justices concluded that, by redrawing elec- invalidity, the same question of its temporal Court vacancy may not
ancy may not occur before 2028.
toral boundaries during a municipal election
without serious justification, the Act violated
citizens’ rights in the electoral process to en-
gage in political discourse.
3. R v Albashir: Temporal Effects of Judicial
Invalidations of Laws
In 1985, the Supreme Court of Canada ren-
dered a landmark judgment in Reference
re Manitoba Language Rights12 in which it
declared that all the laws passed by the pro-
vincial legislature of Manitoba since 1890
were unconstitutional because they had not
been enacted in both English and French as
required by the Constitution. However, to
prevent the province from descending into
a lawless state, the Court created a new
constitutional remedy, the suspended dec-
laration of invalidity, whereby the normal
effects of a declaration of invalidity would
be temporarily suspended to give the legis-
lature an opportunity to remedy the consti-
tutional infirmity.
Since the Supreme Court’s 1985 reference
case, suspended declarations of invalidity
have become a staple of the Canadian law
of constitutional remedies. In a recent case,
the Court catalogued 23 decisions where it
had issued a suspended declaration of inva-
lidity of a law held to violate the Charter.13
One such instance was in Canada (AG) v
Bedford,14 where the Court struck down the
offence of living on the avails of sex work
because it prevented sex workers from ac-
cessing security-enhancing safeguards, such
as drivers and bodyguards, thus violating sex
workers’ s 7 Charter right to security.
In Albashir, the appellants were charged
with the offence of living on the avails of sex
work after it was struck down in Bedford.
More specifically, at the time of the indict-
ments, the period of suspension set in Bed-
ford had expired although the offences had
been committed during that period. In a ma-
jority judgment, Karakatsanis J reiterated the
general principle that, unless stated other-
wise by the issuing court, a judicial declara-
tion of invalidity is retroactive, subject to ex-
ceptions such as the principle of res judicata.
In the context of a suspended declaration of
character arises as well. When a court did not
specify whether its suspended declaration
of invalidity would operate retroactively or
prospectively, the subsequent determination
of the suspension’s temporal effects must
be made by examining its purpose, namely
protection of a compelling public interest.
Karakatsanis J added that: ‘[i]f retroactivity
would undermine that purpose, the declara-
tion must apply purely prospectively.’
Applying the principles to the facts of the
case, Karakatsanis J stated that the purpose
of the suspension of the declaration of inva-
lidity in Bedford was the protection of sex
workers. Interpreting that declaration as ret-
roactive would amount to conferring crim-
inal immunity to exploitative pimps during
the suspension. Therefore, Karakatsanis J
held that the declaration of invalidity in Bed-
ford operated prospectively. To the extent
that the prospective character could leave
certain persons liable to prosecution solely
because they helped ensure the protection of
sex workers, Karakatsanis J observed that
they could be entitled to an individual ex-
emption under s 24(1) of the Charter.
In a dissenting opinion, Rowe J (Brown J
agreeing) interpreted the declaration of inva-
lidity in Bedford to operate retroactively, in
the absence of a clear statement to the con-
trary by the Court in Bedford.
IV. LOOKING AHEAD
Having reached mandatory retirement age,
Moldaver J will retire from the Supreme
Court in September 2022. Between 2008
and 2015, the Conservative government of
Prime Minister Harper was generally able
to steer the Court to the right through seven
appointments.15 The current Court looks to
be evenly divided on the political spectrum
with the Chief Justice seemingly acting as
somewhat of a swing vote. In this context,
PM Trudeau’s next pick to replace one of
the four right-leaning justices will be all the
more crucial and may provide the left-lean-
ing wing of the Court with a more consis-
tent fifth vote. Thereafter, the next Supreme
Among the upcoming Supreme Court cas-
es of particular interest is Québec (AG) v
Bissonnette, which will examine the con-
stitutionality of the life sentence without
parole that would have been applicable to
the respondent, a university student, who
opened fire in a mosque in 2017 during Sun-
day prayer, killing six persons and injuring
a dozen. In all likelihood, the constitutional
challenge of the Laicity Act (Bill 21) will
eventually end up before the Supreme Court.
One can also expect a constitutional chal-
lenge of the language law reform (Bill 96) as
soon as it is enacted.
