“Nothing is more destructive of respect for the government and the law of the land than passing laws which cannot be enforced.”
Cayman, we all know, offers some of the most beautiful sunsets in the firmament. Whether one favors Seven Mile Beach or Rum Point, the setting of the sun suggests the end of one day and the portent of another at sunrise tomorrow.
These “new beginnings,” likewise, have found their way into many legislative and regulatory regimes internationally as well. We refer, of course, to “sunset provisions” which are written into certain laws (and/or their accompanying regulations) ensuring they will automatically expire after a defined period – unless proactively renewed or amended.
Cayman should impose upon itself such legal euthanasia. Otherwise, laws tend to accumulate, unused and often even unnoticed, over not just years but decades, detritus cluttering up both our legal closets and occasionally our courts.
For example, in 1975, legislators passed the Cayman Islands Penal Code, cataloguing most of our islands’ criminal offenses and their punishments.
In the intervening 40-plus years, there has been significant advancement in Cayman’s constitution and bill of rights, which recognize differences and articulate freedoms and liberties that were largely unexamined in those simpler times. Yet, through it all, the Penal Code has remained largely unchanged, with legislators offering small modifications and additions to existing law.
Enter the Law Reform Commission, which has recommended striking several antiquated, unenforced and potentially unconstitutional prohibitions from Cayman’s Penal Code. We endorse their position – and their work.
As we have written, there is nothing “harmless” about leaving laws on the books that are not (or cannot be) enforced.
Such “dormant” laws are dangerous temptations to selective enforcement, inviting their application to punish individuals for either political expediency or to reflect temporal umbrage.
One need only consider the recent trial of Ronald “Foots” Kynes to understand the risks in allowing ill-defined and unconstitutional statutes to linger on the books. Readers will recall that Mr. Kynes was charged with “obscene publication” after neighbors complained about several nude statues he had installed on his personal property.
Just last year, customs officials used that same statute, which prohibits distribution or exhibition of “photographs, cinematograph films, discs, tapes or other obscene objects or any other object tending to corrupt morals,” to justify their seizure of a shipment of back massagers they feared might be used as sexual devices.
Ultimately, the massagers were released, and “Foots” was acquitted. But neither situation should ever have occurred in the first place.
Other statutes ripe for revision, re-examination, or outright extermination run counter to constitutional protections to individual rights – to movement, association, free expression and privacy. And still others are simply so archaic that they are no longer relevant.
Imagine young athletes raising money for new equipment or summer camp by shaking a tin at Foster’s Food Fair, charged with violating Section 158(a), which can sanction a person who “places himself in any public place for the purpose of gathering alms.”
Can you imagine the conversation at Northward?
“What are you in for?”
“Multiple murder. How about you?”
“They got me for gathering alms . . .”