Should the courts have the power to declare that laws are in conflict with ‘our’ constitution and hope MLAs will change the law in response or should the courts have the power to strike-down the laws it has determined to be in conflict with ‘our’ constitution?
What difference does it make?
Firstly, let’s look at what the currently elected PPM MLAs said on Page 3 of their Summary of Proposals document, ‘…any decision by a public official or the Legislative Assembly, which breached our rights, would, if challenged, have to be justified in a court. But, as in the United Kingdom and other countries with a strong tradition of parliamentary sovereignty, we propose that if the courts declare a law passed by the Legislative Assembly to have breached a fundamental right, it should be up to the Legislative Assembly to decide whether and how to respond.’
Simply put, their position is, if our Legislative Assembly passes a law that conflicts with one of our constitutional rights and someone decides to have their day in court, the court could declare the law to be in violation of our rights, but we would have to wait and see what the same or a future government is willing to do about it, if anything at all.
After reading the previous paragraph, you might be tempted to feel that MLAs would not pass a law that violates the fundamental rights of individuals, but you would be wrong. Actually the current government did just that with the Firearms Law, but in the end, they amended the law to bring fairness back into the sentencing clause.
While the government chose to do the right thing in that case, it does not mean they will do the right thing the next time. We still need to have proper checks and balances built into the constitution to protect us from this, the next, or any future government that chooses to not do the right thing.
So, what difference does it make?
If you are the person before the courts and having spent your life savings to defend yourself, would you want the same government that violated your rights to have an option of whether or not it wants to change the law? If you are the MLA that violated a fundamental right of an individual, would you want the ‘constitution’ to protect you, even though you wronged someone else?
I request that the government publish some real life examples of why it believes its position is actually in the best interest of the public?
Since we are a UK Colony, parliamentary sovereignty means that our MLAs along with the approval of the UK Government has all the power needed to create, amend or cancel any law, regardless of what anyone of us thinks! Remember the status grants? It didn’t matter how unhappy we were, the UDP did what it wanted.
While there are things I very much would like to see be done differently, I thank God that the PPM Government is giving the Caymanian people such a wonderful opportunity to shape ‘our’ constitution. It is truly historic!
However, this government will not be elected forever and the quality of our lives and that of future generations are depending on us to make the correct choices today. That’s why it matters.
The second thing we should remember is that any laws passed in the UK cannot be struck-down by our courts, which means even if we were to allow our local courts to strike down local legislation, our courts would not be able to invalidate UK legislation that is extended to us.
So what should we do?
The role of MLAs is to create, amend and rescind laws. I don’t want the courts creating laws; the role of the courts is to read the law and issue rulings in accordance with those laws and when a law is in conflict with the constitution, the constitution must win – no question about it. MLAs must not have the option of inaction; they must be required to fix the law which are in conflict.
Since ‘our’ constitution can only be amended by the UK, for it to work in the interest of the Caymanian people, the UK will need to agree to not legislate against our will, like New Zealand has agreed to do for its overseas territory, Tokelau. Changes to ‘our’ constitution must always be subject to initiative and referendum, the details of which will be the subject of a future column.
Otherwise, I ask you to consider the unlawful actions of the UK against another British Overseas Territory, the Chagos Islands. The actions of the UK against them were done, ‘for the peace, order and good government of the Islands’.
Until next week, question, read, listen to everything carefully and let your voice be heard. Your future depends on it!
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