Human Rights Commission: Government appeal ‘ill-considered’

The Cayman Islands Human Rights Commission has spoken out against government’s decision to appeal last week’s historic ruling legalising same-sex marriage, describing it as “ill-considered” and doomed to fail.

In a statement Thursday afternoon, the commission describes government’s case as “weak to the point of being inarguable”.

It adds, “Unjustified state-sponsored discrimination has no place in a modern democracy and it is unlawful under Cayman’s Constitution.”

The commission, currently led by lawyer James Austin-Smith, said in its statement that Chief Justice Anthony Smellie’s judgment had been “powerful, eloquent and comprehensive” and had “systematically debunked” every argument brought by government and its lawyers at trial.

“The judgment was based on settled legal principles established at the highest level, in the Privy Council and throughout the common law world,” it stated.

The commission also commented on the Legislative Assembly debate and the expressed view of multiple politicians that majority opinion should prevail on the issue of same-sex marriage.

“Such an approach fails to take into account the fundamental principle – that the Constitution will respect, and will protect, the rights of the minority even if the majority will not,” the commission notes in its statement.

“Last week the Chief Justice was utterly clear: ‘The views of a majority cannot be an objective basis for denying the rights of a minority.’”

The statement goes on to question the use of public funds on an appeals process.

“The first trial has cost the public hundreds of thousands of dollars. This ill-considered appeal will waste many hundreds of thousands of dollars more,” it stated.

Referencing regular complaints to the commission from those who cannot afford basic shelter, food, medical care or clothing, it suggested these funds could be put to better use.

The commission’s statement describes government’s acknowledgment that it was proceeding with the appeal based on an executive summary of the judgment, as “extraordinary”.

“The importance of reading a full judgment before committing hundreds of thousands of dollars of public money to appellate litigation is particularly significant,” it added.

Appeal stands little chance

The commission’s release indicates that, having read the full judgment, its members believe any appeal would be doomed to fail.

“This is not just because the Chief Justice ruled against the Government on every single point, but also because the Government itself either failed to provide a response to so many points made by the Petitioners, or simply conceded them as indefensible,” it stated.

“The Government conceded during the litigation that the legal position in the Cayman Islands was discriminatory. The Chief Justice found that the Government’s attempted justification for that discrimination ‘collapses and fails at the first hurdle’ as clearly not being within the law.

“It is a cause for regret that a decision has now been made to seek to relitigate this case in an attempt to maintain that discrimination,” it added.

The commission drew comparisons with racial discrimination, citing the chief justice’s words that, “The respondents (Government) can no more justify exclusion from the institution of marriage on the ground that a couple are of the same-sex, than exclusion could be justified on the ground that a couple are of different races.”

Commenting on the Legislative Assembly debate, the commission said it was clear that many of the speakers had not read the full judgment or even properly analysed the summary.

“Many of the speakers appeared to believe that an appeal was necessary to protect the concept of the separation of powers in the islands,” the commission stated.

“The Chief Justice’s reliance on section 5 of the Constitution was criticised for overriding the will of the Legislative Assembly.

“It is perhaps unfortunate that, aside from not reading the judgment, those speaking were apparently unaware of the case law from the Privy Council dealing with this exact point; this settled law is set out clearly in the judgment. Stated briefly, in circumstances where the Legislative Assembly has previously passed a law that is contrary to the Constitution, the Constitution itself requires the Court to modify that law to make sure that its provisions are not breached. This is not an area for judicial discretion – the Court has no choice.”

The statement also addressed arguments advanced by some in the Legislative Assembly that the court should have used Section 23 of the Constitution, which allows it to make “declarations of incompatibility” but leaves it to the legislature to change laws that don’t measure up to the Bill of Rights. According to the commission, this provision applies only to laws passed after the Constitution and Bill of Rights came into force.

“The Government conceded at trial that the Marriage Law was an existing law and therefore fell to be dealt with by the Court (not the Legislature) under section 5 of the Constitution.”