Secret JR is of ‘public importance’, says judge
(CNS): A Grand Court judge has cleared a judicial review challenging the governor’s use of his constitutional powers to pass the Civil Partnership Law after he found the case was of “public importance”. However, all the documents relating to it are being withheld from the public. CNS has acquired a copy of Justice Richard Williams’ ruling clearing the application by conservative Christian activist, Kattina Anglin, even though the Constitution says that if a governor is directed to use his power by the UK, the courts cannot intervene.
Anglin filed her application for a judicial review of the use of the section 81 powers by Governor Martyn Roper in September. The local activist from West Bay is arguing that the use of that constitutional section was wrong because it only applies to international affairs and the Civil Partnership Law was a domestic matter.
It is understood that Anglin is arguing that, even though both the Grand Court and the Court of Appeal found that the Cayman Islands Government was breaching the European Convention on Human Rights, this did not elevate the matter to foreign affairs since this is relating to a treaty obligation. It is believed that the recent law degree graduate is suggesting that the governor could only implement the legislation providing for civil partnerships by an order-in-council.
While Justice Williams rejected some elements of Anglin’s application in his ruling, he allowed the JR, writing, “The nature of the various arguments raised by the Plaintiff and the need for resolution of this question of substantial public importance fortify my view that leave to apply for judicial review on the s.81 ground should, and is, granted by me.”
Despite Anglin’s very public opposition not just gay marriage but to any same-sex legal unions, the judge said he did not believe the application was being made for any motive other than public interest, according to his ruling on 20 November.
“I am satisfied that the Plaintiff, who has an academic grounding in the law, is not motivated to make the application for any improper motive, but because she genuinely feels the issue is of public interest,” the judge found.
And yet, so far this ruling and Anglin’s application have not been placed in the public domain. While there is no official court order anywhere sealing any documents relating to this case, public access is being limited. According to court officials, the judge who described the case as being of public interest has not cleared the documents involved to be posted on the public register.
In a recent email to CNS, the court officials confirmed that “based on indications received from the judge, the ex parte application was not made available to the public”. If matters progress and officials are permitted to place the documents on the public register, they will do so and we will be able to access them via an electronic search.
But the clerk of court told CNS that “we have not be granted permission to place any documents in relation to this matter on the public register at this time”.
CNS discovered the existence of this ruling and the fact that Anglin’s application was moving forward via documents filed with the Privy Council ahead of the well-documented same sex-marriage case of Chantelle Day and Vickie Bodden, which will be heard in London next month. The couple are seeking to have the Cayman Islands Court of Appeal decision overturned and the original ruling of the chief justice legalising gay marriage here reinstated.
While the judge made it clear in his ruling that the arguments are of clear public interest, the public is still being denied access to the documents that set out the arguments and reasons.
This is of particular concern, given that Justice Williams makes no reference in his ruling to the major stumbling block for this case. Section 31(4) of the Constitution indicates that when the governor is directed to do something by the UK, he has no choice and the issue cannot be decided by the courts.
It reads: “Notwithstanding the jurisdiction of the courts in respect of functions exercised by the Governor, the question of whether or not the Governor has in any matter complied with any instructions addressed to him or her by or on behalf of Her Majesty shall not be inquired into in any court.”
Ezzard Miller MP, who is well known for his understanding of, and advocacy for strict adherence to, the Constitution, has stated on a number of occasions that section 31(4) makes it clear that a court cannot interfere with the actions of the governor in this case.
In a short letter to Governor Martyn Roper, dated 5 August 2020, the minister with responsibility for the overseas territories at the time, Baroness Suggs, described the correspondence as “instructions addressed to you on behalf of her majesty to act” and pass the relevant legislation.
Nevertheless, Justice Williams makes no mention of the direction from the UK regarding the implementation of the Civil Partnership Law when he ruled that Anglin’s judicial review could move forward.
While CNS has still been unable to secure the original application by Anglin for the JR, we have now posted Justice William’s ruling on that original application in the CNS Library.
Category: Laws, Local News, Politics
Thank you CNS for the considerable time and effort you put into researching this very informative article. Hardly any of your commenters realise the immense time and effort put into all your reports,not to mention having to review all comments prior to publication, all from just two permanent staff.
