A discussion on the issues associated with and surrounding the judicial review, which challenges the lawfulness of the Governor’s use of Section 81 of the Cayman Islands Constitution.
Dieu Et Mon Droit
Amidst the flurry of anti-Christian/Christophobic rhetoric, the judicial review against the Governor’s actions remains safely in tact and pushing forward, through all the resistance that it is receiving.
The challenge was brought by Ms Kattina Anglin as a result of the Governor using section 81 of the Cayman Islands Constitution Order 2009 to impose the Civil Partnership Act (2020), despite the legislative process not being allowed to complete itself. The Act commenced as the Domestic Partnership Bill which failed to pass in the Legislative Assembly (LA) following intense debate and threats that England would pass the Bill if the LA didn’t. Legislators voiced a willingness to debate an amended bill, but were not given the opportunity to do so. Instead, the Governor declared that there was no legislative will to pass the Bill. Ms Anglin asserts that invoking s.81 of the Constitution in order to deploy his powers under s.55 and bring into force the then renamed “Civil Partnership Act” was unlawful.
The power of the Legislative Assembly – no law to pass a law
There is no obligation on the LA to pass a bill. The LA is the supreme law making authority in the Cayman Islands. The power to make laws (section 59; laws are subjected to the Constitution) and amend laws (section 5(2)) rests in the LA and even when it has a piece of legislation that may be found incompatible by the judiciary, there is no obligation on the LA to amend the law nor to make new law because the court thinks it should. The court (judiciary) can make a declaration of incompatibility (section 23(1)), but that declaration does not make it repugnant to the Constitution (23(2)) and the LA shall decide how to remedy the compatibility (23(3)).
However, the LA can choose to accept the incompatible law over any alternative legislation that it could introduce, as set out by Lady Hale in Nicklinson and Lamb ([2014] UKSC 38) at paragraph 300: “…Parliament is much the preferable forum in which the issue should be decided. Indeed, under our constitutional arrangements, it is the only forum in which a solution can be found which will render our law compatible with the Convention rights…I see little to be gained, and much to be lost, by refraining from making a declaration of incompatibility. Parliament is then free to cure that incompatibility, either by a remedial order under section 10 of the Act or (more probably in a case of this importance and sensitivity) by Act of Parliament, (or to do nothing. It may do nothing, either because it does not share our view that the present law is incompatible, or because, as a sovereign Parliament, it considers an incompatible law preferable to any alternative.” (emphasis added)(Section 10 referred to by Lady Hale is power to take remedial action afforded to Westminster Parliament under the UK Human Rights Act. The Cayman Islands has its own codified Constitution and Bill of Rights and therefore the UKHRA does not apply here.)
The Governor, in what was referred to as “consultation” before passing the law, mentioned points that were in support of the Act being passed, reassurances that he was “Christian”, that he was understanding of religious views but that he was adhering to the “rule of law” (we will expand on the RoL in another article). However, there was no proper consultation; there lacked real discussion throughout the country on the proposed law. The Governor’s engagement with the public was limited to approximately 5 radio appearances, each restricted in time allotments and the public engagement was equally restricted even in the way questions could be asked and the period of time callers were allowed to engage with the Governor. The efforts to consult on any law which affects a controversial, highly ethical and moral issue should be balanced with the effect that passing the law would have on the Constitution, the spirit of the law and the social atmosphere of the country; in this instance it most definitely should have also reflected the public consultation efforts on the Constitution itself.
Legal Aid
Contingent to the initial Legal Aid grant, Ms Anglin was required to make a contribution to the Legal Aid certificate in the sum of $5,000.00 due to Ms Anglin having shares at the Credit Union; there has been subsequent requirements in the sums of $4,000.00 each, one of which has been paid and the other outstanding. In each contribution, the Christian community came forward and covered the contributions, but new demands for legal aid contributions inevitably brought delays in hearing the matter.
The Director’s demands for a mandatory contribution are risking a dangerous precedent against matters brought on the grounds of “interest of justice” and may amount to a fundamental breach of the right to access one’s rights or to be defended from an arbitrary action of the government (the Governor is a public servant employed by the Cayman Islands Government, although appointed by the Queen) or seek a remedy against the government. A constitutional challenge is one of the actions that is protected from costs and the Legal Aid law also allows for the Director to disallow contributions in the interest of justice.
What is the latest on the judicial review?
The judicial review has been scheduled for a hearing on 12th December 2021, more than one year after the proceedings commenced and the law was passed. Says Ms Anglin: “They say it is due to the Crown’s counsel being unavailable until then. This comes after having to get a ministerial opinion on “international obligations” in December that put the case off until after February of 2021. If it had been properly researched ascertaining lawfulness, there would have been no need for obtaining a ministerial submission in 2021; they would have had it on file, having obtained and ascertained that point BEFORE passing the law. God’s got this. And even if He does not deliver me, I still will not bow. God and my right…I will have them both.”
The application against the governor is supported by CACPE and its members as good and of God. CACPE takes the opportunity to remind the Christian community that the way to win is to preach, teach and speak the Truth consistently and fearlessly: Jesus Christ is Lord and Saviour, he died for our sins and he IS returning. Regardless of how many believe it or accept it.
Watch for our subsequent articles as we break down the judicial review and bring other legal, civic and political education to you, free of charge.