Chief justice appoints QC to look into JR secrecy
(CNS): Chief Justice Anthony Smellie has appointed a Queen’s Counsel to look into why documents relating to a judicial review challenging the governor’s use of his constitutional power to implement the Civil Partnership Law were withheld from the public. According to a letter seen by CNS from the Attorney General’s Chambers, CJ Smellie has appointed an independent lawyer following complaints by LGBT activists, who are now seeking to join in this legal case.
CNS has contacted the chief justice’s office for comment on the situation relating to the case and we are awaiting a response.
The case raises questions about Governor Martyn Roper’s use of section 81 of the Constitution to provide a legal mechanism for same-sex couples to register their relationships after lawmakers failed to do so.
While the case is being presented as a constitutional challenge and not an anti-LGBT rights challenge, if it is successful it would leave the gay community without any marriage equality rights at all. It would also leave Cayman in breach of the Bill of Rights once more and in defiance of its own Court of Appeal. As a result, Colours Caribbean (formerly Colours Cayman) has applied to join in this case as an interested party.
The judicial review brought by Kattina Anglin has already stirred up significant controversy. The case was kept from public view for several months and it has still not been made clear why. After trying to see the documents for several weeks to no avail, CNS was initially told by court staff that the judge in the case had not released the documents for public view. But officials then later denied that and stated that the judge presiding over the case had not prevented the case from being made public.
Nevertheless, the issue has led the activists to ask for Justice Richard Williams to be removed from presiding over the case and for an inquiry into what happened, including why the documents and the progression of the case initially remained secret. The case only came to light when CNS, in the course of covering the same-sex marriage case recently heard by the Privy Council, learned that the judge had cleared Anglin’s application for the judicial review.
The LGBT activists have also asked the governor to remove the attorney general from this case and instruct independent counsel, given that it is the government’s lawyer who has fought against Chantelle Day and Vickie Bodden-Bush since they were refused a marriage licence in 2018, which triggered the chain of events that has resulted in this case.
Concerned about the potential implications of Anglin’s case, Colours has instructed McGrath Tonner here in Cayman and Travers Smith as London counsel to represent the gay community’s interests in this application for a judicial review. “Our local counsel has written to the Applicant and copied the Governor requesting to be served properly pursuant to the Grand Court Rules as an interested party,” Colours said in a press release about their efforts.
While Tom Hickman QC of Blackstone Chambers has been instructed to represent the governor, it is not clear if the attorney general is still instructing the British barrister.
In a letter, which CNS has seen, to Colours President Billie Bryan, the attorney general has dismissed the need for a full inquiry. The letter was in response to the group’s concerns and representations to the governor about the secrecy surrounding the Anglin JR and the role of the judge.
The AG’s chambers stated that the late release of the documents does not really relate to the judge because the publication of court documents is an administrative matter and not handled by the bench. The government lawyers said that the judge has allowed this case only on one discreet element and there is no connection between it and the issue surrounding the delay in the documents being released. However, they confirmed that the chief justice is undertaking a review, having engaged an independent Queen’s Counsel.
Nevertheless, Colours Caribbean believes that Justice Williams’ impartiality is compromised. “The reasons given to our organisation and to the public as to the secrecy of the judicial review for almost two months leave no room for misinterpretation,” the activists said. “Either the judge was consulted and directed to keep the written permission to grant authorization to proceed away from the public, as the Clerk of Court asserts, or Justice Williams was not consulted and gave no such direction, as the judge asserts.”
Given the conflicting comments from the Judicial Administration staff, Colours says there is a question about truth and as a result Justice Williams should not hear this case and should have stepped down without being asked.
Anglin is challenging the governor’s use of his section 81 powers, as she asserts that Roper should not have implemented the Civil Partnership Law using this section of the Constitution because this power is reserved for issues relating to foreign affairs. Although the Cayman Island was breaching the European Convention on Human Rights (ECHR) so long as it lacked any same-sex marriage rights, she argues that this is still a domestic issue.
Anglin further argues that if it is constitutional for the UK to force this law on the Cayman Islands, it should have been implemented through an order in council.
Category: Courts, Local News
how about changing laws to allow no win..no pay for attorneys…that would make attorneys think twice about bringing frivolous cases to the courts and protect innocent civilians that have no legal knowledge…as it is presently..attorneys get paid even if they lose???
As usual, Cayman resists, resists, resists doing things in the open. Everything is behind closed doors. Then, they make ridiculous claims that nothing untoward has been going on — but if this were ture, there would be no need to do things in secret! Cheers to CNS for forcing this issue. Force Cayman officials into the open — even if they’re kicking and screaming every inch of the way.
OPEN GOVERNMENT is the only solution to many of the problems on these islands. If the elites and insiders are doing nothing wrong (illegal or immoral) they should have no problem opening up government records to all. Exemptions to open records laws should be a tiny, tiny percentage. Perhaps exemptions should be determined by a disinterested panel. In any case, OPEN GOVERNMENT is our salvation.
This seems to be the closed season for open government.
