The Cayman Islands Constitution.

Governor Martyn Roper is using his powers under Section 81 of the Constitution to assent to the recently defeated Domestic Partnership Bill.

He published the bill on Monday.

Section 81 details the governor’s reserved power.

Section 81 of the Cayman Islands Constitution.

The section specifically refers to cases where the governor believes new legislation is necessary in the interest of any matter for which the governor has responsibility but, at the same time, Cabinet is unwilling to bring a bill for that purpose or the Legislative Assembly is unlikely to pass such a bill.

Section 55 of the Constitution defines the governor’s responsibilities in relation to such areas as defence, external affairs and international security, including the police and the appointment of certain public officials.

Why now?

The governor is taking action in response to a Court of Appeal judgment which overturned a Grand Court decision that granted same-sex couples the right to marry in the Cayman Islands.

The Court of Appeal upheld the Constitution’s definition of marriage as a union between an “unmarried man and woman of marriageable age” as a de facto ban on same-sex marriages.

However, the court also held that the petitioners, Chantelle Day and Vickie Bodden Bush, were nevertheless entitled to legal protection in the Cayman Islands, “which is functionally equivalent to marriage”.

It is this legal protection and right to a civil union alternative for same-sex couples that the Domestic Partnership Bill seeks to establish. After legislators failed to pass the bill two weeks ago, effectively leaving Cayman in breach of the rule of law, the governor used his reserved power to put the bill in play.

A little background

In 2015, the Cayman Islands Human Rights Commission, citing European Court of Human Rights case law, called on the government to introduce such legislation. The commission noted that, until it was passed, Cayman would be in breach of its obligations under Article 8 of the European Convention on Human Rights and equivalent statutes under Section 9 of Cayman’s Bill of Rights guaranteeing the right to privacy and family life.

Because Cayman lawmakers had not acted since, the Court of Appeal noted in its judgment “the longstanding failure of the Legislative Assembly of the Cayman Islands to comply with its legal obligations under Section 9 of the Bill of Rights”. And the court highlighted “the Legislative Assembly’s longstanding and continuing violation of Article 8 of the European Convention on Human Rights”.

This non-adherence to an international convention puts the matter under the governor’s responsibility for external affairs.

In its decision, the Court of Appeal judges said, “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. Whether or not there is an appeal to the Privy Council in respect of same-sex marriages, there can be no further justification for further delay or prevarication.”

Anticipating the rejection of the Domestic Partnership Bill by lawmakers on 29 July, the court added, “Moreover, in the absence of expeditious action by the Legislative Assembly, we would expect the United Kingdom Government, to recognise its legal responsibility and take action to bring this unsatisfactory state of affairs to an end.”

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