Finally, we surely have not seen the last of all
the legal repercussions of the pandemic. On
February 14, 2022, for the first time in over
half a century, the Trudeau government de-
cided to invoke the Emergencies Act (which
replaced the War Measures Act in 1988) to
put an end to the blockades by, and protests
of, the self-proclaimed ‘Freedom Convoy’.
V. FURTHER READING
J Borrows, La Constitution autochtone du
Canada (Presses universitaires du Québec
2021), transl. Canada’s Indigenous Consti-
tution (University of Toronto Press 2010)
Y Boyer and L Chartrand, Bead by Bead:
Constitutional Rights and Métis Community
(UBC Press 2021)
I Loveland, British and Canadian Public
Law in Comparative Perspective (Hart Pub-
lishing 2021)
M Valois and others (eds), The Federal Court
of Appeal and the Federal Court: 50 Years
of History (Irwin Law 2021); Cour d’appel
fédérale et Cour fédérale: 50 ans d’histoire
(Presses de l’Université de Montréal 2021)
JHA Webber, The Constitution of Canada: A
Contextual Analysis (Hart Publishing 2021)
2021 Global Review of Constitutional Law | 63
1 See s 49(5) of the Parliament of Canada Act.
2 2021 ONSC 4076.
3 Working Families Coalition (Canada) Inc v Ontar-
io, 2021 ONSC 769.
4 In 2018, Saskatchewan enacted an override in
response to a decision from the Court of Queen’s
Bench, but the law never came into force after the
judgment was overturned on appeal.
5 2021 QCCS 1466.
6 Parliament’s emergency power constitutes the
second prong and only allows for the adoption of
temporary legislation.
7 [1988] 1 SCR 401.
8 WR Lederman, ‘Classification of Laws and the
British North America Act’ in WR Lederman (ed),
The Courts and the Canadian Constitution (McLel-
land and Stewart 1964) 193, cited with approval in
Multiple Access Ltd v McCutcheon, [1982] 2 SCR
161, 181.
9 While Brown and Rowe JJ wrote lengthy sep-
arate opinions, both concurred with each other’s
reasons. Côté J agreed with Wagner CJ’s reformu-
lation of the national concern test, but refused to
consider the establishment of national standards
of price stringency as a matter of national concern
‘because the breadth of the discretion conferred
by the Act on the Governor in Council results in
the absence of any meaningful limits on the power
of the executive’ (para 222).
10 Prior to his entry into provincial politics earlier
that year, Mr Ford had served one term as a To-
ronto City councillor and later unsuccessfully ran
in the 2014 mayoral election when his brother, Rob
Ford, who was the incumbent mayor, withdrew his
candidacy due to health and other personal rea-
sons before passing away later that year.
11 PW Hogg and WK Wade, Constitutional Law of
Canada (5th edn Carswell, 2007), 15-51 (looseleaf
edn). The authors appear to have borrowed the
definition by TC Grey ‘Do We Have an Unwritten
Constitution?’ (1975) 27 Stan L Rev 703, 703-04.
12 [1985] 1 SCR 721.
13 See Ontario (AG) v G, 2020 SCC 38 [118], re-
viewed in H-R Zhou and D Pomerleau-Normandin,
‘Canada’, in R Albert et al (eds), The 2020 I·CON-
nect-Clough Center Global Review of Constitu-
tional Law (2021) 49, 51-53.
14 [2013] 3 SCR 1102.
15 Strictly speaking, the Harper government made
eight Supreme Court appointments, but its first
appointee in 2006, Justice Marshall Rothstein,
was announced only four days after PM Harper
took office and following a selection process com-
pleted under the previous Liberal government.

64 | I•CONnect
 Cayman Islands
Dr Prashant Sabharwal
Lecturer in Comparative and European Constitutional Law
Maastricht University
I. INTRODUCTION
The Cayman Islands are a British Overseas
Territory, first discovered by Christopher Co-
lumbus in 15031 consisting of three islands,
Grand Cayman, Cayman Brac and Little Cay-
man. The governance of the islands is based
on the authority granted by the West Indies
Act 1962.2 The Constitution of the Cayman
CAYMAN ISLANDS Islands is contained in the Cayman Islands
Constitution Order 2009. The 2009 Constitu-
tion introduced a legally enforceable Bill of
Rights for the first time in the history of the
overseas territory.3 Like other overseas ter-
ritories, the Cayman Islands have their own
government, legislature and court system,
all modeled (naturally for a British overseas
possession) on the system of government of
the United Kingdom.4 In concrete terms, the
Cayman Islands has a government headed
by the Governor (the representative of the
British monarch in his/her physical absence
from the Cayman Islands, with the Governor
ordinarily being a career diplomat with the
UK Foreign & Commonwealth Office) and
the Premier – who also heads the cabinet. The
Premier, similar to the UK Prime Minister,
depends on the confidence of the Cayman Is-
lands legislature for staying in office. Finally,
the Cayman Islands also disposes of its own
court system, with the highest courts being
the Grand Court and the Court of Appeal.
