Local LGBT activist, Founder and President of Colours Cayman, Billie Bryan, has had to resort to sending an open letter to the Governor Martyn Roper, to plead for his input in helping to deal with Cayman’s long-running issue on same sex marriage, that appears to have no closure in sight.
Ms Bryan’s letter to the Governor said that it was regrettable that her group was having to “essentially beg” for the Governor’s intervention when there was a breach of the Constitution and an order from Cayman’s Court of Appeal to speedily address the issue was not being acted upon.
The Colours Cayman advocacy group felt compelled to write to the Governor in this way, following no move from the Government to comply with the Court of Appeal’s direction last year in the Chantelle Day and Vickie Bodden case, the same sex couple who were refused a marriage certificate and took the case to court. The couple won their case but after the Government appealed the decision the Court of Appeal ruled in the Government’s favour and said that the judiciary could not legislate for parliament with regard to the Bill of Rights. It did, however, require Government to quickly put in place laws to introduce a civil union of some kind for same-sex couples.
In her letter to the Governor, Ms Bryan said that Cayman was currently experiencing the failure of the Human Rights Act 1998 in relation to the adoption of a legal framework for same sex-couples.
“The Court of Appeal declared in November that LGBTI+ people have a constitutional right to a legal framework and ordered the government to put that framework in place “expeditiously”, yet there is no evidence of anything having been done. In this respect, could you, Your Excellency publicly state by when the UK would deem the Cayman Islands government not to have acted “expeditiously” in accordance with the order of the Court and, as such, would step in and legislate by Order in Council as you have previously suggested would happen in those circumstances,” she said.
Cayman’s current system, she said, was not working, because it subjected the fundamental rights and freedoms of all persons in the Cayman Islands to “the whims of the majority” with no effective legal means of ensuring the enforcement of the Bill of Rights. The one exception was the ability of the Governor to legislate if he or she felt it necessary to secure compliance with international human rights obligations.
Because nobody was enforcing Cayman’s Bill of Rights over this particular issue, Ms Bryan felt this could impact other kinds of human rights for Caymanians, the only solution being to lobby the UK and eventually appealing to the UK’s High Court for a ruling on the case. But having to continually seek a solution from the UK in similar circumstances would be a major step back for the Cayman Islands, as it seeks to implement recently agreed reforms to the Constitution which would give the jurisdiction greater autonomy over managing its affairs.
In his New Year’s message, Premier Alden McLaughlin urged finding a solution to the issue.
“Regarding same sex partnerships, as I have said previously, it is important that legislators determine the best way forward for our Islands and find a solution that works for Caymanians,” the Premier stated. “If we abrogate our responsibility to do so, we must accept that the UK will legislate for these islands as the Court of Appeal has suggested they do. That would be the worst possible result for these Islands, not just with regard to same-sex partnerships, but more generally.”
Ms Bryan said she sent a letter to the Premier asking the Government to consider the issue, to which she received no response. The fact that minority groups such as the LGBT community had to resort to approaching the UK for a ruling in the issue was “a violation of good governance and human rights in and of itself,” she said.
“Colours Cayman remains therefore open to a constructive dialogue, notwithstanding that our efforts to reach out and discuss this matter with the Premier have fallen on deaf ear,” Miss Bryan confirmed to the Governor.
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Kattina Anglin08 Feb, 2020
In relation to the comment below, please note the following, simple truths:
The Governor cannot order nor demand an Order in Council
It is an illusion that the legislative is bound to act in accordance with the court's orders. The legislature is supreme; it is elected by the people whereas the court is an appointed body.
The Court of Appeal issued an opinion which should never have been presented simultaneously with the judgment; the Judges should have anticipated the confusion this would cause.
Mr McLaughlin knows the truth of this legal matter better than most people, not only as a politician but also as a lawyer; he knows that Westminster will not impose an Order in Council on a matter that they have deemed an "internal matter".
I wish to draw attention to his position in 2016 and ask openly, on behalf of the Church: has his position changed?