In March 2019, Chief Justice of the Cayman Islands, Anthony Smellie (‘CJ’), held that: (1) the Cayman Islands Government (‘CIG’) was in breach of the Constitution (Sch 2 of the Cayman Islands Constitution Order 2009) and the European Convention on Human Rights (‘ECHR’) in failing to provide any legal framework for same-sex couples; and (2) the remedy the Constitution required was marriage equality (Day and Bodden Bush v The Governor of the Cayman Islands et al, Civil Cause Nos 111 and 184 of 2018 – 29 March 2019 (Cayman Islands)). The CJ, commanded by law (s 5(1) of the Cayman Islands Constitution Order 2009), proceeded to modify the statutory definition of marriage. In August 2019, the Court of Appeal of the Cayman Islands (‘CoA’), comprised of Sir John Goldring, Sir Richard Field and the Hon Dennis Morrison, considered an appeal as to remedy only. The CIG admitted in court to multiple ongoing breaches of the Constitution and the ECHR, although when questioned as to remedy declined to answer. In November 2019, the CoA overturned the CJ’s remedy. The CoA held that, although the Constitution does not prohibit equal marriage, it does not provide a right to it. Accordingly, the CJ had exceeded his power of modification. Alarmingly, the CoA however failed to provide an effective alternative remedy regarding the admitted breaches and observed recalcitrance (The Deputy Registrar and the AG of the Cayman Islands v Day and Bodden Bush CICA No 9 of 2019 - 7 November 2019 (Cayman Islands)).
The CoA set a dangerous precedent: there is no effective remedy in court when existing legislation precludes access to constitutional rights. This undermines the Constitution and the ECHR and defies an act of the UK Parliament that commands the court to make not just modifications to existing laws, but ‘adaptations, qualifications and exceptions’ to ensure that the Constitution prevails (s 5(1) of the Cayman Islands Constitution Order 2009). In my view, decisions like this tarnish the reputation of the Cayman Islands judiciary and the jurisdiction; when the judiciary fails in its constitutional responsibilities, harm to the rule of law ensues.
Indeed, in a recent debate of the Cayman Islands ‘Parliament’, legislators proposed I be deported due to my pro bono legal representation of LGBTI people and organisations in the jurisdiction. Legislators called on members of the public to write to the CIG, pursuant to the Customs and Border Control Law, asking that I be declared a ‘prohibited immigrant’ and be put on a plane back to the UK. It is my view that these threats, unchallenged by the CIG, demonstrate poor governance and disregard for the rule of law. They deliver a message more typical of dictatorships than dependant territories of the UK: that any lawyer advising on fundamental rights and freedoms secured by the ECHR or the Constitution will be expelled. It is an attempt to curtail basic human rights and deter advancement of LGBTI rights. We are witnessing an acceleration of the erosion of the rule of law that has been ongoing for some time and to which the CoA’s decision has contributed.
Lord Bingham, in 2006, accepted that it took time for the Privy Council to appreciate the implications of judicial review under a bill of rights of a codified constitution (Bowe v R  UKPC 10, ). The CoA should reflect on Lord Bingham’s comments and the consequent harm caused to the rule of law by its failure to provide an effective remedy. The words of the UK Supreme Court in relation to our non-codified constitution are also instructive: ‘the courts have the responsibility of upholding our constitution… The court cannot shirk that responsibility merely on the ground that the question raised is political in tone or context’ (R (on the application of Miller) v The Prime Minister et al  UKSC 41, ). Unwittingly perhaps, is this the trap into which the CoA has fallen?
Dr Leonardo J Raznovich is a barrister and Visiting Senior Research Fellow at the Intersectional Centre for Inclusion and Social Justice.
Debate in the Legislative Assembly of the Cayman Islands 22 November 2019 (www.youtube.com/watch?v=TwTMXYXDEJw). See interventions by legislators Anthony Eden, Ezzard Miller and opposition leader Arden McLean at 18:56, 32:55, 56:37 and 1:00:02.
MLAs push AG to deport gay lawyer, Cayman News Service, 24/11/19
‘LGBTI rights in British overseas territories’ Dr Leo Raznovich, Counsel June 2018: www.counselmagazine.co.uk/articles/lgbti-rights-british-overseas-territories