Mr.
Speaker,

Yesterday
April 2, 2019, the Cabinet of the Cayman Islands instructed the Hon.
Attorney General to pursue an appeal against the judgment of the Hon.
Chief Justice, Anthony Smellie, Q.C., handed down on 29th March in
Civil Cause No. 111 of 2018 and Civil Cause 118 of 2018, otherwise
known as the Same-Sex Partnership case. The Hon. Attorney General was
also instructed to seek a stay of execution of the judgment pending
the outcome of the appeal.

Mr.
Speaker, as you have indicated you, like me and indeed all of us in
this House, received many telephone calls, Whatsapp and text messages
in the days following the handing down of the Chief Justice’s
judgment. Mr. Speaker there were those who sent messages stating
that they feel the outcome was right. There were many more that sent
messages stating that they feel wronged by the decision and made
clear in no uncertain terms their view that marriage should remain
the exclusive domain of heterosexual couples. And there were also
those who, regardless of how they feel about the concept of same-sex
marriage, expressed shock and disbelief that the Court could have
made such a fundamental public policy change in a matter as important
as the institution of marriage without reference to this Legislative
Assembly.

Mr.
Speaker we were also peppered and still are being peppered with
requests from the press asking for a statement. However, as the Hon.
Attorney General stated after the judgment was handed down – the
ruling required careful consideration by Government. And so the
Government has taken the time to consider in its Caucus and the
Cabinet to take legal advice and to discuss this most important
matter and its implications.

I
want to add here that I and my entire government have great respect
for the Hon. Chief Justice and indeed the independence of the
judiciary. But even the best judges get it wrong from time to time.
Hard cases make bad law. None of us who are human are infallible.

Mr.
Speaker, the Government believes that in his determination to right
what he has described as injustice and indignities suffered by the
petitioners in the same-sex partnership case, the Hon. Chief Justice
may have exceeded the scope of the powers conferred on the Court by
the Constitution and in doing so, some have argued, assumed the role
of this Legislative Assembly in deciding on what should be public
policy and then legislating for it. Mr. Speaker, the Government is
cognizant of the provisions of Section 5 (1) of the Constitution and
the mandatory requirement imposed by that section that all existing
laws “shall be read and construed with such modifications,
adaptations, qualifications and exceptions as may be necessary to
bring them into conformity with the Constitution.” But we believe
that introducing the entirely new concept of same-sex marriage into
the existing Marriage Law goes way beyond any reasonable
interpretation of modification or adaptation. This, we believe,
might be inconsistent with the separation of powers by trespassing on
the constitutional remit of this Legislative Assembly.

Mr.
Speaker, I spent much of the first eight years of my political career
on both sides of this House engaged in the efforts to get us a
modernised constitution. The previous Constitution Order was made in
1972 and we had outgrown its provisions and a new constitution was
desperately needed to catch up with our growth and development as a
country.

As
early as 2001 the United Kingdom Government made it clear to us that
no Constitution would be agreed that did not contain a Bill of
Rights. On the other hand, many stalwarts in this community and
especially religious leaders were concerned about the implications
for the traditional institution of marriage of a Bill of Rights and
in particular, what is now Section 16 of the Bill of Rights of our
current constitution, which prohibits discrimination on a number of
grounds, including sexual orientation. It was plain to the government
at the time that we would never get the new constitution approved by
referendum unless we were able to satisfactorily address these
concerns. So Mr. Speaker we invited representatives of the Cayman
Ministers Association and the Seventh Day Adventist Conference to not
just discuss the proposed new constitution with us, but to actually
be part of the negotiating team, not just here in Cayman but at the
final round of negotiations at Lancaster House in London.

Mr.
Speaker, the genesis of Section 14 of the Bill of Rights of the
constitution, which was described by Sir Jeffrey Jowell – who led
the Government’s team in the case - as the “rock” of the
Government’s case, was the concern by the religious community in
Cayman to ensure that the institution of marriage, which Christians
believe to be God ordained, remained available exclusively to persons
of the opposite sex. Thus section 14 (1) provides: “Government
shall respect the right of every unmarried man and woman of
marriageable age freely to marry a person of the opposite sex and
found a family.”

These
words are deliberate and were intended to provide the necessary
assurances to the Caymanian community, but in particular the
Christian community, that the institution of marriage would retain
its traditional definition as the union between one man and one
woman.

To
ensure that there was no question about this, in tandem, this
Legislative Assembly amended the Marriage Law in 2008 to define
marriage as “the union of a man and a woman as husband and wife”.

