Ruling shows Parliament must act when rights are breached

| 31/03/2022 | 53 Comments

(CNS): Justice Richard Williams’ ruling on the judicial review over how the governor passed the Civil Partnership Act goes far beyond protecting the rights of same-sex couples to marriage equivalency. The ruling reveals that the Cayman Islands Parliament does not have a choice when it comes to complying with the human rights enshrined in the Constitution and must act to make all laws comply with them. However, Kattina Anglin, who brought the challenge, is planning to appeal the result.

Following the release on Monday of the court’s judgment, Leo Raznovich, a legal adviser to the local LGBT activist group Colours Caribbean, said it had wider implications than protecting the legality of same-sex unions. “Parliament does not have the choice of whether to comply or not — it has only the choice of the remedy by which to redress the breach,” Raznovich said.

He explained that the ruling shows any failure by Parliament to provide a remedy where human rights have been breached, as was the case in July 2020 when the Court of Appeal directed it to deal with the issue of same-sex marriage equivalency, “will result in the need for the governor to rely upon his reserved powers in section 81 once again”. 

Colours Cayman had secured a role in the judicial review, which was originally between Anglin and the governor. But given the massive implications for the LGBT community, the non-profit organisation successfully applied to be heard as an intervening party during the case.

In a press release about the case, in which Justice Williams upheld the governor’s use of section 81 of the Constitution to roll out the civil partnership law after Parliament voted it down, the activists explained the implications.

“This means that all minorities in the Cayman Islands now have an effective remedy for declared breaches of their human rights under the European Convention on Human Rights,” they said.

“The LGBTQIA+ community of the Cayman Islands as a whole can now rest easy in the knowledge that their civil partnerships will remain legally recognised indefinitely,” the release stated. “This provides certainty for same-sex couples as well as for different-sex couples who have already taken advantage of the CPA or may in the future.”

Governor Martyn Roper also said he was pleased that the judgment provides welcome certainty for those couples who have relied on the CPA. “The judgment confirms that passing the legislation was within the scope of my responsibility for external affairs as set out in section 55 of the Constitution,” he said.

But Kattina Anglin and the Christian Association for Civics, which had supported her legal bid, said her fight was not over.

Speaking on a paid-for segment on Radio Cayman’s Talk Today show on Thursday, she said she would be appealing the decision as she believes that the governor wrongly prevented Parliament from bringing its own legislation that would meet the ECHR requirements and the Court of Appeal directive. She said it was an important fight to continue because it was “tinkering with the constitution”.

However, a judicial review brought by a member of the public is usually seen as a ‘court of last resort’, making an appeal difficult, especially given that she will need to seek leave of the same court that had directed Parliament to address what they had already concluded was a breach of the Constitution.

But Anglin, who secured legal aid for the judicial review as well as funds from the Christian group, said nothing had changed in what she said was the unlawful use by the governor of section 81 of the Constitution.

See the full ruling on the case in the CNS Library.


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Category: Laws, Politics

Comments (53)

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  1. Anonymous says:

    Williams J’s judgment should be appealed.

  2. Orrie Merren says:

    An interesting comparison, which shows the broad scope and strength of privacy rights, that have overlapping protection under international law (art.8, ECHR) and under the supreme law of the Cayman Islands (s.9, BoR) is decriminalisation of cannabis, which has not been addressed by any executive or legislative branches of government.

    However, there have been two recent landmark judgments in other Commonwealth jurisdictions, which held, inter alia, that (primarily based on privacy rights) consumption, possession and cultivation of cannabis by adults (not children) in private: see Ras Sankofa Maccabbee V Commissioner of Police [2019] ESSC J9503-2 (Claim No. SKBHCV2017/0234) per Eddie Ventose J (Eastern Caribbean Supreme Court: St. Kitts & Nevis) and Ministry of Justice and Constitutional Development v Garreth Prince (18 September 2018: Case CCT 108/17) per curiam Zondo ACJ (Constitutional Court of South Africa) — both courts were careful to legally maneuver so as to not beach international laws (e.g., UN Single Convention on Narcotic Drugs 1961 as amended by 1972 Protocol or the UN Convention Against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988 a.k.a.. the Vienna Convention).

