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Parting message from Her Excellency the Governor Helen Kilpatrick CB

| 02/03/2018 | 0 Comments

It is with great sadness that I leave the Cayman Islands. From the moment I arrived in September 2013 – on the Honourable Premier’s birthday no less – I have felt welcome and happy here. I will always remember the special introductory events that each District so generously gave me. They were a wonderful start to my learning about the history and culture of the people of the Cayman Islands.

The role of the Governor is both interesting and varied and I have enjoyed it immensely. This is in no small part down to two special people. I would like to thank the Honourable Premier, Alden McLaughlin, for the way he has lead his two Governments with great integrity and dignity. We have always enjoyed a cordial and productive working relationship and I like to think that this has strengthened the bond between the Cayman Islands and the United Kingdom.

The second person is, of course, the Honourable Deputy Governor, Franz Manderson, whose leadership of the civil service in the Cayman Islands is truly exemplary. He has set out a clear vision of the excellent civil service that he believes the people of the Cayman Islands deserve and works towards that aim with enormous energy and enthusiasm. I would like to thank Franz for all his help and wise counsel. I am grateful for the work of all the committed civil servants that he leads.

The work of the Governor and the Governor’s Office is sometimes misunderstood. Some people have the impression that we just go to cocktail parties – though I have been to quite a few – and others seem to think we are beavering away on behalf of Her Majesty’s Government against the interests of the Cayman Islands. Neither of these impressions is remotely true. I said in my introductory speech to the Legislative Assembly that I committed to ‘well and truly serve the people of the Cayman Islands’. I can only hope I have achieved this.

There are many things I am proud to have worked on during my time as Governor. It has been a tremendous privilege to be the first female Governor so being able to help have the Convention on the Elimination of all forms of Discrimination Against Women extended to the Cayman Islands was a highlight for me. I hope the work that we have done jointly with the Cayman Islands Government and Royal Cayman Islands Police Service (RCIPS) on strengthening the arrangements for safeguarding children will have a lasting benefit for vulnerable children.

I was fortunate that the extension to my term enabled me to be here in May to oversee the work of the Elections Office preparing for the first poll under the new single member constituency system. I was delighted that all their hard work paid off and that the Commonwealth Parliamentary Association Election Observers found the election to be ‘free and fair’. I would like to thank the former Speaker, Honourable Juliana O’ConnorfConnolly, the current Speaker, Honourable McKeeva Bush, and all the Members of the Legislative Assembly that I have worked with for their service to the community of the Cayman Islands.

As an accountant, it has been a pleasure to see the Cayman Islands Government and Statutory Authorities make such huge improvements in financial reporting during my tenure here. To go from the situation when I arrived where the majority of opinions were either qualified, adverse or disclaimed to the current position where thirty one opinions were unqualified, only six not, and none at all disclaimed, is truly a remarkable achievement.

One of my greatest responsibilities has been ensuring the safety and security of these islands. It is therefore bitterly disappointing that crime is still far too high, particularly crimes involving drugs, guns and burglary. We are, however, fortunate to have dedicated and professional law enforcement personnel, who are seen as leaders in the Overseas Territories’ community. My office works closely with the RCIPS and other agencies to ensure that the Cayman Islands continues to be one of the safest places in the Caribbean. Current projects to improve border and maritime security are vital to help ensure that violent crime does not take a hold here as it has in other parts of the region.

The men and women of the RCIPS and all the emergency services deserve our full support. They work, often under very difficult conditions, to keep us safe and I thank them for everything that they do.

Another important role of the Governor is to make key appointments. I appoint judges and magistrates on the advice of the Judicial and Legal Services Commission and I am pleased to say they have consistently recommended excellent candidates. The quality of the judiciary here in the Cayman Islands is the bed rock of the successful financial services industry and I would like to thank the Honourable Chief Justice, Anthony Smellie, and all his colleagues for their excellent work. I also make some appointments directly and during my time here have appointed Sue Winspear to be Auditor General, Derek Byrne as Commissioner of the RCIPS, and Sandy Hermiston as the first Cayman Islands Ombudsman. I like to think that the continuing work of these most dedicated and professional public servants will be my legacy to the people of the Cayman Islands.

I also make appointments to all the Commissions that play such an important role in upholding the Constitution and protecting the rights of citizens of the Cayman Islands. My thanks go to the Chairs and Members who give their time and expertise to this invaluable work.

I have been very pleased to have hosted visits from several Foreign Office Ministers during my time as Governor. All of them left with a very positive impression of the Cayman Islands. One issue though, that Ministers have consistently mentioned during their visits, has been the lack of recognition of LGBT rights in the Cayman Islands. They all expressed their hopes that the Government would bring forward legislation to bring the Territory into line with the European Charter on Human Rights and with the Cayman Island’s own Bill of Rights which prohibits discrimination. The need for this legislation, and particularly the recognition of same sex partnerships, is now pressing and I would urge the Government to make progress on this legislation to advance the rights of LGBT members of the Cayman Islands community.