I
have no doubt, given my intimate and lengthy involvement with these
issues during the constitutional discussions, negotiations and
amendments that without the assurances of Section 14 of the Bill of
Rights regarding marriage and the amendment to the Marriage Law in
2008 that the 2009 Constitution that we now operate under would not
have been approved by referendum.

We
also know that the constitutional discussions and drafting did not
contemplate that sections 9, 10, or 16 of the Bill of Rights that
deal with private and family life, conscience, religion and
non-discrimination, would apply to marriage - hence the reason why
marriage is in its own separate place, in section (14), in the Bill
of Rights.

As
the Government submitted to the Hon. Chief Justice during the hearing
of the case, Section 14 is the constitutional provision that
specifically provides for the right to marry; what the lawyers all
the “lex specialis”- that is, the part of the law that governs
the specific subject matter of the institution of marriage.

Mr.
Speaker, the current constitution is a comprehensive negotiated
document, the result of eight years of extensive consultation across
the various demographics of the Cayman community; often bitter
political differences and very difficult negotiations with the
Foreign and Commonwealth Office. It was then approved by the
democratic process of a referendum. It is not something that was
dreamed up by the Cayman Government. The document strove to represent
the strong feelings of the Caymanian community, in particular as
regards the institution of marriage.

Given
the highly controversial and landmark ruling by the Hon. Chief
Justice on March 29th, if left unchallenged, the implications for the
Cayman Islands Constitution are significant and potentially
far-reaching and go well beyond the rights of same sex couples.

While
a challenge to the ruling is certainly not a decision to be taken
lightly given the important human rights concerns raised in the case,
the ruling of the Hon. Chief Justice has brought about significant
ambiguity surrounding the Constitution and Bill of Rights and the
interpretation of and ability of the Court to amend other laws should
similar applications be made.

Based
on the Executive Summary of the Court’s judgment there are three
main points of concern which we have identified and the Government,
as well as many in this Honourable House, have concerns at this
initial stage. There may be other grounds that raise concerns as we
further analyze this judgement.

Firstly,
the implications of the Court’s decision for other types of
marriages (for example, polygamous marriage), and whether Government
would now be bound to give effect to or recognise such marriages if
an application for a marriage licence is made for a man to marry
multiple wives.

The
second concern relates to the extent of the powers of the Court under
section 5 (1) of the Constitution to modify legislation on matters
such as the right to marry, bringing into question the appropriate
separation of powers under the Constitution and whether by exercising
these powers under section 5 (1), the Court has exceeded its mandate
under the principle of separation of powers.

A
third concern is whether, given the language in section 14 (1) of the
Constitution, it was open to the Court to find that the right to
marry and found a family, could be located in other rights within the
Bill of Rights, namely, sections 9 and 10 of that document.

After
very careful consideration of the three main points previously
mentioned, the Government is of the view that the issues are of
fundamental constitutional importance and therefore it is in the
public interest to have them considered and determined by an
appellate court. For clarity, I will add that the appeal will not be
pursued in the name of the Governor, but as is usually the case in
actions by or against the Government, in the name of the Attorney
General, and the actual office that made the decision.

Mr.
Speaker, let me say here that in appealing the Government is
cognizant that there is no guarantee or certainty as to how the Court
of Appeal will rule. However, we believe it is critical that the
country has the benefit of clarification on these very important
constitutional issues.

I
wish to note that I am painfully aware that the issue of same sex
marriage is an emotive one in our Islands. I am also very conscious
that this is an issue with real people who have real lives and there
are emotions and feelings involved and that this is not merely some
text book case. I and the Government have no intention of causing any
harm or hurt to the petitioners but we must ensure that in seeking
what they deem protections and rights under the law that a door is
not opened that may impinge on other protections and rights.

As
Premier I will state what I have said many times before – I have
no doubt that the feelings of the majority of Caymanians are that
marriage should retain its traditional and religious definition and
meaning, the union of one man and one woman. I recognise that many of
the younger generation of Caymanians have differing views on this
issue and it is quite likely that in years to come the majority view
of Caymanians may change. But such a majority is not evident to any
of us here today.

However,
I equally want to make it clear that no matter what my own religious
beliefs, or indeed the beliefs of the other members of my Government
or of this Parliament, as your Premier I also have an obligation
under the law and the Constitution, and indeed given my religious
upbringing under the teachings of Christ, to ensure that all people,
but especially any minority group, regardless of differences, are
treated fairly and with respect.

I implore those of us in this
House and outside of it to discuss their views freely, but
respectfully. At all times we should keep in mind that those in our
community who are in same sex relationships, or have family members
who they love in such relationships, are like us - made of flesh and
blood with feelings and emotions and are not merely stone objects.

Thank
you Mr. Speaker.

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