    Both above-mentioned United Nations Conventions are subject to each jurisdictions’ Constitution (especially protected are human rights and fundamental freedoms).

    Article 36 of the 1961 Convention, which provides penal provisions, expressly reads: “Subject to its constitutional limitations…” (art.36.1(a), 1961 Convention).

    Article 3(2) of the 1988 Convention, which deals with offences and sanctions, expressly provides: “Subject to its constitutional principles and the basic concepts of its legal system…”.

    Similar Constitutional limitations/principles are expressed in order instruments providing, for example, an international legal obligation, which is important that, where implementing legislation to comply with international obligations, that it does not have (at least, what should be the intended effect) infringe our human rights and fundamental freedoms.

    As such, human rights in the Cayman Islands, which provide protection are not to be infringed by implementing international legal obligations, such as breach privacy rights which are very strong.

    In an illuminating judgment, in Julius Baer Trust Company (Channel Islands) Ltd v AB et all [2018] 2 CILR 1 at 9-10[13] per Grand Court, Hon. Justice Kawaley stated that “the privacy rights guaranteed under s.9(1) of the Constitution are fully fledged fundamental protections which are entitled to be broadly interpreted and given effect to in their own right. It is fair to assume that some fundamental freedoms have more general importance than others because they underpin the mail pillars of democracy…The various elements of the Bill of Rights form part of an interlocking system or code and must be construed so far as possible in a consistent manner.”

    In R v Parker (2000) 188 DLR (4th) 385 at [2], [39] per curium Court of Appeal of Ontario, Hon. Justice of Appeal Rosenberg famously stated, inter alia, that:

    “It has been known for centuries that, in addition to its intoxicating or psychoactive effect, marijuana has medicinal value. The active ingredients of marijuana are cannabinoids….[T]he scientific evidence is overwhelming that some of them have anti-seizure properties…Consumption of marijuana is relatively harmless compared to the so-called hard drugs and including tobacco and alcohol and there is no “hard evidence” that even long-term use can lead to irreversible physical or psychological damage. Marijuana is not criminogenic (i.e., there is no causal relationship between marijuana use and criminality) and it does not make people more aggressive or violent. There have been no recorded deaths from consumption of marijuana.”

    In the future in the Cayman Islands, where legislation is promulgated for decriminalization cannabis as well as broadening of currently existing (but very narrow and conservative) medical cannabis legislation, it will be important that international laws and our Constitution’s Bill of Rights are not infringed, so that there is no issue with HE the Governor giving assent thereto.

  3. Anonymous says:

    Do not MP’s have immunity from being sued for voting a particular way on a bill?

  4. Anonymous says:

    11:07 the skin of a person doesn’t matter is their ways, their black skin is fine, buts it’s their pushy ways, they dont want to stand in line to wait their turn, don’t want to stay 6 ft apart in shops, stops in the middle of the drive lane to talk to their friends, wants everything in their favour, always complaining about these Islands of this and that, but same time wont leave and go home. Dont forget the drugs and guns canoes. No sir, it’s not the colour of their skins colour of skin don’t harm anyone.

  5. Anonymous says:

    So great to see people defending their rights, regardless of their positions.
    Cayman is maturing to the extent that groups and individuals are now asserting and defending their human rights.
    Various orientations and persuasions are now more focused..but it all begs the question:
    Why are all the “Wrongs” being dumped at the feet on the native Caymanians?
    Such a precious, small, timid and still semi primitive/gullible and innocent people, numbering less than 20,000.
    Why is the guilt and reverse discriminate piled on their heads; faulted for no more than being late to the game of life, and emerging with doe eyes when the rest of the world is dog-eat-dog, liars and tricksters, seared consciences.
    Those who know better should do better for them.
    I speak of the “educated” leaders of the public and private sectors. Especially those elected and handsomely paid to steer the ships straight, and in accordance with the will and best interests of her people.
    If only tho.
    It will soon be too late to patch it all back together.

    • Anonymous says:

      Why can’t people accept same sex Civil partnership unions and opposite sex marriages. ITS a difference. Mam and woman marriages, man & man, or woman & woman Civil partnership unions. Come people put this to rest and let’s move on and address serious things, like Crime, the dump and traffic. Thanks.

