Leonard Raznovich writes: The failure of the Court of Appeal to apply correctly the Constitution and to find appropriate and adequate constitutional remedy for Chantelle Day and Vickie Bodden is bad news for all Caymanians, including religious groups. It is also a bleak day for the jurisdiction and its future because this decision leaves not only Chantelle and Vickie but all of us (and particularly all minorities) at the mercy of the elected government and with no effective constitutional protection from the courts against legislation that impacts their human rights.

The Cayman Islands Constitution has suffered today a serious wound. It is not fatal, but its fate depends on an appeal to the Privy Council to correct the fundamental flaws in the Court of Appeal's decision.

Paraphrasing Bill Clinton's phrase about the role of the economy in a presidential election, in this case, the remedy is in the Constitution, stupid!

The judiciary of Bermuda perfectly understood this and unanimously found that remedy with braveness and, it is fair to say, in the face of a referendum and the British Government, who gave permission to change by legislation what the court had determined was legally right. The judiciary of Bermuda did so even though its constitution is older and more rustic than ours; but our Court of Appeal closed its eyes to it and, unsurprisingly, wounded the Constitution with two fatal flaws.

The first flaw has two aspects; on the one hand the Court of Appeal has, in effect, re-written section 14 of the Constitution by reading in that section words that are not there. It did so by implication -- a technique of constitutional interpretation that is allowed in order to expand rather than to restrict rights -- by holding that section 14 defines marriage when in plain English it does not.

This aspect of the judgment alone defies decades of Privy Council decisions, starting with the decision of 1929 in Edwards v. AG of Canada, in which the Privy Council concluded that women are persons even though the constitution referred to 'he' only.

Moreover, our Court of Appeal also held in relation to section 14 that a constitutional right to marry can only be derived from section 14. This conclusion is so absurd that in fact the church in the Cayman Islands has also lost the constitutional protection to marry people. This is so because if the constitutional right to marry can only be derived from section 14, as the Court of Appeal concluded, the churches in the jurisdictions could not complain if in the future a government were to change the law and take away the right to conduct legally binding religious marriages.

Nowhere in section 14 is the word 'religion' mentioned; such a right could only derive from section 10, but after today's judgment that section cannot be engaged to imply a right to marry under the constitution.

The second flaw is disturbingly more fundamental. The court concluded that a court of law in the Cayman Islands cannot provide a remedy to an applicant in circumstances in which the government admitted in court to have breached the fundamental rights of that person under the Constitution and is prepared to do nothing about it. This defies basic principles of constitutional law.

This is not the first time in modern times that a court of law of a western democracy wrongfully restricted fundamental rights by implication or denies effective constitutional protection to minorities. During the course of last century, many states in the United States prohibited interracial marriages in order to preserve the purity of the white race.

A case was brought to the court that challenged the constitutionality of these laws, but a court in Virginia rejected it on grounds that God made races and placed them in different continents, hence the legal prohibition agreed with the will of the Creator and could not be unconstitutional.

Some judges are defined and remembered for their braveness in doing what the law requires, notwithstanding that their decision may be exceptionally unpopular. Other judges lack that braveness in that they prefer to take a blinkered approach that somehow appeases the majority and shields them from backlash.

Chief Justice Smellie is an outstanding example of the former, the Virginian judge, whose name has been forgotten, is an example of the latter. But the law, in the end, prevails. The American court of Virginia was corrected by a unanimous decision of the United States Supreme Court in Loving v Virginia.

This Cayman Islands Court of Appeal will be corrected by the Privy Council.

Continue Reading

on Cayman News Service

Featured