The beauty and diversity of the Cayman Islands environment is second to none so it has also been a pleasure to work with the Cayman Islands Government, the Cayman Islands National Trust, the Royal Society for the Protection of Birds, and the Central Caribbean Marine Institute to help to ensure this wonderful asset is protected for future generations.

I would like to extend my very grateful appreciation to the staff in my Office who worked with me on all these important issues. Indeed, they have done all the work. They are not only knowledgeable, professional, and hard working but are also wonderful people who make it a pleasure to go to the office every day.

A fair press corps free from political interference is a hugely important contributor to a democratic society, and I would like to thank all the Cayman Islands journalists and broadcasters who have – by and large – covered my time here so kindly.

But it has not all been work. I have said on many occasions that the inhabitants of the Cayman Islands must be the most benevolent on earth. A huge proportion of the community contributes to voluntary and charitable work in their own way. I have been honoured to be able to play a small part by supporting those organisations that I am Patron of – I am afraid they are too numerous to mention individually – and other groups who all work tirelessly to help others in need or simply to make the Cayman Islands a better place to live. I would like to thank all these dedicated people who should be proud that they really do make a difference.

I would like to single out the Cayman Islands Veterans Association for a special mention. This group of brave men and women do fantastic work helping those who have served their country and I encourage everyone to support their work.

A very special thank you needs to go to all the staff of the Health Services Authority who looked after my daughter Olivia when she was taken ill very suddenly with meningitis and me when I had a serious accident. Without their skill and professionalism either incident could have had a very different outcome. We owe them our lives.

Many people have welcomed me into their homes and hearts and I am so grateful to have found true friends here. These people know who they are and I thank them for their friendship and hospitality. In my free time, I have particularly enjoyed time out on the beautiful clear blue water with friends and with the Cayman Islands Sailing Club. It was therefore very special for me to take part in the first ever Cayman Islands Fleet Review last Saturday. I cannot think of a better send off.

Thanks must also go to the fantastic staff at Government House whose great work has made it possible for me to host between five and six thousand guests each year. This is a staggeringly large number of guests and is a huge amount of work for the staff. This work is done willingly, professionally, and with great good humour. Of course it is a great privilege to live in Government House, overlooking the amazing Seven Mile Beach, but it is their contribution that has made it a joy to live there.

I am being asked what my plans are next. I wish I knew the answer to that one! I do know that I will be retiring – early of course – from the civil service at the end of this month and then be having a holiday in Sri Lanka and Bali with my brother while I consider what to do in the next chapter of my life. The variety of the work and the vibrancy of the beautiful Cayman Islands have spoiled me and I would not relish returning to cold, dark London on a full time basis. Something will come up.

Although I have to leave, I am pleased that the Cayman Islands’ economy is thriving and the Territory is visibly more prosperous than when I arrived. There are always further improvements that need to be made, for example in employment opportunities for Caymanians and in public education, but I know these are priorities for the Government and that further progress will be made.

Preparations are already being made for the arrival of the new Governor, Anwar Choudhury. I am confident that he will have the wonderful, warm welcome that I have enjoyed so much. He will be arriving on March 26th with his wife Momina, two teenage daughters and a new baby girl and is very much looking forward to his new role.

It has been impossible to thank everyone who has made my time here such an amazing experience, but I wish I could, so thank you all the people of the Cayman Islands. In the words of the beautiful national song ‘Fair Cayman Isle, I cannot thee forget’.

May God bless the Cayman Islands.

UK’s flagrant disregard for the rule of law, by Dr Leonardo Raznovich, February 2018

| 23/02/2018 | 0 Comments

The idea that the people of Bermuda can give themselves any laws they wish is wrong as a matter of Bermudian constitutional law. The Prime Minister was probably confused by the Westminster system of parliamentary democracy in which parliament is sovereign and thus can do as it pleases. The Prime Minister appears to ignore that the UK imposed upon Bermuda a constitutional democracy in which the constitution is sovereign and thus the parliament of Bermuda cannot do as it pleases.

The constitution of Bermuda is codified in one single document, enacted by the UK Parliament under the name of the Bermuda Constitution Act 1967 (the “Constitution”).  The Constitution sets out, and hence limits, the power of each of the three branches of government: the parliament, the judiciary and the executive of Bermuda (the same actually applies in the Cayman Islands, or in the USA, or in France or in any country with a codified written constitution).

This is referred to as division of power: the court interprets the laws (including the Constitution) and the legislature makes and amends laws (excluding the Constitution). The law making powers of the local legislature in Bermuda derive therefore from the Constitution, rather than from the people; hence the laws made by the legislature must conform to the Constitution regardless of the wishes of the majority.