The Cayman Islands recently enacted a
constitutional reform programme, which
builds on the previous modernization of the
constitutional order of the country over the
past decade. Further, the courts of the Cay-
man Islands have grappled with both the
COVID-19 pandemic and the charged dis-
cussion around the possible introduction of
equal marriage in the Overseas Territory.
II. MAJOR CONSTITUTIONAL
DEVELOPMENTS
Constitutional Reform
The Cayman Islands witnessed substantial
efforts towards constitutional reform come to
fruition on 3 December 2020, when the Cay-
man Islands Constitution (Amendment) Or-
der 2020 went into effect. The constitutional
reform programme was essentially a benefi-
ciary of the United Kingdom Government’s
2012 White Paper The Overseas Territories:
Security, Success and Sustainability.5 The
White Paper, three years after the Cayman
Islands enacted an entirely new constitution
via the Cayman Islands Constitution Order
2009, was the result of wide-ranging pro-
cess of negotiation between Cayman Islands
elected officials and the British government,
as well as consultations with the citizens of
the Overseas Territory – it was the 2009 con-
stitution that introduced a fundamental rights
charter for the first time.6
However, with the need for further renewal
evident throughout the 2010s, a cross-party
delegation from the Cayman Islands nego-
tiated the elements of constitutional reform
with the United Kingdom Government in
December 2018. Controversially, a major
concern of elected officials in the Cayman
Islands, namely the residual authority vested
in the Governor by virtue of section 81 of the
Cayman Islands Constitution, was left unad-
dressed by the Amendment Order. Under the
2021 Global Review of Constitutional Law | 65
section 81 reserve power, the Governor of
the Cayman Islands can effectively impose
legislation against the will of the local legis-
lature (now renamed “Parliament” under the
amendment order) – with this power having
been controversially exercised by Governor
Martyn Roper in relation to the Domestic
Partnerships Bill, which was narrowly re-
jected by a 9-8 vote by the Cayman Islands
Legislative Assembly in July 2020. In put-
ting the new Civil Partnerships Bill (as the
legislation had been renamed in response to
consultations following the rejection of the
original proposal) into effect, the governor
referred to his duty to comply with instruc-
tions issued by the United Kingdom Gov-
ernment in compliance with section 31(2) of
the Cayman Islands Constitution. In Septem-
ber 2019, the Constitutional Commission, a
three-person statutory body appointed under
the Cayman Islands Constitution to advise
the Cayman Islands Government on consti-
tutional matters, assessed the merits of pro-
posals aiming to abolish the gubernatorial re-
serve power. In this regard, the Commission
noted that Bermuda, another British overseas
territory, had eschewed royal reserve pow-
ers in preparation for independence at some
point in the future. However, even bearing
that context in mind, the Commission opined
that “[t]he preferable approach would be to
consider whether such wide-ranging reserve
powers continue to be appropriate in the
context of a modern constitutional partner-
ship between the United Kingdom and an in-
creasingly sophisticated and mature overseas
territory, such as the Cayman Islands”.7
In this context, the Commission contemplated
alternatives to a complete abrogation of the
gubernatorial reserve power, offering its view
that specifying the concrete circumstances in
which the power could be invoked would go a
long way towards “bring[ing] some clarity to
the concept of ‘peace, order and good govern-
ment’, which is, as it stands, somewhat nebu-
lous and conceivably open to an excessively
broad interpretation”.8 Another area reviewed
by the Constitutional Commission was the
United Kingdom Government’s power of dis-
allowance, permitting it to override the Legis-
lative Assembly. In this regard, the Constitu-
tional Commission noted that the same power
had been removed for the overseas territory
66 | I•CONnect
of Gibraltar, and furthermore acknowledged
that the disallowance power amounted to a
countermanding of the popular will. What is
remarkable about the Constitutional Commis-
sion’s response in general is its use of com-
parisons between the Cayman Islands and the
constitutional orders of other British Overseas
Territories to draw conclusions for its own de-
velopment. This is essentially the approach
that was also adopted by the Cayman Islands
Government in advocating for the constitu-
tional reform package.9
The Constitution (Amendment) Order 2020
generally sought to enhance the constitu-
tional autonomy of the Cayman Islands by
tackling a range of issues. Even though the
residual authority of the governor under sec-
tion 81 of the Cayman Islands Constitution
was retained, the disallowance authority was
scrapped with the new constitutional reform
package.In a related matter, the Governor
retains his authority under section 55 of the
Cayman Islands Constitution, which assigns
the competence for external affairs, defence
and internal security to him.10 In the process,
the new constitutional arrangement opted
for dispensing with the vestigial capacity of
the Governor, ordinarily a career diplomat
appointed by the UK Foreign & Common-
wealth Office, to veto legislation enacted
by the Cayman Islands Parliament if the
Governor deemed a veto to be in the “best
interests of Her Majesty’s Government”.
