A Special: Part 5
Does a judge have a just power to overturn the specific provisions of a Constitution?
BRADES, Montserrat, March 30, 2019 – On Friday, March 29, 2019, Cayman Islands Chief Justice Anthony Smellie, QC reportedly ruled[1] that “marriage means the union between two people as one another’s spouses.” In doing so, he tried to establish what has been called “same-sex marriage”[2]; but, at the cost of precipitating[3] a needless, Caribbean-wide – arguably, Commonwealth-wide – constitutional crisis. That’s why the Cayman Government has protested: “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.” It adds: “[t]his, we believe, might be inconsistent with the separation of powers by trespassing on the constitutional remit of this Legislative Assembly,” and it is appealing the judgement.
This is because Justice Smellie claimed to act under colour of “rights” that have been violated, then dismissed historic or traditional views as prone to “inequities,” further holding that “neither tradition nor religion could form the ‘rational basis for a law’.” He also (tellingly) asserted that “it was settled case law that the court has the power to make legislation which breaches the constitution.”
Yes, Justice Smellie did plainly say or imply that “the court has the power to make legislation” and – even worse – that such new laws (issued by unelected judges!) can breach provisions of a Constitution. Nor does the claim[4] that “[i]t doesn’t say you can’t add the right of other people to enjoy those rights [of marriage]” change the pivotal fact that one is – by the obvious implications of “add” – amending a Constitution from the judge’s bench. Such, in the teeth of the known democratic intent of both the Legislature and the people of Cayman.
This is dangerous judicial over-reach and must not stand unchallenged. (Indeed, if it is so that “settled case law” backs the judge, it only implies that the danger is even more urgent, more clear and present.)
For, such an imposition threatens the general legitimacy of constitutional democratic government under the rule of law. Indeed, a claim that courts have Constitution-breaching, law-making power is manifestly a serious, anti-democratic judicial over-reach. One, that is obviously in contempt of Parliament, people and Constitution alike. (Indeed, this case may be grounds for establishing that our judges must now be subject to impeachment for contempt of Parliament, people and Constitution.)
But, but, but . . . shouldn’t the judiciary be independent?
Yes, judges are indeed independent. But, not so independent that they – being unelected and not accountable to voters – can strike down and replace actual specific Constitutional provisions as they wish, rather than soundly interpreting and applying the duly established Constitutional law. In a Constitutional Democracy, for very good reasons, the Constitution is democratically established as the supreme law of the land and it should only be amended or replaced through a proper democratic process. Therefore, judges simply cannot have a legitimate power to unilaterally amend a constitution.
Now, the Cayman Constitution’s Section 14 has already specifically recognised the historic, Creation order based, naturally evident definition of marriage: “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.” Where, no, this historic understanding that marriage is based on the naturally evident, creation order based complementarity of the two sexes is not mere bigotry or rights-violating oppression and discrimination comparable to slavery or racism or other age-long abuses. Such a suggestion[5] in the ruling is outrageous. Frankly, it reflects nothing less than utter contempt for the people of the Caribbean. People who historically suffered enslavement, oppression and racism.
Thus, fail.
For, we must have the rule of law (especially, through Constitutions), not rule of men. Therefore, judges simply cannot be allowed to dismiss inconvenient Constitutional provisions through dictating from the judicial bench by decree under colour of law.
Not even, under colour of “rights.”
Rights are an underlying issue: what is a right? Let us therefore recall what was already noted[6] in this special series here at TMR:
“A right is a binding, moral claim that one must be respected and protected due to his or her inherent dignity and worth as a human being. Such worth can only come from our being made in God’s image and “endowed with certain unalienable rights.” Rights, that start with “life.” We are morally governed, conscience-guided creatures who have responsible, rational freedom. Clearly, then, to properly claim a right one must first manifestly be in the right. Indeed, in order to persuade us the FAC expects us to know that we have duties to truth, right reason, prudence, fairness etc. That is, they too understand that we are morally governed creatures. But, such conscience-guided moral government, in the end, has just one credible source: the inherently good, wise, loving creator God.”
Therefore, it is fair comment to point out that those who applauded Justice Smellie’s ruling were inadvertently applauding the destructive subversion, usurpation and undermining of the rule of law through constitutional democracy in the Caribbean and the wider Commonwealth.
The Chinese speak of how a government has a mandate from heaven, which can be lost through folly and failure. That is because governments must be legitimate,[7] they must have what the American founders spoke of as “the consent of the governed.” A government system that undermines and forfeits such legitimacy loses its “just powers” and so faces growing disaffection and the fatal, spreading contempt of ordinary law abiding people.
That is why it is a lesson of history (paid for with blood again and again), that governments that lose legitimacy become tyrannical as they try to impose increasingly unjust power. Such tyrannies will ultimately fail, but that usually costs rivers of blood. Also, as certain neighbouring Caribbean countries show, there is no guarantee that a replacement will be an improvement.
Instead, let us carefully ponder how Jefferson, Adams, Franklin, Washington and the other American founders warned us all, on July 4, 1776:
“We hold these truths to be self-evident, that all men are created
equal, that they are endowed by their Creator with certain unalienable Rights,
that among these are Life, Liberty and the pursuit of Happiness. — That to
secure these rights, Governments are instituted among Men, deriving their just
powers from the consent of the governed, — That whenever any Form of Government
becomes destructive of these ends, it is the Right of the People to alter or to
abolish it, and to institute new Government, laying its foundation on such
principles and organizing its powers in such form, as to them shall seem most
likely to effect their Safety and Happiness.”
Chief
Justice Anthony Smellie, fail. Fail,
through judicial over-reach. Fail, through not understanding that to
properly claim a right, one must manifestly be in the right; on pain of
trying to compel others to taint conscience, ignore sound moral principle and
support one in evil. Fail, through not recognising that reason itself is
inescapably morally governed and that moral government therefore traces to the
inherently good and wise Moral Governor of the universe, our Creator. We
must do better as a region.
[1]See https://caymannewsservice.com/2019/03/legalises-gay-marriage/
[2] See, TMR https://www.themontserratreporter.com/what-is-marriage/
[3] See KY Gov’t http://www.gov.ky/portal/page/portal/otphome/announcements/statement-on-same-sex-marriage-ruling?fbclid=IwAR0m5tvwHvjd6ZPen82RAzmd-zA3Y0fVj172KftvDmaI0H3u1SjdWoReDWo
[4] See https://www.caymancompass.com/2019/04/01/the-issue-explained-a-closer-look-at-the-same-sex-marriage-ruling/
[5] See, https://www.caymancompass.com/2019/03/29/chief-justice-rules-same-sex-marriage-is-legal/
[6] See, TMR: https://www.themontserratreporter.com/fac-report-pushes-for-homosexualisation-of-marriage-how-can-montserrat-respond-reasonably-and-responsibly/