“judge said he did not believe the application was being made for any motive other than public interest,”. HAHAHA What is this a mock exam in law school?
Maybe he should have sought out a second opinion when it comes to motivation.
As the years go by / True love will never die ! Still with ya Miss V and Miss C . God Bless .
Sit down and think everyone. Please!!!!!!!!!!!!!! Cayman has not crumbled. If some stupid ass Caymanians can have their money-grabbing and social-climbing hetero wives and husbands stay here with them, and there are many, then this Law was needed to give Gay Caymanians the same right. Straight up. Pun not intended here.
Give this a break. Go to church and sit and think about your hatred and what it is doing to the young, middle Aged and Elderly Gay Caymanians and residents’ mental and emotional state.
Read the article about suicide in the Cayman Compass the other day.
Love conquers all hatred. Mark my word.
A Gay Middle Aged Caymanian.
Unfortunately this is an example of the fabled “Cayman kind” in full flow. The islands are lovely, the indigenous bigoted population not so.
It’s the bigoted indigenous natives that makes these Islands seem so beautiful to people like you
Compadre you comment is lost on 7:57am
Typical bigoted guest worker comment
Just leave him in his ignorance
Pot: hello kettle.
“This is of particular concern, given that Justice Williams makes no reference in his ruling to the major stumbling block for this case. Section 31(4) of the Constitution indicates that when the governor is directed to do something by the UK, he has no choice and the issue cannot be decided by the courts.
It reads: “Notwithstanding the jurisdiction of the courts in respect of functions exercised by the Governor, the question of whether or not the Governor has in any matter complied with any instructions addressed to him or her by or on behalf of Her Majesty shall not be inquired into in any court.”
Ezzard Miller MP, who is well known for his understanding of, and advocacy for strict adherence to, the Constitution, has stated on a number of occasions that section 31(4) makes it clear that a court cannot interfere with the actions of the governor in this case.”
This provision continues to be badly misunderstood. It does not exempt the Governor from the scrutiny of local courts when he follows the UK’s instructions. The question local courts cannot inquire into is whether or not the Governor complied with the instructions he was given; in other words, whether the Governor did what the FCO told him to do or did something different or did nothing, etc. The reason why local courts cannot look into that is because whether the Governor followed orders or not is none of our business; that is between the Governor and FCO. What we absolutely can ask local courts to look into is whether powers were exercised properly, whether the Governor received instructions to use them or not.
If people continue to misunderstand this I will dig out the relevant part of the negotiations on the Constitution and post it here. Our delegation to the negotiations had the same objections/misunderstandings – why can’t we review what the Governor does – and the UK explained that it isn’t that we can’t review what the Governor does, but if the Governor does something on the UK’s instructions, our courts can’t be asked, and can’t answer, the question of whether the Governor followed orders.
This is why Justice Williams makes no reference to the “major stumbling block” – because it doesn’t exist.
The Brits may have misled you once again during those discussions as they did with section 14. Of course the courts in the Cayman Islands can review the actions of the Governor, but they can’t review the actions of the Governor under instructions from the Secretary of State because the Governor has no choice: he complies or he resigns. Due to the instruction, any discretion of the Governor falls away and hence there is no room to assess “whether powers were exercised properly” as you suggest. He was instructed to use section 81, he did not request permission to use it. If section 81 was wrongly used, then it is not the Governor’s responsibility, but the Secretary of State’s responsibility. Section 31(4) is copied and pasted in every single constitution of every single British Territory, it is there to prevent a colonial judge to revise an instruction given by the Secretary of State in the UK to the Governor. If the instruction led the Governor to do something against the Constitution – unlikely but possible – the only court with jurisdiction to scrutinise the instruction are the courts in London. The Privy council already has precedents on this point which I would recommend that you read and learn before you sit with the Brits again to discuss matters of the constitution.
I was not a member of the delegation. Not sure why you assumed that. The negotiation transcripts have always been public so I don’t have to be a shabby government lawyer to know what they told our delegation. I will review them and look at the authorities you mention.