      • Anonymous says:

        Because they are pointless.

      • equivalent is NOT equal says:

        No, no, no. You say they’re the same. But clearly they’re not, because if they were, you wouldn’t be fighting against it so hard. You treat the word “marriage” like your side (the straight side) owns it. No one owns a word. If government offers “marriage” to some (and it does), then if equality protections in the constitution mean anything, it must offer “marriage” to all. There’s no justification for not doing so — only prejudice.

        • Anonymous says:

          You are the ones wanting to change the historic definition of marriage. I find this grossly offensive.

          • equivalent is NOT equal says:

            Right. Just like if things never changed, women would have no rights, blacks would have no rights, etc. That would be SOOOOO much better, wouldn’t it? For heaven’s sake, buddy, pull your head out of the sand and admit this is 2020.

  6. JUSTly SAYIN' says:

    Cayman MPs Need To Choose

    Paragraph 59 of the Privy Council’s 14 March judgment says its effect on same-gender marriage “is a matter for the choice of the Legislative Assembly rather than a right laid down in the Constitution.” So, without amending our Cayman Islands Constitution, another form of marriage can be legislated in addition to the form of marriage in our Bill of Rights.

    However, if MPs don’t officially choose, further uncertainty seems likely: A future judgment could quash Cayman’s existing civil partnership law because L.A. didn’t ratify it, L.A. quashed the similar proposed law several weeks before, and Parliament didn’t officially accept it. Or a future judgment could confirm the 1½ year old civil partnership law because L.A. almost approved the similar proposed law and neither L.A. nor Parliament officially block it. Or??

    MPs now may be rightly blamed for this limbo status. To avoid such quash-or-confirm ambiguity, MPs need to soon decide Parliament’s choice.

  7. JUSTly SAYIN' says:

    Cayman MPs Need To Choose

    Paragraph 59 of the Privy Council’s 14 March judgment says its effect on same-gender marriage “is a matter for the choice of the Legislative Assembly rather than a right laid down in the Constitution.” So, without amending our Cayman Islands Constitution, another form of marriage can be legislated in addition to the form of marriage in our Bill of Rights.

    However, if MPs don’t officially choose, further uncertainty seems likely: A future judgment could quash Cayman’s existing civil partnership law because LA didn’t ratify it, LA quashed the similar proposed law several weeks before, and Parliament didn’t officially accept it. Or a future judgment could confirm the 1½ year old civil partnership law because LA almost approved the similar proposed law and neither LA nor Parliament officially block it. Or??

    MPs now may be rightly blamed for this limbo status. To avoid such quash-or-confirm ambiguity, MPs need to soon decide Parliament’s choice.

  8. JUSTly SAYIN’ says:

    Cayman MPs Need To Choose

    Paragraph 59 of the Privy Council’s 14 March judgment says its effect on same-gender marriage “is a matter for the choice of the Legislative Assembly rather than a right laid down in the Constitution.” So, without amending our Cayman Islands Constitution, another form of marriage can be legislated in addition to the form of marriage in our Bill of Rights.

    However, if MPs decline to officially choose, further uncertainty seems likely: A future judgment could quash Cayman’s existing civil partnership law because LA didn’t ratify it, LA quashed the similar proposed law several weeks before, and Parliament didn’t officially accept it. Or a future judgment could confirm the 1½ year old civil partnership law because LA almost approved the similar proposed law and LA and Parliament didn’t officially try to block it.

    MPs now may rightly be blamed for this limbo status. To avoid such quash-or-confirm ambiguity, MPs need to soon decide Parliament’s choice.

  9. Anonymous says:

    We have an obligation to not only provide rights but also defend those rights via police and judiciary. That’s the part that our LA still doesn’t understand. Minority Rights are not subject to popularity vote in free societies. There is also no Parliamentary privilege for hate speech.

  10. Anonymous says:

    Who is paying for the appeal? No more legal aid for this foolishness. Kattina get a life!

  11. Anonymous says:

    Before we start to chastise Katina please understand that this process within result in making our democracy better at the end. Whether she wins or not this is how the constitution was designed and now that it’s is being tested we will either have to make amendments or keep what we have but it will make it stronger. Kudos to all involved whether you be From Colors Cayman or the Christian Society

    • Anonymous says:

      Absolutely!

