A wounded Constitution

| 08/11/2019 | 22 Comments

Leonard Raznovich writes: The failure of the Court of Appeal to apply correctly the Constitution and to find appropriate and adequate constitutional remedy for Chantelle Day and Vickie Bodden is bad news for all Caymanians, including religious groups. It is also a bleak day for the jurisdiction and its future because this decision leaves not only Chantelle and Vickie but all of us (and particularly all minorities) at the mercy of the elected government and with no effective constitutional protection from the courts against legislation that impacts their human rights. 

The Cayman Islands Constitution has suffered today a serious wound. It is not fatal, but its fate depends on an appeal to the Privy Council to correct the fundamental flaws in the Court of Appeal’s decision.   

Paraphrasing Bill Clinton’s phrase about the role of the economy in a presidential election, in this case, the remedy is in the Constitution, stupid!

The judiciary of Bermuda perfectly understood this and unanimously found that remedy with braveness and, it is fair to say, in the face of a referendum and the British Government, who gave permission to change by legislation what the court had determined was legally right. The judiciary of Bermuda did so even though its constitution is older and more rustic than ours; but our Court of Appeal closed its eyes to it and, unsurprisingly, wounded the Constitution with two fatal flaws.

The first flaw has two aspects; on the one hand the Court of Appeal has, in effect, re-written section 14 of the Constitution by reading in that section words that are not there. It did so by implication — a technique of constitutional interpretation that is allowed in order to expand rather than to restrict rights — by holding that section 14 defines marriage when in plain English it does not.

This aspect of the judgment alone defies decades of Privy Council decisions, starting with the decision of 1929 in Edwards v. AG of Canada, in which the Privy Council concluded that women are persons even though the constitution referred to ‘he’ only.

Moreover, our Court of Appeal also held in relation to section 14 that a constitutional right to marry can only be derived from section 14. This conclusion is so absurd that in fact the church in the Cayman Islands has also lost the constitutional protection to marry people. This is so because if the constitutional right to marry can only be derived from section 14, as the Court of Appeal concluded, the churches in the jurisdictions could not complain if in the future a government were to change the law and take away the right to conduct legally binding religious marriages. 

Nowhere in section 14 is the word ‘religion’ mentioned; such a right could only derive from section 10, but after today’s judgment that section cannot be engaged to imply a right to marry under the constitution.  

The second flaw is disturbingly more fundamental. The court concluded that a court of law in the Cayman Islands cannot provide a remedy to an applicant in circumstances in which the government admitted in court to have breached the fundamental rights of that person under the Constitution and is prepared to do nothing about it. This defies basic principles of constitutional law.  

This is not the first time in modern times that a court of law of a western democracy wrongfully restricted fundamental rights by implication or denies effective constitutional protection to minorities. During the course of last century, many states in the United States prohibited interracial marriages in order to preserve the purity of the white race. 

A case was brought to the court that challenged the constitutionality of these laws, but a court in Virginia rejected it on grounds that God made races and placed them in different continents, hence the legal prohibition agreed with the will of the Creator and could not be unconstitutional.  

Some judges are defined and remembered for their braveness in doing what the law requires, notwithstanding that their decision may be exceptionally unpopular. Other judges lack that braveness in that they prefer to take a blinkered approach that somehow appeases the majority and shields them from backlash.

Chief Justice Smellie is an outstanding example of the former, the Virginian judge, whose name has been forgotten, is an example of the latter. But the law, in the end, prevails. The American court of Virginia was corrected by a unanimous decision of the United States Supreme Court in Loving v Virginia

This Cayman Islands Court of Appeal will be corrected by the Privy Council.

A former lecturer at the CI Law School, Leo Raznovich is a visiting Senior Research Fellow at the Intersectional Centre for Inclusion and Social Justice and has been a vocal advocate for the rights of the LGBTQ community.


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Comments (22)

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  1. Slacker says:

    If only the Court of Appeal, under Goldfinger (haha) had set a time frame, e.g. 90 days, or if not acted on, then would uphold the CJ’s ruling, we could get some movement on this issue. Instead, we are going to await a commission to be appointed, public hearings scheduled, Consultant Lawyers, CMA, SDA, JW, etc.

