Independent opposition member Ezzard Miller has said the planned legal challenge against the governor’s use of his reserved powers to enact the Civil Partnership Law is an “exercise in futility”.
Miller, speaking with the Cayman Compass Monday, said he does not see the legal action being brought by Kattina Anglin, public relations officer for the Christian Association for Civics, going anywhere since Governor Martyn Roper did not overreach.
“I do not know how they are going to get across the Constitution,” he said, as he pointed to Section 31 (4) of the Cayman Islands Constitution Order, which prohibits the court from inquiring into instructions issued to the governor.
The section states, “Notwithstanding the jurisdiction of the courts in respect of functions exercised by the Governor, the question of whether or not the Governor has in any matter complied with any instructions addressed to him or her by or on behalf of Her Majesty shall not be inquired into in any court.”
Governor Roper, in brief statement in response to queries from the Compass on the impending legal action, said on Monday afternoon that the circumstances leading up to, and the constitutional and legal bases on which he acted in giving assent to the Civil Partnership Law are matters of extensive public knowledge.
“I also published the instructions letter from UK Ministers at the request of the Honourable Leader of the Opposition. The matter is now before the court and therefore it would not be appropriate for me as Governor to make any further comments – save to say that given the very long history it is hoped there can be a speedy resolution,” Roper told the Compass.
Over the weekend, the Christian Association for Civics announced in a statement that it had secured legal aid to seek judicial review of Roper’s decision to assent to the law which now makes same-sex partnerships legal in the Cayman Islands.
On Friday, 4 Sept., Roper announced the assent of the legislation, which was formerly called the Domestic Partnership Bill and which had been defeated in the Legislative Assembly, creating a legal framework for same-sex couples to enter into a formal partnership and enjoy the same rights as heterosexual married couples.
The legislation does not change the definition of marriage, which still remain a union between a man and a woman.
Miller said Cayman’s negotiation team, which was led by Premier Alden McLaughlin, was able to secure the UK’s agreement to remove Section 31 (4), as well as Section 81, when they went to the London last year. However, the UK is yet to formalise its decision on the removal of Section 81, which grants the governor power to implement legislation deemed necessary in the interest of any matter for which the governor has responsibility.
Miller now fears that the changes to Section 31 (4) may also be under threat.
“If we are going to test Section 31 (4) in the courts, my argument is that this like Section 81, this too will not be removed,” Miller said, pointing out that Roper has published his instructions.
“You cannot challenge that he is acting outside of his power when he has published instructions,” the North Side MLA added.
On Monday, Miller, who is also the political leader of the Cayman Islands People’s Party, issued a statement calling for the Cayman community to come together and move on from the issue of same-sex partnerships.
“It is time now to put this partnership issue behind us and move forward in the traditional Caymanian spirit of tolerance, harmony and unity. In the process, I am sure we will find common ground to work together in the best interest of the Cayman Islands,” Miller said in the statement.
He called on the entire community to channel its collective energies into collaborating on overcoming some of the threats to the peace and harmony of Cayman, such as the increasing incidence of social and domestic violence, child abuse, and mental health-based disputes.
“I encourage all of us as individuals, institutions, businesses and government to move towards more concerted partnerships in devising and supporting comprehensive programmes to halt the progression of these trends and to bring healing, tolerance, and harmony to our communities,” he added.
The Compass reached out to Premier Alden McLaughlin and Governor Roper for comment on the legal challenge, and is awaiting their responses.
Both leaders also issued similar calls for unity and tolerance in the aftermath of the passage of the Civil Partnership Law.
McLaughlin, in his statement, also said that he was “utterly humiliated” that the failure of local lawmakers to pass legislation on same-sex unions, forcing the UK’s intervention when it came to the Civil Partnership Law.
Colours Cayman objects to legal challenge
Colours Cayman, in a statement on Anglin’s legal challenge, said, “Any attempt to review the governor’s actions would be futile and a waste of the public’s money.”
The local non-profit expressed displeasure that Anglin was granted legal aid to assist in her court action.
“Ultimately, we’re disgusted by the Cayman Islands Government’s decision to financially assist an effort that has no hope of gaining any ground. We’re also, frankly, appalled by the ignorance of the Constitution of the Cayman Islands demonstrated by Anglin and her legal representatives,” it said in its statement Monday afternoon.
Colours Cayman pointed out that “the irresponsible and illegal actions of the legislators triggered an unprecedented constitutional crisis and consequently, as the Court of Appeal had anticipated, it would be expected that the UK government would have to step in to resolve.”
Like Miller, the group and its legal advisor Leonardo Raznovich said the instruction of the Secretary of State to Roper to use is reserve powers “is not reviewable by any court notwithstanding the jurisdiction of the court to review acts of the government, including the governor. This is by imperative of the Cayman Islands Constitution itself (Section 31(4)).”
“The Governor acted not only in light of the constitutional crisis created by the members of the Legislative Assembly who rejected the Domestic Partnership Bill but also and more fundamentally under his duties pursuant to Section 55 to ensure the Cayman Islands comply – especially considering the Legislators had stated publicly that they would not – with an international obligation of the UK under the European Convention on Human Rights,” the statement added.
Miller was one of eight MLAs, including Premier McLaughlin, who voted in favour of the Domestic Partnership Bill.
Meanwhile, founding director and president of the newly established group Cayman LGBTQ Foundation, Noel Cayasso-Smith, in a statement Friday, welcomed the assent of the new law.
He said the foundation will be working to “build bridges” between the LGBTQ community and society at large.
“We extend an olive branch to those in our country who were opposed to this legislation – our hope is that we move forward in unity and harmony, and work together to build a stronger, more united Cayman Islands. As this a monumental moment for freedom and democracy in the Cayman Islands, this has now put our foundation in a position where we can put forth our services to the community and spread general knowledge and understanding of the goals of The Cayman LGBTQ Foundation,” Cayasso-Smith said.