An application has been filed for a judicial review into Governor Martyn Roper’s use of his emergency powers to assent to the Civil Partnership Law, which legalised same-sex unions in Cayman.
The civil proceedings were filed on 23 Oct. by Kattina Anglin, who serves as the secretary of the Cayman Islands Civics Society. The suit names Roper as the sole respondent.
Roper assented to the Civil Partnerships Bill on 4 Sept., a little more than a month after it was voted down by Cayman’s legislatures. The law, which has since come into effect, gives the union of same-sex couples legal recognition in the Cayman Islands.
When filing for the judicial review in the Cayman Islands Civil Registry, Anglin called Roper’s actions an ‘‘unlawful’ and ‘irrational’ use of his emergency powers.
“From the outset, it should be noted that this application does not concern whether or not individuals of the same sex have or should have the right to marry or be joined in civil partnership in the Cayman Islands,” Anglin told Cayman Compass. “It is purely focused on the issue of whether the governor has acted in error of law and in excess of his powers by seeking to use section 81 [of the Constitution] to pass the Civil Partnership Law.”
“In other words, the question is whether this was the appropriate and lawful route to bringing this legislation into force,” she said.
New rules at the court’s civil registry now prevent the media from manually searching and accessing court files. Courts staff say the files are now available on its website, and matters that are not listed are not open to the public.
No reply was given when queried by the Compass why a matter calling for judicial review into a decision made by the Governor, a public servant, would be held from the public.
In the court documents, which were eventually obtained by Compass, Anglin is calling for the courts to return “an order of certiorari to review and quash the defendant’s action,” and a declaration that the defendant’s actions was unlawful.
An order of certiorari is a type of writ by which an appellate court decides to review a case.
Section 81 of the Cayman Islands Constitution Order reads in part, “If the Governor considers that the enactment of legislation is necessary or desirable with respect to or in the interests of any matter for which he or she is responsible under section 55… after consultation with the Premier, it appears to the Governor that the Cabinet is unwilling to support the introduction into the Legislative Assembly of a Bill for the purpose or that the Assembly is unlikely to pass a Bill introduced into it for the purpose, the Governor may, with the prior approval of a Secretary of State, cause a Bill for the purpose to be published in a Government Notice and may… assent to it on behalf of Her Majesty.”
Section 55, which deals with the governor’s responsibilities, states that the governor is responsible for such matters as defence, external affairs, internal security including police, the appointment of people to public office, taxation and tourism-related matters, etc.
Anglin said she is calling on the courts to investigate the scope of the governor’s powers.
She said, “Moreover, this application raises an issue of substantial public importance, namely the scope of the governor’s reserved legislative powers under section 81 of the Constitution. As far as the plaintiff is aware, there are no decided cases on this issue. It is therefore submitted that leave should be granted to determine that scope, even if the Court did not conclude that there is a real prospect of success.”
Anglin has been granted legal aid in part, and must make personal contributions. It is not clear when or if the matter will be heard by the courts.