To the extent that they do not conform, they are ‘”repugnant” to the Constitution and the Governor must reserve the bill for the “signification of Her Majesty’s pleasure”, unless authorised by the UK government to give it assent, pursuant to article 35(2)(c) of the Constitution.

However, it does not end there; there is one more protection for the Constitution in case that the Governor and the Legislature conspire to breach the Constitution; thus, to the extent that any law passed by the local legislature (and which received assent by the Governor) is repugnant to the Constitution, it is, and remains, absolutely void and inoperative pursuant to section 2 of the Colonial Laws Validity Act 1865 (the “Validity Act”), which states that “Any colonial law which is or shall be in any respect repugnant to the provisions of any Act of Parliament extending to the colony to which such law may relate … shall be read subject to such Act … and shall, to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative.

How is this affecting the Partnership Act? The Supreme Court interpreted in Godwin-DeRoche that Bermudian law requires marriage equality. In countries such as Bermuda with a codified written constitution, there are two legal ways to change such a constitutional interpretation: (1) an appeal or (2) a constitutional change. Anything outside these two possible routes, including legislation passed by the legislature, constitutes a flagrant breach of the Constitution and hence of the rule of law of the jurisdiction.

A court of appeal could have reversed the Supreme Court by holding that its interpretation was wrong as a matter of law, but the legislature cannot; its laws must conform to the Constitution. It is a simple matter of division of power: as stated above, the court interprets the laws (including the Constitution) and the legislature makes and amends laws (excluding the Constitution).

The Bermudian government decided not to follow the normal appeal process; the Supreme Court’s interpretation is now, effectively, enshrined in the Constitution. The only way to overturn the effect of this interpretation is a constitutional change, which only the UK Parliament can effect.

The argument of the Bermudian government that the exemption clause of the Human Rights Act can be used to exempt the Marriage Law from having to comply with the Human Rights Act does not work with the Constitution. But even if there were any doubts about this, the second protection inexorably kicks in and the Partnership Act, to the extent that it is repugnant to the Constitution as interpreted by the Supreme Court, is void and inoperative pursuant to section 2 of the Validity Act.

The UK government had the opportunity to stop the bill from becoming law, but instructed its Governor to act against the rule of law of Bermuda and give assent to the bill. The UK government acted, therefore, illegally with respect to the constitutional arrangements that the UK Parliament established for Bermuda in 1967.

Bermudian same-sex couples less worthy of equality in the eyes of the UK government: is segregation an example of “good governance”?

Although Bermuda is largely self-governing, the UK appoints its Governor, retains constitutional power to legislate and has the ability to step-in regarding internal matters (similar arrangements are in place for the Cayman Islands, the British Virgin Islands, Montserrat, Anguilla and the Turks and Caicos). Put simply, they are not sovereign states, but remain colonies of the UK.

This is why they are not part of the Commonwealth of Nations. By example, the UK repealed their sodomy laws in 2000 against their wishes and exercised direct rule in the Turks and Caicos in 2009 by deposing its government for corruption. The UK has the legal duty to ensure that these territories are governed responsibly and comply with their written constitutions and international law.

The European Convention on Human Rights (ECHR) has been extended by the UK to each of them; they are bound to comply with it, but the UK is legally responsible for their breaches because, as the sovereign power, the UK is ultimately responsible for the “good governance” of these territories. A similar duty arises in the internal order.

Pursuant to article 35(2)(c) of the Constitution, the Governor, acting in his/her discretion, ought to have reserved the Partnership Act for the signification of Her Majesty’s pleasure. We know that acting with discretion does not imply acting with arbitrariness, let alone illegally; but at the same time the Governor cannot act contrary to an order of the UK government.

This is where article 17 (2) of the Constitution kicks in, in that it requires that the Governor effects its powers “subject to the provisions of this Constitution”. This is a critical constitutional limit  (which is mirrored by the Cayman Islands Constitution) in that anything the Governor does at his/her discretion, or by instruction from the UK government, has to comply with “the provisions of [the] Constitution.”

This makes constitutional sense, in that otherwise the Governor or the Secretary of State responsible for Overseas Territories can bring about a constitutional change, which only the UK Parliament can effect. This clause protects the supremacy of the UK Parliament (and in the case of the Cayman Islands, the mirrored clause protects the supremacy of the Privy Council with whom the powers to make and amend the Cayman Islands Constitution are vested).

The decision of Boris Johnson, as the Secretary of State responsible for all overseas territories, did not conform to article 17(2) in that the Governor of Bermuda, by giving assent to the bill, acted in breach of the Constitution as interpreted by the Supreme Court inGodwin-DeRoche.

It follows that Johnson’s authorisation was illegal and, as such, is challengeable by judicial review in the High Court in London, as an act contrary to the Constitution (an Act of the UK Parliament).