    Nothing done until after the next election or Mr. Governor intervenes.

  2. Anonymous says:

    How can it be a bad day for religious groups, when most religious groups oppose same sex marriage?

    In the big scheme of things, how can this be a bleak day for the country? Will we suffer economically, some sort of peril? Bleak how?

    I do not believe most people here are homophobic. I have not really heard any cases of harassment here in that regard. How about that we continue to live in peace with each other while traditional values remain in place? Is that possible you think?

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  3. Anonymous says:

    What is so great about marriage that it must only be enjoyed between 1 man and 1 woman? It seems many holders of this bounty treat it with utter disdain thru adultery and worse. I’m not sure the LGBT’s and any others are missing out on anything, be careful what you wish for! But of course, the main point is that they are perfectly entitled to at least have the same choice of electing to marry. Why not? Because some fictional character said so in one badly revised version of a fable? Oh, that makes perfect sense. Just like those who thank the overlord for cleansing them of the cancer he gave them (really…wtf?), it is barking mad to think that anyone/thing amazing enough to have created everything really gives a sh*t about who’s marrying who. I think he/she/it may be more concerned about the ones chasing the sheep up the hills for a start…

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  4. DontConfuseOurChildren says:

    Here we go again!!! Breaking Down Lots’ Door.

    The issue is LGBTQ which he skillfully didnt mention, “minorities?”. Black Civil Rights is WAY out of this league. If he was black he would know. Needs to Keep to what he knows.

    The Appeals court had to fix the Constitutional and Legal crisis the CJ caused. The Judiciary is only allowed Recommendations (the Appeals Court even stretched it by a Declaration).

    All of a sudden he has interest in the church (besides going). If he was so interested in the church he would not be trying to stop their teaching on what their GOD and Bible says. Religious Rights.

    Thank GOD Cayman is still a democracy. The Govt doesn’t change laws arbitrarily (except to please the LGBTQ) . That is of GREAT concern. CPR is an example of how the people can intervene before an election cycle ends.

    The Privy Council should understand the Rights of the Democratic Majority.

    Please leave Cayman as you met it (if you can’t make it cleaner).

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    • Anonymous says:

      As a naturalized American citizen I used to hear a lot “If you don’t like it here, leave”, even when my ‘disliking’ pertained to mass executions of American people including children on American soil or war Iraq or American health care system.

      “If you don’t like it here, leave” is the kind of ground floor logic that seems, at a very crude level of analysis a fair enough statement. It appeals to various people who lack the habit of thinking in subtle ways about complex issues.

      The problem is that at the level of citizenship it is a total nonsense. It’s often used against naturalized citizen (status holders) who challenge aspects of their adopted country.

      This reaction is always wrong. We all have the right to express our opinions on anything, in any country.
      That is a basic element of democracy and human rights. The ‘Universal Declaration of Human Rights, 1949, states:
      “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

      If someone criticizes “your” (which is also his) country, they care enough to notice some problem, comment on it and suggest solutions. You do NOT tell them to get out of THEIR country simply because you don’t agree with them. That is xenophobia. That is how Hitler acted.

      So, maybe YOU should get out! Things might start getting better in your country without you around to hold it back.

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  5. Anonymous says:

    What a load of rubbish. Thank you Court of Appeal for getting rid of that ridiculous decision the Chief Justice made.

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    • Anonymous says:

      Exactly!, getting married is not s human right issue, a man and a woman have no issue with getting married.

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  6. Anonymous says:

    Sorry this bothers you but the constitution has now been a interpreted as it was intended. This was the best outcome and also one that is allowable under our constitution.

