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Thursday, Oct 01, 2020

Winding Up Domestic Partnership Bill

Winding Up Domestic Partnership Bill

Premier begins by reading the poem ‘If”

"Those words of Rudyard Kipling penned so very long ago have been my mantra since I first read them at 14 years. A copy of that hangs in my office. I read it very often."
Yesterday and last night were very, very difficult. I left here entirely disillusioned and disappointed and fearful. I think I finally lost consciousness somewhere between 3:30 and 4 this morning and my eyes were open at 5:30.

The feeling of despair, disillusionment and disappointment disappeared when I arose this morning and a feeling of incredible peace has come upon me. The words of my dear departed mother came to me with such force I thought she was standing there. When a man has done his best even the angels in Heaven can’t do better.

My disappointment is not really about the fact that members of my own team have clearly indicated they will vote against a bill, which my Caucus and my Cabinet agreed we should bring and that I should present. I am long enough in the tooth and tough enough and my skin is thick enough to have faced more than one defeat in my almost 20 years in this House.

My worry and my concern, my disappointment is for the people of this country, the reputation of this Parliament and the interest of these Islands going forward. I do not for one moment doubt the sincerity and strength of feeling of some members in this House on the position of same sex relationships, but I also am discerning enough - as I believe are the listening public - to understand the political expediency of others who have swung one side of this issue or the other; wherever they felt the wins of public opinion were coming from. I say to those particularly the one who has predicted and proclaimed the demise of all who support this bill and who has been here for five minutes; people will respect your view and your position. What they will never respect is a man or woman on whom they cannot rely. I am not going to go down that road. That is not where I am trying to go. That is all I will say about that.

We shall see in due course who is here and who is not here next time around. I tried really hard to frame this debate in terms that would focus on what the issue is, which would as far as possible preclude or certainly not provoke statements, angry statements, about the evils of homosexuality and the gay life style. It wasn’t entirely successful but people will have to defend what each of them said. That’s not my job. I am not going to persecute anyone for what they said.

But this bill, the Domestic Partnership Bill, came to this House, was brought to this House by me on behalf of Government. Not because the government made some policy decision that that was what we thought we should do. It was brought because the Court of Appeal of the Cayman Islands found that this Legislative Assembly and by extension the Cabinet are in continuing and longstanding breach of Article 8 of the European Convention on Human Rights, which provides for the right to private and family life and the corresponding section in our own Bill of Rights, which is modeled on the European Convention on Human Rights – Section 9 (1) of that Constitution and that being in breach of those sections we are violating and have for years the rights of same sex persons to a formally recognized framework, which extends to them the same basic rights of heterosexual couples. Not marriage. That is why the bill is here. And notwithstanding that, I have heard some speeches, which have left the Honorable Attorney General and myself shaking our heads and asking did they not hear a word we said?

The 27th of May was seven years since I was first appointed as Premier. I have tried, as has the Honorable AG, over the course of those two administrations, some six years ago to seek to persuade the members of our team, my team, and the team I lead. Some of the players have changed, some of the players are still here – that although the bill of rights in the CI constitution does only grant a right to marriage to heterosexual persons of marriageable age as determined by the law that that does not mean that you can simply ignore or trample upon the rights of persons who are not heterosexual to private and family life. And that the courts, not just here, but across the world have said that gay couples, gay persons, are entitled to the basic rights that are accorded to heterosexual couples such as pension, immigration, succession, the right to found a family, etc.

This is not some Cayman creation. As I said at the start, our Bill of Rights is modeled on the European Convention of Human Rights. The member from George Town Central spoke with derision about my role in the development of that Constitution and in particular the Bill of Rights. I spent the first nine years of my political career on both sides of this House battling to get us a new Constitution. The United Kingdom said and quite properly, quite correctly we will not grant you a Constitution unless you have in it a Bill of Rights, which accords the generally accepted human rights protections of the citizens. In case anyone thinks that human rights are some new concept, they came out, this idea that there should be a universal charter on human rights came out of the horrors of two World Wars, particularly the last World War and it was determined that never again should any state be able to do what was done by Hitler to other human beings. Those atrocities should never occur again.

