Activists call for probe into previous JR secrecy

| 08/02/2021 | 7 Comments

(CNS): LGBT activists are calling for an investigation into why documents relating to a legal challenge to the passage of the Civil Partnership Law were kept from the public for several months. Following the recent release of an application, filed by Kattina Anglin, for a judicial review of the governor’s implementation of the law and a judge’s decision to allow it to proceed, Colours Caribbean is questioning the saga and how the application got the green light.

In a long letter to Governor Martyn Roper querying the chain of events, in which CNS and other media attempted to secure a copy of Anglin’s application and then Justice Richard William’s subsequent ruling, the LGBT activists are suggesting that the courts issued misleading information about the public interest case and that this is not, as the court claimed, an inadvertent oversight.

The case is of significant public interest, as confirmed by the judge, and Colours appears to be worried that the account given by the judge, who has allowed this case to proceed even in the face of a number of constitutional stumbling blocks, is in direct contrast to the account of the clerk of court and th group maintains that they cannot both be correct.

The case has not yet had any public hearings but it is going to be of significant public interest. The issue of same-sex partnerships remains hugely controversial, but this particular judicial review also raises a broader constitutional question as it challenges whether or not the governor had the right to use his powers under section 81 of the constitution to implement a law outside of the parliament on a devolved matter.

The governor has claimed that it was constitutional because of the international ramifications, given that Cayman was breaching the European Convention on Human Rights as there was no marriage equality provision for same sex couples.

He was also directed to implement the lase by the British secretary of state to pass the law. This creates a bigger question for the court, as legal experts believe that on this ground alone the constitution required the presiding judge to throw the case out, since, according to the Constitution, if a governor is told to do something by the UK, he does not have a choice and the courts cannot interfere.

But by allowing the JR to proceed, Justice Williams has challenged that constitutional issue and Colours Caribbean say that the governor’s passage of the law could now be at risk.

The latest request comes as the ‘gay marriage’ question remains. Later this month, the Privy Council in London will hear Chantelle Day and Vickie Bodden-Bush’s appeal to reinstate the original ruling by the chief justice, legalising same-sex marriage.

The challenge to the Civil Partnership Law shakes the certainty that some form of equality now exists for the LGBT community, which boosts the women’s case that it is the Marriage Law that needed to be changed to properly settle and protect the rights of same-sex couples.

Meanwhile, Dinah Rose QC, who has been instructed by the Cayman Islands Government to defend the Court of Appeal’s ruling overturning the legalisation of same-sex marriage, had faced pressure to resign her position at Oxford University after she was accused of defending homophobia.

However, Rose has been rigorously defended by students at the college where she is president. In a statement, the Magdalen College Junior Common Room (JCR) said they recognised “the importance of legal representation for all, a key element of which is not conflating the views of lawyers with those of their clients. This is a fundamental principle of justice which the JCR firmly supports. It therefore rejects calls for Dinah Rose QC to resign from her position as President.”

The statement also said that the student-run group “unreservedly and unconditionally supports the rights of LGBTQ+ people in the Cayman Islands… including the right to marriage” and is looking into ways to show this support.

Day and Bodden-Bush’s lead attorney also defended Rose. Edward Fitzgerald QC, who will be arguing opposite her at the PC case, said she was “acting perfectly properly” in accepting the brief. “It is an important constitutional principle that barristers should not be identified with the clients they represent,” he said.

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Comments (7)

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  1. Anonymous says:

    On the law: maybe only the practitioners should comment on/ debate the legal principles associated with this JR. This is a monumental case and it should be treated with legal prudence.

    There appears to be no connection between s.31 and the question being asked regarding the use of s.81.

    On the LGBT approach: It seems that any challenge to, question on, commentary about the LGBT community brings out their axes, sledgehammers, pistols and long arms. This type of oppressive, dictatorial, non- liberal modus operandi leads ne to ask: “why doesn’t this 4-letter “community” should just use its real name, Third Reich?

  2. John Harris says:

    There is a distinction between the questions of (1) whether the Governor was acting in accordance with the instructions of Her Majesty, as to which the Court may not enquire; and (2) whether the Governor’s actions were lawful in substance, as to which the Court may – and must – enquire.

    The suggestion that any act of the Governor is rendered lawful simply because it is undertaken on the instructions of the UK Government is self-evidently absurd.

    • Anonymous says:

      There are circumstances when the instruction can be distinguished from the action and hence the action can be reviewed by the local Cayman Islands courts. In this case, anyone that can read simple English will see that the instruction cannot be distinguished from the action: this is because the instruction was, specifically, to act using section 81. It was, hence, wholly and completely prescriptive as to how the Governor was enquired to act. The Governor was not afford any discretion whatsoever. If you can read English you should be able to understand this even if you don’t understand the law.

      If there is concern as to the legality of the instruction/action then this is challengeable by any person in the Cayman Islands with an interest, but not here in Cayman. The only court that has jurisdiction to hear such a legal challenge is the High Court in London.

      Try reading the Constitution and Ian Hendry’s authoritative book ‘British Overseas Territories Law’ and his specific comments on this point where he takes the language of the Cayman Islands constitution as a precise example of these circumstances.

  3. Anonymous says:

    How on earth passage of the law can be at risk if the Governor had no choice but to follow the instructions? Can someone qualified please explain this. Do local courts have that much power?

    • BAR ;-) says:

      He had choices. He and the FCO. They didn’t had to undermine the Legislative Assembly and push their LGBT rights on the island. This is how a dictatorship operates, hiding behind courts. .. Anything gain this way, not winning the hearts of the people, will end up losing in the long run, because it was never attained righteously. Cns, Compass, and Colors, better prepare with the stress. This issue is not going away for years. The people already know, there was not vote from the People of this country to sanction another version of rights – IT HAD TO BE FORCED

    • Anonymous says:

      If the governor acted unlawfully, of course the courts can intervene. It is called the rule of law.
      I am quite a fan of the concept, and I commend it to you as well.

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