      Whatever side of the fence you may sit on in this, seeing this level of discourse and people being able to fight for what they believe, in a open manner is refreshing, signs of maturity

  12. Anonymous says:

    Pretty simple really. Human rights, if I abused a black man for being black id expect to be prosecuted for being racist. No different to abusing a gay man for being gay.

  13. Orrie Merren says:

    This was a well-reasoned landmark judgment by Hon. Justice Williams of the Grand Court.

    The JR issue at Bar concerned the exercise of His Excellency the Governor’s power under section 81 of our Constitution.

    A core legal principle, which underpins this issue, is the breach of international law, specifically the European Convention of Human Rights (“ECHR”).

    Our Constitution’s Bill of Rights, Freedom and Responsibilities (“BoR”) is “is clearly based on the ECHR as it’s form and content substantially follow the ECHR” (at para.15 per Williams J) — although not entirely the same, but art.8(1) ECHR and s.9(1) BoR are almost identical.

    In Day Bodden Bush case, the CI Court of Appeal (which was upheld by Her Majesty’s Judicial Committee of the Privy Council) held and declared that, inter alia, privacy rights (specifically private life and family life) were breached and, therefore, required legislation to satisfactorily cure the breach (infringing art.8(1), ECHR; s.9(1), BoR). In this case, Hon. Justice Williams, inter alia, covered this in greater detail — it’s part of the background history relating to this case.

    Ultimately, instead of a breach (as in this case), which consisted of the failure to passed legislation to cure an international law breach; on the other hand, the Cayman Islands must also take care to not pass legislation, which would put the UK in violation of international law (e.g., UN Single Convention on Narcotic Drugs 1971 as amended by the 1972 Protocol or the Vienna Convention). In the latter instance, it is unlikely that HE the Governor (as Her Majesty’s representative) would give assent to it.

    For clarity, this is an example to make the point that, despite where or what type of remedy is required, it is important that a human rights infringements (of various types) be cured (especially a breach by the Cayman Islands of international law that causes the UK to be in violation thereof as well as ensuring that there is compatibility with our Bill of Rights, because our Constitution is the supreme law of the Cayman Islands).

    Hon. Justice Williams stated (at para.31) that “the United Kingdom is responsible for compliance by the Cayman Islands with obligations arising under international law, whether deriving from customary international law or from applicable treaties. The responsibility may arise in respect of obligations under treaties and other international agreements applied to the Territories by the United Kingdom Government. The United Kingdom is, as a matter of international law, responsible for external relations of the Cayman Islands, which includes compliance with international obligations under treaties. The United Kingdom is concerned about the manner in which the Overseas Territories implement treaty and convention obligations, because it could be held responsible if the territory violates them”.

    As such, it is how the breach of international law was cured that is the central focus of what this JR matter was about: Did HE the Governor exercise these powers (under s.81, Constitution) ultra vires or not?

    Our Bill of Rights “is a cornerstone of democracy in the Cayman Islands” (s.1(1), BoR), which “recognises the distinct history, culture, Christian values and socio-economic framework of the Cayman Islands and it affirms the rule of law and the democratic values of human dignity, equality and freedom” (s.1(2)(a), BoR).

    It is a hallmark of a democratic society, which upholds the rule of law, that all parties are entitled to have their rights heard before an independent and impartial court (s.7(1), BoR).

    I urge all persons, despite where your views lie, to respect one another, because we can always agree to disagree, but do it peacefully, constructively and in a respectful manner — that is a true hallmark of a healthy democratic society.

    Let’s be kind, caring and Caymanian courteous to one another. All lives matter and all views are important to consider. Together we can all make Cayman a better place — we all need to do our individual parts to contribute to our society.

    We are all a work in progress until the day that we die — this includes myself . So, we all have to try to be better tomorrow than we were today. Treat others as you would want them to treat you.

    Wishing the very best of health, happiness, blessings and prosperity for all Caymanians and residents as well as your families (wherever they are on the globe).

    If we all show love and respect to one another, society will be better off for it — that is the ultimate hallmark of a democratic society and respect for the rule of law.

