The need for an 'Unsession' of the Legislative Assembly

Fifteen years into the 21st century, the good ship HMS Cayman Islands is laden with legal relics left over from the mid-20th.

In the interest of disencumbrance, and the spirit of increased velocity, it behooves our lawmakers to make a conscientious effort to jettison the deadweight that is impeding our forward progress.

Local attorney James Austin-Smith, who is the chairman of Cayman’s Human Rights Commission, draws attention to a relative handful of legislative antiquities that remain on our country’s books — including a prohibition on certain books (such as “The Magick of Chant-O-Matics,” never a New York Times bestseller) and other publications (such as Spicy Detective, a pulp magazine published from 1934-1942).

Setting aside for a moment constitutional concerns over free speech, the law’s absolute unenforceability alone is sufficient to warrant its repeal. No longer must material of such a (scandalous?) nature physically pass through HM Customs — now it whizzes into Cayman on the wings of the Internet and TV transmission.

Mr. Austin-Smith highlights other Cayman laws whose tenability appears suspect in light of possible future human rights challenges over freedom of expression, including laws banning Obeah, “insulting the modesty of a woman” and cursing verbally at a police officer. (Admittedly, we have reservations about removing the sanctions against cursing members of our constabulary).

The commission chair, who recently sued, successfully, another local newspaper for printing “untrue and defamatory” accusations against himself, states that, considering the clearly established recourse to the civil courts, Cayman’s criminal penalties for libel are about as necessary as they are enforced (meaning, not at all).

To this highly abridged sampling of archaic laws, we’ll add a few more of our personal “favorites,” notable for their persistent impenetrability, opacity and inequality of application: laws concerning “sub judice” that regulate the publication of information during ongoing trials; against “undermining the judiciary” by daring to question the decisions of our judges; and, absurdly, prohibiting liquor and tobacco advertisements from appearing on billboards or over the airwaves … though not on paper, satellite signals, cable or the Web.

Clearly, a little — no, a lot of — legislative housecleaning is in order.

To wit, a proposal: In 2014, the Minnesota State Legislature conducted, at the behest of Gov. Mark Dayton, a so-called “unsession” dedicated to the repeal of “obsolete, unnecessary and incomprehensible laws” (terms used by the St. Paul newspaper) — a few months’ work by state lawmakers resulted in the expurgation of 1,175 outdated laws, plus the enactment of new measures aimed at making government more efficient and customer-friendly (including an executive order by Gov. Dayton directing state agencies to communicate with people and businesses in plain English, instead of bureaucratic jargon).

We suggest that Cayman lawmakers conduct a similar exercise, working their way down the more than 250 entries in the Cayman Law Index, starting with the Abandoned Wreck Law (1997 Revision), all the way through the Youth Justice Law (2005 Revision).

Following those acts of excision, Cayman lawmakers should consider passing one — just one — additional piece of legislation, this one based on a Texas model. In 1977, lawmakers there enacted what is known as the “Texas Sunset provision.” Since then, under law, almost every state agency has a built-in “expiration date” (usually 12 years) at which time the government entity undergoes an intensive process of scrutiny, like an audit, wherein the entity must effectively justify its own existence before state lawmakers, who must actively vote to continue its life.

Ordinarily governments are nearly immune to attrition, erosion or euthanasia. Checking the growth of government, or even pruning away dead limbs, requires an active hand and a sharp blade.

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