Additionally, the Constitution (Amendment)
Order 2020 also opted for a clarification of
the autonomous capacity of the Cabinet of
the Cayman Islands in relation to domestic
affairs11 and restricted the Governor’s abil-
ity to take actions without consulting with
Cabinet first. In addition, the Constitution
(Amendment) Order 2020 also reworded
section 32(5) of the Constitution, which hith-
erto had used to place any action of the Gov-
ernor taken in pursuance of the advice giv-
en by the UK Government beyond judicial
review. More importantly, the amendments
inserted into the Constitution by virtue of
the new subsections (5) to (8) of section 32
essentially obliges the Governor to consult
the Cabinet on foreign policy, defence, in-
ternal security and the public service – four
matters that had been within the exclusive
purview of the Governor. According to the
new Constitution (Amendment) Order 2020,
if Parliament seeks to introduce new legisla-
tion falling within these gubernatorial com-
petences, then the Governor must consent.
In the event of a dispute about the ambit of
these gubernatorial powers, the Premier of
the Cayman Islands may refer such a dispute
to a Secretary of State whose ruling will be
final.12 Further, the Constitution also estab-
lishes a duty on part of the Foreign and Com-
monwealth Secretary to inform the Premier
of the Cayman Islands of proposed primary
or secondary legislation whose application
may be extended to the Cayman Islands.13
Furthermore, the amended Constitution also
features a new institution, the Police Service
Commission, whose primary task is to ad-
vise the Governor on the appointment of per-
sonnel to offices within the Cayman Islands
police.14 Finally, the new Constitution also
enables institutional adjustments to the func-
tioning of the Cayman Islands Government –
providing for an additional Cabinet member,
and establishing the roles of Parliamentary
Secretaries to assist Cabinet in the discharge
of its functions.15 Overall, one can observe
that the new constitutional arrangements for
the Cayman Islands reflect an evolution in
the relationship between the Overseas Terri-
tory and the United Kingdom – and it will
remain to be seen whether this will trigger
a desire for broader autonomy and, as per
then-Premier Alden McLaughlin, perhaps
independence from the United Kingdom.16
COVID-19 Vaccine Mandate
The Cayman Islands Parliament enacted two
pieces of legislation, the Immigration (Tran-
sition) (Amendment) Act 2021 and the Cus-
toms and Border Control (Amendment) Act
2021, which effectively introduced a vacci-
nation requirement for work permit holders,
as well as their dependents.
III. CONSTITUTIONAL CASES
1. Tyler and Dione Anglin v Governor of the
Cayman Islands (Propriety of Coronavirus
Isolation Orders)
The coronavirus pandemic has also affect-
ed the Cayman Islands. Like other jurisdic-
tions, the Cayman Islands imposed strin-
gent restrictions on the entry of visitors to
the Overseas Territory, while also imposing
mask-wearing mandates, isolation, quaran-
tine orders, as well as testing requirements.