    It is a fundamental constitutional principle to, inter alia, “uphold the rule of law” (s.107, Constitution), because all decisions and acts (including failures to act: see definitions of “act” and “contravene” under s.28, BoR) “must be lawful, rational, proportionate and procedurally fair” (s.19(1), BoR).

    This importance is highlighted In the landmark judgment of the Grand Court, in Re Hutchinson-Green [2015] 2 CILR 75 at 87[45], Hon. Chief Justice Smellie QC stated:

    “There can, moreover, be no doubt that, as set out in s.19(1) of the Cayman Islands Constitutional Order 2009, that the right to lawful administrative action is a fundamental right which demands, at the very least, a high level of protective oversight by the court. Section 19(1), which is headed “Lawful administrative action,” provides that all decisions and acts of public officials must be lawful, rational, proportionate and procedurally fair.”

    This is important because our Bill of Rights “confirms or creates certain responsibilities of the government and corresponding rights of persons against the government” (s.2(b), BoR).

    It is, therefore, not surprising that JR and Constitutional actions are the rule of law in motion.

    It is hoped that, where possible in the future, the right balance can be reached to uphold the rule of law, therefore, avoiding the need for remedy to be sought by the judiciary.

    This is a shared societal responsibility to work with one another to uphold the rule of law. However, it is also a constitutional obligation that the “Legislature and the Cabinet shall uphold the rule of law and judicial independence” (s.107, Constitution).

    All litigants in this case had access to the justice system through their lawyers (who are Officers of the Court) and the Court (as the judicial arm of government) was tasked with administration of justice.

    Hon. Justice Williams’ reasoning is very focused and he delivered a landmark judgment that clearly spoke to his ultimate holding. Whether or not one agrees with the judgment, it’s no denying that this has been a pivotal addition to the jurisprudence of the Cayman Islands.

    God bless the Cayman Islands and, most importantly, our precious people, who are all entitled to “human dignity, equality and freedom” (s.1(2)(a), BoR).

    God bless,
    Orrie 🙏🏻🇰🇾

  14. Do not waste my money says:

    I hope this Kattina person is not planning to ask for Legal Aid for her appeal. I do not want my hard earned money wasted on that again!

    • Anonymous says:

      Please ask how much the AG spent to defend the constitutional assault called “same sex marriage”.

      That should make your head spin.

      But some people, like you obviously, are capable of focusing on the pennies rather than the pounds.

  15. Anonymous says:

    The Parliament had legislation on hand but decided to turn it down, creating a constitutional crisis which had to be acted upon. What on earth is she talking about? What am I missing here? She really needs to get a purpose in life.
    Homophobia is costly.

    • A PACT with the devil. says:

      To be correct the Civil Partnership Bill brought by the former Premier lost by one vote.

      Those who voted against it and who are now in Government included Chris Saunders, Kenneth Bryan, Julianna O’Connor Connolly, Dwayne Seymour, Bernie Bush, and the current Speaker also expressed his view against it.

      Everyone of the Progressive now in opposition voted yes. They did the right thing.

      Kenneth had previously argued in Parliament months before that gay couples deserved rights similar to marriage. He was crying tears and all. But when it mattered the gay community could not rely on him doing the right thing. Chris also buckled. Juliana is just a horrid person full stop. Dwayne literally made an ass of himself in his debate. Bernie is Bernie. Not too sharp and just a brute. Mac is .. well. You know what he js. Shame on all of them. A PACT indeed. A pact with the devil

      Now they are a hopeless government with no leadership. God help us all.

  16. Anonymous says:

    What good is a Constitution if there is no duty to act when it is breached?

    • Anonymous says:

      And what good is a court that refuses to punish those that fail to abide by its rulings? Does this mean parliament can ignore the court without being in contempt? Are we a parliamentary democracy or a constitutional democracy? Is parliament in charge or the constitution in charge? Hint: It is the latter.

      • Orrie Merren says:

        Certainly, constitutional supremacy obtains in the Cayman Islands: see s.59 (read together with definition of “Legislature” under s.124) of our Constitution.

        This point seems to be lost by some MPs, who appear to misunderstand the difference between constitutional supremacy and parliamentary supremacy.

    • Anonymous says:

      And what good is an Ombudsman who can or will do nothing, even in the face of ought-right maladministration and corruption?