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  7. Anonymous says:

    Dr. Raznovich if the future is so bleak for cayman I ask the question without any provocation or hate, why are you still here? For obvious reasons you are here because you fell in love with the people, the culture, it’s traditions and of course our beautiful beaches. So why change this? Cayman is a unique territory much that I love and hold dear as I choose to raise my family here just because of that uniqueness. Why would you want me to live in a country such as the one you came from? I could certainly move there if I so wish and I would never dare try and impose my beliefs or my way of life on them. I would respectfully integrate, be a good steward and uphold the citizen’s way of life. Please respect our culture and let us move on in harmony. This issue has created so much division amongst the people and ultimately only angry hateful people will come out of this issue. Let’s hope the government allow civil unions and these two ladies can move on with their lives and the country can be as one again. Thank you.

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    • Anonymous says:

      Unna acting like there aren’t born and bred gay Caymanians here.

      Homosexual intercourse is legal but they can’t have equal rights? Foolishness. Keep ya fairytales in church and cast the first stone if you’re so holy.

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  8. BeaumontZodecloun says:

    This is a well thought out and insightful look into the current issue as it applies to the Cayman Islands. I applaud you, Mr. Leonard, and I appreciate how impartial your treatise is.

    It is clear where your beliefs lie, and yet you manage to analyse the entire system without rancor for either side. Well done, Sir, and if I may, an e-fistbump.

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    • Anonymous says:

      Impartial? Don’t make me laugh. No one likes truth today, it is all about agenda. Get out of my face.

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    • Anonymous says:

      Why do people come here and want to change here like where they came from, why didn’t they just stay where they came from if that’s what they want . If they can’t respect
      Our laws and way of life, please don’t try to change it like where they came from, just leave and go back from where they came from and leave us alone, please just go, thanks

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      • Bitteraf says:

        FFS 3:55, the two women who are fighting for equality… ONE OF THEM IS FROM HERE… BORN HERE! She should be able to live with her wife and child and have the SAME rights as everyone else! Simple.

        You mention “our laws and our way of life, please don’t try to change it” – you DO NOT speak for all Caymanians! There are plenty of us who support these women and can still go about our days and nights without losing sleep that “people are trying to force their views down our throats”– just stop already, that dialogue is getting tired, old and beyond weak!

        And I have more news for you, THERE ARE PLENTY OF BORN AND BRED CAYMANIANS WHO ARE GAY TOO!!! They can’t live a normal life like you and me, because they can’t have the same healthcare benefits, the same rights if one of them gets injured and goes to the hospital- their partner can’t legally stay with them b/c they’re not “officially” a couple, right to work if their partner isn’t Caymanian… It’s examples like these that make this fight worth fighting for!

        Their marriage in no way affects your day to day life- so please, just stop being so ignorant– it’s NOT “people coming here and want to change here” it’s people FROM here that DEMAND equality- in this day and age, it shouldn’t be so damn hard to get it done!

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  9. Anonymous says:

    “It did so by implication — a technique of constitutional interpretation that is allowed in order to expand rather than to restrict rights — by holding that section 14 defines marriage when in plain English it does not.”

    Exactly. This is one of the most basic fallacies one learns when studying logic. If a thing is defined such that it “must” include something, it is not also automatically defined as excluding everything else.

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  10. applause for Dr. Raznovich says:

    Excellent analysis by Dr. Raznovich. To offer only civil unions to gays is a disgrace. The purpose of the separate track for gays is, without a doubt, to make clear to all that straights are “better” than gays and deserve greater recognition — when in fact there is no “better”. We are all human beings, and we all deserve identical respect, and dignity. The Privy Council will acknowledge this, and they will reverse the cowardly ruling by the Appeals Court. If you doubt this, just wait and see! Gay marriage WILL come to Cayman, and the entire country WILL benefit. And this WILL happen in the not-too-distant future. More power to Vickie and Chantelle for their enormous courage and determination.

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  11. Cayman kind says:

    The framers of our Constitution has always intended that marriage is between a man and a woman. Not until LGBT propaganda, an a confused Judge, our Constitution must be re-interpreted through the judicial branch. Good luck with that.

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    • Anonymous says:

      The majority of us want equal rights for all

      1 side wants more than that

      The other side wants nothing for that 1 side

      Be responsible and do the right thing for the minority

      The minority lost this case

      Now CIG, protect that minority with providing civil unions and move on

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