The present case involved an 8-year-old
schoolboy who had contracted the corona-
virus disease and was subsequently ordered
by the Cayman Islands health authorities to
isolate for four weeks. According to Cayman
Islands regulations, the only way to be re-
leased from isolation is through presentation
of a negative PCR test, a policy that its critics
contend may contravene the civic liberties of
the citizens of the Cayman Islands to a dis-
proportionate degree, as it frequently results
in isolation periods exceeding a month.17
Despite the quarantine period being having
been shortened, a negative PCR test remains
a prerequisite for release from isolation.18
The applicant contended that undergoing re-
peated PCR tests over a span of four weeks
in order to receive authorization to end iso-
lation was unreasonable and disproportion-
ate. Additionally, the applicant also argued
that the enhanced sensitivity of PCR tests
might lead to a “false positive”, even if an
individual is no longer infectious. In effect,
the complainant is seeking a quashing of the
PCR exit test policy by the Cayman Islands
Grand Court.19 The outcome of the case is
pending at the time of the publication of this
country report.
2. Day and Another v Government of the
Cayman Islands and Another: Privy Council
Ruling on the Constitutionality of Same-Sex
Marriage Ban
The Privy Council, which is the highest ap-
peals court for the Cayman Islands, handed
down a ruling20 on the issue of equal mar-
riage which has proven controversial in the
Overseas Territory, especially as a result of
the Governor’s use of his residual powers
(see also Major Constitutional Develop-
ments) to unilaterally enact the Civil Part-
nership Bill, despite the Cayman Islands
Legislative Assembly’s (narrow) opposition
to the proposed legislation. The appellants
had been in a committed same-sex relation-
ship and sought to enter into a legally recog-
nized marriage in the Cayman Islands.21 This
desire to obtain a marriage licence was de-
nied by the General Registry, which justified
the denial on the basis of the local marriage
legislation in the Cayman Islands, which de-
fines marriage as a union between a man and
a woman.22 The appellants subsequently filed
proceedings and argued that the Cayman Is-
lands constitution essentially recognized the
right to same-sex marriage, that the rights
of the appellants under the Cayman Islands
Bill of Rights, Freedoms and Responsibil-
ities (contained within the Cayman Islands
constitution, and closely modelled along the
lines of the European Convention of Human
Rights23) had been infringed upon and, there-
fore, the relevant marriage legislation had to
be interpreted in conformity with the Bill
of Rights. In concrete terms, the appellants
focused their argument on three provisions
in the Bill of Rights, namely sections 9, 10,
14, and 16 (dealing with private and family
life, freedom of conscience, marriage and
non-discrimination, respectively).24 With
the Court of Appeal of the Cayman Islands
reversing a contrary ruling of the Grand
Court, and thus confirming the prohibition
of same-sex marriage in the Overseas Terri-
tory on the basis of jurisprudence of the Eu-
ropean Court of Human Rights25, it fell on
the Privy Council to rule on this issue. Es-
sentially, the issue that the Privy Council had
to rule on boiled down to a single question:
Could the appellants derive a right to marry
from the provisions of the Cayman Islands
Bill of Rights? If so, was the Grand Court
right to construe the Cayman Islands con-
stitution as permitting same-sex marriage?26
In their submissions, counsel for the appel-
lants maintained that the Cayman Islands
constitution did not expressly exclude the
right to same-sex marriage, that the belief of
the appellants in the institution of marriage
was interfered with by virtue of the legal
prohibition, and that (also due to the lack
of reasonable grounds to exclude same-sex
marriage) the appellants were being discrim-
inated against.27 In response, counsel for the
Cayman Islands Government advanced the
argument that section 14(1) of the Cayman
Islands constitution effectively constituted
a lex specialis, as it provided for a right to
right to marry in specific terms, thus exclud-
ing (in this case) the possibility of same-sex
marriage within the framework provided by
the Cayman Islands Bill of Rights.28 Given
that section 14(1) already defines the terms
of the right of marriage, this (as per the sub-
mission of the Cayman Islands Government)
excludes reliance on other, more general
provisions in the Cayman Islands Consti-
tution to circumvent the lex specialis.29 In
the event, the Privy Council agreed with the
line of argument advanced by the Cayman
Islands Government. 30 In essence, the Privy
Council essentially followed the judgment of
Lord Hoffmann’s judgment in a case involv-
ing the interpretation of the Constitution of
Mauritius31, in which it was held that con-
stitutional interpretation had to be carried
out with substantial fidelity to the constitu-
tional text, lest “the result is not interpreta-
tion but divination”.32 Concluding that the
