islands.

More changes were afoot. In 1971 an Order in Council changed the title of Administrator to that of Governor. Athelstan Charles Ethelwulf Long became Cayman’s last Administrator and first Governor of the modern era.

The Cayman Islands made a significant advancement toward internal self-government through the Constitution of 1972. The elected term was extended from three to four years and the voting age was reduced from 21 to 18. The number of elected members remained at
12, but the appointed members were done away with. Three official members, the Financial Secretary, Chief Secretary and Attorney General were members of both the House and the Executive Council. For the first time, elected members of the Executive Council were given portfolio responsibility for running the affairs of the country.

It was also the year that there was a shift in administrative responsibility from the Governor to senior civil servants.

Membership in the House increased to 15 from 12 when the Constitution was amended in 1992 and a year later, members of the Executive Council became known as ministers and ExCo itself was renamed to Cabinet in 2003.

A 1993 amendment to the Constitution provided for a referendum to be held on matters of national importance. The PPM Administration considered a new Constitution a vital matter so the Legislative Assembly passed a Referendum (Constitutional Modernisation) Law that asked voters if they approved of the draft constitution that had been agreed on by a Cayman delegation and the United Kingdom Government.

As we all know, that referendum was approved in May 2009 in the General Election and the new Constitution took effect in November that year. As we also know, one of the immediate changes was the installation of Cayman’s first Premier. Other new entities included a National Security Council, Judicial and Legal Services Commission and Advisory District Councils.

The new Constitution further diluted some of the responsibilities of the

Governor. The Cabinet is no longer an advisory body to the Governor, but makes decisions with respect to every aspect of government except those matters for which the Governor has special responsibility under the Constitution such as the Public Service, Defence, External Affairs and Internal Security.

The new constitution also created some significant changes to the makeup of the Legislative Assembly. It removed the Financial Secretary from the House and Cabinet and created a Minister of Finance in his place. The Chief Secretary’s position was subsumed by the Deputy Governor, who must be a Caymanian. The Attorney General and Deputy Governor continue to be members of both the Legislative Assembly and Cabinet, but only in an advisory role and not as voting members.

The 2009 Constitution also permitted the addition of members to the Legislative Assembly, a provision that this House exercised on Monday.

Madam Speaker, this Government believes it is of fundamental importance that the doctrine of separation of powers be not only recognised, but also observed and that the Executive and Legislative branches of Government must be independent of each other.

Indeed, when those of us in this House agreed in November 2006 to make the Legislative Assembly an autonomous body, we were seeking to take the Cayman Parliament another step higher in the functioning of the Islands as a constitutional democracy.

I said in this House on 6 November, 2006, which was recorded in the Hansard on page 388, “The administrative autonomy of the Legislative Assembly, I believe, is critically important to the continued evolution of the democratic system, which we have”. And I still hold that belief.

Unfortunately the Government of which I was a part lost the next election before we could complete the work that was started. But today with this motion our plan is to complete what we started in
2006.

Madam Speaker, I told you earlier this year in this House that I planned to look at transferring responsibility for the management of the Legislature from the Office of the Deputy Governor to the Speaker of the House. This motion fulfils my obligation to you, to this Legislative Assembly, and to the Country.

From the outset this Government has striven for good governance and I believe we have succeeded. This is just another way we are living up to that commitment. And once again Madam Speaker, we are showing that this Government gets things done.

With the passage of this motion, work will begin to transfer responsibility for the administration of the Legislative Assembly from the Deputy Governor to the Speaker and management to the Clerk of the Legislative Assembly. Once completed, the long journey to separation of powers in the Cayman Islands championed by national heroes such as the late Mr. Ormond Panton will finally have been achieved. He would have been proud.