We try, we try. When Chantelle Day, who despite what some on the other side may think, is as Caymanian as any of us. And who I believe resides in George Town Central. When Chantelle Day and Ms. Vickie Bush’s counsel wrote to us and said we demand recognition of our right to family life. Of course they wanted marriage but they said if we can’t have marriage let us at least have civil unions.

I tried again with the assistance of the Honorable Attorney General to persuade members of my team of the importance of us acting or there was going to be court proceedings. Over the course of the last six-plus years the Honorable Attorney General and I have met with members of the Ministers Association, the church minister’s association, many of whom I have on speed dial. I’m very good friends with many of them because when you’ve been around this long as the older members of this House will know you attend many, many funerals even if you don’t go to church otherwise. Know them well and love them all to a man and woman. We had nothing but absolutely civil, courteous discussions. We tried and we tried and we tried. We could not get support to bring any kind of legal framework legislation. Politics is the art of the possible. I’ve always understood that. If I had not understood that I wouldn’t be standing here today.

I am not an idealist. I am a pragmatist and a realist. I work hard never to compromise the fundamentals that underpin who I am. But I understand that politics is also the art of compromise. I do not usually begin battles I feel I cannot win. I wait for a more favorable wind or a better opportunity for the project to succeed. That’s how I operate. Anyone who works with me will tell you that. The proceedings were begun. We tried again, the Honorable Attorney General and I to find some means of reaching a compromise; something that our counsel could say to the Court on behalf of the Government.

To have pushed that particular envelope at the time would have resulted in the Government breaking up. In the previous administration I had two members, both of whom are still in this House, members from Savannah and Newlands walk across the floor because – I hadn’t even brought a motion. I stood on the floor of this House and said we have to do something about the situation with Dr. Leonardo Raznovich’s immigration status because, as I said I am a realist and a pragmatist. I was elected, as are all of us, to make decisions and judgements on behalf of our people. Otherwise you could send anybody down here. And one of the things I have always understood about leadership is leadership is not just about following public opinion. Public opinion is fickle. You are hero today and villain tomorrow. Of course who doesn’t want to have kudos and get kudos? Very few politicians I know don’t want to get re-elected. But the day you start making decisions and the only thing you think about is this going to get you re-elected you are in my view a useless representative. You are simply a mouthpiece. The day you fail to exercise your own judgement about the rightness the correctness of a position or not, you are just a mouthpiece.

My good friend Roy Bodden – used to be fond of quoting Ed Burke. I cannot find the quote. But Burke put that in language that Mr. Bodden repeated over and over in his 16 years in this House; that as a representative you owe your constituents the benefit of your intellect and judgment, not just a matter of following their opinion. Edmund Burke the famed British politician is often cited with regards to matters of Parliament often about leadership and truly serving constituents. He said, “A representative owes you not his industry only, but his judgment and he betrays instead of serving you when he sacrifices it to your opinion.”

The great irony of the majority of the speeches that were made in this House in opposition to this Bill is that if persons vote as they have indicated and the Bill fails, what they consider to be the great disaster that would have attended the Cayman Islands if the Domestic Partnership Bill passes is going to be multiplied 10-fold and I will explain that in but a moment. I want to make one thing clear. This winding up speech of mine is not about trying to persuade one single person in this House on my side or the otherwise to vote otherwise than in accordance with your conscience. I want no abstentions. I want every man and woman to do his and her duty and vote their conscience. But I want every man and woman to also realize that while only they will have to live with their conscience, the entire country and every person here will have to live with the consequences of the decision. The decision doesn’t just affect you or me. We are deciding on behalf of the people of this country. Remember that. So let your conscience also contemplate the consequences of the decision.

A number of the members on my side made extremely good contributions. When I say that the clarity of thought and presentation brought to bear by speeches like that of the Minister of Financial Services, the member from Prospect and others ought not to be ignored and no member in this House can say, having had the messages, which I began with reinforced by the AG and other members on this side about the consequences of this bill failing; no member in this House will be able to say they did not understand, at least credibly say, what the implications of this bill failing are likely to be.