ECHR does not contain a right to same-sex
marriage33, the Privy Council proceeded to
assert that the context of the proclamation
of the Cayman Islands constitution in 2009
needed to form a prominent consideration in
a process of the purposive interpretation of
the constitution.34 Consequently, the multi-
ple references to the prominent role of Chris-
tianity in the Cayman Islands constitution35
essentially informed the understanding of
section 14(1) of the constitution being solely
applicable to opposite-sex marriages – with
interpretations seeking to read such a right
into the Cayman Islands constitution being
squarely contrary to the will of the consti-
tutional framers.36 Even though not essential
to its reading of the local marriage legisla-
tion, the Privy Council further cited support
from the ECHR and its underpinning juris-
prudence to establish the proposition that the
Privy Council’s interpretation was in con-
formity with the Convention.37 Moreover,
the Privy Council deemed it unnecessary
to refer to the travaux préparatoires of the
Cayman Islands Constitution, notwithstand-
ing comments made by a Foreign & Com-
monwealth Office civil servant essentially
outlining that section 14 of the constitution
had made no determination about the nature
of marriage.38 In this regard, the Privy Coun-
cil emphasized that when the Cayman Is-
lands population voted to enact the constitu-
tion in a 2009 referendum, the travaux were
not part of the material provided to citizens
– hence, the Privy Council did not believe
that the comments made by aforesaid civil
servant, Mr. Ian Hendry, should be regarded
2021 Global Review of Constitutional Law | 67
as an interpretative aid in understanding the
intent of the Cayman Islands Constitution.39
In its concluding comments, the Privy Coun-
cil emphasized that it was for the Cayman
Islands Parliament to recognize same-sex
marriage, as opposed to deriving such a right
from the text of the Constitution.40
The ruling thus firmly pushed the issue of
same-sex marriage back into the political
square, and it remains to be seen whether
any of the current political stakeholders will
be willing to advocate for marriage rights
of same-sex couples in the Cayman Islands.
Furthermore, the Day litigation has also
raised questions in relation to three aspects:
first, the (constitutional) functions of appel-
late courts and their analyses of contentious
constitutional issues; second, the interac-
tions between Parliament and the courts (es-
pecially when the latter are called upon by
minority interests to restrain parliamentary
action); third, the use of the gubernatorial
reserve powers under section 81.
man Islands Government and its citizens.
The Constitutional Commission also iden-
tified residual issues remaining even after
the 2020 constitutional reform: among these
are questions about the amendment proce-
dure for the Cayman Islands Constitution
(which, at present, does not require approval
of amendments via a territorial referendum).
In principle, the United Kingdom Govern-
ment has indicated that ordinarily it would
be amenable to the idea of the citizens of
the Cayman Islands approving “substantial”
constitutional amendments – however, re-
serves for itself the right to refuse honouring
a referendum result (conceivably, if a con-
stitutional amendment were to expressly vi-
olate human rights, for example).41 Another,
more minor, issue brought to public attention
by the Constitutional Commission concerns
the establishment of Advisory District Coun-
cils aimed at advising the Members of Par-
liament, as per section 119 of the Cayman
Islands Constitution.42

V. FURTHER READING
IV. LOOKING AHEAD
Cayman Islands Constitutional Commission,
2022 has already witnessed an adjustment
Constitution Day Update, 5 July 2021
to the applicable COVID-19 rules, transi-
tioning the Cayman Islands towards less
restrictive rules (subject, of course, to any
further developments in the pandemic that
may necessitate a return to more restrictive
regulations). A general vaccine mandate ap-
pears unlikely, also given the opposition of
substantial segments of the electorate. It will
also be interesting to see whether the recent-
ly elected government of Premier Wayne
Panton (consisting of Independent MPs) will
be able to retain office, given the heteroge-
nous nature of the members of Parliament
providing Panton with a 11-7 working ma-
jority. Apart from cases pending before the
courts on the propriety of COVID-19 legis-
lation, there is another case pending before
the courts on the exercise of the Governor’s
section 81 power in relation to the introduc-
tion of same-sex civil partnerships (over the
express opposition of the then-Legislative
Assembly). The outcome of these proceed-
ings will arguably also have constitutional
ramifications, especially the role of Gover-
nor and the relationship between the Cay-

68 | I•CONnect
1 Ian Hendry and Susan Dickson, British Over- 19 “Child sues government over lengthy iso-
seas Territories Law (Oxford University Press lation” (Cayman News Service, 28 February
2018), 336. 2022), accessed at: https://caymannewsservice.
