Cayman’s final court of appeal has thrown out a claim that a former governor was wrong to push through a law allowing civil partnerships for same-sex couples.
London’s Privy Council on Monday ruled against Caymanian lawyer Kattina Anglin, who was last year successful in her bid to ask the court to look at the decision by Martyn Roper, the governor in 2020 when the Civil Partnership Act was signed into law, despite the then Legislative Assembly’s rejection of the legislation.
The board of Privy Council judges said Roper had acted within his constitutional right to legislate in line with international obligations, which came under the governor’s responsibility for external affairs.
Acting Governor Franz Manderson, who marched at the head of Saturday’s Cayman Pride parade, said on Monday, “As Acting Governor, I welcome the Privy Council’s judgment.”
Cayman-based civil rights group Colours Caribbean, which was represented as an interested party at the Privy Council hearing by barrister Alex Potts, KC, from London, said it was delighted at the news.
A joint statement by Colours Caribbean acting president Leonardo Raznovich and Billie ‘Bee’ Bryan, the global director, added, “We see this judgment as a victory for all.
“Not only because it secures the Civil Partnership Act 2020 and related legislation, but fundamentally because it brings much-needed clarity that our parliament is not sovereign.”
The pair explained the judgment underlined that the Constitution “sits above parliament, protecting us all and is the mechanism by which everyone’s rights and freedoms are to be measured and upheld.”
The pair added, “Let’s all celebrate that, on the last day of Pride Month, this judgment confirms the supremacy of our constitution and finally puts an end to uncertainty for same-sex couples and opposite-sex couples alike, that their civil partnerships are legally protected.”
The statement said the Privy Council ruling reaffirmed that while Anglin’s appeal was “contrary to our traditional ‘Caymankind’ nature, we do recognise that Ms Anglin’s case ultimately has helped to bring this much-needed clarity – and, arguably, not just for the Cayman Islands, but for all British Overseas Territories.”
Colours Caribbean added that the case had brought about a unanimous decision by the Privy Council on two “fundamental constitutional points”.
The group said it had rejected the view of some politicians that the Caymanian Parliament was supreme and could “do as it wishes, without regard to our constitution and to the declarations of our courts”.
Colours Caribbean added that the ruling had also underlined the obligations of the UK government to “ensure that international obligations binding upon all British Overseas Territories are complied with”, including Section 81 of the Constitution, which covers reserved powers of the governor to legislate where “the local government refuses to do so”.
The statement explained, “Had Ms Anglin been successful, Section 81 would have been rendered ineffective and would have achieved, in practice, what the failed constitutional reforms had sought to achieve.”
The Privy Council judgment said the Cayman Constitution was adopted in 2009 after extensive public consultation and negotiations involving the government of the day and the opposition, which were headed by a constitutional expert and later approved by a referendum.
The judgment added, “Under the constitution, the governor is responsible for the conduct of, inter alia, the defence, external affairs and internal security of the Cayman Islands.
“Under international law, the UK government is ultimately responsible for compliance by Overseas Territories with applicable international obligations.”
The ruling added that it was made clear during negotiations that Britain would have to have reserved powers to ensure that its international treaty obligations would be satisfied.
It said, “It appears therefore that reserving sufficient powers to secure the observance of international obligations was an essential feature of the constitutional settlement.
“Furthermore, the UK government was anxious to ensure that reserved powers of the governor would be adequate, where necessary, to take action to avoid liability for breaches of international obligations.
“Should further support be required for the board’s reading of the provisions of the constitution, the constitutional context supports it.”
Potts, who appeared free of charge, said after the ruling was released, “The Privy Council is the Cayman Islands’ final appellate court and it’s unanimously confirmed the judgments of the courts below that the governor performs an important constitutional role in ensuring that the Cayman Islands complies with international treaty obligations.
“It clarifies that not only the courts but also the governor is in a position to provide a local, effective remedy for an established human rights violation, which could apply to any individual or minority group.”
He added that the question of same-sex marriage was “probably now awaiting further consideration by the European Court of Human Rights.”
Potts said, “But, in the UK certainly, full marriage equality followed some years after the enactment of a civil partnership regime.”
The Privy Council added that the appellant’s comparison with the Constitution of other British Overseas Territories “add nothing to the analysis” and the Cayman Court of Appeal’s reference to High Court of Australia decisions on the external affairs powers also did not have to be looked at.
It said, “In the light of the clear conclusion to which the board has come on the basis of the interpretation of the Cayman Islands constitution in its constitutional context, it is not necessary to refer to these authorities.”
The government and Anglin, whose appeal was funded through legal aid and by the Cayman Islands Christian Association for Civics, have been contacted for comment.
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