I heard a lot of visionaries on the other side say what the UK will and won’t do and what they have done and will do. I don’t claim to be a visionary at all but I have not spent the last 7 years as Premier in the office of four governors and I’ve forgotten how many Ministers in the UK not to understand how that system works and not to be able to read what the careful statements mean. So the irony of which I earlier spoke is that a defeat of this Domestic Partnership Bill will almost certainly as the sun rises tomorrow result in the imposition on the Cayman Islands of same-sex marriage. Remember I said so today. And I have already requested the Hansards of this House of what every member said. Because I know when it comes and I promise you this is not going to be 36, 37 years from now. This is not even going to be 30 days. Remember that when it occurs it occurs because members of this House decided that a Domestic Partnership arrangement was not satisfactory, was going to be disastrous, and was going to undermine marriage in the Cayman Islands. That’s why the UK will act. It will not be those on this side who have brought and supported this bill that have caused same sex marriage be produced in Cayman. It will be those who have prevented the Government from introducing a parallel arrangement short of marriage but functionally equivalent thereto. Because I know that when it happens, when the inevitable occurs, there will be screams and shouts, weeping and wailing and gnashing of teeth, cursing of the UK and inevitably an attempt to blame Alden McLaughlin. We have said over and over again in this House, outside this House, to the Ministers of Religion we cannot avoid providing a framework to recognize the rights of same-sex couples. We cannot. It is a constitutionally enshrined right. The Courts have decided that. It is not a policy decision of the Government. It is the duty of the Government and the Legislative Assembly to recognize a declaration of our Court of Appeal. I’m not even going to rehearse or rehearse again all of the important arguments of the rule of law. We’ve said them over and over again but I can tell you no Parliament can long survive in a democracy that does not respect the rule of law.

It will lose complete credibility. Not even, as the Honorable Attorney General said yesterday, not even the UK, which has a sovereign parliament, and those who believe this is a sovereign parliament are about to get a rude awakening. Not even the UK, which is a sovereign Parliament, will ignore rulings of its courts because government cannot function if the respective arms thereof do not recognize and respect their respective roles. I heard words about the government being cowardly, many have used that word. I heard the Leader of the Opposition say that we should have appealed the declaration. The Honorable Attorney General I think answered that absolutely and clearly; you do not appeal the unappealable. It is pointless. No one is going to argue it. You would get laughed out of court. To say court after court after court has said that all people regardless of their sexual orientation are entitled to private and family life.

I am going to speak the unspeakable. All of us in here have friends or family who are gay. There I’ve said it. Are we going to say that our friend, our son, our daughter, our cousin, our niece or aunt or uncle that they are not entitled to private and family life because of their sexual orientation? I have two sons who – they have taught me so much. They do what was as a Caribbean male growing up in this place here Ii could not do. They have gay friends. They hang out with gay friends. If we tried that in my generation, you would definitely be made gay too as far as the people were concerned. Attitudes have changed and I think that’s a good thing. Younger people are more tolerant of people’s differences. Sexual orientation is a difference. They are different. I do not ask anyone to agree with someone’s lifestyle but it is their business not yours. That’s how I live my life.

It is other human beings that we are talking about. Other Caymanians. We are saying they are not to enjoy the same basic rights that the rest of us who are heterosexual have. The right to enjoyment of family, to have someone to be able to share in the things that you enjoy and participate in your life. Homosexuality has been around as long as man has. I know the Biblical teachings. I promise you nobody in this House has spent more time in Sunday school than me. Not because I wanted to go sometimes but I had to go because Althea was going to make sure of that.