2 West Indies Act 1962, s. 5(1) and (2). com/2022/02/child-sues-government-over-
3 Hendry and Dickson (n 1), at 338. lengthy-isolation/
4 Hendry and Dickson (n 1), at 339. 20 Chantelle Day and Another v The Governor of
5 Foreign and Commonwealth Office, The Over- the Cayman Islands and Another [2022] UKPC 6
seas Territories: Security, Success and Sustain- (“Day and Another”).
ability, Cm 8374, (28 June 2012) 21 Day and Another (n 20), para 21.
6 Cayman Islands Constitution Order 2009, S.I. 22 Day and Another (n 20), para 23.
2009/1379 (10 June 2009), s.4, read with Schedule 23 Day and Another (n 20), paras 3 and 11.
2; William Vlcek, “Crafting human rights in a con- 24 Day and Another (n 20), para 24.
stitution: Gay rights in the Cayman Islands and the 25 Primarily Schalk and Kopf v Austria (2011) 53
limits to global norm diffusion”, 2(3)Global Consti- EHRR 20 and Hämäläinen v Finland (2014) 37
tutionalism (2013), 345-372, 357; see also Vaughan BHRC 55. However, it is worth noting that follow-
Carter, “Evlauating the Cayman Islands Bill of ing Olliari v Italy (2017) 65 EHRR 26, the Court of
Rights, Freedoms and Responsibilities: More Evo- Appeal held that the lack of an alternative to a
lution than Revolution”, 4 Tax A&M L. Rev. 385-415, marriage, such as a civil partnership, in the legal
framework of the Cayman Islands constituted a
390, pointing out that the very idea of human rights
violation of
was questioned as a Western construct by oppo-
26 Day and Another (n 20), para 28.
nents of marriage equality in the Cayman Islands.
27 Day and Another (n 20), para 29.
7 Constitutional Commission’s Responses to Re-
28 Day and Another (n 20), para 30.
quests for Comments on Potential Revisions to
29 Ibid.
the Cayman Islands Constitution 2009, 27 June
30 Day and Another (n 20), para 33.
2018, accessed at https://cnslibrary.com/wp-con-
31 Matadeen v Pointu [1999] 1 AC 98.
tent/uploads/Constitutional-Commission-Re-
32 State v Zuma, 1995 (4) BCLR 401, 412, per
sponse-to-CIG-re-Potential-Constitutional-Revi-
Kentridge AJ.
sions-27-June-2018.pdf
33 Day and Another (n 20), para 34.
8 Ibid.
34 Day and Another (n 20), para 36.
9 Explanatory Memorandum to the Cayman Is-
35 Most notably, the reference of the preamble
lands Constitution (Amendment) Order 2020, para
to the territory’s “Christian heritage” and intent to
7.2, accessed at https://www.legislation.gov.uk/
be “[a] God-fearing country, based on traditional
uksi/2020/1283/pdfs/uksiem_20201283_en.pdf
Christian values” and “[a] community protective
10 Section 55(1)(a) to (d) of the Cayman Islands
of traditional Caymanian heritage and the family
Constitution.
unit”, as well as s. 1(2)(a) of the Constitution,
11 Section 44(5) of the Cayman Islands Consti-
which represents the incorporation of “Christian
tution, as amended by the Constitution (Amend-
values” in Part I of the Constitution (namely the
ment) Order 2020.
Bill of Rights).
12 Sections 77(4) and (5) of the Cayman Islands
36 Day and Another (n 20), paras 39-40 and 43.
Constitution, as inserted by the Constitution
37 Day and Another (n 20), para 50.
(Amendment) Order 2020.
38 Day and Another (n 20), paras 5 and 57.
13 Section 126(1) of the Cayman Islands Consti-
39 Day and Another (n 20), para 57.
tution, as amended by the Constitution (Amend-
40 Day and Another (n 20), para 59.
ment) Order 2020.