I have a sneaking suspicion that Justice Williams was not actually consulted but that some officious staffer overstepped his or her bounds. I suspect that the clerk of courts may have been caught in that web as well.
Good on the CJ. Hopefully we will know where the problem exists and fix it. It sounds to me that someone’s head should roll.
Caymanians have to ask themselves if this is what they want from the duly elected.
Do you want politicians selling every corner of land in Cayman to the point there is nothing left for future generations?
It’s time Cayman. We need to demonstrate, we need to hold public debates. It’s time to show this worthless government the power of people shoulder to shoulder.
“Governments may think and say as they like, but force cannot be eliminated, and it is the only real and unanswerable power. We are told that the pen is mightier than the sword, but I know which of these weapons I would choose.”
~Sir Carton de Wiart
Vote Alden out please Cayman and send this terrible terrible little man back home! If a governor can be remove for wearing a hat in someone’s house and because his mother in law did not like him.This one is allowing a convicted woman beater to remain speaker of the house and telling us it’s not the UK’s problem it’s ours then he is not part of the problem he is the problem yet here he is acting in secret to fix a Uk situation or problem they had with us for a very long time!Well I guess sooner or later he will call out his little regiment to quell the restless natives too. Vote Alden and his stooges out Cayman!
Well done, Chief Justice. Well done!
Release the tapes!
Thank you, Kattina Anglin. What on earth is the Governor thinking getting involve with our domestic affairs, acting like a dictator, undermining the ruling of our Parliament for a foreign LGBTQ version of “rights”? As if there are no protections for gays and we are torturing them! The Chief Justice is not even a born Caymanian and attempted to speak for all Caymanians in his judgement. Wow just wow … the Governor, the CJ, even Attorney General, our Premier, and the less than 1% liberal gay community here are not really for THE PEOPLE OF THESE ISLANDS. Rather, some rule-of-law that is an LGBTQ adoption, estranged from our culture. This was deliberate.
Someone you know is LGBTQ. Look around. Maybe someone you love. Be kind to them.
If she wins, the same legislation will be brought by order in council with retrospective effect at once and section 23 of the Constitution will be challenged in the High Court in London for illegality.
Sad to see hateful humans could be my neighbor.
Being under impression that a local court cannot overturn actions of the Governor after being instructed by the UK, why all of a sudden do we hear the opposite? What am I missing here?
yeah yeah…whatever…
As Sir Humphrey once said, the purpose of an enquiry is not to make things clear, it is to put you in the clear.
JTB, interesting comment. In this case both are worthy goals: if the justice is in the clear , then let us discover what went wrong. Hopefully we will then be clear on what happened.
” Although the Cayman Island was breaching the European Convention on Human Rights (ECHR) so long as it lacked any same-sex marriage rights”
CNS – Is this an accurate statement?
The below is an excerpt from the ECHR’s Guide on Article 12 – The Right to Marry. The document was last updated on 31/12/2020
https://www.echr.coe.int/Documents/Guide_Art_12_ENG.pdf
“The Court examined for the first time the issue of whether two persons who are of the same
sex could claim to have the right to marry in the case of Schalk and Kopf v. Austria and found that
Article 12 of the Convention did not impose an obligation on the respondent States to grant same sex couples access to marriage. While there was no Convention right to same-sex marriage, the
Court allowed for the possibility that, in accordance with the Convention’s character as a “living
instrument”, the right to marry enshrined in Article 12 might not in all circumstances be limited to
marriage between two persons of the opposite sex. However, as matters stood at the material time,
the question whether or not to allow same-sex marriage was left to regulation by the national law of
the Contracting State (Schalk and Kopf v. Austria, 2010, §§ 61-62).”
Mate, you are not going to have a second bite to the same cherry. You lost before the court of appeal and your government did not appeal to the privy council: same sex couples are entitled under the cayman constitution to a legal framework functionally equivalent to marriage (this means to the same rights that different sex couples have under the marriage law).
Which is what the ECHR said – no right to marriage, but a right to a legally recognized status that provided the same rights. The bit that everyone against same sx marriage always forgets to mention when they cite the ECHR judgment. That bein said, CNS was a little casual in referring to “marriage rights”.
All filings should be open to the public unless there is a specific secrecy order by the court. This should not be up to the clerk, as it apparently is based on the many, many cases that for unknown reasons cannot be inspected.
Allies to good governance and justice should assist in funding truth-exposing to the best of their means. Gay or not, transparency is in all of our interests. Sooner or later there will be a trail of overturned stones lining a path, beyond Williams, to tenured individuals who don’t change every four years. These are the rotten joists in the house of Cayman.
They were not too transparent with their plans to enforce the Civil Partnership law. It was rushed before proper consultation of the people. The Gov then signed 12 pieces of legislation instead of one to enforce it. This sets a really bad precedent against democracy. Will he intervene more in our domestic affairs to legislate special interest laws?
Rushed? How much more time was needed to do nothing? It should have been done years ago. Consultation with people? Two more years of hollow talking, five? Really now.