I believe in God. I’m not someone who is in church, well I can’t say I’m not in church every weekend because I go to so many funerals. But I can say I go to a whole lot of church services outside the formal ones. But my faith is firm. In God I believe and trust. I have some ministers of religion who are my rocks. The rocks I lean on - although me being me probably don’t lean on as much as I should. But through this COVID crisis I came to one of the lowest points I have ever been in my life. I took a decision – I had to take a decision, which I am certain led to the certain death of a man because we, I, refused to give the ship permission to come ashore because it was a COVID-19 patient. And that very morning, our only COVID-19 patient had died and we shut down Health City. I could not expose my people to that. I sat by myself and I messaged Rev. Yvette Noble Bloomfield. And she helped me. So anyone who does not believe that my faith is sure does not know the man. So everyone is entitled to their own freedom of conscience and freedom of expression. But we are not free to trample on other people’s rights. That’s the whole point covered in the Bill of Rights. It is set up to ensure the State does not, by its various mechanisms and agencies treat one sector of the community different than other sectors except in very limited and permissible senses. Immigration is one.

I heard a lot of predictions from the other side about how this was going to go. Let me make my prediction. The Domestic Partnership Bill that has been presented to this House sets up an alternative framework for the recognition of the rights for persons who do not wish to be married if they are heterosexual and exactly the same rights for persons in same-sex relationship. The Domestic Partnership Bill is not limited to same-sex couples. But it’s not marriage. But it does confirm a full range of rights because the injunction from the court is that it must be a system, which is functionally equivalent to marriage.

There are carve outs; we spent a lot of time… I hear there was no consultation. I know nobody on the other side perhaps except the member from Savannah had spent more time with the ministers of religion than the AG and I have on these particular issues over many years. We are incredibly sensitive to the religious views. The letter I read from Pastor Torrance Bob indicated that and said how grateful they were for the consultation opportunities and the regard and respect that we have had for their views and so we ensured that ministers of religion whose faith does not permit them to sanction same-sex relationships would not have to perform the ceremony to memorialize the relationship. In other words, they would not have to become domestic partnership officers and could remain as marriage officers only using their services for the traditional, conventional marriage.

If same-sex marriage becomes the reality I think it will be, all of that will be lost. All marriage will be on the same plane subject to the same law, subject to the same rules so if you are a marriage officer you will have to marry a same-sex couple if they wish you too. If you don’t wish to, you will have to resign as a marriage officer. That is one of the significant differences that the Domestic Partnership Law will provide.

I want to explain a bit about how we get to where I think we’re going to get. When we were negotiating what became the 2009 Constitution, it actually started in 2001 – the negotiations took 8+ years. When we were getting toward the end of the process and the Bill or Rights had started to congeal, there were concerns – always concerns – about preserving marriage as the exclusive domain of heterosexual couples in accordance with Biblical teachings and principles. We believe in this country, those of us who go to church, that marriage is God-ordained so that’s what caused a number of things to happen. What is now Section 14 of the Bill or Rights – it appears in no other constitution that we’ve been able to find anywhere in the world – this is bespoke Caymanian drafting. Section 14 (1) Government shall respect the right of every unmarried man and woman of marriageable age (as determined by law) freely to marry a person of the opposite sex and found a family.

What that does is that it categorizes, defines as a human right the right of every unmarried man and woman of marriageable age to marry and found a family. It does not confer that right on same-sex couples. To add the belt and braces that were felt necessary in 2008 we came to this House with the full knowledge we were trying to get this constitution approved by the UK and then by referendum here and sought and made an amendment to the Marriage Law by amending Section 2 so that marriage in the Cayman Islands – and this is still the case - means the union between a man and a woman as husband and wife. It is those two sections, one from the Constitution and one from the Marriage Law that formed a big part of the constitutional challenge in the Day and Bush against the Attorney General case. And members of this House I am sure will remember that the Honorable Chief Justice was so outraged at the refusal or failure of the Government and this Legislative Assembly to put in place a framework to recognize same-sex relationships that he determined that by virtue of Section 5 of the Constitution he was entitled to modify that definition of marriage and he did so in the following terms. He modified Section 2 of the Marriage Law to define marriage as being the union between two people as one another’s spouses. So he as chief justice amended the Marriage Law. He drafted the amendment and that was the law of this land until the Court of Appeal ruling on the 7 November, 2019. It is that Chief Justice’s judgement that we appealed and the Court of Appeal said you are right Government, the CJ does not have the right to amend the marriage law in that way. Your constitution only guarantees the right of marriage to heterosexual couples and the European Court on Human Rights has said that same-sex marriage is not a human right.