41 Cayman Islands Constitutional Commission,
14 Sections 58A and 58B of the Cayman Islands
Constitution Day Update, 5 July 2021, accessed
Constitution, as inserted by the Constitution
at: https://www.caymancompass.com/wp-con-
(Amendment) Order 2020.
tent/uploads/2021/07/Constitutional_Commis-
15 Section 44(1)(b) of the Cayman Islands Consti-
sion_2021_Update_-Final-_compressed_file_for_
tution, as amended by the Constitution (Amend-
websit....pdf
ment) Order 2020.
42 Cayman Islands Constitutional Commission,
16 Premier’s Statement as Parliament Opens (5
Constitutional Commission Conclusions and Rec-
December 2020), with Premier McLaughlin stating
ommendations: Advisory District Councils (15
verbatim: “I have said before, and I say again this
October 2021), accessed at: https://www.consti-
afternoon, that I regard Independence for Cayman tutionalcommission.ky/upimages/publicationdoc/
to be as inevitable as my own death but like my Enclosure1-ConstitutionalCommissionConclu-
own death, I hope it not to be soon.For the imme- sionsandRecommendationsonAdvisoryDistrict-
diate future, I believe Cayman’s best interests are Councils_151021_1643925864_1643925864.pdf
served by staying as a member of the United King-
dom family. Not just our economic success but our
culture and traditions are bound up in being part of
the UK family”. Accessed at: https://www.gov.ky/
news/press-release-details/premier’s-parliamen-
tary-opening-statement
17 James Whittaker, “Extended ‘house arrest’ for
COVID cases could breach human rights” (Cay-
man Compass, 20 January 2022), accessed at:
https://www.caymancompass.com/2022/01/20/
extended-house-arrest-for-covid-cases-could-
breach-human-rights/
18 Guidance for Deployment of Lateral Flow Tests
(Cayman Islands Government, 29 October 2021),
p. 7.

2021 Global Review of Constitutional Law | 69

 Chile
Catalina Salem
Universidad del Desarrollo

Iván Aróstica
Justice of the Chilean Constitutional Court

Marisol Peña
Universidad del Desarrollo

Nicolás Enteiche
Universidad del Desarrollo
CHILE
Sergio Verdugo
Universidad del Desarrollo

I. INTRODUCTION II. MAJOR CONSTITUTIONAL

DEVELOPMENTS
Our previous reports, starting from 2019,
had informed about the constitution-making
On May 15 and 16, 2021, Chilean citizens
process that is taking place in Chile. 2021
elected the members of the Constitutional
was an important year for that process, as
Convention, which started to operate in July.
the members of the Constitutional Conven-
As we reported previously, the 2019 consti-
tion were elected. In the section on “Major
tutional amendment included the constitu-
Constitutional Developments,” we summa-
tion-making process’ main rules in the Con-
rize the process, and we focus on the elec-
stitution. That amendment was the result of
tions of the Convention and on some of its
the response that political parties agreed to the
recent developments. The reader should be
protests that took over the street in October
aware, though, that the constitution-making
of that year.1 In a nutshell, the process would
process is still ongoing, and that a consti-
include an entry plebiscite, a Convention with
tutional referendum (Chileans call it exit
the task of drafting a constitutional proposal,
plebiscite) is supposed to take place on
and an exit plebiscite that was going to reject
September 4, 2022, to approve or reject the
or confirm the Convention’s proposal. After
constitutional proposal that the Convention
Congress approved the political agreement
will present. The rest of the report focuses
in December of 2019, legislators introduced
on the activity of the Chilean Constitutional
rules to benefit independent candidates and
Court (Tribunal Constitucional de Chile –
implemented an electoral parity rule for the
henceforth the CC). We select some cases to
election of the members of the Convention.2
illustrate how the CC has continued to be a
Then, the entry plebiscite took place in Octo-
consequential court that is sometimes at the
ber of 2020 and, after a large majority of Chil-
center of major constitutional debates, de-
ean voters had supported the constitutional re-
spite the continuous criticisms that the CC
placement agenda, and had also voted in favor
has received, and the numerous proposals
of establishing an elected Constitutional Con-
that attempt to remove it or modify its pow-
vention—as opposed to a mixed convention
ers and organizational rules.
partly appointed by the Congress—Chilean
legislators introduced other modifications to
the process. The most important modification

70 | I•CONnect