All it means, obviously, is that the courts have no jurisdiction to question whether the governor is following or has followed his instructions from the UK. It is entirely possible for his actions to violate Cayman’s constitution or laws, and nothing about that provision suggests that such action cannot be questioned in court.
The “instruction” was precise. The U.K. instructed the Governor to use Section 81 and Section 81 only and made clear this instruction was to be treated as an instruction pursuant to Section 31(2). The Governor was not instructed to use his constitutional powers generally to find a solution and to legislate. You cannot *disentangle* the instruction from how the the instruction was discharged in these circumstances, as you suggest; the Governor had absolutely no discretion.
Good point. Section 31(4) also makes clear that compliance by the Governor with “any instruction” cannot be inquired into by “any court”. This JR is obviously aimed at scrutinising the scope of power under Section 81, but to do so it would be unavoidable for the court in Cayman to question compliance with the “instruction” first, which it simply has no jurisdiction to do! The only courts with jurisdiction to review the instruction to legislate using Section 81 are the courts in the UK in the current circumstances. The need for the instruction did not originate due to a desire or wish of the Governor but due to the ‘illegal’ actions of our legislators in not complying with the Court of Appeal. What should be questioned and reviewed here is: why and how our legislators were able and willing to put themselves in a position akin to contempt of court and to place the UK in breach of international law. All these breaches and circumstances Justice Williams seems keen to reinstate in light of his decision.
What will it take for the U.K. to realise that an Order in Council is the only way forward. There are a very small minority of territories of the U.K. that do not have same-sex marriage; almost all do. Let’s just pull off the band aid plaster and do the right thing: same-sex marriage for all citizens of the U.K. and its territories!
Miller is well known for his strict adherence to the constitution when it suits him.
God Bless Ms. Anglin!
I am just curious what exactly is she trying to accomplish here and how.
The same point that Day and Bodden are trying to prove through their application to be married under the marriage law instead of under the domestic partnership law.
I wonder how the Privy Council is going to react to this development when the lawyers of Day and Bodden put these new facts in front of them …
How can someone get married under CPL ?
That’s the whole point numbnut.
That was a rhetorical question.
Yeah, the poster’s very point
Forget the labels would you
Does not matter, move on
Marriage and partnership should be the same thing, shouldn’t it
IMO no they are not and should not be the same. Marriage has a historical definition. I think, however, that what should happen is that marriage should be a religious ceremony and the government should not be involved in any way. However, I also feel that ALL persons seeking legal recognition of their partnership should be required to get a civil partnership to fulfill the legal requirements of government, insurance, etc. Heterosexual couples, LGBTQ+ couples, platonic couples. If they also want to go through a marriage ceremony and the religion they ascribe to agrees – their choice. But the religious marriage should hold no weight in law.
Desperation never looks good…
Luv it…spend time on this but don’t challenge sentence of “grounding” MLA who beat the shit out of a woman in her public work place and then wrote homophobic slurs about her….yeah Cayman judiciary you sure got your priorities right.
The judiciary hears cases brought before them. What’s your suggestion – that judges just decide to weigh on matters that an individual judge thinks important?
Judges aren’t the sole composition of cayman judiciary.
Such a waste of the publics money.
Katina why don’t you help out at NAU if you want to help Caymanians.
After this flops, Katina should be made to pay back every last cent of the public purse’s money that was used in this shrouded attempt to fight against her own people who don’t try to block her from attending her backwards-ass, closed-minded SDA church.
Miss me with the BS excuses to investigate over-reach; HE the governor acted on instruction from our mommeh.
Isn’t it a criminal offence to do something that the law prohibits to do? Perhaps section 121 of the penal code does not apply to judges but only to persons.
You know, I am an avid reader of Cayman News Service articles, and over the years, I’ve come across comments like, “welcome to Absurdistan”, etc.
As a Caymanian, I now understand what those comments mean…only someone living here (expat or local) can understand how a country like ours can be so progressive and so ass-backward at the same time.
No reason to let the sheeple know what is going on………
Get used to it – this 2021 not 1921!
More like 1721
Or 000.1
Ms Anglin needs to sit down and go home and let others live their lives as we would like her to go live hers.
Agreed,
let’s have a “grown up” conversation” plaintiff needs an education