You do, though Government and Legislative Assembly, have to ensure that the rights of persons who are not heterosexual the right to private and family life, which is also set out in the Constitution that you put in place the framework to recognize those. It is that that we are currently in breach of. The court has said so.

So, moving on, I think it was the member from Newlands who said, I think it might be the Leader of the Opposition as well, look at this stack of laws that are going to have to be amended in consequence of passage of the Domestic and Partnership Bill. You’re right. Absolutely right. Because we have to find some mechanisms to ensure those rights that are set out in the Domestic Partnership Bill are able to be enjoyed. So we’ve got to find a framework that deals with disputes and ultimately separation, division, pension, succession, all of those things. All of those that the legislation is geared to deal with marriage in the conventional sense. So if we are going to import those mechanisms as part of this framework we’re going to have to change those other pieces of legislation. It’s messy, complicated, and difficult. There are some pieces of legislation that we haven’t even thought of I’m sure. Because it always happens that way. There’s some piece of obscure piece that you never thought about.

From an administrative standpoint, the Chief Justice’s approach is genius. It flies completely in the face of the Constitution. But it’s genius from an administrative standpoint because he changed a mere 8 words from marriage means the union of a man and a woman as husband and wife to marriage means a union between two people as one another’s spouses. In that simple amendment, all marriage is put on the same plain and all of the legislation that exists applies with equal force for everyone who is married whether they are a heterosexual couple or a same-sex couple. The genius is in its simplicity and I say that to make my prediction.

Before I make my prediction I need to deal with a point I think the member from Newlands raised, which – I know he’s going to law school now, but with the greatest respect I think he’s gotten it completely wrong. Section 81 of the Constitution gives to the governor power to enact legislation. It is one of the provisions in the Constitution that still rankles every time I think about it. It irks me, which is why we pushed so hard and the member from Newlands was there. We pushed so hard to get the UK to agree to remove the power of the governor to legislate for this country. We said if you really fell that you have to do something, to ensure that Section 125 of the Constitution, which says there is reserved under Her Majesty the power to make laws for the peace, order and good government for the good of the territory, use your order in council to do so. We don’t want a governor, albeit on instruction of the Secretary of State, to continue to be able to make laws for us here. And the UK agreed, at least tentatively. They haven’t finally agreed until the Privy Council issues that order. But those around the negotiating table on behalf of Government agreed. And it’s still in the current draft. Section 81 is not limited in the sense that the member from Newlands claims. As the Honorable Attorney General has pointed out, the European Convention on Human Rights is brought into this particular dispute. The Court of Appeal has said that in recognition of the longstanding and continuing failure of the Legislative Assembly of the Cayman Islands to comply with its legal obligations under Section 9 of the Bill of Rights – that’s ours – and in recognition of the Legislative Assembly’s longstanding and continuing violation of Article 8 of the European Convention on Human Rights.

Those are international obligations to which the United Kingdom is still very much bound; very much within the parameters of Section 55 of the Governor’s special responsibilities under the Constitution. What I don’t think is fully appreciated by many is that while the constitutionally right to marriage is restricted under the Constitution to heterosexual couples, there is nothing in the Constitution or anywhere else that would prevent this House from passing – instead of introducing the Domestic Partnership Bill we could have introduced a same-sex bill and it would be for this House as it is for the Domestic Partnership Bill to decide whether or not we wanted to pass it. The Constitution does not prevent it or prohibit it. It just does not give it the status of a constitutional right.

And in the same way that this House could pass a same-sex bill, the governor can even more easily introduce one. So my prediction is because of the simplicity, because of the administrative ease and because it will put to bed once and for all the continued pressure from the gay lobby for same-sex legislation the UK will choose that route. Further, the UK is hugely embarrassed by the fact that the Court of Appeal has called on them – found it necessary – to call on them to act in this matter because of our continuing failure as a Legislature to do so. It’s been read before, but for completeness let me read the final paragraphs of the judgement of the Court of Appeal.