    • Orrie Merren says:

      There was an obligation to act to cure the breach of art. 8 ECHR (international law) and s.9 BoR (supreme Cayman law: i.e., our Constitution): Day et al [2020] 1 CILR 99 at 132-133[116]-[117] per curiam CI Court of Appeal.

      Moreover, in Day et al [2020] CILR 99 at 133[120], having felt “driven to make this final observation”, the Court of Appeal (unanimously) stated:

      “This court is an arm of government. Any constitutional settlement requires the executive and the legislature to obey the law and to respect decisions of the court. It would be wholly unacceptable for this declaration to be ignored.”

      This dicta of the Court of Appeal was confirmed to be correct and applied by Hon. Justice Williams, inter alia, in this case (at para.15-16).

      It is, therefore, not surprising that it is a constitutional obligation that the “Legislature and the Cabinet shall uphold the rule of law and judicial independence” (s.107, Constitution).

      The Courts (i.e., judicial arm of government) are the guardians of the Constitution and lawyers (as officers of the Court) are guardians of human rights and fundamental freedoms, and both work together in a modern democratic society to uphold the rule of law, because there should be no difference between the theory and the reality of the rule of law, therefore, it requires an independent Bar (legal profession) providing access to justice and an independent judiciary (the Courts) to administer justice, so at to uphold the rule of law: see Layne v Attorney General [2019] UKPC 11 at [44]-[45] per Lady Arden (Privy Council).

  17. Anonymous says:

    If we had a proper grown up Parliament instead of a bunch of incompetent, ignorant buffoons cases like this would not arise.

    You get what you vote for, I guess

  18. JudgmentNaya says:

    Hey Mam with respect ya need to know when to hold know when to fold, know when to walk away know when to run!

  19. Anonymous says:

    The Governor has a duty is to secure good governance and compliance with the rule of law, including the Constitution and any international legal obligations binding upon us. If the Parliament is unable to have the maturity to legislate when there is a breach, worse still when there’s also a local court order / declaration, of course the Governor has the power. If he didn’t the country would be independent. We are a largely self-governing but *dependent* territory of the U.K. and while that remains so there must be mechanisms by which the Governor can rectify non-compliance because it is the U.K. that is responsible for breaches of international law by the Cayman Islands.

    • Anonymous says:

      And what about where the government breaches the domestic law of the Cayman Islands. You know, like when someone is corruptly granted status? Does the UK intervene then?

      • Anonymous says:

        Devolved issue. Unless it’s a human rights issue, like in that case. Pursue LOCAL legal means to remedy what you believe must be addressed. If that does not work, remember Cayman Islands is a BOT. But all in due course. May take many years, like in this instance and huge amount of resources but you have ways of addressing what you believe is wrong.
        Hope it helps.

        • Anonymous says:

          The only way of addressing it is for the court to order parliament to remedy the issue. The court needs to be able to compel parliament. Does everyone (including the court and parliament understand that?) parliament thinks it has supremacy but it does not. The Constitution does.

          • Anonymous says:

            But the problem is, many in the Parliament felt they could ignore the court order and got away with it. Now if a regular person does it, they will probably get locked up. How does it measure and balance?

    • Anonymous says:

      Is it not preferable that the court order rectification of any non compliance, and should anyone not, find them in contempt?

  20. who pays? says:

    I hope that Anglin is forced to pay for her appeal herself — and that the public isn’t forced to pay for it.

  21. Anonymous says:

    Except for fundamentalist Islam countries, most societies have taken care of this issue.
    It’s disgusting to see how a minority of idiots can make rules for a majority of educated people.
    Cayman, you are an joke in the eyes of the world

    • Logic says:

      Cayman may be a joke but I can bet that you won’t Leave this land of milk an honey

    • Anonymous says:

      Their time is coming too.

    • Anonymous says:

      Oh here we go again, joke in the eyes of the world… blah blah blah. Leave! No… not going anywhere? Hmmmm interesting. And which countries pray tell are we a joke in the eyes of. Have they made public statements speaking about what a joke we are? Or are they sending us their people to live and work in paradise hmmm? I’m waiting.

    • Anonymous says:

      Most of the world has no idea where we are.

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