We feel driven to make this final observation. This court is an arm of government. Any constitutional settlement requires the executive and the legislature to obey the law and to respect decisions of the court. It would be wholly unacceptable for this declaration to be ignored. Whether or not there is an appeal to the Privy Council in respect of same-sex marriage, there can be no justification for further delay or prevarication.

Moreover in the absence of expeditious action by the Legislative Assembly, we would expect the United Kingdom Government to recognize its legal responsibility and take action to bring this unsatisfactory state of affairs to an end.

As has been alluded to here as well, the decision of the Court of Appeal that same-sex marriage is not a constitutional right in Cayman’s Bill of Rights is under appeal to the Privy Council. If the UK acts as I have indicated the UK no longer has to worry about that appeal to the Privy Council. They will have killed not one but a couple of birds with one stone. And so that is why I come back to my point that the railings in this House and outside of it against the actions that the Government has taken in bringing this Domestic Partnership Bill are likely to result in precisely what those who are against same-sex relationships want less off all for same sex marriage to be put on exactly the same terms as heterosexual marriage.

The same-sex community will be overjoyed. So when it comes as I believe it inevitably will, all of us in this House will understand the part that we played in the introduction of same-sex marriage to this country. Some will cheer it, some will say disaster attends us. But it will be settled once and for all.

It has been a hard seven years plus; yesterday the hardest of all. I am man that if you are with me I will go to my neck in blood for you. I live by some basic principles – loyalty and trust are principle among them. I will say this: were it not that this country is still in a most precarious and dangerous situation over the COVID-19 pandemic my speech today would end very, very differently than it will.

But I love my country and I love my people even more than I love my own convenience and personal peace and satisfaction. I have given the best years of my life, the most productive years of my life to public service. I have no regrets in making that decision. I have always sought to do what I thought was in the right interest of my country and my people. I am human, I don’t always get it right, but I try very hard to and the older I get and the more war weary I get the better I find my judgment has become about issues and about people. That man that sits behind me gets very little kudos, gets very little praise but I shall call him by name: Samuel Washington Bulgin, QC is an exemplary public servant and an exceptional lawyer. Seven years plus as being legal advisor to the Cabinets I have led he has never once led us wrong on any issue of consequence. Even when others, including some on the other side of the House have criticized him, railed against his interpretation. I remember when the Grand Court judgement came down in this matter. The poor AG got it wrong. Even when the governor felt we should not appeal that decision, the attorney general in his quiet diplomatic way said I think it’s wrong. The case with the referendum law. I heard people on the other side cheering when the government lost that because I’m hoping they simply didn’t understand the implications for this House had that judgement stood. The AG says I think it’s wrong. We went to the UK. We sat around the table in Blackstone Chambers and certain lawyers said we shouldn’t pursue it and he said I disagree with you. I think it’s wrong. That’s a man as they used to say in those old western books that I used to read when I was a boy, a man to ride the river with.

I thank him. I thank his staff; exceptionally exemplary people who have worked so hard through this COVID-19 pandemic on everything we needed from regulations to this issue on those appeals, I don’t want to start calling names because I will leave someone out. Reads the names: Reshma, Celia, Darlene, Cheryl and Jose. They are unsung, unheralded, but this country is blessed to have that quality of legal advice and it’s not just advice. It’s the willingness to go the extra 10 miles to make sure to get it right.

I also want to thank my Cabinet colleagues for all of their hard work over all these years and all the difficult decisions that we make in Caucus and Cabinet every week. We don’t always agree, but that is why I think the government has been as good as it has been because I never learn from someone who agrees with me. Someone who causes me to think about what they’ve said and even to argue with them does help.

So this has been for me a disappointing and unhappy ending for this bill but as the AG has said to me, the sun will come up tomorrow.
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Individual rights are not subject to a public vote; a majority has no right to vote away the rights of a minority.

Ayn Rand
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